HomeMy WebLinkAboutCP-21-CR-2747-2004
COMMONWEALTH
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
v.
SHAWN D. GILLESPIE
OTN: L214685-2
CHARGES (1) PROHIBITED OFFENSIVE
WEAPONS
(2) THEFT BY UNLAWFUL
TAKING
(3) CRIMINAL CONSPIRACY
(4) CRIMINAL MISCHIEF
(5) DEFIANT TRESPASS
CP-21-CR-2747-2004
IN RE: DEFENDANT'S OMNIBUS PRETRIAL MOTION
BEFORE OLER, J.
OPINION and ORDER OF COURT
OLER, 1., May 18,2005.
In this criminal case, Defendant has been charged with possession of a
prohibited offensive weapon, theft by unlawful taking or disposition, criminal
mischief, conspiracy to commit theft by unlawful taking and/or criminal mischief,
and defiant trespass.l For disposition at this time is an omnibus pretrial motion
filed on behalf of Defendant in the form of a motion to suppress.2
The basis for the motion is that a "stop of [a car which Defendant possessed
and in which he was a passenger], [a] search of the car, and [certain] questioning
of the [Defendant] were all in violation of the Constitutions of the United States
and of the Commonwealth of Pennsylvania.,,3 A hearing on the motion was held
on February 23, 2005.
F or the reasons stated in this opinion, Defendant's motion will be denied.
1 Information, filed December 10,2004.
2 Defendant's Omnibus Pre-trial Motion To Suppress, filed January 4,2005.
3 Defendant's Omnibus Pre-trial Motion To Suppress, filed January 4,2005, para. 11.
STATEMENT OF FACTS
As a result of reports of various area burglaries of commercial
establishments and thefts from vending machines, Pennsylvania State Troopers
William Dubbs and Frank M. Hershey were on patrol at the intersection of
Pennsylvania State Route 11 and Hostetter Avenue in South Hampton Township,
Franklin County, Pennsylvania, in an unmarked car at 3:00 a.m. on Friday,
November 12, 2004.4 Both troopers were in uniform. 5
The vending machine thefts which had prompted the patrol were described
by Trooper Dubbs as follows:
Q . . . And describe what type of thefts in relation to
vending machines you mentioned?
A They were prying open soda machines, gaining
access to them by unknown means. And removing the change
and the dollar bills from there. And also with the burglaries
they were-at the restaurants and so forth, they were also
entering the store and removing the cash from that business.6
At the aforesaid time and place, the troopers observed a Jeep pull from
Route 11 northbound into the parking lot of a restaurant called the Treat (which
was not open at that hour\ disappear from view around one side of the building,
emerge and resume its northbound travel on Route 11.8 The troopers followed the
Jeep for a distance of a mile and a halt until its driver committed a Vehicle Code
violation in the form of an unsignaled right turn, and stopped it. 10
4 NT. 3-5, Suppression Hearing, February 23,2005 (hereinafter NT. ~.
5 NT. 37, 52.
6 NT. 6.
7 NT. 23.
8 NT. 6-7,23.
9 NT. 9.
10 NT, 8-9.
2
When Trooper Dubbs approached the vehicle, he heard what sounded like a
large number of coins fall to the floor inside it. 11 Within the Jeep could be seen
between fifteen and twenty one-dollar bills scattered throughout the vehicle,12 a
large amount of loose change, and about twenty small vending machine-type
. f. 13
contamers 0 pIes.
The driver of the Jeep was a male who was not able to identify himself with
a driver's license, but offered a name and date of birth. 14 The other occupant of
the vehicle was Defendant, who produced an occupational limited driver's
license. 15 A registration card provided by the occupants to the troopers identified
