HomeMy WebLinkAboutCP-21-CR-1192-2008
COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLANIA
:
v. :
:
SHAWN ANDREW :
HAUS :
OTN: L392307-6 : CP-21-CR-1192-2008
IN RE: DEFENDANT’S MOTION TO SUPPRESS
BEFORE OLER, J.
OPINION and ORDER OF COURT
OLER, J., January 15, 2009.
In this criminal case, Defendant has been charged with Possession with
Intent To Deliver a Schedule I Controlled Substance, Possession of a Small
Amount of Marijuana, Possession of Drug Paraphernalia, Firearms Not To Be
Carried without a License, Receiving Stolen Property, and Registration and
1
Certificate of Title Required. For disposition at this time is a motion to suppress
2
filed by Defendant, based upon an absence of Miranda warnings during a period
3
of alleged custodial interrogation.
A hearing on Defendant’s motion was held on December 15, 2008. For the
reasons stated in this opinion, the motion will be denied.
STATEMENT OF FACTS
As the result of an incident on Thursday, January 3, 2008, Defendant was
4
charged with the above-stated offenses. He filed the aforesaid motion to suppress
5
on August 19, 2008.
1
Information filed July 21, 2008.
2
Defendant’s Omnibus Pre-Trial Motion To Suppress, filed August 19, 2008.
3
N.T. 4-6, 25-26, Suppression Hearing, December 15, 2008 (hereinafter N.T. __).
4
Criminal Complaint, filed January 3, 2008.
5
Defendant’s Omnibus Pre-Trial Motion To Suppress, filed August 19, 2008.
The pertinent evidence at the hearing held on Defendant’s motion may be
summarized as follows. At 9:10 p.m. on the said date Officer Brandon K. Bayer of
the Mechanicsburg Borough, Cumberland County, Pennsylvania, police
6
department was dispatched to a certain area in the borough in relation to possible
7
drug activity, observed a vehicle being operated in the area with an expired
8
registration sticker on the license plate, and made a lawful traffic stop based upon
9
this Vehicle Code violation. Upon his approach, Officer Bayer detected a pungent
1011
odor of marijuana emanating from the vehicle, which was owned and operated
1213
by Defendant. One passenger was in the vehicle.
14
A second member of the police department, Sergeant Scott C. Pellman,
15
whose experience in law enforcement included 29 years as a police officer,
arrived on the scene and also detected the marijuana odor emanating from the
1617
vehicle. Under these circumstances, Defendant was not free to leave.
18
Addressing Defendant from the passenger’s side of the vehicle, the
sergeant asked if there was anything in the vehicle which they should know
6
N.T. 6-7.
7
N.T. 8.
8
N.T. 8-9.
9
N.T. 8-9, 25.
10
N.T. 9.
11
N.T. 11.
12
N.T. 10.
13
N.T. 12.
14
N.T. 18.
15
N.T. 19.
16
N.T. 20.
17
N.T. 16.
18
N.T. 21.
2
19
about, in response to which Defendant reached to the vehicle’s console area and
20
handed him a five-inch blue vial containing what appeared to be marijuana.
Two additional officers arrived on the scene and Defendant and the
21
passenger were asked to exit the vehicle. Officer Bayer asked Defendant if the
passenger had anything to do with the vial of suspected marijuana, Defendant
22
answered negatively, and the passenger was permitted to leave.
23
Preparatory to securing the vehicle for impoundment and applying for a
24
search warrant, Officer Bayer asked Defendant: “Is there anything else in the
25
vehicle that I should know about?” Defendant replied that there might be a
26
smoking device in the car.
Defendant was formally taken into custody and placed in the rear of Officer
27
Baker’s police car. Thereafter, the officer filed an application for a search
warrant, setting forth the following in the probable cause affidavit that
accompanied it:
1. Your Affiant is Patrol Officer Brandon Bayer, Mechanicsburg Police
Department. I have been employed with the Mechanicsburg Police
Department since 09/19/2007. Your Affiant is empowered by law to make
application for and execute search warrants relating to violations of the PA
Crimes Codes.
2. On 01/03/2008 officers from the Mechanicsburg Borough Police
Department were dispatched to the area of 400 block West Main Street for
possible drug transactions in progress. Upon my arrival I observed a dark
colored vehicle leaving the area and immediately began to follow. While
following this vehicle I noticed the registration expired 12-07. I initiated a
traffic stop and the vehicle pulled over in the 600 block of West Main
19
N.T. 20.
20
N.T. 11, 20.
21
N.T. 12.
22
N.T. 12.
