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HomeMy WebLinkAboutCP-21-CR-1161-2004 COMMONWEALTH OF PENNSYLVANIA : IN THE COURT OF : COMMON PLEAS OF : CUMBERLAND : COUNTY, PENNSYLVANIA : CP-21-CR-1161-2004 : CHARGE: (1) UNLAWFUL : MANUFACTURE DELIVERY : OR POSSESSION WITH : INTENT TO DELIVER : SCHEDULE II : CONTROLLED SUBSTANCE : (2) UNLAWFUL : POSSESSION : OF SCHEDULE II : CONTROLLED SUBSTANCE v. GRANVILLE 1. MURRELL IN RE: OMNIBUS PRE-TRIAL MOTION TO SUPPRESS EVIDENCE Before Hoffer, P.J.: This case involves a criminal complaint filed on or about May 1, 2004. Granville 1. Murrell, the defendant, was charged with Possession with Intent to Deliver a Controlled Substance (cocaine) and Simple Possession of a Controlled Substance (cocaine), which are violations of 35 P.S. Sections 780-113 (a)(30) and (a)(16) respectively. On May 19, 2004, a preliminary hearing was held before District Justice Susan K. Day. As a result, both charges were bound over to this court. On July 20, 2004, the defendant was formally arraigned. On August 17, 2004, the defendant filed an Omibus Pre-trial motion seeking the suppression of evidence. A hearing on the motion was held before this court on October 8, 2004. Troopers Jeffrey D' Alessandro and Brian Overcash both testified at the suppression hearing. STATEMENT OF FACTS At approximately 7:00 p.m., on May 1,2004, Trooper Overcash was on patrol by himself in a stationary position observing traffic on Interstate 81 in Dickinson Township, Cumberland County, Pennsylvania. Trooper Overcash observed a vehicle on that limited access highway driving in the left lane being overtaken by vehicles in the right lane because it was traveling slower than the rate of the traffic flow, which violates 75 Pa. C.S.A. ~ 3313 (d)(1). Because of the apparent violation of 75 Pa.C.S.A. ~3313 (d)(1) \ Trooper Overcash conducted a traffic stop of the vehicle. The defendant was one of three occupants. Trooper Overcash approached the vehicle on the passenger side of the vehicle and was greeted by an overwhelming odor of citrus and the sight of mist from the citrus spray still inside the vehicle. Trooper Overcash inquired as to why the extreme amount of citrus air freshener had been sprayed throughout the interior. The response was that they were not allowed to smoke cigarettes in the vehicle. Because they did not want to get in trouble with the rental car company, they explained that they sprayed the car down when they had been stopped. 1 75 Pa.C.S.A. 3313 makes it unlawful to drive in the left lane of a divided highway unless one is overtaking other vehicles or allowing others to merge. 2 Trooper Overcash observed marijuana seeds along with marijuana pieces in plain view in the center console area of the gear shift. Trooper Overcash also observed cigars, blunts, and some tobacco on the floorboard of the rear passenger compartment, where the defendant was seated. . Trooper Overcash was presented with a Virgin Islands driver's license by the front seat passenger. It identified him as Patrick Henry. Trooper Overcash, of course, had no way of verifying the identification. When Trooper D'Alessandro arrived to assist Trooper Overcash, and was briefed concerning Trooper Overcash's observations, the occupants were then requested to exit the vehicle. Because Trooper D'Alessandro was going to stand outside the vehicle with the three occupants while Trooper Overcash looked inside the vehicle to pick up the marijuana residue, the occupants were patted down for safety purposes. Trooper D' Alessandro patted down the defendant, who was directed to place his hands on the trunk of the car and spread his legs a little bit. The trooper began the pat down in the front waist area of the defendant where he felt a bulge. Trooper D'Alessandro asked the defendant what the bulge was, and the defendant reached for it. Trooper D'Alessandro immediately put the defendant's hand back on the trunk and asked him to identify the bulge. Getting no response, Trooper 3 D'Alessandro then removed a bag from the defendant's waist band area. The bag contained powder cocaine. After Trooper Overcash arrived back at the station with the defendant, he learned that there was an outstanding warrant for Murrell's arrest The warrant was confirmed by a sergeant from a New Jersey Sheriff's Department who indicated they would extradite. The defendant was then arrested on the warrant. DISCUSSION I. The first contention of the defendant in this case is that he was subjected to an unlawful detention following the observation of the traffic violation. The defendant's argument is without merit. Trooper Overcash stopped the car for a Vehicle Code violation. He observed freshly sprayed air freshener. That fact, in combination with the passenger's nonsensical response to an inquiry about the air freshener, the cigar tobacco strewn on the floor, and the marijuana seeds and residue in plain view on the center console all gave Trooper Overcash reasonable suspicion to believe that the occupants of that car were engaged in criminal activity. The question then becomes whether, once the occupants were removed from the car, the subsequent investigative detention was lawful. Investigative detentions of citizens by police are lawful when the police 4 possess reasonable suspicion to believe that those detained are engaged in criminal activity. Commonwealth v. McClease, 750 A.2d 320, 325 (Pa. Super. 