the owner of the vehicle as a woman. 16 The troopers returned to their unit and
decided to attempt to obtain consent to search the Jeep.17 They returned to the
vehicle, with Trooper Hershey positioning himself at the driver's door and
Trooper Dubbs placing himself at the passenger's dOOr.18 After the paperwork
was returned to the occupants, Trooper Hershey said that they were free to gO.19
Both troopers executed a maneuver whereby they turned and started to walk
toward the rear of the vehicle, then reversed course and returned to their prior
positions,20 whereupon Trooper Hershey asked Defendant, who had advised the
11 NT. 10.
12 NT. 12, 17.
13 NT. 17, 37-38.
14 NT. 11, 40.
15 NT. 11, 28, 40, 42, 59.
16 NT. 13,40,42-43.
17 NT. 34, 39, 57.
18 NT. 14,33.
19 NT. 40, 56.
20 NT. 40-44, 54, 56-58, 66-67.
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troopers that the Jeep was owned by a girlfriend of his uncle,21 for consent to
search the vehicle.22 Defendant consented to the search?3
Trooper Hershey proceeded to search the Jeep,24 securing the aforesaid
items, including hundreds of dollars in change,25 as well as two crowbars and a
piece of a vending machine?6 During the search, the occupants were detained,
without handcuffs, behind the vehicle by Trooper Dubbs.27 In response to a
question by Trooper Hershey, which was not preceded by Miranda warnings, as to
the source of the change,28 Defendant admitted that it represented proceeds from
vending machine break-ins?9 Defendant and the driver were then arrested.30
After being Mirandized, Defendant made a more detailed confession.31
As it developed, many of the offenses had occurred in Cumberland
County,32 and the prosecution sub judice ensued.
DISCUSSION
Pre textual stop. Under Section 6308(b) of the Vehicle Code,33 "[ w ]henever
a police officer . . . has reasonable suspicion that a violation of [the Vehicle Code]
is occurring or has occurred, he may stop a vehicle, upon request or signal, for the
purpose of checking the vehicle's registration, proof of financial responsibility,
21 NT. 43, 57.
22 NT. 58.
23 NT. 44.
24 NT. 14-15.
25 NT. 45.
26 NT. 45.
27 NT. 15. At one point, one of the occupants was permitted by the Trooper to step to a more
secluded area to urinate. NT. 16-17.
28 NT. 45.
29 NT. 45.
30 NT. 32,46,49.
31 NT. 49.
32 NT. 50.
33 Act ofJune 17, 1976, P.L. 162, ~1, as amended, 75 Pa. C.S. ~6308(b) (2005 Supp.).
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vehicle identification number or engine number or the driver's license, or to secure
such other information as the officer may reasonably believe to be necessary to
enforce the provisions of [the Vehicle Code]." The standard of suspicion required
for such a stop is "tantamount to probable cause." See Commonwealth v. Bolton,
2003 P A Super. 314, ,-rIO, 831 A.2d 734, 736 (2003).
Under Section 3334(a) of the Vehicle Code,34 "no person shall turn a
vehicle. . . without giving an appropriate signal. . .." In the present case, the
troopers' observation of a violation of this section by the driver of the vehicle in
which Defendant was riding provided them with a lawful basis to stop the vehicle.
This court has previously held that a pretextual stop is not violative of
either the Pennsylvania or federal constitutions. Commonwealth v. Shannon, No.
00-0480 Crim. T. (Cumberland Co. April 4, 2001), aff'dNo. 464 MDA 2001 (Pa.
Super. Ct. March 14,2002), allocatur ref, No. 263 MAL 2002 (Pa. September 10,
2002). The rationale for this holding was expressed in Shannon as follows:
In federal jurisprudence, the test for whether the stop of a
motor vehicle is valid under the United States Constitution is
based on the police officer's objective legal basis for the stop.
United States v. Johnson, 63 F.3d 242 (3d Cir. 1995), cert.
denied, 518 U.S. 1007, 116 S. Ct. 2528, 135 L. Ed. 2d 1052
(1996) (holding that the district court erred in applying the
"usual police activities test" rather than the "authorization test"
in deciding that the basis for the vehicle stop was a pretext to
search for drugs).
In Johnson, in reviewing the stop of a motor vehicle for a
violation under the Pennsylvania Vehicle Code, the Circuit
Court considered the application of the "would" and "could"
tests. Id at 246. Under the "would" test, also known as the
"usual police activities" test, the court asks if the police officer
would have made the traffic stop in the absence of an invalid
purpose. Id at 246. Under the "could" test, also known as the
"authorization test[,]" the court asks whether the officer could
have made the stop, focusing on an objective legal basis for the
stop. Id at 246-47. The Johnson court held that the "could"
34 Act of June 17, 1976, P.L. 162, ~1, 75 Pa. C.S. ~3334(a).
5
test is the appropriate test to determine whether a stop of a
motor vehicle is violative of the Fourth Amendment to the
United States Constitution. Id at 247.