23
N.T. 13, 17.
24
N.T. 13, 17.
25
N.T. 18.
26
N.T. 12.
27
N.T. 12.
3
Street. The driver was identified through his Pa operators license as Shawn
A. Haus. Haus was in physical control of a blue colored 1988 Chevrolet
Monte Carlo, which displayed PA registration FCC-1603, and Vehicle
Identification Number 1G1GZ11Z9JP1246.
3. This vehicle, according to the records from the PA Department of
Transportation is registered to Shawn A. Haus of 5328 Oxford Circle Apt.
35, Mechanicsburg, PA 17055, where he currently resides.
4. During a traffic stop, I identified myself and explained to the driver the
reason for the stop. I also explained to him that I observed a strong odor of
Marijuana coming from inside his vehicle. The driver Shawn A. Haus
turned over a blue plastic vial containing suspected marijuana. Haus was
then arrested for possession of a small amount of marijuana, and drug
paraphernalia.
5. While securing this vehicle, a soft gun case and ammunition for a
handgun were in plain view in the front passenger compartment near the
front seat. Shawn A. Haus admitted that there is a good possibility of a
marijuana smoking device inside his vehicle. When asked about the gun
case, he denied any ownership of a hand gun. It was at this time we
secured the vehicle.
6. We contacted Roadside Rescue and had the vehicle towed to impound.
7. While doing research it was discovered that Shawn Haus through the
state of Pa is not a registered owner of a hand gun.
8. Based upon the above information, I am requesting that a search warrant
28
be issued to search the above noted vehicle.
Seized in the search pursuant to the resultant warrant were, inter alia, a
leather handgun case with five .38 caliber bullets, a cloth bag containing a glass
smoking device, a .38 caliber revolver, a tin with plastic bags and grinding
29
implements, four plastic bags with drugs and cash, and three cell phones.
DISCUSSION
Statement of Law
Levels of interaction between police and citizenry. The Pennsylvania
Superior Court has noted that there are three levels of recognized interactions
between the police and the citizenry:
. . . The first [level of interaction] is the “mere encounter” (or request
for information) which need not be supported by any level of suspicion,
but carries no official compulsion to stop or respond. The second, an
28
Commonwealth’s Ex. 1, Suppression Hearing, December 15, 2008.
29
Commonwealth’s Ex. 1, Suppression Hearing, December 15, 2008.
4
“investigative detention” must be supported by reasonable suspicion; it
subjects a suspect to a stop and period of detention, but does not involve
such coercive conditions as to constitute the functional equivalent of
arrest. Finally, an arrest or “custodial detention” must be supported by
probable cause. . . .
It is well-established that a forcible stop of a motor vehicle by the
police constitutes a second-level seizure, or “investigative detention,” . . . .
. . . [In addition, there is] the additional authority possessed by the
police to request that the driver and any passengers step out of a vehicle
which is the subject of a traffic stop “as a matter of course,” regardless of
whether the police have a reasonable suspicion that criminal activity is
afoot.
Commonwealth v. Clinton, 2006 PA Super 217, ¶¶9-11, 905 A.2d 1026, 1030
(suppression of evidence by lower court arising out of officer’s question of non-
Mirandized motorist stopped for routine traffic violation as to whether motorist
had any weapons or anything police should be aware of, reversed).
Custodial interrogation and Miranda warnings. The Pennsylvania Superior
Court has discussed the point at which Miranda warnings must be given to a
suspect as follows:
A law enforcement officer must administer Miranda warnings prior to
custodial interrogation . . . The standard for determining whether an
encounter with police is deemed “custodial” or police have initiated a
custodial interrogation is an objective one based on a totality of the
circumstances, with due consideration given to the reasonable impression
conveyed to the person interrogated. . . .
. . . [P]olice detentions become custodial when, under the
circumstances, the conditions and/or duration of the detention become so
coercive as to constitute the functional equivalent of arrest. . . .
The factors a court utilizes to determine, under the totality of the
circumstances, whether a detention has become so coercive as to constitute
the functional equivalent of arrest include: the basis for the detention; its
length; its location; whether the suspect was transported against his or her
will, how far, and why; whether restraints were used; whether the law
enforcement officer showed, threatened or used force; and the
investigative methods employed to confirm or dispel suspicions. . . . The
fact that a police investigation has focused on a particular individual does
not
automatically trigger custody,” thus requiring Miranda warnings.
Commonwealth v. Mannion, 725 A.2d 196, 200 (Pa. Super. Ct. 1999) (citations
omitted) (emphasis in original).
