HomeMy WebLinkAboutCP-21-CR-0001133-2009
COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
:
: CHARGES: (1) POSSESSION OF DRUG
: PARAPHERNALIA
: (2) POSSESSION OF A SMALL
: AMOUNT OF MARIJUANA
RYAN TRAYLOR :
OTN: K778085-0 : CP-21-CR-1133-2009
IN RE: OPINION PURSUANT TO PA. R.A.P. 1925
OLER, J., February 3, 2010.
In this case in which Defendant is charged with possession of a small
amount of marijuana and possession of a marijuana pipe, the Commonwealth has
appealed from a pre-trial order granting Defendant’s motion to suppress. The issue
on appeal has been expressed in the Commonwealth’s statement of errors
complained of on appeal as follows:
Did the court err in suppressing the evidence when the officer’s
testimony established that he had probable cause to believe that the object
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upon “plain feel” was contraband?
This opinion in support of the court’s ruling on Defendant’s suppression
motion is written pursuant to Pennsylvania Rule of Appellate Procedure 1925(a).
STATEMENT OF FACTS
In this case, a borough police officer with several months’ experience on
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the job (a) stopped a car being lawfully operated by Defendant when he noticed a
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passenger in the rear seat discard a cigarette butt from the window, (b) ordered
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Defendant out of the vehicle, (c) attempted unsuccessfully to secure his consent
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to a search of his person, (d) subjected him to a Terry search anyway, (e) felt a
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Commonwealth’s Concise Statement of Matters Complained of on Appeal, filed December 9,
2009.
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N.T. 3, Suppression Hearing, October 8, 2009 (hereinafter N.T. __).
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N.T. 4.
4
N.T. 5, 9, 11, 13,
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N.T. 5.
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pipe in the form of a bowl and tube in Defendant’s pants pocket, and (f)
ultimately charged him with possession of a small amount of marijuana and drug
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paraphernalia. Defendant’s omnibus pretrial motion in the form of a motion to
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suppress challenging the constitutionality of the seizure of these items followed.
A hearing on Defendant’s suppression motion was held on October 8, 2009.
At the hearing, the affiant testified, in pertinent part, as follows: On March 6,
2009, he was on duty in a vehicle in the Borough of Shippensburg, Cumberland
County, Pennsylvania, when he noticed that a cigarette butt had been discarded
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from a rear passenger window of a vehicle ahead of him. On this basis, he
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initiated a “traffic stop.”
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Defendant, the driver of the vehicle, which contained three or four
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passengers, apologized to the officer for the passenger’s conduct, as did the
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passenger. Defendant’s behavior, when he was approached by the officer was
described as follows:
Q After you pulled him over and you approached the driver was
Mr. Traylor acting in a nervous fashion?
A Not that I can recall.
Q Did he make any suspicious movements or gestures?
A No.
Q Did he reach into his pockets or inside the vehicle at all?
A Not until I asked him.
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N.T. 5.
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N.T. 6, 9.
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N.T. 6; Criminal Complaint, filed March 23, 2009.
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Defendant’s Omnibus Pre-trial Motion, filed July 31, 2009.
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N.T. 4.
11
N.T. 8, 13.
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N.T. 4.
13
N.T. 7.
14
N.T. 4, 7.
15
N.T. 13.
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Q Was he cooperative?
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A Very.
The officer detected the odor of an alcoholic beverage coming from
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somewhere inside the vehicle, but Defendant exhibited no signs of impairment
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himself. Nevertheless, the officer ordered him out of the vehicle.
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On Defendant’s seat the officer observed a penknife. Defendant declined
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the officer’s request that he give his consent to be searched. However, the officer
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subjected him to a Terry search for weapons anyway. In the course of this search
the officer felt an object in Defendant’s right pants pocket that was “round with a
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tube coming from it,” which he realized was not a weapon but, based upon his
“training, experience, police academy,” thought was a pipe used for smoking
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marijuana.
The officer seized the pipe, put Defendant under arrest, and conducted a
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search incident to the arrest. A small amount of marijuana was found on
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Defendant’s person. Neither the pocket knife, which Defendant was apparently
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allowed to keep, nor the pipe was produced by the Commonwealth at the
hearing.
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N.T. 8-9.
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N.T. 13.
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N.T. 11.
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N.T. 5, 9, 11, 13.
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N.T. 5, 9.
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N.T. 5.
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N.T. 5
23
N.T. 5-6.
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N.T. 9.
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N.T. 5.
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N.T. 6.
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N.T. 6
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N.T. 5.
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Following the submission of briefs by the Commonwealth and Defendant,
the court entered an order granting Defendant’s motion to suppress.
DISCUSSION
Statement of Law
General. On a motion to suppress, “[t]he Commonwealth shall have the
burden of going forward with the evidence and of establishing that the challenged
evidence was not obtained in violation of the defendant’s rights.” Pa. R. Crim. P.
