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HomeMy WebLinkAboutCP-21-CR-0662-2005 and CP-21-CR-0676-2005 COMMONWEALTH IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA vs. CP-21-CR-0662-2005 WALTER WESLEY SHEALY III COMMONWEALTH IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA vs. CP-21-CR-0676-2005 JOSEPH THOMAS TAKACS IN RE: OMNIBUS PRETRIAL MOTION IN THE NATURE OF A MOTION TO SUPPRESS EVIDENCE BEFORE HESS, 1. OPINION AND ORDER On March 4,2005, the captioned defendants, Walter W. Shealy III and Joseph Takacs, were arrested and charged with the unlawful possession of a small amount of marijuana and the unlawful possession of drug paraphernalia. Both defendants have filed omnibus pretrial motions seeking the suppression of evidence. The matters have been consolidated before the undersigned for disposition. For reasons which follow, we will grant the defendants' motions. The facts with respect to the traffic stop and search are as follows. On March 4, 2005, at approximately 3 :00 a.m., Pennsylvania State Police Trooper Jeffrey D' Alessandro was patrolling Interstate 81 southbound around mile marker 52, near the Pennsylvania turnpike, where the speed limit is 55 miles per hour. (N.T. at 4-5.) D' Alessandro spotted defendants' blue Dodge minivan with North Carolina license plates and began to follow it, clocking it traveling at 68 miles per hour. (Id.) The trooper initiated a traffic stop. (Id.) CP-21-CR-0662-2005 CP-21-CR-0676-2005 The officer approached the defendants' vehicle and asked the driver, defendant Takacs, for his license, registration, and proof of insurance. (Id. at 6.) After Takacs provided D' Alessandro with the requested documents, D' Alessandro asked Takacs to step to the rear of the vehicle so that he could speak to him. (Id.) Takacs complied, and told D' Alessandro that they were traveling from Pittsburgh and that he had been sleeping most of the trip and was unaware how they had gotten onto Interstate 81. (Id. at 6-7) After hearing Takacs's story, D' Alessandro told him he could return to the driver's seat, and then asked the passenger, defendant Shealy, to step to the rear of the vehicle. (N.T. at 8.) Shealy complied, turned over his own identification, and told D' Alessandro they were coming from Delmont, that he had been sleeping the entire trip, and that they were taking the "scenic route." (Id.) After speaking with both defendants and suspecting inconsistencies in their stories, 1 Trooper D' Alessandro returned to his patrol car and ran a criminal background check on them. (Id. at 9.) The check returned a prior drug conviction for Shealy. (Id.) D' Alessandro prepared a written warning, returned to the Defendants' vehicle, and issued it, then returned all documentation that he had requested from the defendants. (Id.) D' Alessandro then informed the defendants they were free to leave. (Id. at 10.) After taking a few steps away from the vehicle, D' Alessandro re-approached the defendants, and asked Takacs if he could ask him a few more questions. (Id. at 9.) Takacs asked ifhe had to, to which D' Alessandro told him no. Takacs then agreed to answer more questions, and upon D' Alessandro's request returned to the rear of his vehicle. (Id. at 10.) D' Alessandro proceeded to tell Takacs how Interstate 81 was a common throughway for the transportation of 1 Trooper D' Alessandro was apparently unaware, at the time, that Delmont is in the Pittsburgh area. 2 CP-21-CR-0662-2005 CP-21-CR-0676-2005 drugs, weapons, and other contraband, and then asked for permission to search defendants' vehicle. (Id. at 11.) Takacs hesitated, stating that he and Shealy were in a hurry to get home, and that he didn't know. (Id.) D' Alessandro instructed Takacs to return to his seat, and asked Shealy to step to the rear, where he then repeated his story about Interstate 81 being used for transporting drugs, weapons, and other contraband. (Id. at 11-12.) He then asked Shealy, who was the record owner of the van, for permission to search. (Id. at 12.) Shealy repeated Takacs's assertion that they were in a hurry to get home, and then said that he would prefer if the trooper did not. (Id.) After being denied consent to conduct a search of the defendants' vehicle, Trooper D' Alessandro took both defendants' identification and returned to his patrol car, where he called for a K-9 unit to respond. (Id.) Fifteen minutes to a half an hour later, Trooper Daniel Housel of the K-9 unit arrived. (Id. at 12-13.) D' Alessandro briefly conferred with Housel, (Id.) and then the two officers proceeded to explain to Shealy the process by which a canine "sniff' search would occur, telling him that if the dog alerted on any part of the van it would be impounded while a search warrant was obtained, (Id. at 13-14) a process which would take about five hours (Id. at 