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HomeMy WebLinkAboutCP-21-CR-2029/2030/2031-2002COMMONWEALTH V. ROBERT M. POWELL IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 2002-2029 CRIMINAL TERM COMMONWEALTH V. ROSELL KAREEM PAULEY IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 2002-2030 CRIMINAL TERM COMMONWEALTH V. ISSIAH KAREEM FRANCIS IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 2002-2031 CRIMINAL TERM IN RE: MOTIONS TO SUPPRESS EVIDENCE BEFORE GUIDO, J. OPINION AND ORDER OF COURT Each of the above defendants has been charged with possession of marijuana with the intent to deliver. The charges arise from the stop and search of their vehicle on Interstate 81 in Cumberland County. Each has filed an omnibus pretrial motion in which he has questioned the propriety of the stop, the lawfulness of the subsequent detention, and the legality of the eventual search of the vehicle. They each have requested that all of the evidence obtained as a result of those actions be suppressed. Because the issues and facts are identical, the cases have been consolidated for disposition. NO. 2002-2029 CRIMINAL - NO. 2002-2030 CRIMINAL - NO. 2002-2031 CRIMINAL We held an evidentiary hearing on January 2, 2003. We were satisfied that the detention after the stop and the subsequent search of the vehicle was appropriate. However, based upon the current status of the law as announced by the Superior Court in Commonwealth v. Battaglia, 802 A.2d 652 (Pa. Super. 2002), we are forced to conclude that the vehicle stop was improper. granted. Therefore, the motions to suppress evidence must be F1ND1NGS OF FACT On Labor Day, September 2, 2002, Trooper Brian Overcash of the Pennsylvania State Police was patrolling Interstate 81 in Cumberland County. At about 10:00 a.m. he noticed a late model Mercury Sable traveling very slowly in the right hand lane. 1 All of the holiday traffic approaching the Sable was forced to execute a passing maneuver. The trooper followed the car for about one and one half miles. During that time 2 1) he clocked it traveling 45 miles per hour in a posted 65 mile per hour speed zone; 2) he observed it weaving from side to side within its lane of travel; and 3) he saw it cross the right hand fog line on two occasions. Upon seeing the Sable cross the fog line on the second occasion, Trooper Overcash initiated a traffic stop. While his articulated ~ All three defendants were in the vehicle. Defendant Powell was the driver. : The trooper was uncertain if there was a posted minimum speed in that area. If there was, it would have been 40 miles per hour. NO. 2002-2029 CRIMINAL - NO. 2002-2030 CRIMINAL - NO. 2002-2031 CRIMINAL reason for the stop was the violation of Section 3309(1) of the Vehicle Code,3 he also suspected that the driver might be impaired in violation of Section 3731 of the Vehicle Code.4 However, he candidly admitted that there was no immediate safety threat at the time he stopped the car. As the trooper approached the car, he noticed an extremely strong smell of raw marijuanafi During the course of the stop, he also saw a small amount of marijuana residue and seeds in the passenger compartment of the vehicle. After he was refused permission to conduct a consensual search, he enlisted the assistance of a state police drug dog. Based upon his observations, his training and his experience, as well as the "alerts" given by the drug dog, he obtained a warrant to search the vehicle. The marijuana giving rise to these charges was seized pursuant to the proper execution of that warrant. Section 3309 of the Vehicle Code provides in relevant part as follows: Driving on roadways laned for traffic Whenever any roadway has been divided into two or more clearly marked lanes for traffic the following rules in addition to all others not inconsistent therewith shall apply: (1) Driving within single lane.-A vehicle shall be driven as nearly as practicable entirely within a single lane and shall not be moved from the lane until the driver has first ascertained that the movement can be made with safety. 75 Pa. C.S.A. § 3309(1). The trooper issued a written warning citing this particular section. 4 "Driving under the influence of alcohol or controlled substance." 