A year after the decision in Johnson, the United States
Supreme Court, in a unanimous decision, held that a pretextual
stop is not violative of the Fourth Amendment to the United
States Constitution if the officer had cause to stop the vehicle
for a suspected traffic violation, regardless of the officer's
subjective beliefs. See United States v. Whren, 517 U.S. 806,
116 S. Ct. 1769, 135 L. Ed. 2d 89 (1996), appeal docketed, 324
U.S. App. D.C. 197, III F.3d 956 (1997), cert. denied, 522
U.S. 1119, 118 S. Ct. 1059, 140 L. Ed. 2d 120 (1998). In
explaining its holding, the Court stated that the Fourth
Amendment requires only that the stop not be "umeasonable"
under the circumstances, and that the decision to stop an
automobile where the police have cause to believe that a traffic
violation occurred is reasonable. Id at 809-10, 116 S. Ct. at
1772, 135 L. Ed. 2d at 95. After considering previous cases
regarding pretextual stops, arrests, and searches, the Court
stated that the cases "foreclosed" any argument that
constitutional reasonableness of traffic stops depended on the
actual motivations of the individual police officers involved.
Id at 811-13,116 S. Ct. 1773-74,135 L. Ed. 2d 94-96.
Id at 5-6.
In the absence of a persuaSIve reason to deviate from this logic in
interpreting analogous protections under the Pennsylvania Constitution, the same
rule will be applied. See Commonwealth v. Hall, 574 Pa. 233, 830 A.2d 537
(2003). Accordingly, Defendant's motion to suppress can not be sustained on the
ground that the stop of the vehicle in which he was a passenger was unlawful.
Detention. Interaction with police which rises to the level of a detention,
implicating constitutional protections respecting a seizure of one's person, occurs
when a reasonable person in the subject's position would not believe that he or she
is free to leave. Commonwealth v. Jackson, 428 Pa. Super. 246, 255, 630 A.2d
1231, 1236 (1993) (Cercone, 1. dissenting), citing Michigan v. Chesternut, 486
U.S. 567, 573, 108 S. Ct. 1975, 1979, 100 L. Ed. 2d 565, 572 (1988).
6
The lawful detention inherent in "[a] permissible traffic stop may evolve
into an unlawful detention when the authorized purpose of the stop is completed
and the Defendant is not released." Commonwealth v. Leius, 43 Cumberland L.1.
459, 468 (1994). Consents to searches obtained during a period of unlawful
detention are generally deemed invalid. See, e.g., Commonwealth v. Acosta, 2003
P A Super. 15, 815 A.2d 1078 (2003); Commonwealth v. Jackson, 428 Pa. Super.
246, 630 A.2d 1231 (1993); Commonwealth v. Parker, 422 Pa. Super. 393, 619
A.2d 735 (1993); Commonwealth v. Lopez, 415 Pa. Super. 252, 609 A.2d 177
(1992).35 In this regard, the burden is on the Commonwealth to prove, by a
preponderance of the evidence,36 that the period of detention when the consent was
obtained was lawful. Commonwealth v. Acosta, 2003 P A Super. 15, 815 A.2d
1078 (2003); Pa. R. Crim. P. 581(H).
A totality-of-the-circumstances test is to be applied to a determination of
whether a reasonable person would have felt free to leave.37
Factors relevant to such [an] assessment include: the existence
and nature of any prior seizure; whether there was a clear and
expressed endpoint to any such prior detention; the character of
police presence and conduct in the encounter under review (for
example-the number of officers, whether they were
uniformed, whether police isolated subjects, physically touched
them or directed their movement, the content or manner of
interrogatories or statements, and "excesses" factors stressed
by the United States Supreme Court); geographic, temporal and
environmental elements associated with the encounter; and the
presence or absence of express advice that the citizen-subject
was free to decline the request for a search. In general, a full
examination must be undertaken of all coercive aspects of the
police/citizen interaction.
35 For a consent to search obtained during a period of unlawful detention to be deemed valid, the
Commonwealth must "demonstrate that [the] consent was an 'independent act of free will' and
not 'the product of the illegal detention.'" Commonwealth v. Freeman, 563 Pa. 82,92, 757 A.2d
903,909 (2000) (citations omitted).
