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HomeMy WebLinkAbout03-79 CriminalCOMMONWEALTH RONALD S. KAMARER IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 03-0079 CRIMINAL TERM IN RE: OPINION PURSUANT TO PA. R.A.P. 1925 Oler, J., September 3, 2003. IN this criminal case, Defendant was charged with driving under the influence,~ unlawful possession of a small amount of marijuana,2 and driving under suspension (DUI-Related)) Defendant filed an omnibus pretrial motion for relief in the form of a Motion for Suppression of Evidence (Count 1), a Motion for Suppression of Statement (Count 2), and a "Motion [in] Limine Concerning Reserve" (Count 3).4 The Defendant's motions to suppress were premised on: (1) an illegal traffic stop, (2) a failure to give Miranda5 warnings at the appropriate time, and (3) the incompatibility of the seizure of a certain plastic baggie containing marijuana with the "plain view" doctrine.6 At a hearing before this court on April 21, 2003, the motion in limine was withdrawn by agreement of counsel,7 and evidence was received on the suppression issues. Following the hearing, the court denied the motions to suppress. At the conclusion of a non-jury trial before the Honorable George E. Hoffer on May 8, 2003, the Defendant was found guilty of driving under the influence, unlawful Act of June 17, 1976, P.L. 162, §1, as amended, 75 Pa. C.S.A. §3731. Act of April 14, 1972, P.L. 233, §13, as amended, 35 Pa. P.S. §780-113(a)(31). Act of June 17, 1976, P.L. 162, §1, as amended, 75 Pa. C.S.A. §1543. Defendant's Omnibus Pretrial Motion To Suppress Evidence and Statement filed March 6, 2003. 5Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L.Ed. 2d 694 (1966). Hearing, April 21, 2003, at 49-51 (hereinafter N.T. __). Order of Court, April 21, 2003. Order of Court, April 21, 2003. possession of a small amount of marijuana, and driving under suspension (DUI-Related).9 The Defendant was ordered to appear for sentencing on June 3, 2003.~° At the sentencing proceeding, with regard to the driving under the influence charge, Defendant was sentenced to pay the costs of prosecution, and a $300.00 fine, and to undergo imprisonment in the Cumberland County Prison for a period of not less than 30 days nor more than 20 months.~ With regard to the charge of possession of a small amount of marijuana, he was sentenced to pay the costs of prosecution and a $25.00 fine.12 With regard to the charge of driving under suspension (DUI-Related), he was sentenced to pay the costs of prosecution and a $1,000.00 fine, and to undergo imprisonment in the Cumberland County Prison for a period of 90 days. ~3 The sentences of imprisonment were to run consecutively, and the Defendant was allowed to remain on bail conditioned upon the filing of a post-sentence motion or an appeal. ~4 On June 30, 2003, Defendant filed a Notice of Appeal from the judgment of sentence to the Pennsylvania Superior Court.~5 The sole matter complained of by 16 Defendant on appeal is whether the court erred in denying his motions to suppress. This opinion in support of the refusal to suppress is written pursuant to Pennsylvania Rule of Appellate Procedure 1925(a). STATEMENT OF FACTS The facts of the instant case, as presented at the suppression hearing, may be summarized as follows: 9 Order of Court, May 8, 2003. l0 Order of Court, May 8, 2003. ~ Order of Court, June 3, 2003. ~2 Order of Court, June 3, 2003. ~ Order of Court, June 3, 2003. 14 Order of Court June 3, 2003. ~5 Notice of Appeal, filed June 30, 2003. 16 Defendant's Concise Statement of Matters to be Raised on Appeal Filed Pursuant to Pa. R.A.P. 1925, filed July 14, 2003. 2 In the early morning hours of Friday, October 18, 2002,17 Officer Robert Kenneth Powers18 of the Upper Allen Township Police Department, Cumberland County, Pennsylvania,~9 was returning to his jurisdiction from the West Shore Booking Facility,2° when he became aware of a red Ford SUV2~ traveling in front of him~ on Route 15 South.~3 While traveling behind the red Ford SUV (hereinafter the SUV), Officer Powers noticed that the SUV was wandering within its lane of travel, and he activated his in-car camera system.~4 As Officer Powers was following the SUV and documenting its meandering progress25 down Route 15 South,26 the SUV passed from Lower Allen Township into Officer Powers' primary jurisdiction, Upper Allen Township.~7 The SUV had been traveling within the posted speed limit of 50 mph until it arrived in the vicinity of the intersection of Route 15 South and the Pennsylvania Turnpike, at which point Officer Powers noticed the vehicle's speed increase.~8 The officer then utilized a VASCAR-plus system~9 to calculate the SUV's speed, which was ~7 N.T. 33. ~8 N.T. 5. 19 N.T. 5, 8. 2o N.T. 7. 