75 Pa. C.S.A. § 3731. s The presence of the marked patrol car immediately behind the defendants' slow moving vehicle had the effect of causing other traffic to slow down before executing any passing maneuver. The weaving within the lane of travel, while noticeable, was not constant. Finally, the crossing of the fog line was also a relatively minor occurrence. The tires did not even cross onto the berm enough to hit the rumble strips designed to get the attention of dozing or inattentive drivers. 6 Trooper Overcash had extensive training and experience in recognizing the smell of marijuana, both raw and burnt. NO. 2002-2029 CRIMINAL - NO. 2002-2030 CRIMINAL - NO. 2002-2031 CRIMINAL DISCUSSION We start with the observation that Trooper Overcash acted responsibly and professionally throughout this entire incident. Furthermore, it is our opinion that until the Superior Court decided Battaglia on June 25, 2002, his stop of the defendants' vehicle would have been a proper investigative detention under the law of this Commonwealth. Our appellate courts have long recognized that their exists three levels of interaction between police and citizens: 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 respond. The second, an "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. Commonwealth v. Phinn, 761 A.2d 176, 181 (Pa. Super. 2000) (quoting Commonwealth v. Ellis, 541 Pa. 285, 662 A.2d 1043, 1047 (1995) (citations and footnotes omitted)). An 7 "investigative detention" is commonly referred to as a Terry stop. The Terry stop is designed to allow a police officer to investigate his reasonable suspicion of criminal activity. As the Pennsylvania Supreme Court has noted: (A) police officer may, short of an arrest, conduct an investigative detention if he has a reasonable suspicion, based upon specific and articulable facts, that criminality is afoot. The fundamental inquiry is an objective one, namely, whether "the facts available to the officer at the moment of the [intrusion] 'warrant a man of reasonable caution in the belief' that the action taken was appropriate." This assessment, like that applicable to the determination of probable cause, requires an evaluation of the totality of the circumstances, with a lesser showing needed to demonstrate reasonable suspicion in terms of both quantity or content and reliability. ? Terryv. Ohio, 392 U.S. 1 (1968). NO. 2002-2029 CRIMINAL - NO. 2002-2030 CRIMINAL - NO. 2002-2031 CRIMINAL Commonwealth v. Zhahir, 561 Pa. 545, 751 A.2d 1153, 1156-1157 (2000)(citations omitted). (emphasis added). In the case before us, we are satisfied that Trooper Overcash was able to articulate sufficient facts to justify a Terry stop to investigate the possible violation of Section 3731 of the Vehicle Code. However, the recent Supreme Court cases of Commonwealth v. Gleason, 567 Pa. 111,785 A.2d 983 (2001) and Commonwealth v. Baumgardner, 568 Pa. 324, 796 A.2d 965 (2002) have been interpreted by the Superior Court in Battaglia, supra, so as to preclude us from reaching that conclusion. In Gleason the Supreme Court held that drifting onto the fog line two or three times was not sufficient grounds to justify a vehicle stop under Section 3309(1) of the Vehicle Code. In the instant case, Trooper Overcash stated that he initiated the traffic stop based upon his understanding that the crossing of the fog line was a violation of Section 3309(1). In light of Gleason, he was mistaken. While this case is distinguishable in that Trooper Overcash witnessed additional erratic driving, subsequent appellate decisions have made that distinction irrelevant. In Commonwealth v. Baumgardner, 767 A.2d 1065 (Pa. Super. 2001) the Superior Court affirmed the trial court's refusal to suppress evidence obtained after a traffic stop initiated to investigate erratic driving. 8 In its opinion the Superior Court reiterated what has long been the law of this Commonwealth, i.e. "(a) stop may be based upon an officer's observation of erratic driving." Id. at 1067. It went on to hold that "weaving within one's own lane may support an investigatory stop based upon suspicion of intoxication, under the specific circumstances of this case." Id. at 1068. (emphasis 8 The defendant's vehicle weaved "from one side of his lane to the other" for approximately two miles. 