HomeMy WebLinkAboutCP-21-CR-3367-2007
COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
v. :
:
DAMON TODD CAREY :
OTN: L388019-2 : CP-21-CR-3364-2007
_____________________________________________
COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
v. :
DONALD BURROUGHS :
OTN: L388009-6 : CP-21-CR-3367-2007
IN RE: DEFENDANTS’ OMNIBUS PRETRIAL MOTIONS
BEFORE OLER, J.
OPINION and ORDER OF COURT
OLER, J., May 15, 2009.
In these related criminal cases, Defendants have been charged with various
offenses as the result of an incident in which a vehicle they were in was stopped at
a DUI checkpoint. Specifically, Defendant Carey is charged with Firearms Not To
Be Carried without a License, Possession of a Small Amount of Marijuana,
Possession of Drug Paraphernalia, Driving under the Influence of Alcohol,
Driving under Suspension, Receiving Stolen Property, and Driving under the
1
Influence of a Controlled Substance; and Defendant Burroughs is charged with
Firearms Not To Be Carried without a License, Possession of Firearm with
Altered Manufacturer’s Number, Possession with Intent To Deliver a Schedule I
Controlled Substance, Possession of a Small Amount of Marijuana, and
2
Possession of Drug Paraphernalia.
1
See Information, CP-21-CR-3364-2007, filed February 25, 2008.
2
See Information, CP-21-CR-3367-2007, filed February 25, 2008.
3
Defendants each filed an omnibus pretrial motion to suppress, and a
4
hearing was held over the course of three days. At the conclusion of the hearing,
the motions were taken under advisement by the court and a briefing schedule
5
provided.
For the reasons stated in this opinion, Defendants’ omnibus pretrial motions
will be denied.
STATEMENT OF FACTS
As a result of an incident on December 8, 2008, Defendants were charged
6
with the offenses noted above. Each eventually filed an omnibus pretrial motion
to suppress, seeking to suppress evidence on the grounds that (a) the stop of their
vehicle at a DUI checkpoint was unlawful, (b) a search of the Defendant’s person
was unlawful in the absence of “reasonable suspicion or probable cause that he
was a danger to the public or police,” and (c) a search of the vehicle was unlawful
in the absence of probable cause, a search warrant, consent of the owner
7
(Defendant Carey), or close proximity to the vehicle by any occupant. At the
8
consolidated hearing on the motions, Defendant Burroughs supplemented, or
clarified, his motion to include a request for suppression of a post-Miranda
statement allegedly made by him on the basis of its taint from the preceding
3
Omnibus Pre-trial Motion To Suppress, filed March 20, 2008, by Defendant Carey; Omnibus
Pre-trial Motion To Suppress, filed May 28, 2008, by Defendant Burroughs.
4
The joint hearing on Defendants’ motions was held on June 4, 2008, August 27, 2008, and
March 30, 2009. A third defendant, who was also an occupant of the vehicle, also filed a motion
to suppress and participated in the hearing, but mooted the suppression issues as to him by
entering a guilty plea. See N.T. 4, Hearing, March 30, 2009.
5
Order of Court, March 30, 2009. Neither the Commonwealth nor Defendants chose to submit
briefs.
6
Criminal Complaints, filed December 9, 2007.
7
Omnibus Pre-trial Motion To Suppress, filed March 20, 2008, by Defendant Carey; Omnibus
Pre-trial Motion To Suppress, filed May 28, 2008, by Defendant Burroughs.
8
Counsel agreed upon this consolidation. N.T. 10, Hearing, June 4, 2008.
2
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illegality; in addition, at the hearing both Defendants withdrew their contentions
10
that the stop of the vehicle at the DUI checkpoint was unlawful.