5
Search warrants. Under the federal and Pennsylvania constitutions, a
search warrant must be based upon probable cause and supported by oath or
affirmation. U.S. Const., amend. IV; Pa. Const., Art. 1, §8.
[T]he standard for evaluating whether probable cause exists for the
issuance of a search warrant is the same under both the . . . United States
Constitution and . . . the Pennsylvania Constitution. . . . The task of the
issuing authority is to make a practical, common sense assessment
whether, given all the circumstances set forth in the affidavit, there is a fair
probability that contraband or evidence of a crime will be found in a
particular place.
Commonwealth v. Jones, 2007 PA Super 181, ¶12, 928 A.2d 1054, 1058-59.
A related principle is that
where some evidence contained in a search warrant affidavit is unlawfully
obtained, we must consider whether the affidavit nonetheless sets forth
probable cause in the absence of such evidence. In other words, we must
decide whether absent the information obtained through illegal activity,
probable cause existed to issue the warrant. Only evidence that was
available to police because of the unconstitutional [activity], i.e., the
product of the illegal police activity, is disregarded.
Commonwealth v. Hernandez, 594 Pa. 319, 334, 935 A.2d 1275, 1283-84 (2007)
(citations omitted).
The Supreme Court of the United States has held that an odor may be
sufficient to establish probable cause for issuance of a search
warrant. . . . This position has been followed by other federal
courts. . . . While these cases have been concerned with securing
warrants for the search of a house, the rationale used to establish
probable cause applies equally well when determining the validity of a
search of a . . . vehicle.
Commonwealth v. Stoner, 236 Pa. Super. 161, 166, 344 A.2d 633, 635 (1975)
(warrantless search of vehicle upheld where odor of marijuana detected emanating
from trunk). “In Stoner, [the Pennsylvania Superior Court] analogized a ‘plain
smell’ concept with that of plain view and held that where an officer is justified in
being where he is, his detection of the odor of marijuana is sufficient to establish
probable cause.” Commonwealth v. Stainbrook, 324 Pa. Super. 410, 415, 471 A.2d
1223, 1225 (1984).
6
Application of Law to Facts
In the present case, where (a) Defendant was subjected to an investigative
detention as the result of a traffic stop, (b) the detention was lawfully prolonged
based upon the perception of officers of an odor of marijuana emanating from his
car, (c) the two aforesaid questions asked of Defendant prior to his formal arrest
occurred within a short period immediately following the stop during which police
were attempting to ascertain the circumstances confronting them, and (c) at this
time Defendant had not been transported from the scene, handcuffed, confined in a
police vehicle, threatened physically, or advised that he would be arrested, the
court is unable to agree with Defendant that the responses occurred while he was
subjected to the functional equivalent of an arrest. Accordingly, Defendant’s
request that the two statements, and fruits thereof, be suppressed due to an absence
of Miranda warnings prior to their elicitation will be denied.
With respect to evidence seized from the vehicle following the issuance of
the search warrant, it may also be noted that the contents of the probable cause
affidavit indicative of an odor of marijuana under the present circumstances were
sufficient to justify the issuance of the warrant, without regard to those additional
facts asserted in the affidavit which were ascertained by police on a contested
legal basis.
For the foregoing reasons, the following order will be entered:
ORDER OF COURT
th
AND NOW, this 15 day of January, 2009, upon consideration of
Defendant’s Omnibus Pre-Trial Motion To Suppress, following a hearing held on
December 15, 2008, and for the reasons stated in the accompanying opinion, the
7
motion is denied.
BY THE COURT,
s/ J. Wesley Oler, Jr.
J. Wesley Oler, Jr., J.
Christin Mehrtens-Carlin, Esq.
Senior Assistant District Attorney
Taylor P. Andrews, Esq.
Chief Public Defender
Attorney for Defendant
8
9
COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLANIA
:
v. :
:
SHAWN ANDREW :
HAUS :
OTN: L392307-6 : CP-21-CR-1192-2008
IN RE: DEFENDANT’S MOTION TO SUPPRESS
BEFORE OLER, J.
ORDER OF COURT
th
AND NOW, this 15 day of January, 2009, upon consideration of
Defendant’s Omnibus Pre-Trial Motion To Suppress, following a hearing held on
December 15, 2008, and for the reasons stated in the accompanying opinion, the
motion is denied.
BY THE COURT,
_________________
J. Wesley Oler, Jr., J.
Christin Mehrtens-Carlin, Esq.
Senior Assistant District Attorney
Taylor P. Andrews, Esq.
Chief Public Defender
Attorney for Defendant