2~ N.T. 7. 22 N.T. 7. :3 N.T. 7, 20. Route 15 South/North is a four-lane limited access highway with a dividing barrier between the two directions of traffic. See N.T. 20. :4 N.T. 8; see Defendant's Exhibit 2, Suppression Hearing, April 21, 2003 (hereinafter Commonwealth's/Defendant's Exhibit __) (videotape from Officer Powers' police car). The officer initiated the recording at 02:05:41, as reflected by the videotape (Defendant's Exhibit 2). :5 Defendant's Exhibit 2 documents the weaving of the SUV within its lane of travel at the following times: 02:05:47, 02:05:56, 02:06:08, 02:06:15, 02:06:29, 02:06:36, 02:07:46, and 02:08:12. Defendant's Exhibit 2 also documents that the SUV's left tires crossed the lane dividing lines at 02:06:56. :6 N.T. 7-9, 20, Defendant's Exhibit 2. :7 N.T. 9. :8 N.T. 9. :9 At the suppression hearing, this court took judicial notice of the fact that VASCAR-plus was an approved speed timing device, and that Rabold's was a certified calibration service facility, according to the Pennsylvania Bulletin, Volume 31, No. 5, dated February 3, 2001. See N.T. 13. The particular unit used by Officer Powers had been most recently calibrated by Rabold's on October 8, 2002. See 3 computed by the device to be 64 mph.3° Shortly thereafter, and while still following the SUV, Officer Powers noticed another increase in speed.3~ At that point Officer Powers performed a second VASCAR-plus check, which yielded a calculated speed of 67.1 mph.32 It was after this second determination of the SUV's speed that Officer Powers decided to conduct a traffic stop for violation of Section 3362(a)(3) of the Vehicle Code, relating to maximum speed limits.33 The SUV yielded to the police car's emergency lights and siren, and withdrew from the lane of traffic onto the right shoulder of the road.34 After the SUV stopped, the officer approached the Defendant, who was seated in the driver's seat of the SUV,35 and notified him of the fact that the traffic stop was being videotaped.36 Upon conversing with the Defendant, the officer testified,37 he detected a strong odor of an alcoholic beverage emanating from the Defendant's breath.38 The officer also noticed that the Defendant's eyes were bloodshot and glassy.39 When asked by the officer how much he had had to drink that night, the Defendant responded that he had "had a couple.''4° Commonwealth's Exhibit 2; N.T. 12. Officer Powers had received specialized training in the use of the VASCAR-plus system. See N.T. 6, 1 1; see also Commonwealth's Exhibit 1. 30 N.T. 9. The particular VASCAR-plus system employed by Officer Powers had been field tested by him at the beginning of his shift and was functioning properly. See N.T. 1 1-12. 3~ N.T. 10. 32 N.T. 10. 33 N.T. 13. 34 N.T. 13; Defendant's Exhibit 2. 35 N.T. 14. 36 N.T. 14; Defendant's Exhibit 2. 37 The court found the testimony of the officer credible in all respects. 38 N.T. 14. 39 N.T. 14. 40 N.T. 14. 4 At this time, as evidenced by the tape from the on-board video system,4~ the officer noticed a clear plastic baggie on the inside of the driver's side door, containing a green, leafy substance,42 which led him to ask, "What is this?''43 and reach into the vehicle and retrieve it.44 Officer Powers testified that he received training with regard to drugs at the police academy, as well as on-the-job training.45 He further testified that, since being employed as a police officer, he had made between 12 and 20 marijuana- specific drug arrests.46 He also testified as to his awareness that marijuana was commonly sold and/or stored in clear plastic baggies.47 Officer Powers testified that, based on his training and experience, he had formed the belief that the substance was marijuana prior to reaching into the vehicle to retrieve the baggie.48 He further testified that he was able to see the baggie without having to intrude into the vehicle with any part of his body, including his head.49 Once Officer Powers removed the baggie from the vehicle, he examined it more closely5° with his flashlights~ and confirmed his belief that the substance was marijuana,s2 He asked the Defendant if the baggie was his, and, in response to this question, the 4~ Entered into the Record as Defendant's Exhibit 2. 42 N.T. 15. 43 N.T. 44N.T' 45 N.T. 46 N.T. 47 N.T. 48 N.T. 49 N.T. cruiser, the tape neither confirmed nor refuted this testimony. testimony credible. 50 N.T. 17. 5~ Defendant's Exhibit 2. 5: N.T. 16, 17. 16, 40; Defendant's Exhibit 2. 14; Defendant's Exhibit 2. 6. 6. 16-17. 14, 16-17. 