The pertinent evidence at the hearing found credible by the court may be
summarized as follows. On Saturday, December 8, 2007, in the Borough of Mount
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Holly Springs, Cumberland County, Pennsylvania, between 10:00 and 11:30 in
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the evening, a driving-under-the-influence checkpoint was being maintained by
law enforcement authorities in the 600 block of North Baltimore Street (State
13
Route 34). In the course of this activity, a line officer positioned in the center of
the roadway at the checkpoint, Patrolman Robert Ressler of the West Shore
Regional Police Department, encountered a southbound silver Chevrolet Impala
1415
automobile being driven by Defendant Damon Todd Carey and otherwise
16
occupied by Defendant Donald Burroughs (right rear seat), another person
17
ultimately charged, Simon S. Williford (right front seat), and Juliel Nickerson
18
Greer (left rear seat).
When Defendant Carey put his window down, Patrolman Ressler detected a
strong odor of burnt marijuana emanating from the vehicle, and observed what
19
appeared to be marijuana, including seeds, on Defendant Carey’s lap. In
addition, Defendant Carey appeared confused when asked for his papers, and was
9
N.T. 6-7, Hearing, March 30, 2009.
10
N.T. 5, Hearing, March 30, 2009.
11
N.T. 15, 21, Hearing, June 4, 2008.
12
N.T. 34, Hearing, June 4, 2008.
13
N.T. 15, 28-29, Hearing, June 4, 2008; N.T. 15, Hearing, August 27, 2008.
14
N.T. 51-53, Hearing, August 27, 2008
15
N.T. 54, Hearing, August 27, 2008.
16
N.T. 16, Hearing, March 4, 2009.
17
N.T. 77, Hearing, August 27, 2008.
18
N.T. 67, Hearing, August 27, 2008.
19
N.T. 55, Hearing, August 27, 2008.
3
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not able to produce a driver’s license. The officer directed the vehicle to a pull-
21
off area, notifying the officers staffing that area of the apparent drug violation by
22
way of a note placed on the vehicle’s windshield and by radio.
With specific reference to Defendant Carey, in the pull-off area
Pennsylvania State Trooper Eric Keebaugh perceived a strong odor of burnt
marijuana emanating from his window, noticed marijuana on his lap, observed that
23
his eyes were glassy and bloodshot, and saw that he was lethargic. Trooper
Keebaugh had Defendant Carey exit the vehicle, with a view to administering field
24
sobriety tests.
Because in his experience Trooper Keebaugh had found that weapons are
frequently associated with possession of drugs, the trooper conducted a pat-down
25
of Defendant Carey preliminary to administration of the field sobriety tests, for
26
purposes of officer safety. In the process of the pat-down Trooper Keebaugh felt
27
an object hard to the touch in one pocket, which he could not identify, and an
28
item soft to the touch in another pocket. He seized both, the former turning out to
29
be a bag of marijuana and the latter turning out to be $450.00 in cash.
During the pat-down, Defendant Carey became physically uncooperative,
as a result of which Trooper Keebaugh concluded that administration of field
30
sobriety tests would not be feasible. Having already had sufficient evidence to
20
N.T. 54, Hearing, August 27, 2008.
21
N.T. 57, Hearing, August 27, 2008.
22
N.T. 60-61, Hearing, August 27, 2008.
23
N.T. 55, Hearing, March 30, 2009.
24
N.T. 55, Hearing, March 30, 2009.
25
N.T. 60, Hearing, March 30, 2009.
26
N.T. 60, Hearing, March 30, 2009.
27
N.T. 56, 61, Hearing, March 30, 2009.
28
N.T. 56, 61, Hearing, March 30, 2009.
29
N.T. 56, 61, Hearing, March 30, 2009.
30
N.T. 56, Hearing, March 30, 2009.
4
arrest Defendant Carey in the form of glassy, bloodshot eyes, the strong odor of
marijuana, and the marijuana on his lap, the trooper formally placed him under
3132
arrest and put him in a sheriff’s van. On the scene, and after the administration
of Miranda warnings, Defendant Carey admitted to possession of a certain nine
millimeter Ruger handgun found under the driver’s seat of the vehicle in
33
circumstances described hereafter.
