Loading...
HomeMy WebLinkAboutCP-21-CR-2263-2003 COMMONWEAL TH : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, : PENNSYLVANIA v. : CP-21-CR-2263-2003 KEVIN GORDON : CHARGE(S): (1) UNLAWFUL POSSESSION OF SCHEDULE I CONTROLLED SUBSTANCE (2) FIREARMS NOT TO BE CARRIED WITHOUT A LICENSE (3) UNLAWFUL POSSESSION OF SMALL AMOUNT OF MARIJUANA IN RE: OMNIBUS PRE-TRIAL MOTION TO SUPPRESS Before HOFFER. P. J. OPINION This matter is before the Court on Defendant Gordon's Pre-trial Omnibus Motion in which he argues that certain evidence should be suppressed because it was obtained through an unlawful warrantless search. A suppression hearing was held, and parties filed briefs addressing suppression issues. For reasons set forth in this opinion, Defendant's Motion shall be denied. STATEMENT OF FACTS On July 26, 2003, Defendant Gordon was arrested on drugs and weapons charges after the vehicle in which he was a passenger was stopped. The driver was stopped by Officer Heredia of the Carlisle Police on the suspicion that he was wanted in connection with an unrelated criminal investigation. (Heredia Aff.) After the driver's identity was confirmed, Officer Parson was contacted, and he arrived at the scene within a few minutes. (Id.) The driver was arrested, and the search incident to arrest revealed over $3000.00 on his person. (Id.) While in custody, the driver began to yell that he wanted the Defendant to have the money, and then yelled that he wanted to give the money to an unidentified black woman who had showed up at the scene. (Id.) He claimed that she was a relative. (Id.) The Defendant remained in the vehicle while the police arrested the driver. At this point, Defendant was advised by Officer Heredia that he was free to leave as the vehicle was going to be secured because it was not registered to the driver. (Id.) As Defendant was walking away, Officer Heredia asked him if there were any guns in the car. (Id.) The Defendant stated "no" and left. (Id.) He came back a few seconds later and told Officer Heredia that there was a gun in the car. (Id.) He also told Officer Heredia that the gun was in a green bookbag in the back of the vehicle. (Id.)1 When Officer Parson went to secure the gun, he noticed a marijuana cigarette in plain view on the floorboard where Defendant had been sitting. (Id.) A semi-automatic 9mm pistol was then located in the bookbag. (Id.) Based on these findings, Defendant was then taken into custody on suspected drug and weapons charges. (Id.) While walking to the patrol car, he told Officer Parson that there was more marijuana in the bookbag. (Id.) This statement was unprompted by any questions. A search of the bookbag revealed a clear plastic bag containing marijuana. (Id.) 1 The vehicle was a small two-door hatchback coupe (Chevy Geo Storm). 2 DISCUSSION Voluntary consent to search is an exception to the general warrant requirement. Commonwealth v. Gibson, 638 A.2d 203, 206 (Pa. 1994). A determination of the validity of consent requires a two-prong assessment: 1) the constitutional validity of the citizen/police encounter underlying the consent; 2) the voluntariness of the consent. Commonwealth v. Strickler, 757 A.2d 884, 888 (Pa. 2000). In addition, since both tests for voluntariness and a seizure focus on the objective circumstances surrounding the citizen/police encounter, there is an overlap in the analyses. .!sL at 901. Therefore, the reasons supporting a conclusion that there was no lawful seizure also strongly mitigate in favor of a determination that consent was voluntary. .!sL at 902. In the instant case, the absence of an unlawful seizure is a strong factor indicating that the Defendant's consent was voluntary. When evaluating the voluntariness of consent, the totality of the circumstances must be examined to determine whether the situation was coercive. .!sL at 901. Some of these factors to be considered may include: 1) defendant's custodial status; 2) the use of duress or coercive tactics by law enforcement; 3) defendant's knowledge of his right to refuse consent; 4) defendant's education and intelligence; 5) extent and level of defendant's cooperation with law enforcement. See Commonwealth v. Cleckley, 738 A.2d 427,433 (Pa. 1999). In the case at bar, there is no evidence that the officer's acts were coercive. 