21. After careful review of Defendant's Exhibit 2, the videotape from Officer Powers' police the court concluded that, because of the angle between the camera in the squad car and the SUV, As noted previously the court found the officer's 5 Defendant answered that it was his "weed.''53 The officer then asked the Defendant a second time how many drinks he had had that night,s4 and told the Defendant to exit the vehicle,ss Once outside of the vehicle, Defendant was told he was under arrest for possession of a controlled substance and driving under the influence of alcohol or a controlled substance,s6 The Defendant was placed in handcuffss7 and then taken to the front of the police car and searched incident to the arrest,sa During this search, Officer Powers discovered another clear plastic baggie in the Defendant's jacket pocket, which contained a green leafy substance that he also believed to be marijuana,s9 In reference to the second baggie, without being questioned,® Defendant remarked that it was "good shit," and that he had just bought it for $45.00.61 Officer Powers testified that he did not question the Defendant after placing him under arrest.62 The officer did not administer Mirar~da63 warnings to the Defendant before the contested physical evidence was found and the contested verbal information was provided.64 The officer did not charge the Defendant with exceeding the maximum speed limit.6s 5~ N.T. 16, 54 N.T. 40. 55 N.T. 17; 56 N.T. 41; 57 N.T. 40. 58 N.T. 18; Defendant's Exhibit 2. 59 N.T. 18; Defendant's Exhibit 2. 60 N.T. 19, 21, 42. 61 N.T. 19, 21. 62 N.T. 42. 63 Miranda v. Arizona, 384 U.S. 436, 64 N.T. 48-53. 65 N.T. 18. 17. The officer testified that "weed" is a commonly used term for marijuana. See N.T. 16-17. The Defendant's answer to this question, if any, was not made a part of the record. Defendant's Exhibit 2. Defendant's Exhibit 2. 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). 6 Following the suppression hearing,66 and after a review of applicable case law, this court issued the following order denying the Defendant's motions to suppress: AND NOW, this 21st day of April, 2003, upon consideration of Counts 1 (Motion for Suppression of Evidence) and 2 (Motion for Suppression of Statement) of Defendant's Omnibus Pretrial Motion, and following a hearing held on April 21, 2003, Defendant's Motion is denied.67 DISCUSSION Burden of Proof When a defendant files a motion to suppress challenging the legality of the acquisition of evidence, the burden is on the Commonwealth to establish by a preponderance of the evidence that the challenged evidence is admissible. Commonwealth v. DeWitt, 530 Pa. 299, 301,608 A.2d 1030, 1031 (1992); Pa. R. Crim. P. 58 l(I-I). Vehicle Code Stop. Under the Fourth Amendment to the Federal Constitution, "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated .... "U.S. Const. amend. IV. Under Article 1, Section 8, of the Pennsylvania Constitution, "[t]he people shall be secure in their persons, houses, papers and possessions from unreasonable searches and seizures .... "Pa. Const. art. I, §8. "If the alleged basis of a vehicular stop is to permit a determination [of] whether there has been compliance with the Motor Vehicle Code of this Commonwealth, it is incumbent upon the officer to articulate specific facts possessed by him, at the time of the questioned stop, which would provide probable cause to believe that the vehicle or the driver was in violation of some provision of the Code." Commonwealth v. Gleason, 567 Pa. 111, 122, 785 A.2d 983,989 (2001). 66 By stipulation of counsel, the court was to disregard any verbal content of the in-car videotape (Defendant's Exhibit 2) except that which was brought out through testimony of a witness. See N.T. 30- 31. 67 Order of Court, April 21, 2003. 7 Exceeding the maximum speed limit is a violation of the Vehicle Code· Act of June 17, 1976, P.L. 162, §1, as amended, 75 Pa. C.S. §3362. Based upon the foregoing facts, the court was of the view that the officer had probable cause to believe that Defendant was violating a provision of the Vehicle Code by speeding, and that the stop of Defendant's vehicle was therefore justified. Miranda Warnings. Under the Fifth Amendment to the Federal Constitution, "[n]o person.., shall be compelled in any criminal case to be a witness against himself. ·.." U.S. Const. amend. V. Under Article I, Section 9, of the Pennsylvania Constitution, a defendant "cannot be compelled to give evidence against himself." Pa. Const. art. I, §9. In order to protect a suspect from violations of these constitutional provisions,68 a law enforcement officer must inform a suspect of his or her rights prior to a custodial interrogation. Miranda v. Arizona, 384 U.S. 436, 444, 86 S. Ct. 1602, 1612, 16 L. Ed. 2d 694, 706-07 (1966). Although a traffic stop is a "seizure" for Fourth Amendment purposes,69 a motorist is not, at least initially, generally considered "in custody" for Miranda7° purposes, and, if the traffic stop does not become excessively prolonged or otherwise change into a custodial situation, Miranda warnings need not be given. Pennsylvania v. Bruder, 488 U.S. 10, 11, 109 S. Ct. 205, 206-07, 102 L. Ed. 2d 172, 176-77 (1988); see also Commonwealth v. Turner, 2001 PA Super. 