With specific reference to Defendant Burroughs, who initially feigned
34
sleep, certain furtive hand movements in the area of his waistband caused Police
Officer Seth Weikert of Silver Spring Township to demand twice, without effect,
3536
that he display his hands. He was removed from the vehicle, and a pat-down
3738
search disclosed a loaded, Llama 380-caliber pistol concealed in his waistband
39
and a bag of marijuana. He was also formally arrested and placed in the sheriff’s
40
van. At the Mount Holly Springs Borough police station, Miranda warnings were
41
administered to Defendant Burroughs and he advised that he had additional
42
marijuana on his person and that he had purchased the pistol on the street in
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Carlisle, Cumberland County, for $50.
31
N.T. 56-57, Hearing, March 30, 2009.
32
N.T. 57, Hearing, March 30, 2009.
33
N.T. 75, 86, Hearing, August 27, 2008.
34
N.T. 68, Hearing, March 30, 2009.
35
N.T. 20-21, 29, 35, Hearing, March 30, 2009.
36
N.T. 31, Hearing, March 30, 2009.
37
N.T. 32-33, Hearing, March 30, 2009.
38
N.T. 46, Hearing, March 30, 2009.
39
N.T. 48-49, Hearing, March 30, 2009.
40
N.T. 10, 22, 48, Hearing, March 30, 2009; N.T. 71, Hearing, August 27, 2008.
41
N.T. 22, Hearing, March 30, 2009.
42
N.T. 23, Hearing, March 30, 2009.
43
N.T. 26, Hearing, March 30, 2009.
5
Preparatory to granting the request of the other two passengers, who were
now standing outside the vehicle, to be permitted to get back in the vehicle while
44
they were waiting, Patrolman Eric Beyer of the Mount Holly Springs Borough
Police Department cleared the immediate area to which they would have access in
45
the back seat and found a Ruger nine millimeter gun under the driver’s seat. At
that point, the vehicle was deemed by police to be off-limits to any of its
46
occupants, and it was impounded for purposes of any further search pursuant to a
47
warrant.
DISCUSSION
Statement of Law
Removal of occupants of lawfully stopped vehicle. Even without a
reasonable suspicion that criminal activity is afoot, police may constitutionally
request a driver and his or her passengers to alight from a lawfully stopped
vehicle. Commonwealth v. Brown, 439 Pa. Super. 516, 517, 654 A.2d 1096, 1102
(1995).
Frisk incident to investigative detention. Under Terry v. Ohio, 392 U.S. 1,
30, 88 S. Ct. 1868, 1884, 20 L. Ed. 2d 889 (1968), police may conduct a pat-down
frisk when there is reasonable, articulable suspicion that criminal activity is afoot
and that the suspect may be armed and dangerous. Commonwealth v. Shelly, 703
A.2d 499, 502-03 (1997). As a general rule, an assumption that a person in
possession of illegal drugs may be armed and dangerous is a reasonable one. See
Commonwealth v. Zook, 2004 PA Super 174, ¶10, 851 A.2d 178, 182. Furtive
movements by an occupant of a vehicle can also provide a basis for a reasonable
belief that the individual is armed and dangerous. Commonwealth v. Mesa, 453 Pa.
Super. 147, 152, 683 A.2d 643, 646 (1996).
44
N.T. 72, Hearing, August 27, 2008.
45
N.T. 75, Hearing, August 27, 2008.
46
N.T. 76, Hearing, August 27, 2008.
47
N.T. 76, Hearing, August 27, 2008.
6
48
A Terry frisk is limited to one for weapons, although items manifestly
49
illegal that are perceived in the process may also be lawfully seized.
Search incident to arrest. A person who has been lawfully arrested is
subject to a search of “the person as well as the immediate area in which the
person was detained.” Commonwealth v. Rogers, 578 Pa. 127, 132 n.5, 849 A.2d
1185, 1188 n.5 (2004).