581(H). The degree of proof required is a preponderance of the evidence.
Commonwealth v. Stoops, 723 A.2d 184, 186 (Pa. Super. 1998).
Among the Bill of Rights in the federal constitution is the following
provision:
The right of the people to be secure in their persons, houses, papers,
and effects, against unreasonable searches and seizures shall not be
violated, and no Warrants shall issue, but upon probable cause, supported
by Oath or affirmation, and particularly describing the place to be
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searched, and the persons or things to be seized.
Similarly, Article I, Section 8, of the Pennsylvania Constitution provides
that “[t]he people shall be secure in their persons, houses, papers and possessions
from unreasonable searches and seizures, and no warrant to search any place or to
seize any person or things shall issue without describing them as nearly as may be,
nor without probable cause, supported by oath or affirmation subscribed to by the
affiant.”
Constitutionally speaking, “[a] warrantless seizure is presumptively
unreasonable . . . , subject to a few specifically established, well-delineated
exceptions.” Commonwealth v. Chase, 599 Pa. 80, 89, 960 A.2d 108, 113 (2008)
(citations omitted).
Stop of vehicle. Under Section 6308(b) of the Vehicle Code, “[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
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U.S. Const., fourth amendment.
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purpose of checking the vehicle’s registration, proof of financial responsibility,
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].” Act of June 17, 1976, P.L. 162, §1,
as amended, 75 Pa. C.S. §6308(b).
In addition, a municipal police officer has the following general authority:
Any duly employed municipal police officer shall have the power and
authority to enforce the laws of this Commonwealth or otherwise perform
the functions of that office anywhere within his primary jurisdiction as to:
(1) Any offense which the officer views or otherwise
has probable cause to believe was committed within his
jurisdiction.
(2) Any other event that occurs within his primary
jurisdiction and which reasonably requires action on the
part of the police in order to preserve, protect or defend
persons or property or to otherwise maintain the peace and
dignity of this Commonwealth.
Act of June 15, 1982, P.L. 512, §4, 42 Pa. C.S. §8952.
Furthermore, as a general rule “[a] peace officer may, without a warrant,
arrest for a felony or for a misdemeanor committed in his presence although the
right to arrest for a misdemeanor, unless conferred by statute, is restricted to
misdemeanors amounting to a breach of the peace.” Commonwealth v. Taylor, 450
Pa. Super. 583, 593, 677 A.2d 846, 851 (1996) (citation omitted).
With specific reference to the summary offense of “scattering rubbish,”
Section 6501(a)(1) of the Crimes Code provides as follows:
(a) Offense defined.—A person is guilty of [a summary offense] if he:
(1) causes any waste paper, sweepings, ashes,
household waste, glass, metal, refuse or rubbish, or any
dangerous or detrimental substance to be deposited into or
upon any road, street, highway, alley or railroad right-of-
way, or upon the land of another or into the waters of this
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Commonwealth; . . . .
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Act of December 6, 1972, P.L. 1482, §1, 18 Pa. C.S. §6501(a)(1).
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In concluding that this language was not intended to include the occasional
discarded cigarette butt, the Court of Common Pleas of Columbia County stated as
follows:
[W]e do not believe that cigarettes were intended by the Pennsylvania
legislature to be included in the definition of “rubbish.” The items
described as “rubbish” in section 6501 do not specifically include
cigarettes, nor do cigarettes seem to be within the same category as the
items which section 6501 does specifically describe.
It is true that many people possess the annoying and sometimes
dangerous habit of discarding cigarettes from their vehicles. While this
practice is subject to reproach, it was not the legislature’s intention to
proscribe it. Further, if such conduct were a criminal offense, there would
be enormous enforcement problems, along with a substantial risk of
arbitrary or discriminatory arrests.
31
Commonwealth v. Babb, 11 Pa. D. & C.3d 360, 361, 1979 WL 519 (1979).
The littering statute has been amended several times since the decision in
Babb, without a change in the definition of rubbish which might have signaled a
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legislative intent to alter the result of Babb. See Act of March 25, 1988, P.L. 262,
§12; Act of May 31, 1990, P.L. 219, §2.
Prolongation of stop for summary offense beyond its purpose. A detention
to investigate a summary offense, of course, may not be prolonged beyond the
time necessary to effect the purpose of that investigation, in the absence of a
reasonable suspicion that additional criminal activity is afoot. See Commonwealth
v. Strickler, 563 Pa.47, 757 A.2d 884 (2000).
Terry stop/Terry search. “[A]n ‘investigative detention,’ or Terry stop,
must be supported by reasonable suspicion of criminal activity afoot . . . .”