42). The officers also informed the defendants that they were not looking for small amounts of drugs that were presumably for personal use. (Id. at 32). Shealy subsequently volunteered the location ofa small amount of marijuana in the van. (Id. at 15.) The officers searched the vehicle, found the marijuana, and placed both defendants under arrest. In Com. v. Freeman, 757 A.2d 903 (Pa. 2000) and a companion case of Com. v. Strickler, 757 A.2d 884 (Pa. 2000), the Supreme Court set out the requirements for a valid consensual search incident to a traffic stop. In Freeman, the court noted that: 3 CP-21-CR-0662-2005 CP-21-CR-0676-2005 [T]he central Fourth Amendment inquiries in consent cases entail assessment of the constitutional validity of the citizen-police encounter giving rise to the consent, and, ultimately, the voluntariness of consent. Where the encounter is a valid one, voluntariness becomes the sole focus; where, however, an illegal seizure precedes the consent search, the Commonwealth must also establish a break in the causal connection between the illegality and the evidence thereby obtained. . .. The determination whether a seizure has been effective in the first instance is made upon an examination of the totality of the circumstances to determine whether a reasonable person would feel free to leave. . . . Factors relevant to such assessment include: the existence and nature of any prior seizure; whether there was a clear and express end point 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 touch them or directed their movement, the content or manner of interrogatories or statements, . . . and the presence or absence of express advice that the citizen-subject was free to decline the request for consent to search. In general, a full examination must be undertaken of all coercive aspects of the police/citizen interaction. Freeman, at 906-907. The defendant, Freeman, was stopped after the police observed erratic driving involving two cars traveling close together, switching lanes and jockeying for position in "cat and mouse" fashion. Id at 905. When questioned, Freeman denied traveling with the other vehicle. The police officer then learned from another trooper that the occupants of the other vehicle contradicted Freeman and had said that the two vehicles were, in fact, traveling together. The trooper gave Freeman a written warning relating to improper lane changes, returned her license 4 CP-21-CR-0662-2005 CP-21-CR-0676-2005 and registration card and informed her that she was free to leave. The trooper then went back to his patrol car but shortly thereafter returned to Freeman's vehicle. He again confronted her as to whether she was traveling with the second car. When she replied that she was not, "the trooper informed her that the occupants of the second car had said otherwise and asked her to get out of the vehicle. Freeman did so, walking to the rear of the car. At this point, the trooper asked Freeman for consent to search her vehicle, which Freeman granted." Id The Supreme Court, in Freeman, concluded that the second approach by the trooper resulted in an unlawful detention. Despite the fact that Freeman's answer to the trooper's question was contradicted by the occupants of the other car, there was no reasonable suspicion for suspecting criminal activity. Accordingly, inasmuch as the consent of the defendant was the product of an unlawful detention, the suppression of evidence was warranted. In Com. v. Ortiz, 786 A.2d 261 (Pa.Super. 2001), appeal denied 797 A.2d 912 (Pa. 2002), a police officer stopped the defendant because of a tinted window. As a result of the stop, the officer learned that Ortiz's driver's license was under suspension for a DUI-related conviction. The officer issued a written warning for the tinted window and indicated that, while Ortiz was free to leave, he could not drive the car due to his suspended license. As Ortiz collected his belongings in order to depart, the officer asked Ortiz if he had anything illegal in the car. This elicited a negative response. Officer Bower then asked the defendant if he could search the car and Ortiz consented. The Superior Court concluded that Ortiz's consent was the product of an unlawful detention. As such, his consent was not valid. The court found that a second detention had taken place, even though the officer informed Ortiz that he was free to leave: where the officer stood behind Ortiz as he gathered his belongings, the officer failed to 5 CP-21-CR-0662-2005 CP-21-CR-0676-2005 inform Ortiz that he did not have to consent to the search and the officer made it plain that Ortiz could not drive the car. The court went on to observe that while "Ortiz's behavior during the initial investigative detention may have merited further inquiry . . . nothing happened after the conclusion