Inevitable discovery. Evidence seized from a person unlawfully which
would have been discovered inevitably in the course of a search incident to a
lawful arrest will not be suppressed. Commonwealth v. Van Winkle, 880 A.2d
1280, 1285 (2005).
Automobile searches. Federal constitutional law as it relates to a
warrantless, nonconsensual search of a motor vehicle following a traffic stop has
recently been clarified by the United States Supreme Court in Arizona v. Gant, No.
07-542, 566 U.S. ___, ___ S. Ct. ___, ___ L. Ed. 2d ___ (April 21, 2009). In Gant,
the defendant “was arrested for driving with a suspended license, handcuffed, and
locked in the back of a patrol car, [and then] police officers searched his car and
discovered cocaine in the pocket of a jacket on the backseat.” Id. at ___, ___ S. Ct.
at ___, ___ L. Ed. 2d at ___ (slip op. at 1). In affirming a holding of the Arizona
Supreme Court that the search-incident-to-arrest exception to the fourth
amendment’s warrant requirement did not justify the search, the United States
Supreme Court stated the following:
. . . [Precedent in this area] authorizes police to search a vehicle
incident to a recent occupant’s arrest only when the arrestee is unsecured
and within reaching distance of the passenger compartment at the time of
the search.
. . . [W]e also conclude that circumstances unique to the vehicle
context justify a search incident to a lawful arrest when it is “reasonable to
believe evidence relevant to the crime of arrest might be found in the
vehicle.”
48
Commonwealth v. Stevenson, 560 Pa. 345, 352, 744 A.2d 1261, 1264 (2000).
49
Minnesota v. Dickerson, 508 U.S. 366, 370, 113 S. Ct, 2130, 2134, 124 L. Ed. 2d 334 (1993)
(plain feel doctrine).
7
Id. at ___, ___ S. Ct. at ___, ___ L. Ed. 2d at ___ (slip op. at 10) (footnote and
citation omitted).
Elaborating upon the subject, the Court in Gant stated:
. . . Under our view, [prior decisions of the Court] permit an officer to
conduct a vehicle search when an arrestee is within reaching distance of
the vehicle or it is reasonable to believe the vehicle contains evidence of
the offense of arrest. Other established exceptions to the warrant
requirement authorize a vehicle search under additional circumstances
when safety or evidentiary concerns demand. For instance, Michigan v.
Long, 463 U.S. 1032 (1983), permits an officer to search a vehicle’s
passenger compartment when he has reasonable suspicion that an
individual, whether or not the arrestee, is “dangerous” and might access
the vehicle to “gain immediate control of weapons.” Id., at 1049 (citing
Terry v. Ohio, 392 U.S. 1, 21 (1968)). If there is probable cause to believe
a vehicle contains evidence of criminal activity, United States v. Ross, 456
U.S. 798, 820-821 (1982), authorizes a search of any area of the vehicle in
which the evidence might be found. . . . Ross allows searches for evidence
relevant to offenses other than the offense of arrest . . . . Finally, there
may be still other circumstances in which safety or evidentiary interests
would justify a search. Cf. Maryland v. Buie, 494 U.S. 325, 334 (1990)
(holding that, incident to arrest, an officer may conduct a limited
protective sweep of those areas of a house in which he reasonably suspects
a dangerous person may be hiding).
Id. at ___, ___ S. Ct. at ___, ___ L. Ed. 2d at ___ (slip op. at 13-14).
Objective standard as to authority of police. As a general rule, the validity
of a law enforcement authority’s conduct in terms of a search and seizure is to be
judged by an objective standard, as opposed to the officer’s subjective view as to
the scope of his or her authority. See, e.g., Commonwealth v. McElroy, 428 Pa.
