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HomeMy WebLinkAbout03-349 CriminalCOMMONWEALTH · IN THE COURT OF COMMON PLEAS OF · OF CUMBERLAND COUNTY, PENNSYLVANIA JAMES CURTIS WILKINSON OTN: H 705647-5 : No. 03-0349 CRIMINAL TERM IN RE: DEFENDANT'S OMNIBUS PRETRIAL MOTION FOR RELIEF BEFORE OLER, J. OPINION and ORDER OF COURT OLER, J., August 11, 2003. In this criminal case, Defendant was charged~ with resisting arrest or other law enforcement,2 possession of a Schedule II controlled substance (cocaine),3 and possession of drug paraphernalia.4 For disposition at this time is an omnibus pretrial motion for relief filed by Defendant, in the form of a motion to suppress. Defendant's motion is premised upon a lack of a lawful basis for a pedestrian stop of Defendant by police under the federal and Pennsylvania constitutions.6 A hearing on Defendant's motion was held on July 24, 2003. For the reasons stated in this opinion, the motion to suppress will be granted. ~ See Information, filed March 11, 2003. : Act of December 6, 1972, P.L. 1482, 81, as amended, 18 Pa. C.S. 85104 (West 2003). This offense is a misdemeanor of the second degree. Id. ~ Act of April 14, 1972, P.L. 233, 813(a)(16), as amended, 35 P.S. 8780-113(a)(16) (West 2003). This offense is an ungraded misdemeanor, punishable by a sentence of imprisonment of up to one year and a fine of up to $5,000.00. Id., 8780-113(b). 4 Act of April 14, 1972, P.L. 233, 813(a)(32) (West 2003), as amended, 35 P.S. 8780-113(a)(32) (West 2003). This offense is an ungraded misdemeanor, punishable by a sentence of imprisonment of up to one year and a fine of up to $2,500.00. Id., 8780-113(i). 5 Defendant's Omnibus Pre-Trial Motion To Suppress, filed April 22, 2003. 6 x/cl.~. N.T. 3, Hearing on Defendant's omnibus pretrial motion for relief, July 24, 2003 (hereinafter N.T. ~. STATEMENT OF FACTS At 1:20 a.m. on Tuesday, November 26, 2002, in the Borough of Carlisle, Cumberland County, Pennsylvania, a borough police officer patrolling in a vehicle in an area which he regarded as a "popular area for high crime, high drug, high violence activity''7 noticed a group of persons at a Dodge automobile at the intersection of North Pitt Street and West Penn Street.8 As the officer watched, the automobile drove off and he saw two black males who had been outside the vehicle walk away quickly.9 One of the men, who was Defendant, was carrying a female's purse with a tom strap,l° It occurred to the officer that the purse might have been stolen. ~ The officer turned his patrol car around with a view toward approaching the men, and saw that Defendant had separated from the other man and was walking at a brisk pace away from the companion and the police vehicle.~2 As the officer drove past the other man, he asked "if everything was okay," and was told that it 13 was. As the officer attempted to make contact with Defendant, Defendant turned the comer of a building, scaled a fence, and "took off running,''~4 ignoring the officer's verbal commands.~5 Defendant was eventually apprehended in his flight by four Borough officers engaged in the pursuit. 16 7N.T. 7. 8 N.T. 6-7. 9N.T. 7. l0 N.T. 7. il N.T. 12-13. 12 N.T. 7. 13 N.T. 7. 14 N.T. 8. 15 N.T. 8, 17. 16 N.T. 9-12, 19. 2 Defendant allegedly resisted the officers, had a drug pipe in his fist, and spit out a piece of crack cocaine.~7 The purse, as it developed, had not been stolen, la Following his arrest, he was taken to a hospital with broken ribs. 19 DISCUSSION At a suppression hearing, when the admission of evidence is challenged by a defendant on the ground that it was unconstitutionally obtained, the burden is upon the Commonwealth to show by a preponderance of the evidence that the evidence was not obtained in violation of the defendant's rights. See Pa. R. Crim. P. 581(H); Common~vealth v. Stoops, 723 A.2d 184, 186 (Pa. Super. 1998). The Pennsylvania Supreme Court has described three types of interactions between a police officer and a member of the public: The first of these is a "mere encounter" (or request for information) which need not be supported by any level of suspicion, but carries no official compulsion to stop or to respond. The second, an "investigative detention" must be supported by reasonable suspicion; it subjects a suspect to a stop and a period of detention, but does not involve such coercive conditions as to constitute the functional equivalent of an arrest. Finally, an arrest or "custodial detention" must be supported by probable cause. Commonwealth v. McClease, 750 A.2d 320, 324 (Pa. Super. 2000) (citations omitted), quotingln the Interest ofS. J., 551 Pa. 637, 641 n.3, 713 A.2d 45, 47 n.3 (1998) (citations omitted), quoting Common~vealth v. Ellis, 541 Pa. 285, 293-94, ~7 N.T. 19-20. ~8 N.T. 25. At a preliminary hearing, the officer testified that at the time of the incident he had not had any report of a stolen purse. N.T. 14; 22-23. His police report likewise did not indicate that he had received any such information. N.T. 15. As of the suppression hearing, however, he recalled that the evening prior to the incident, at roll call, a report had circulated that a purse had been stolen that day from a vehicle in another area of the borough. N.T. 4-6. No details appear in the record as to when during the previous day the purse was said to have been discovered missing or what it may have looked like. Under these circumstances, and given the burden upon the Commonwealth at a suppression hearing, the court has been unable to regard this information as a material factor in the seizure of Defendant. 