of the initial stop to provide. . . a further cause for suspicion." Id at 266 (emphasis in the original). The instant case closely resembles Freeman and Ortiz in that Trooper D' Alessandro based his suspicion solely on his observations made before the conclusion of the initial stop. After concluding the traffic stop by telling the defendants they were free to leave, the officer did not observe anything more that would rouse his suspicion. It is apparent that the trooper reapproached the vehicle solely for the purpose of obtaining consent to search. After both defendants refused to consent, the trooper responded by confiscating both defendants' identification cards thereby clearly beginning a second detention of the defendants. There was not, however, reasonable suspicion to detain the defendants a second time. It is true that one of the defendants had a past drug conviction. We have found no authority for the proposition that once convicted of a crime, a person becomes fair game for all subsequent detention. Other facts and circumstances must combine to create a reasonable suspicion that the person detained is engaged in criminal activity. Com. v. Phinn, 761 A.2d 176 (Pa.Super. 2000), appeal denied in 785 A.2d 89 (Pa. 2001). Here, the chief concern of the trooper was that the driver and passenger had made inconsistent statements concerning their travel. Even assuming that the statements were 6 CP-21-CR-0662-2005 CP-21-CR-0676-2005 inconsistent,2 this, alone, does not provide a basis for the conclusion that either were engaged in criminal activity. In Phinn the Superior Court concluded that there was not "reasonable suspicion" to detain the defendants even where he was given purportedly conflicting stories,3 he detected the aroma of fabric softener about the vehicle 4 and furtive hand movements. Despite the observation concerning fabric softener, the Superior Court was unwilling to find that there was a level of suspicion justifying detention. See also Com. v. Dales, 820 A.2d 807 (Pa. Super. 2003) (finding that smell ofBactine, a "masking agent" combined with presence of air fresheners and defendant being visibly nervous did not rise to the level of reasonable suspicion); but, see Com. v. Rogers, 741 A.2d 813 (Pa.Super. 1999) (finding that extreme nervousness of defendant, incomplete and conflicting registration for the defendant's vehicle, a fictitious address, and the aroma of laundry detergent and fabric softener amounted to reasonable suspicion); Com. v. Johnson, 833 A.2d 755 (Pa. Super. 2003) (defendant had large sum of cash in the car; there were Philly blunt papers commonly used in the drug trade, strewn throughout, and a glass vial containing suspected marijuana was in plain view combined to provide reasonable suspicion). In this case, the consent of the defendants to search was obtained following an unlawful detention. Moreover, the eventual "consent" of the defendants resulted directly from the circumstances surrounding the detention. A drug dog had been summoned. The police officer had made it clear that the defendants were not free to leave. He had outlined for the defendants at substantial inconvenience to them what would ensue in the event that it was necessary for the 2 It could be argued that the defendants did not contradict each other. Taken as a whole, the statements of the two were that they were traveling from western Pennsylvania and each was asleep when not driving. 3 The driver indicated they had been coming from New Jersey whereas the passenger indicated that they had been coming from New York. 4 The officer testified that fabric softener was used in drug trafficking to mask the smell of drugs. 7 CP-21-CR-0662-2005 CP-21-CR-0676-2005 police to obtain a search warrant. It cannot be argued that the consent obtained in this case was an act of free will independent of the detention. ORDER AND NOW, this day of July, 2005, the omnibus pretrial motions of the defendants in the nature of motions to suppress evidence are GRANTED. BY THE COURT, Kevin A. Hess, 1. Matthew P. Smith, Esquire Assistant District Attorney Mark F. Bayley, Esquire For Defendant Shealy Nathan C. Wolf, Esquire For Defendant Takacs :rlm 8 COMMONWEALTH IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA vs. CP-21-CR-0662-2005 WALTER WESLEY SHEALY III COMMONWEALTH IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA vs. CP-21-CR-0676-2005 JOSEPH THOMAS TAKACS IN RE: OMNIBUS PRETRIAL MOTION IN THE NATURE OF A MOTION TO SUPPRESS EVIDENCE BEFORE HESS, 1. ORDER AND NOW, this day of July, 2005, the omnibus pretrial motions of the defendants in the nature of motions to suppress evidence are GRANTED. BY THE COURT, Kevin A. Hess, 1. Matthew P. Smith, Esquire Assistant District Attorney Mark F. Bayley, Esquire For Defendant Shealy Nathan C. Wolf, Esquire For Defendant Takacs