767 A.2d at 1068. NO. 2002-2029 CRIMINAL - NO. 2002-2030 CRIMINAL - NO. 2002-2031 CRIMINAL added)· However, citing to its decision in Gleason, the Pennsylvania Supreme Court reversed the Superior Court without discussion. See Commonwecllth v. Baumgardner, 568 Pa. 324, 796 A.2d 965 (2002). In Commonwecllth v. Battaglia, suprcl, the Superior Court interpreted the Supreme Court's decisions in Gleason and Baumgardner to require a showing of nothing less than probable cause in order to justify a traffic stop. In rejecting the Commonwealth's position in Battaglia, the Superior Court stated: The Commonwealth's argument is built upon discredited case law which, based upon an erroneous interpretation of"articulable and reasonable grounds," was thought to permit traffic stops on a showing of less than probable cause. 802 A.2d 652 at 655. It went on to analyze the Supreme Court's decisions in both Gleason and Baumgardner, concluding that: From these cases, we might extract the conclusion that there is no basis for "profiling" a suspected drunk driver merely on the basis of observing undisciplined operation of a vehicle which does not form the basis for a conclusion that there has been a violation of the Vehicle Code. We find, based upon the Vehicle Code and above-mentioned precedent established by our Supreme Court, that perceived "erratic driving" in and of itself is not a violation of the Code and, without more, does not provide probable cause to execute a traffic stop. 802 A.2d at 657 (emphasis added). In effect, the Superior Court has interpreted Gleclson and Baumgardner to abrogate Terry stops when a violation of the Vehicle Code is suspected. We do not believe that the Supreme Court intended such far reaching consequences. Less then nine months before it heard argument on Gleclson, the Supreme Court reiterated that a traffic stop "involves an investigative detention as opposed to an arrest." Commonwealth v. Scldvclri, 561 Pa. 588, 752 A.2d 393 (Pa. 2000). Furthermore, three months after it heard NO. 2002-2029 CRIMINAL - NO. 2002-2030 CRIMINAL - NO. 2002-2031 CRIMINAL argument on Gleason, the Supreme Court let stand the Superior Court's decision in Commonwealth v. Howard, 762 A.2d 360, (Pa. Super. 2000), appeal denied 565 Pa. 665, 775 A.2d 803 (2001).9 In Howardthe Superior Court had applied the case law it later held was "discredited" by Gleason. Specifically it recognized that "the reasonable suspicion necessary to justify a vehicular stop is less stringent than probable cause". 762 A.2d at 363. It also recognized that "erratic driving" could provide the reasonable suspicion necessary to justify an investigatory stop. It is highly unlikely that the Supreme Court would overrule, or otherwise discredit, such firmly established case law by implication and without discussion. However, the Superior Court has concluded that it did, and we are bound by that determination. In the instant case, the officer did not have probable cause to believe that a violation of the Vehicle Code had occurred. The crossing of the fog line on two brief occasions was not sufficient to establish probable cause for a violation of Section 3309(1). See Gleason, supra. As noted above, we believe the erratic driving evidenced by the slow speed, the weaving within the right hand lane, and the crossing of the fog line on two occasions, provided the officer with reasonable and articulable grounds to investigate a suspected violation of Section 3731 of the Vehicle Code. However, the erratic driving was not sufficient to satisfy the greater probable cause standard needed to 9 Gleason was argued before the Supreme Court on January 31,2001. The appeal in Howard was denied by the Supreme Court on April 26, 2001. NO. 2002-2029 CRIMINAL - NO. 2002-2030 CRIMINAL - NO. 2002-2031 CRIMINAL justify an arrest. Therefore, under Battaglia, we have no alternative but to grant the defendants' motion, l0 ORDER OF COURT AND NOW, this 23RI) day of JANUARY, 2003, for the reasons set forth in the accompanying opinion, the defendants' Motions to Suppress Evidence are GRANTED. By the Court, /s/Edward E. Guido Edward E. Guido, J. District Attorney H. Anthony Adams, Esquire John A. Abom, Esquire Paul B. Orr, Esquire :sld l0 We think this case is distinguishable on the facts from G/eason and Baumgardner. Had not the Superior Court concluded that those cases had discredited the proposition that a vehicle could be stopped for investigatory purposes "on a showing of less than probable cause", we would not have hesitated to deny the defendants' motions to suppress. As our colleague Judge Bayley recently said in a similar case "We are bound by the precedent in Battag/ia, but we invite reversal." Commonwealth v. Junkins, No. 1100 Criminal Term 2002.