19 N.T. 20. 3 662 A.2d 1043, 1047-48 (1995). The Superior Court has elaborated upon the distinction between a mere encounter and an investigative detention as follows: In determining whether a "mere encounter" has risen to the level of an "investigative detention," the focus of our inquiry is on whether a "seizure" of the person has occurred. Within this context, our courts employ the following objective standard to discern whether a person has been seized: "Whether, under all the circumstances surrounding the incident at issue, a reasonable person would believe he was free to leave." Commonwealth v. McClease, 750 A.2d 320, 324 (Pa. Super. 2000) (citations omitted), quoting Commomvealth v. Smith, 732 A.2d 1226, 1232 (Pa. Super. 1999); cf. United States v. Mendenhall, 446 U.S. 544, 554, 100 S. Ct. 1870, 1877, 64 L. Ed. 2d 497, 509 (1980). "[A]n investigatory stop is justified only if the detaining officer can point to specific and articulable facts which, in conjunction with rational inference derived from those facts, give rise to a reasonable suspicion of criminal activity and therefore warrant the intrusion." Commonwealth v. Hall, 558 Pa. 16, 25, 735 A.2d 654, 659 (1999); see Illinois v. Wardlow, 528 U.S. 119, 123-24, 120 S. Ct. 673, 675-76, 145 L. Ed. 2d 570, 576 (2000); Terry v. Ohio, 392 U.S. 1, 21, 88 S. Ct. 1868, 1880, 20 L. Ed. 2d 889, 906 (1968). The reasonable suspicion of criminal activity afoot necessary to support a seizure in the form of an investigative detention must be more than a "mere hunch." Commonwealth v. Bowersox, 450 Pa. Super. 176, 182, 675 A.2d 718, 721 (1996). Stated otherwise, it must rise above the level of a "policeman's intuition." Commonwealth v. Lopez, 415 Pa. Super. 252, 262, 609 A.2d 177, 182 (1992). The rationale underlying this constitutional protection is that an investigative detention "is a serious intrusion upon the sanctity of the person .... " Terry v. Ohio, 392 U.S. 1, 17, 88 S. Ct. 1868, 1877, 20 L. Ed. 2d 889, 903 (1968). Such an intrusion "is not to be undertaken lightly." Id2° 20 "[I]t is simply fantastic to urge that [a detention and pat-down search] performed in public by a policeman while the citizen stands helpless, perhaps facing a wall with his hands raised, is a 4 Thus, in Commonwealth v. McClease, 750 A.2d 320, 326 (Pa. Super. 2000), the Pennsylvania Superior Court held that a "combination of furtive movements, late time of night, [and] previous reports of criminal activity in the area, even when accompanied by flight, [did] not establish an adequate basis for reasonable suspicion." Evidence obtained as a result of an unlawful seizure of one's person, including an item abandoned by a defendant where the abandonment was coerced by the unlawful action, Commonwealth v. defJbies, 458 Pa. 320, 326, 311 A.2d 914, 918 (1973), must be suppressed. FFong Sun v. U.S., 371 U.S. 471,484, 83 S. Ct. 407, 416, 9 L. Ed. 2d 441, 453 (1963). In the present case, Defendant's possession of a purse in a high-crime area during early morning hours, considered in conjunction with his unwillingness to remain when confronted by police, gave rise, in the court's view, to a hunch, or policeman' s intuition, that criminal activity was afoot in the form of a theft of the purse, but did not rise to the level of specific and articulable facts which would warrant a seizure of his person for investigation. For this reason, the following order will be entered: ORDER OF COURT AND NOW, this 11th day of August, 2003, upon consideration of Defendant's omnibus pretrial motion for relief in the form of a motion to suppress, and for the reasons stated in the accompanying opinion, the motion is granted. BY THE COURT, s/ J. Wesley Oler, Jr. J. Wesley Oler, Jr., J. 'petty indignity.' It is a serious intrusion upon the sanctity of the person which may inflict great indignity and arouse strong resentment, and it is not to be undertaken lightly." Terry v. Ohio, 392 U.S. 1, 16-17, 88 S. Ct. 1868, 1877, 20 L. Ed. 2d 889, 903 (1968) (footnotes omitted), quoted in Commonwealth v. Jackson, 548 Pa. Super. 484, 489, 698 A.2d 571,573 (1997). 5 Geoffrey S. Mclnroy, Esq. Assistant District Attorney For the Commonwealth Joshua D. Hill, Certified Legal Intern Jessica B. Rhoades, Esq. Assistant Public Defender For the Defendant 6 7 COMMONWEALTH Vo : IN THE COURT OF COMMON PLEAS OF : OF CUMBERLAND COUNTY, PENNSYLVANIA JAMES CURTIS WILKINSON OTN: H 705647-5 : No. 03-0349 CRIMINAL TERM IN RE: DEFENDANT'S OMNIBUS PRETRIAL MOTION FOR RELIEF BEFORE OLER, J. ORDER OF COURT AND NOW, this 11th day of August, 2003, upon consideration of Defendant's omnibus pretrial motion for relief in the form of a motion to suppress, and for the reasons stated in the accompanying opinion, the motion is granted. BY THE COURT, Geoffrey S. McInroy, Esq. Assistant District Attorney For the Commonwealth Joshua D. Hill, Certified Legal Intern Jessica B. Rhoades, Esq. Assistant Public Defender For the Defendant J. Wesley Oler, Jr., J.