2000) (citing Commonwealth v. Hall, 558 Pa. 16, 735 A.2d 654, 659 (1999)). Moreover, it is well established that the Fourth Amendment of the United States Constitution and Article 1, Section 8 of the Pennsylvania Constitution allow police to conduct brief investigatory stops of an individual if the officer has reasonable suspicion, based on specific and articulable facts that criminal activity may be afoot. See Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); Commonwealth v. Hall, 558 Pa. 16, 735 A.2d 654 (1999). To assess whether a reasonable belief existed, consideration is given to the specific reasonable inferences that the officer can draw from the facts in light of his experience, but no consideration is given to his un particularized suspicions or hunches. See Commonwealth v. Zhahir, 561 Pa. 545, 751 A.2d 1153 (2000). In the present case, Trooper Overcash testified that he is a trained trooper in the area of drug interaction and identification with nearly a decade of experience. At the time of this incident, he was assigned to the Federal Drug Enforcement Agency's narcotics task force in Harrisburg. Based on his training and experience, along with his observations of the occupants of the vehicle, we are satisfied that Trooper Overcash had a reasonable belief that criminal activity was occurring in their car. Thus, the 5 trooper's detention of the defendant after the traffic stop was both justified and lawful. The defendant's reliance on Commonwealth v. Phinn, 761 A.2d 176 (Pa. Super 200), is misplaced. In Phinn, the officer was only able to point to observations he made of air fresheners and furtive hand movements in an attempt to support his reasonable suspicion. The Superior Court upheld the suppression in Phinn_since the facts articulated did not support an inference of criminal activity. In the present case, no inferences need be drawn. Trooper Overcash actually observed marijuana in the car and within reach of its occupants. II. The second issue raised by the defendant is whether the pat-down search was lawful. Because of a concern for their own safety, Trooper Overcash and Trooper D'Alessandro patted down the three men. Trooper Overcash had seen marijuana in the car. He suspected that the men had given a fictitious explanation for their use of the air freshener spray. Trooper Overcash knew that in continuing his investigation, there would be significant risk to the safety of one or both of the troopers. Given these factors, we are satisfied that the pat-down was proper. 6 III. The third issue raised by the defendant is whether the removal of the soft bulge was lawful as incident to a lawful arrest. We conclude that it was. Whether the search precedes the arrest or vice versa, it is not particularly important, so long as what the search disclosed was "not necessary to support the probable cause to arrest." See Rawling v. Kentucky, 448 U.S. 98, 111, 100 S.Ct. 2556, 2564 (1980). In this case, the contraband that the search disclosed was not necessary to support the probable cause to arrest. In the present case, before the search, Trooper Overcash had probable cause to believe that the three occupants of the car were all in possession of the marijuana he saw in plain view. Trooper Overcash's probable cause was also buttressed by the bits of tobacco strewn on the floor of the front and rear of the car and the dense mist of the air freshener in the car. We conclude that the seizure of the material in the waist-band of the defendant's pants was permissible as discovered incident to the defendant's lawful arrest for possession of marijuana. CONCLUSION The defendant's motion to suppress evidence of his possession of cocaine is denied. 7 8 COMMONWEALTH OF PENNSYLVANIA : IN THE COURT OF : COMMON PLEAS OF : CUMBERLAND : COUNTY, PENNSYLVANIA : CP-21-CR-1161-2004 : CHARGE: (1) UNLAWFUL : MANUFACTURE DELIVERY : OR POSSESSION WITH : INTENT TO DELIVER : SCHEDULE II : CONTROLLED SUBSTANCE : (2) UNLAWFUL : POSSESSION : OF SCHEDULE II : CONTROLLED SUBSTANCE VI. GRANVILLE 1. MURRELL IN RE: OMNIBUS PRE-TRIAL MOTION TO SUPPRESS EVIDENCE ORDER OF COURT AND NOW, after hearing and upon careful consideration of the briefs of counsel, the defendant's Motion to Suppress is denied. By the Court, George E. Hoffer, P.J. Geoffrey Mcinroy, Esquire Senior Assistant District Attorney For the Commonwealth Dean E. Reynosa, Esquire Office of the Public Defender For the Defendant 9