36 Commonwealth v. DeWitt, 530 Pa. 299, 608 A.2d 1030 (1992).
37 Commonwealth v. Freeman, 563 Pa. 82, 757 A.2d 903 (2000).
7
Commonwealth v. Freeman, 563 Pa. 82, 88-89, 757 A.2d 903, 906-07 (2000).
The conferral of "free-to-go" advice is not automatically dispositive of the
Issue of whether a traffic stop has been effectively terminated. See
Commonwealth v. Strickler, 563 Pa. 47, 76 n.24, 757 A.2d 884, 899 n.24 (2000).
And, as noted, advice to the motorist that he or she has a right to refuse the request
for a search is a factor tending to support the proposition that a reasonable person
would not feel compelled to remain.38
Thus, in Commonwealth v. Strickler, 563 Pa. 47, 74-75, 757 A.2d 884,899
(2000), a case which did not involve the exercise of authority inherent in a vehicle
stop, the Pennsylvania Supreme Court held constitutionally sound a consensual
search of a vehicle of a pedestrian who had been publicly urinating, where he was
expressly told by police that he did not have to consent to the search. And in
Commonwealth v. Freeman, 563 Pa. 82, 757 A.2d 903 (2000), a consensual search
of a vehicle of a motorist lawfully stopped was held constitutionally unsound
where actions of the officers subsequent to a purported termination of the stop
suggested a reassertion of control over the individual.
In the present case, involving the initial degree of police control implicit in
a stop of a moving vehicle at 3:00 a.m., a prearrangement by troopers to engage in
a course of conduct which would elicit consent to search the car, the reappearance
of troopers on each side of the vehicle at a point when the purpose of the traffic
stop was purportedly at an end, and the absence of advice to the occupants that
consent to search could be refused, the court is unable to find that the
Commonwealth has met its burden of showing, on the basis of the totality of
circumstances, that a reasonable person in the position of the occupants of the
vehicle would have felt that their actions were no longer subject to control. The
signals of the troopers, in this regard, were at best mixed, and it would be naIve to
38 See, e.g., Commonwealth v. Strickler, 563 Pa. 47, 757 A.2d 884 (2000); See also
Commonwealth v. Freeman, 563 Pa. 82, 89, 757 A.2d 903, 907 (2000).
8
conclude that the success of the technique employed was not dependent upon this
circumstance.
Although it is apparent that the actions of the troopers in this case were
undertaken with the holdings of Strickler and Freeman in mind, courts have been
cautioned against rulings which place form over substance in the area of
constitutional rights. Where this caution IS disregarded, as Justice Jackson
eloquently observed many years ago,
[o]ur heritage of constitutional privileges and immunities
[becomes] only a promise to the ear to be broken to the hope, a
teasing illusion like a munificent bequest in a pauper's will.
Edwards v. California, 314 U.S. 160, 186, 62 S. Ct. 164, 172, 861 L. Ed. 119, 132
(1941) (Jackson, 1., concurring).
Notwithstanding the court's inability to sanction the procedure employed to
secure consent in this case, the inquiry into the constitutional validity of
Defendant's consent to the search is not ended. In this regard, several principles
of law are pertinent. First, the subjective view of a law enforcement officer as to
his or her authority to perform a certain act will not render an otherwise lawful act
unlawful. Whren v. United States, 517 U.S. 806, 813, 116 S. Ct. 1769, 1774, 135
L. Ed. 2d 89, 97-98 (1996); Commonwealth v. Moore, 50 Cumberland L.1. 281
(2001).
Second, a proper investigative detention focusing upon one violation may,
in appropriate circumstances, be extended or resumed for purposes of pursuit of a
second suspected violation. See Commonwealth v. Freeman, 563 Pa. 82, 89-90,
757 A.2d 903, 907-08 (2000).
Third, a detention of a person by police for purposes of investigation is
compatible with constitutional search and seizure provisions where there are
"specific and articulable facts which, if taken together with rational inferences
from those facts, reasonably warrant a belief that criminal activity is afoot."