3 In Strickler, the Pennsylvania Supreme Court held that subsequent questioning by an officer was consistent with a causal encounter and did not require any suspicion to justify it. 757 A.2d at 901. The court's central consideration was whether the objective circumstances demonstrate to a reasonable citizen that (s)he is no longer subject to police domination. .!sL at 899. The officer in Strickler was walking back to his vehicle after an initial lawful stop, when he turned around and asked the defendant if he had anything illegal in the car. .!sL at 900. Although the officer did not expressly inform the defendant that he was free to leave, he advised him of his right to refuse consent and returned his driver's license. Id. The court also noted that the officer did not direct or restrain his movements, and that there was no show of weapons, unusual commands, or aggressive behavior by the officer. Id. Similar to the police in Strickler. based on the totality of the circumstances, the police here did not unlawfully detain the Defendant. First, in contrast to Strickler, there was an actual endpoint to the initial police encounter. Officer Heredia expressly told the Defendant that he was free to leave before he asked about weapons. (Heredia Aff.) Similar to the Strickler case, Officer Heredia did not restrict the Defendant's movement or display aggressive behavior. The Defendant was walking away when Office Heredia asked about weapons, and he continued to leave after telling Officer Heredia that there were no guns in the car. (Id.) The Defendant then voluntarily returned to the scene, and told the policeman about the gun in the bookbag. (Id.) The fact that he 4 freely left and returned demonstrates that he was not under police domination or unlawfully detained when he made his statement. In Commonwealth v. Gillespie, 821 A.2d 1221, 1228 (Pa. 2003), the Pennsylvania Supreme Court held that the appellant voluntarily consented to a search of his bedroom when he spontaneously stated that a loaded gun was located in his bedroom. By focusing on the factors listed in Cleckley, the court found that the police did not coerce him into disclosing the gun's location. It also found that police officers reasonably understood the defendant's spontaneous statement as a grant of permission to enter that room and seize the gun. .!sL at 1227. The police in Gillespie arrived at the defendant's home and told him that they had good reason to believe that he possessed an illegal weapon, and they asked if he had any guns in the home. .!sL at 1223. The defendant became upset and yelled that it was none of their business and that no one could search without a warrant. .!sL The officers responded legitimately by lawfully detaining the increasingly agitated and aggressive defendant while they secured a warrant. .!sL He was handcuffed when he told the police without any further questioning that there was a gun in his bedroom. .!sL After the outburst about the gun's whereabouts, the officers located and seized it. .!sL Similar to the police in Gillespie, Officer Heredia reasonably understood the Defendant's spontaneous disclosure as consent to secure the weapon, and did not coerce him into making the statement. First, like the defendant in Gillespie, the Defendant was not unlawfully detained by the police. Second, 5 similar to the police in Gillespie, although Officer Heredia initially asked the Defendant about weapons, he responded legitimately to the negative answer by not questioning him further and by not preventing him from leaving. (Id.) The Defendant made his statement immediately upon returning to the scene without any prompting by the police. (Id.) Third, similar to the defendant in Gillespie, because the Defendant had already negatively answered the question about guns without any response from the police (Id), he was clearly aware of his right to refuse consent. Finally, there is nothing to suggest that the Defendant's education or intelligence had any bearing on his ability to freely consent. Similarly, the subsequent seizure of the marijuana in the bookbag was also valid. When Officer Parson approached the vehicle to secure the gun, he saw marijuana in plain view on the floor where the Defendant had been sitting. (Heredia Aff.) The Defendant was legitimately arrested with probable cause. As they were walking towards the patrol car, he spontaneously blurted out that there was more marijuana in the bookbag, and this was reasonably understood as consent to locate the marijuana. (Id.) Because consent was unsolicited by the police and there was no evidence of coercion, consent was voluntary. (Id.) Based on the totality of the circumstances, there is no evidence that the Defendant was unlawfully detained or that his consent was coerced. 6 COMMONWEAL TH : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, : PENNSYLVANIA VI. : CP-21-CR-2263-2003 KEVIN GORDON : CHARGE(S): (1) UNLAWFUL POSSESSION OF SCHEDULE I CONTROLLED SUBSTANCE (2) FIREARMS NOT TO BE CARRIED WITHOUT A LICENSE (3) UNLAWFUL POSSESSION OF SMALL AMOUNT OF MARIJUANA IN RE: DEFENDANT'S MOTION TO SUPPRESS Before HOFFER. P. J. ORDER OF COURT AND NOW, this day of , 2004, upon consideration of the Omnibus Pre-trial Motion to Suppress, a hearing, and briefs submitted by both parties, it is hereby ORDERED that Defendant's Motion is DENIED. By the Court, George E. Hoffer, P.J. John A. Abom, Esquire 36 S. Hanover Street Carlisle, PA 17013 (717) 249-0900 Attorney for Defendant Matthew P. Smith Assistant District Attorney Cumberland County Courthouse Carlisle, PA 17013 7