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HomeMy WebLinkAbout02-2671 CriminalCOMMONWEALTH VS. JASON LEVAN CRAWFORD INRE: IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 02-2671 CRIMINAL OMNIBUS PRETRIAL MOTION BEFORE HESS. J. OPINION AND ORDER On August 21, 2002, Jason Levan Crawford (hereinafter referred to as "Defendant"), was arrested for the possession of a small amount of marijuana and attempting to break into a vehicle. The defendant was later charged with criminal mischief, criminal conspiracy to criminal mischief, and unlawful possession of a small amount of marijuana. A preliminary hearing was held in December of 2002. A suppression motion has since been filed raising two issues: (1) whether the stop and search of the defendant were unconstitutional; and (2) whether there was an unduly suggestive identification. During the hearing, counsel for the defendant and the prosecution agreed that based on the witness's testimony, the identity of the defendant would be a question of circumstantial evidence for the jury. The remaining issue to be decided is whether the stop and the subsequent search were unconstitutional. FACTS At 1:23 a.m. on August 21, 2002, Earl Shumaker called the police to report that he had seen two black males attempting to break into a car located at 201 York Street, Enola, Pennsylvania. This information was relayed to Officer Kaufman of the East Pennsboro Township Police Department. At approximately 1:27 a.m., Officer Kaufman arrived in the area of 201 York Street and began searching the area for suspects. Officer Kaufman spotted the 02-2671 CRIMINAL defendant and his companion riding bicycles approximately one and a half blocks from the reported incident and twelve minutes after the initial dispatch. Officer Kaufman pulled up to the defendant and his companion and asked if he could talk to them for a minute. The two males stopped their bikes. Officer Kaufman asked the males to step off their bikes and place their hands on their heads. The men complied with Officer Kaufman's request. Officer Kaufman did a pat-down search of the defendant and found a hard, square object, which turned out to be a pack of cigarettes. Officer Kaufman then felt baggies of soft material, which he recognized as being baggies of marijuana. Officer Kaufman removed the baggies from the defendant's pocket and placed him under arrest. The defendant and his companion were then placed in separate police cruisers. Mr. Shumaker was called to the scene to identify the males as the suspects to the earlier attempted break-in. During this phone call, Mr. Shumaker provided an additional description of the males in custody. He indicated that the defendant was a black male with a stocky build, wearing dark, baggy clothes. Upon Mr. Shumaker's arrival at the scene, Officer Kaufman used a flashlight to illuminate the back of the police cruiser in which the defendant was located. Mr. Shumaker could not be certain that the defendant was the man that he saw. After further discussion with Mr. Shumaker, Officer Kaufman showed him the sweatshirt that was tied around the defendant's handlebars of his bike. Upon seeing the sweatshirt, Mr. Shumaker identified it as the one the suspect was wearing at the time of the incident. There was, however, no further "identification" of the defendant. Officer Kaufman then transported Mr. Crawford and his companion back to the police station. 2 02-2671 CRIMINAL DISCUSSION To justify a decision to stop and briefly detain a person, police need not establish their suspicions to a level of certainty, preponderance, or even a fair probability; "the suspect's expectation of privacy is not sufficiently infringed by a minimal intrusion attendant upon an investigatory stop as to require any more than reasonable suspicion that criminal activity was afoot." Commonwealth v. Epps, 415 Pa. Super. 231,608 A.2d 1095 (1992). Though not tantamount to a "hunch," the requisite quantum of suspicion necessary to conduct an investigatory stop is a level "obviously less demanding than for probable cause." Id. at 233. "Police are generally justified in stopping an individual when relying on information transmitted by a valid police bulletin." In the Interest of D.M., 556 Pa. 160, 164, 727 A.2d 556, 558 (1999), citing US v. Hensley, 469 U.S. 221,232, 105 S.Ct. 675 (1985). In cases where the police rely upon information which is broadcast over a police radio, the factors that must be considered in justifying an investigatory stop and subsequent frisk include "the specificity of the description of the suspect in conjunction with how well the suspect fits the given description, the proximity of the crime to the sighting of the suspect, the time and place of the confrontation, and the nature of the offense reported to have been committed." Commonwealth v. Jackson, 359 Pa. Super. 433,438, 519 A.2d 427, 430 (1986). Although specificity of description is only one of the factors examined in justifying a stop and frisk, it is of great importance in situations where the investigating officers have not personally observed suspicious behavior; the police need to have identification information specific enough to reasonably conclude that the party they are stopping is actually the person for whom they are searching. See Commonwealth v. Whelton, 319 Pa. Super. 42, 465 A.2d 1043 3 02-2671 CRIMINAL (1983) (stop and frisk of robbery suspect justified where defendant matches description as to race, height, weight, age, hair, coat, footwear, and facial characteristics); Commonwealth v. Capers, 340 Pa. Super. 