Commonwealth v. McDonald, 1999 P A Super. 259, ,-r5, 740 A.2d 267, 269 (1999)
9
(citations omitted). Thus, "[i]n order to justify detaining [a] driver for further
questioning [when the proper purpose of a traffic stop has been concluded], the
officer must have 'reasonable suspicion of illegal transactions in drugs or of any
other serious crime. ", Commonwealth v. Lopez, 415 Pa. Super. 252, 261, 609
A.2d 177, 182 (1992) (citations omitted). Where this level of suspicion exists,
"[ a] policeman. . . is not required to simply shrug his shoulders and allow a crime
to occur or a criminal to escape." Wasserbly, Pennsylvania Criminal Practice
96.02 (1991).
In the present case, a number of specific and articulable facts, in the court's
view, warranted a belief on the part of the troopers, as of the time that the purpose
of the traffic stop had concluded, that criminal activity was afoot in the form of
theft or attempted theft on the part of Defendant and his companion. These facts
included their presence at 3 :00 a.m. for no apparent legitimate purpose on
premises of a closed business establishment in an area where thefts from vending
machines and burglaries had been occurring, the sound of a large amount of loose
change falling inside their stopped vehicle as Trooper Dubbs approached it, the
visible presence of loose currency, coins and vending-machine-type goods in the
vehicle, the occupants' utilization of a vehicle registered to neither of them, and
the driver's decision not to carry identification in the form of his driver's license
with him on this occasion.
Defendant's consent to search the vehicle was thus given during a period of
lawful detention for investigative purposes. The fact that the troopers themselves
were not confident of this position is not dispositive of the issue. Accordingly, the
court will not suppress evidence as requested by Defendant on the ground that his
consent to the search which produced it was invalid.
Statements of Defendant. The procedural safeguards known as Miranda
warnmgs apply only in situations in which a person has been placed under
custodial arrest, or the functional equivalent thereof. Commonwealth v.
Thompson, 2001 PA Super. 163, ,-r19 n.4, 778 A.2d 1215, 1220-21 n.4 (2001).
10
"Police detentions only become 'custodial' when under the totality of the
circumstances the conditions and/or duration of the detention become so coercive
as to constitute the functional equivalent of formal arrest." Commonwealth v.
Ellis, 379 Pa. Super. 337, 356, 549 A.2d 1323, 1332 (1988).
In the present case, Defendant's initial inculpatory statement to the troopers
m response to interrogation was made prior to his arrest, or the functional
equivalent of arrest, during a period of permissible investigative detention, at
which time Miranda warnings were not required. Miranda warnings preceded the
elicitation of subsequent inculpatory statements following the arrest. Under these
circumstances, the Court is unable to agree with Defendant that a basis exists for
suppression of the statements.
F or the foregoing reasons, Defendant's omnibus pretrial motion in the form
of a motion to suppress will be denied.
ORDER OF COURT
AND NOW, this 18th day of May, 2005, upon consideration of Defendant's
omnibus pretrial motion in the form of a motion to suppress, following a hearing
held on February 23, 2005, and for the reasons stated in the accompanying
opinion, the motion is denied.
BY THE COURT,
s/ 1. Wesley Oler, Jr.
1. Wesley Oler, Jr., 1.
John C. Dailey, Esq.
Assistant District Attorney
H. Anthony Adams, Esq.
Assistant Public Defender
11
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COMMONWEALTH
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
v.
SHAWN D. GILLESPIE
OTN: L214685-2
CHARGES (1) PROHIBITED OFFENSIVE
WEAPONS
(2) THEFT BY UNLAWFUL
TAKING
(3) CRIMINAL CONSPIRACY
(4) CRIMINAL MISCHIEF
(5) DEFIANT TRESPASS
CP-21-CR-2747-2004
IN RE: DEFENDANT'S OMNIBUS PRETRIAL MOTION
BEFORE OLER, J.
ORDER OF COURT
AND NOW, this 18th day of May, 2005, upon consideration of Defendant's
omnibus pretrial motion in the form of a motion to suppress, following a hearing
held on February 23, 2005, and for the reasons stated in the accompanying
opinion, the motion is denied.
BY THE COURT,
1. Wesley Oler, Jr., 1.
John C. Dailey, Esq.
Assistant District Attorney
H. Anthony Adams, Esq.
Assistant Public Defender