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HomeMy WebLinkAboutCP-21-CR-0259-2004COMMONWEALTH DREW B. FINN IN RE: IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CP-21-CR-259-2004 MOTION OF DEFENDANT TO SUPPRESS EVIDENCE BEFORE BAYLEY, J. OPINION AND ORDER OF COURT Bayley, J., May 18, 2004:-- Defendant, Drew B. Finn, is charged with unlawful possession of small amount of marijuana.1 He filed a motion to suppress evidence upon which a hearing was conducted on May 10, 2004. We find the following facts. On September 1, 2003, at 11:43 p.m., Officer James Miller of the Upper Allen Township Police was at his police station. He received a complaint by phone that there was a white vehicle parked a few blocks away from the station from which loud music was coming, and the people in the vehicle were loud in general. Officer Miller drove to the scene where he saw the white vehicle described by the caller. He pulled his patrol car at an angle in front of the vehicle and activated the flashing lights. The officer heard loud music coming from the vehicle. He walked up to the driver's door where defendant, Drew B. Finn, was in the driver's seat. There was a front seat passenger and three passengers in the backseat. Officer Miller told the occupants of the noise 1 35 P.S. § 780-113(a)(31) and 306. CP-21-CR-259-2004 complaint and asked all of them for identification. It was his intention to obtain their names, addresses and dates of birth, and then give them a warning for violating the noise provisions of an Upper Allen Township Ordinance. He wanted the identification so if any people in the vehicle were again involved in a noise incident there would be a record of their having received a warning. None of the people in the vehicle, as Officer Miller testified, were free to leave until he obtained their names, current addresses and dates of birth. Defendant and the front seat passenger provided their driver's licenses to Officer Miller. The three backseat passengers said they did not have a license with them. The officer asked those three to get into his patrol car so he could take their names, addresses and dates of birth. It was raining outside and Officer Miller testified that he did not want to write in the rain. The three backseat passengers got out of the vehicle, and Officer Miller then told them that he had to pat them down for safety before they got into his patrol car. They agreed to be patted down. After the officer did so, they got into the patrol car where he obtained the information he sought. After they got out one left to walk to his nearby home and the other two got back into defendant's vehicle because they needed a ride. Officer Miller then went back to defendant's vehicle and asked defendant and the front seat passenger if the information on their driver's license was correct. Both said that they had moved and the addresses were not correct. Testifying that he did not want to write in the rain, the officer asked them to get out of the vehicle and to get -2- CP-21-CR-259-2004 into his patrol car so he could write their new addresses. They got out of the vehicle and the officer then told them of the necessity of a pat-down for his safety before they got into the patrol car. They both agreed to be patted down. During the pat-down of the passenger the officer found marijuana on his person. Officer Miller then told defendant that since he found marijuana on the passenger he wanted to search defendant's vehicle. He asked defendant for his consent to search. While defendant and the passenger were in the backseat of the officer's patrol car, defendant signed the following written consent: White 1987 Mercury Grand Marquis Registration EJY9790 PA I give Officer Miller permission to search my vehicle mentioned above. Vehicle is located on 100 Block Wyncote Court. The officer then let defendant and the passenger out of his patrol car and he had the two people in the backseat of defendant's vehicle get out. He then searched defendant's vehicle and discovered contraband which forms the basis of the within charge. DISCUSSION In Commonwealth v. Felty, 662 A.2d 1102 (Pa. Super. 1995), the facts were: On February 6, 1994, at approximately 1:30 a.m., Officers Carr and Anderson of the Reading Police Department approached the appellant's car in the 400 block of Miltimore Street in Reading. The appellant, Donald L. Felty, and two passengers were inside the car. The appellant's car had no lights on and blocked a one-way street. The officers, in a marked patrol car, flashed their lights (both dome and headlights) signaling the car to move. The passengers looked back and then the car proceeded down the street and turned onto another street. The officers -3- CP-21-CR-259-2004 requested a license plate check and followed the car for four to five blocks. The plate checked out and the officers observed no violations of the Motor Vehicle Code. During this period, the occupants of the car made some movements in the car and looked back at the patrol car. Officer Carr then observed an object hanging from the rear-view mirror and, pursuant to 75 Pa.C.S.A. §§ 4524(c) and 6308(b), pulled the car over. After pulling the car over, the two officers approached the car and, after asking for the appellants' drivers license and registration, noticed several bottles of beer (opened and unopened) inside the car and blood on the wrist of the front-seat passenger. The officers then asked for and received valid identifications from the passengers. At this time, the officers discovered several syringes on the car floor near the feet of the front-seat passenger. Officer Carr then asked the appellant if he had any drugs on him to which he responded "No". Officer Carr then asked to search the appellant. The appellant consented and the officer found an empty shoulder holster, a speed loader with gun shells, several loose gun shells, two wooden