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HomeMy WebLinkAboutCP-21-CR-2626-2004 COMMONWEAL TH IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. KENNEDY LEROY GOWINS CP-21-CR-2626-2004 IN RE: MOTION OF DEFENDANT TO SUPPRESS EVIDENCE OPINION AND ORDER OF COURT Bayley, J., February 10, 2005:-- Defendant, Kennedy Leroy Gowins, is charged with counts of possession with intent to deliver a schedule II, controlled substance (cocaine),1 and possession of a small amount of marijuana.2 He filed a motion to suppress evidence upon which a hearing was conducted on February 1,2005. We find the following facts. Detective Jeffrey Kurtz is a Carlisle Borough Police Officer and a member of the Cumberland County Drug Task Force. On October 14, 2004, at approximately 4:00 a.m., Officer Kurtz was undercover at a truck stop in Middlesex Township, which adjoins the Borough of Carlisle. The officer saw Melanie Chestnut get out of a vehicle and walk to a bus that had just arrived. She then walked back to the vehicle and got inside. Officer Kurtz knew that there were outstanding summary warrants for Chestnut. He followed the vehicle into the Borough of Carlisle and radioed to Patrolman Eric Dale who was in uniform in a marked patrol vehicle. Kurtz told Dale that he was following a 1 35 P.S. S 780-113(a)(30). 235 P.S. S 780-113(a)(31). CR-21-CR-2626-2004 vehicle in which Chestnut was a passenger, and that there were summary warrants outstanding for her. Dale stopped the vehicle. Four other police officers, one of whom was Detective Kurtz, arrived at the scene of the stop. Officer Dale had Chestnut get out of the front passenger seat. He saw something on the floorboard in front of her but "was not sure at the time what it was." He "believed that it could have been marijuana shake or blunt shake from blunts, tobacco from the inside of blunts from someone rolling marijuana cigarettes." Officer Dale told Chestnut about the summary warrants, arrested her, and put her in his patrol car. Besides the driver, there were three men in the rear seat of the car, one of whom was defendant. Two were known to the police to have a "drug history." One was under local investigation for drug sales. They were from Brooklyn and Queens in New York, a "source city" according to Officer Dale. Officer Dale decided that he would have a drug dog sniff around the outside of the car. He had each person get out of the car separately so that pat-downs for weapons could be conducted. When defendant got out, Officer Dale patted him down. During the pat-down of the crotch he heard a "sound" on the leg of something "sliding or moving." The officer saw no bulges in defendant's clothing. He then ran his hand down the outside of defendant's pants and felt "something hard." He shook the pant leg and a bag of crack cocaine fell to the ground. The car in which defendant was riding was lawfully stopped based on probable cause to believe that one of the persons inside was Melanie Chestnut for whom there -2- CR-21-CR-2626-2004 were outstanding summary warrants. Chestnut was then lawfully arrested and taken into custody. The purpose of the stop was over. Notwithstanding, the police then detained the other persons in the car, for whom they knew there were no warrants, in order to get a drug dog sniff. They had no probable cause to believe that the persons in the car were committing a crime, nor did they have probable cause to believe that there was contraband inside the vehicle. Thus, there was no custodial detention. See Commonwealth v. Banks, 658 A.2d 752 (Pa. 1995). An investigative detention constitutes a seizure of the person and must be supported by reasonable suspicion based on specific and articulable facts that the persons being detained are engaged in criminal activity. Commonwealth v. McClease, 750 A.2d 320 (Pa. Super. 2000). In Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868,20 L.Ed.2d 889 (1968), the United States Supreme Court held that a police officer can conduct a protective search for weapons during a lawful investigative detention if the officer reasonably believes that the suspect is armed and dangerous; however, the frisk must be "limited to that which is necessary for the discovery of weapons which might be used to harm the officer or others nearby." In the present case, while one of the three men in the backseat of the Chevrolet was under local investigation for drug sales, two of them had a "drug history," and all three were from the New York area, those circumstances did not support a reasonable suspicion based on specific and articulable facts that they were then engaged in criminal activity. A blunt, such as a Philly blunt, is not contraband. While some people -3- CR-21-CR-2626-2004 may use the wrapper of a blunt to smoke marijuana, Officer Dale did not testify as to any specific and articulable facts whereby he reasonably believed that what he saw on the floorboard was marijuana anymore than it was tobacco. Accordingly, the investigative detention of defendant was unlawful and all evidence seized resulting from that detention must be suppressed.3 ORDER OF COURT AND NOW, this day of February, 2005, the motion of defendant to suppress evidence, IS GRANTED. All evidence seized resulting from the detention of defendant, IS SUPPRESSED. By the Court, Edgar B. Bayley, J. 3 This resolution makes it unnecessary to analyze whether Officer Dale had a reasonable belief when he conducted the pat-down of defendant that he was armed and dangerous, and whether the circumstances of the discovery of the cocaine during the pat-down constituted a lawful seizure. See Minnesota v. Dickerson, 508 U.S. 366, 113 S.Ct. 2130,124 L.Ed.2d 334 (1993); Commonwealth v. Graham, 721 A.2d 1075 (Pa. 1998); Commonwealth v. Fink, 700 A.2d 447 (Pa. Super. 1997); Commonwealth v. E.M., 735 A.2d 654 (Pa. 1999). -4- CR-21-CR-2626-2004 Jonathan R. Birbeck, Esquire Assistant District Attorney Dean Reynosa, Esquire F or Defendant :sal -5- COMMONWEAL TH IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. KENNEDY LEROY GOWINS CP-21-CR-2626-2004 IN RE: MOTION OF DEFENDANT TO SUPPRESS EVIDENCE ORDER OF COURT AND NOW, this day of February, 2005, the motion of defendant to suppress evidence, IS GRANTED. All evidence seized resulting from the detention of defendant, IS SUPPRESSED. By the Court, Edgar B. Bayley, J. Jonathan R. Birbeck, Esquire Assistant District Attorney Dean Reynosa, Esquire F or Defendant :sal