Super. 69, 630 A.2d 35 (1993)
Application of Law to Facts
In the present case, with respect to Defendant Carey, the seizure of drugs
and cash from his person, while not justifiable on the basis of a Terry frisk, was in
the court’s view permissible on the basis of a search substantially
contemporaneous with a lawful arrest—said arrest being for driving under the
influence of a controlled substance and possession of a controlled substance, and
being based upon the various indicia of intoxication, odor of marijuana, and
presence of marijuana on his lap perceived by law enforcement authorities prior to
8
the search. To the extent that the search should be deemed not substantially
contemporaneous with the arrest, the doctrine of inevitable discovery would
preclude the suppression of items found on his person inasmuch as those items
were going to be found in any event in the search of his person following his
formal arrest.
The limited inspection of the interior of the vehicle was consistent, in the
court’s view, with the holding in Gant, supra, on the bases of (a) officer safety and
(b) probable cause to believe that evidence relevant to Defendant Carey’s lawful
arrest would be found there. The first basis is supported by the known presence of
a controlled substance in the vehicle, the association of weapons and drugs, the
discovery of a gun upon one of the occupants of the vehicle, and the impending
return to the vehicle of two of its occupants. The second basis is supported by the
strong odor of burnt marijuana emanating from the vehicle, manifestations of drug
use by Defendant Carey, and the presence of marijuana on his lap.
With respect to Defendant Burroughs, the seizure of the gun was justified
on the basis of a Terry frisk for weapons, given his pretense of being asleep, his
furtive movements in the vehicle, his refusal to show his hands in response to a
command of a police officer, the odor of burnt marijuana emanating from the
vehicle, and the association of weapons and drugs. The seizure of marijuana from
his person, while not justifiable on the basis of a Terry frisk, was permissible, in
the court’s view, as a search substantially contemporaneous with his lawful arrest
for the weapons offense; in any event, suppression of the evidence would not be
compatible with the inevitable discovery doctrine, in that the marijuana would
have been discovered in the course of a search incident to a lawful arrest for the
said weapons offense.
Given the absence of a basis to suppress evidence as discussed above, it
follows that the receipt of additional evidence thereafter by law enforcement
authorities can not be suppressed on the theory that it was the product of illegally
9
seized, suppressible material. For the foregoing reasons, the following order will
be entered:
ORDER OF COURT
th
AND NOW, this 15 day of May, 2009, upon consideration of Defendants’
omnibus pretrial motions seeking the suppression of evidence, and following a
hearing held on June 4, 2008, August 27, 2008, and March 30, 2009, and for the
reasons stated in the accompanying opinion, the motions are denied.
BY THE COURT,
s/ J. Wesley Oler, Jr.
J. Wesley Oler, Jr., J.
Daniel J. Sodus, Esq.
Senior Assistant District Attorney
John A. Abom, Esq.
Attorney for Defendant
Damon Todd Carey
Nathan C. Wolf, Esq.
Attorney for Defendant
Donald Burroughs
10
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COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
v. :
:
DAMON TODD CAREY :
OTN: L388019-2 : CP-21-CR-3364-2007
_____________________________________________
COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
v. :
DONALD BURROUGHS :
OTN: L388009-6 : CP-21-CR-3367-2007
IN RE: DEFENDANTS’ OMNIBUS PRETRIAL MOTIONS
BEFORE OLER, J.
ORDER OF COURT
th
AND NOW, this 15 day of May, 2009, upon consideration of Defendants’
omnibus pretrial motions seeking the suppression of evidence, and following a
hearing held on June 4, 2008, August 27, 2008, and March 30, 2009, and for the
reasons stated in the accompanying opinion, the motions are denied.
BY THE COURT,
_________________
J. Wesley Oler, Jr., J.
Daniel J. Sodus, Esq.
Senior Assistant District Attorney
John A. Abom, Esq.
Attorney for Defendant
Damon Todd Carey
Nathan C. Wolf, Esq.
Attorney for Defendant
Donald Burroughs