79, para. 11, 772 A.2d 970, 975 (2001) (stating traffic stop must be "ordinary" in nature) (citations omitted). An individual is not "in custody" merely because a single police officer asks a modest number of questions during an ordinary traffic stop. Turner, 2001 PA Super. at para. 11, 772 A.2d at 975 (citing Bruder, supra). This is because questioning incident to the average traffic stop is comparatively brief and lacks the innately coercive nature of questioning at a police 68 The Fifth Amendment to the Federal Constitution is applicable to the states. Malloy v. Hogan, 378 U.S. 1, 8, 84 S. Ct. 1489, 1493, 12 L. Ed. 2d 653, 659 (1964). 69 Delaware v. Prouse, 440 U.S. 648, 653, 99 S. Ct. 1391, 1396, 59 L. Ed. 2d 660, 667 (1979). V°Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). 8 station. Bruder, 488 U.S. at 10, 109 S. Ct. at 206, 102 L. Ed. 2d at 176 (citations omitted). Incriminating statements made to police officers by a suspect, which are not responses to direct questions, or in response to other actions by officers which are known to them to be reasonably likely to elicit a response, are admissible despite a lack of Miranda warnings being given, even if the individual is "in custody" for Miranda purposes. Rhode Island v. Innis, 446 U.S. 291, 300-02, 100 S. Ct. 1682, 1689-90, 64 L. Ed. 2d 297, 307-08 (1980). While discussing the prophylactic warnings required under Miranda,TM the Pennsylvania Supreme Court has said: "It is simply not custody plus 'questioning' as such which calls for Miranda safe-guards, but custody plus police conduct calculated to, expected to, or likely to, evoke admissions." Commonrvealth v. Simala, 434 Pa. 219, 226, 252 A.2d 575, 578 (1969) (quoting institution of Continuing Legal Education, "Criminal Law and the Constitution--Sources and Commentaries." 356 (1968)). Based upon the foregoing facts the court was of the view that the inculpatory statements or remarks of Defendant made without benefit of Miranda warnings were lawfully received by the officer, on the basis of their occurrence during a period of noncustodial detention or, thereafter, in the absence of interrogation. Plain Vie,: Doctrine. In order for a "plain view" seizure to be valid, it must meet two requirements: (1) the incriminating nature of the item in plain view must be "immediately apparent," and (2) the officer must be lawfully located in a position from which he or she can plainly see the item and have lawful access to it. Horton v. California, 496 U.S. 128, 136-37, 110 S. Ct. 2301, 2307-08, 110 L. Ed. 2d 112, 123 (1990); Commonrvealth v. Ellis, 541 Pa. 285, 297, 662 A.2d 1043, 1049 (1995). A motorist has no legitimate expectation of privacy in the area of a vehicle that can be viewed from the outside by passersby or police officers. Commonrvealth v. Leninsky, 360 Pa. Super. 49, 59, 519 A.2d 984, 990 (Pa. Super. Ct. 1986) (citing Texas v. Brorvn, 7~ Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). 9 infra); Texas v. Brown, 460 U.S. 730, 740, 103 S. Ct. 1535, 1542, 75 L. Ed. 2d 502, 513 (1983). In deciding whether the incriminating nature of an object is immediately apparent, the court must look at the totality of the circumstances and determine if there was probable cause to support the officer's belief. Commonwealth v. Ballard, 2002 PA Super. 283, para. 11, 806 A.2d 889, 892 (2002) (citations omitted). Training received by officers, and their experience with unlawful controlled substances during the course of performing their duties, can provide probable cause to believe that green leafy material in clear plastic bags is in fact marijuana. Id. at para. 14, 806 A.2d at 892 (stating that probable cause was obtained by trained officers who perceived small portion of clear plastic bags with green leafy substance and smell of marijuana). Based upon the foregoing facts, including the officer's familiarity with the effects, appearance and packaging of marijuana, his observation of erratic driving on the part of Defendant, and his lawful position outside Defendant's vehicle when he noticed the baggie and its contents in plain view, the court was of the opinion that the seizure of the baggie of marijuana from the vehicle was permissible under the plain view doctrine. For all of the foregoing reasons, the court was unable to agree with Defendant that any statement or other evidence in his case should be suppressed. BY THE COURT, John Dailey, Esq. Assistant District Attorney Francis M. Socha, Esq. Attorney for Defendant ~rc J. Wesley Oler, Jr., J. 10