boxes containing marijuana and hashish respectively, and $3,500.00 cash on the appellant's person. The officers then searched the other passengers and the car. The officers discovered two loaded handguns in the car and several bullets and cartridges on one passenger's person. Also, more syringes were found. The guns had been reported stolen in January, 1994. Appellant was then placed under arrest and charged with possession of a controlled substance, receiving stolen property and conspiracy. (Footnotes omitted). Appellant filed a motion to suppress evidence which was denied by the trial court. Following his conviction and sentencing he filed an appeal to the Superior Court of Pennsylvania. Reversing the trial court, the Court stated: The threshold question involved is whether Officer Carr, pursuant to 75 Pa.C.S.A. § 6308(b), possessed reasonable and articulable grounds to believe that the object hanging on the rear-view mirror of the appellant's car violated 75 Pa.C.S.A. § 4524(c), thus, permitting him to stop the car for a Motor Vehicle Code violation. The appellant argues that there were no valid grounds for the officer to stop his car. Generally, irregular behavior is insufficient to justify a warrantless -4- CP-21-CR-259-2004 stop of an individual. Commonwealth v. Wilson, supra at 279, 655 A.2d at 563. This Court has held that "articulable and reasonable grounds to suspect" is the appropriate standard for determining whether a traffic stop was supported by a reasonable belief that the Motor Vehicle Code has been violated. Commonwealth v. McEIroy, 428 Pa. Super. 69, 74, 630 A.2d 35, 38 (1993) (en banc); 75 Pa.C.S.A. § 6308(b). Applying this standard, this Court recently held that a police officer does not possess reasonable and articulable grounds to believe that an air freshener hanging on the defendant's car's rear-view mirror violated 75 Pa.C.S.A. § 4524(c). Commonwealth v. Benton, 440 Pa. Super. 441,449, 655 A.2d 1030, 1034 (1985). The panel in Commonwealth v. Benton, supra, also concluded that § 4524(c) does not prohibit the hanging of an object from a car's rear-view mirror, but rather, "prohibits the hanging only where such object serves to materially obstruct, obscure or impair the visibility of the driver or constitutes a safety hazard." Id. at 445, 655 A.2d at 1032. Accordingly, this Court held in Commonwealth v. Benton, supra that a traffic stop will be deemed illegal when there is "no testimony whatsoever by the police officer that an object materially obstructed, obscured or impaired the driver's vision, or appeared to do so, or how an object constituted or appeared to constitute a safety hazard." Id. at 448, 655 A.2d at 1034. In the instant case, Officer Carr lacked the necessary reasonable and articulable grounds to warrant a stop of appellant's car. Officer Carr was unable to articulate a clear description of the object after several visits back and forth between the two cars. Rather, Officer Carr only described the object in murky and vague language. Additionally, Officer Carr failed to include any mention or description of the object in his police report. Most significantly, Officer Carr never testified that, pursuant to 75 Pa.C.S.A. § 4524(c), the object materially obstructed, obscured or impaired the driver's vision, or constituted a safety hazard. See Commonwealth v. Benton, supra. Thus, the suppression court erred in denying the appellant's motion to suppress because the record does not support the finding that Officer Carr possessed sufficient reasonable and articulable grounds warranting a stop of appellant's car. Consequently, because the suppression court's finding is not supported by the evidence, its legal conclusion based on that finding, namely, that the stop was lawful, was erroneous. We hold that the stop was unreasonable and illegal, thus, tainting the evidence obtained subsequent to the stop. (Footnote omitted). -5- CP-21-CR-259-2004 In the case sub judice, Officer Miller did not stop defendant's vehicle. However he did not have a mere encounter with defendant to discuss noise. By his own acknowledgment, he detained defendant. Thus there was an investigative detention. See Commonwealth v. Ellis, 662 A.2d 1043 (Pa. 1995). Other than Officer Miller having received a complaint about loud noise, and his testifying that, (1) generally what he heard was loud, and (2) he intended to give defendant and the others in the vehicle a warning, he failed to articulate a clear description of how the noise constituted a violation of an Upper Allen Township Ordinance. As was the conclusion of the officer in Felty that there was a violation of 75 Pa.C.S. § 4524(c), Officer Miller's conclusion that the noise he heard was loud and thus in violation of an Ordinance is not evidence. Therefore, Officer Miller lacked the necessary reasonable and articulable grounds to detain defendant for investigation. That taints the evidence seized pursuant to the consent defendant signed to search his vehicle. For the foregoing reasons, the following order is entered. ORDER OF COURT AND NOW, this day of May, 2004, the motion of defendant to suppress evidence obtained by Officer Miller when he searched defendant's car, IS GRANTED. The evidence, IS SUPPRESSED. By the Court, -6- CP-21-CR-259-2004 Edgar B. Bayley, J. -7- CP-21-CR-259-2004 Daniel Sodus, Esquire Assistant District Attorney Susan Pickford, Esquire For Defendant :sal -8- COMMONWEALTH DREW B. FINN IN RE: IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CP-21-CR-259-2004 MOTION OF DEFENDANT TO SUPPRESS EVIDENCE BEFORE BAYLEY, J. ORDER OF COURT AND NOW, this day of May, 2004, the motion of defendant to suppress evidence obtained by Officer Miller when he searched defendant's car, IS GRANTED. The evidence, IS SUPPRESSED. By the Court, Daniel Sodus, Esquire Assistant District Attorney Susan Pickford, Esquire For Defendant :sal Edgar B. Bayley, J.