136, 489 A.2d 879 (1985) (stop and frisk justified where defendant matches description of assailant as to face, height, build, skin tone and jacket, acts suspiciously, approaches from scene of crime, is known to be armed, and has bloody hand). The Pennsylvania Supreme Court has held, however, "that an overly general description will not support a Terry stop and frisk in the absence of suspicious behavior observed by the investigating officer." Commonwealth v. Berrioa, 437 Pa. 338, 263 A.2d 342 (1970). In Berrios, the frisk of the defendant was held improper. There, police, seeking two blacks in dark clothing and one Hispanic in light clothing moving east on a particular street after a shooting, seized a gun from an Hispanic man in light clothing, who was accompanied by a black man dressed in dark clothing and was walking east on the specified street within twenty minutes and three blocks of the shooting. The Pennsylvania Supreme Court noted that not only was the defendant acting in a normal manner, but also that the description of the perpetrator was too vague to justify searches of all "[Hispanics] wearing light clothing and walking with a negro in this area." Id. at 342, 263 A.2d at 344. The court in Berrios looked to the totality of the circumstances surrounding the situation before the stop and noted that the number of persons was different than reported to the police, the suspects were only three blocks from the crime which does not indicate flight from a crime scene, the stop was approximately twenty minutes from the initial dispatch, and the suspects had been walking in a normal manner and did not change their direction upon viewing the police. 4 02-2671 CRIMINAL IN the present case, Officer Kaufman testified that he received a dispatch that two black males were trying to break into a car. (Suppression Hearing Transcript at page 21, par. 21-22.) During the suppression hearing, Officer Kaufman gave conflicting testimony as to whether any further description regarding the suspects' clothing was given with the initial dispatch. (Compare, Supp. Hearing Trans. at page 21, par. 23 and page 33, par. 18-23.) Nonetheless, the suspects that Officer Kaufman stopped did not meet the otherwise vague description of two black males. Officer Kaufman stopped one Hispanic male and one light-skinned black male. The defendant and his companion were riding bicycles approximately one to one and a half blocks away from where the crime was reported. These facts do not indicate flight from a crime scene. A person fleeing from a crime scene on a bicycle could travel a much greater distance than approximately one block within a twelve-minute period. IN addition, the defendant and his companion did not attempt any evasive action when Officer Kaufman approached in his marked police cruiser. Taken as a whole, the circumstances were not sufficient to support a Terry "stop and frisk" in this case. Our inquiry, however, does not end here. When the scope of a Terry search is exceeded, this alone does not automatically exclude the evidence seized from the illegal search. The United States Supreme Court in Nix v Williams stated: It is clear that the cases implementing the exclusionary rule "begin with the premise that the challenged evidence is in some sense the product of illegal government activity." United States v. Crews, 445 U.S. 463 (1980). Of course, this does not end the inquiry. If the prosecution can establish by a preponderance of the evidence that the information ultimately or inevitably would 02-2671 CRIMINAL have been discovered by lawful means ... then the deterrence rationale has so little basis that the evidence should be received. Anything less would reject logic, experience, and common sense. Nix. v. Williams, 467 U.S. 431,444, 104 S.Ct. 2501, 2509 (1984). The Pennsylvania Supreme Court has also held that evidence which would have been discovered in any event may be sufficiently purged of the original illegality to allow admission of the evidence. The burden of proving such inevitable discovery, however, rests with the prosecution. Commonwealth v. Hoffman, 403 Pa. Super. 530, 589 A.2d 737(1991). IN Hoffman, the defendant was arrested for the possession of controlled substances which had been found in his automobile. Prior to the search of the automobile, a search had been conducted of the defendant's person. A previous pat-down had not resulted in the discovery of any weapons and the full search of the defendant's person had been conducted prior to his arrest on the drug charges. The court concluded, therefore, that the search of the defendant's person was unlawful. The court, nonetheless, declined to apply the exclusionary rule, observing that, upon his eventual arrest for the drug charges, the defendant's person would have been searched in any event. Id. at 743. This is precisely the situation which is presented in the instant case. Here, the defendant was identified as matching the description of a person attempting to break into a car. While not identified by his facial features, the defendant was in close proximity to the crime and was wearing clothing which matched the description of the perpetrator. There was, therefore, probable cause for his eventual arrest on the criminal mischief and conspiracy charges. The defendant would have been searched, in any event, following his arrest on these charges. Thus, the discovery of the marijuana in this case was "inevitable." 6 02-2671 CRIMINAL ORDER AND NOW, this day of October, 2003, the omnibus pretrial motion of the defendant in the nature of a motion to suppress evidence is DENIED. BY THE COURT, John Dailey, Esquire Assistant District Attorney William Braught, Esquire Assistant Public Defender :rlm Kevin A. Hess, J. 7 COMMONWEALTH VS. JASON LEVAN CRAWFORD INRE: IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 02-2671 CRIMINAL OMNIBUS PRETRIAL MOTION BEFORE HESS. J. ORDER AND NOW, this day of October, 2003, the omnibus pretrial motion of the defendant in the nature of a motion to suppress evidence is DENIED. BY THE COURT, John Dailey, Esquire Assistant District Attorney William Braught, Esquire Assistant Public Defender :rlm Kevin A. Hess, J.