Commonwealth v. Huff, 2003 PA Super 359, ¶7, 833 A.2d 227, 230. During such
an investigative detention, an officer’s authority to conduct a Terry search for
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No other cases have been found in which the issue of whether the statute in question was
intended to encompass the occasional discarded cigarette butt was litigated. With 348 billion
cigarettes sold yearly in the United States, the court’s concern in Babb with “enormous
enforcement problems” and the potential for “arbitrary or discriminatory arrests” obviously
remains valid. See Decline in Cigarette Smoking Offset by Increase in Cigars, Snuff and Other
Tobacco Products, June 12, 2008, http://sciencedaily.com/releases/2008/06/080610161240.htm
(indicating that in 2007, 17.4 billion packs of cigaretts were sold in the United States).
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weapons is dependent upon a belief, “based on specific and articulable facts, that
the individual [being investigated] is armed and dangerous.” Commonwealth v.
Parker, 2008 PA Super 208, ¶9, 957 A.2d 311, 315. “When assessing the validity
of a [Terry search for weapons], ‘we examine the totality of the
circumstances giving due consideration to the reasonable inferences that the
officer can draw from the facts in light of his experience, while disregarding any
unparticularized suspicion or hunch.’” Id. (citation omitted).
Plain feel doctrine. “Similar to the well-established plain view doctrine,
this court now recognizes the seizure of non-threatening contraband detected by an
officer’s ‘plain feel’ during a pat-down for weapons if the officer is lawfully in a
position to detect the presence of contraband, the incriminating nature of the
contraband is immediately apparent and the officer has a lawful right of access to
the object.” Commonwealth v. Fink, 700 A.2d 447, 450 (Pa. Super. Ct. 1997)
(emphasis in original). “‘Immediately apparent’ means that the officer conducting
the Terry frisk readily perceives, without further search, that what he is feeling is
contraband.” Id.
In Fink, a police officer conducting a Terry search for weapons testified as
follows, in support of his seizure of a pipe which he believed to be used for
smoking marijuana:
Q. And in patting [Fink] down[,] did you come across any items that were
suspicious to you?
A. In the exterior jacket pocket a hard item that I felt within that pocket
that I believed to be a pipe too small in size to be a tobacco pipe which I
believed through my experience to be a piece of drug paraphernalia. It was
of the size and texture of what I’ve come to recognize as a marijuana pipe.
Q. Could you estimate, approximately, how many times you had seen and
touched what you’ve described as a marijuana pipe?
A. Hundreds.
Q. And you’ve indicated that this felt the same size and texture from the
feel as a marijuana pipe; is that correct?
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Cf. Act of December 6, 1972, P.L. 1339, §3, 1 Pa. C.S. §1922(4).
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A That’s correct. They are of varying size, but it was, in my mind, that
type of implement.
Q. I believe you indicated you did not believe because of the size that it
was a normal tobacco pipe; is that correct?
A. That’s correct.
Q Could you explain to the Court what you mean by that or why you
didn’t believe it would have been a normal smoking pipe as opposed to a
drug pipe?
A. A pipe that is sold commercially for tobacco is usually a long-stemmed
pipe approximately four and a half, five inches or maybe even longer in
length and it, you know, carries with it certain characteristics. It will have
a flat-ended stem and it will have the middle cylinder that just weren’t
present in this implement that I felt.
* * * *
Q. And could you explain to the Court why you believed it was a pot pipe?
A. Pot pipes are usually sized in such a manner that it’s easily concealable,
usually no greater than the size of a fist, where a more traditional pipe, a
gentleman’s pipe, a tobacco pipe is a longer stemmed item, it’s more
decorative usually, and it just takes up a greater amount of space, five or
six inches to four and a half to five inches. It’s very distinguishable
between the two. [A] pot pipe is usually anywhere from two to three
inches long. As I said it’s no bigger usually than your fist.
* * * *
Q. At the particular moment you were feeling for this pipe, what was it
that made you think that Mr. Fink was going to smoke marijuana with it as
opposed to smoking something else?
A. Only what I have is experience. The fact that it fits everything that I’ve
learned. I[‘ve] noticed, I’ve seen on the streets. I haven’t seen many
people, I haven’t seen any people use that sort of pipe for the ingestion of
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anything except a controlled substance.
Given the fact that pipes can be used to smoke legal as well as non-legal
substances, the Superior Court in Fink found “[the officer’s] testimony to be
lacking the requisite certainty of the incriminating nature of the object,” and held
that the trial court had been in error when it declined to grant the defendant’s
suppression motion. Commonwealth v. Fink, 700 A.2d 447, 451 (Pa. Super. Ct.
1997).
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Commonwealth v. Fink, 700 A.2d 447, 451-52 (Pa. Super. Ct. 1997) (Olszewski, J., concurring
and dissenting).
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Application of Law to Facts
In the present case, several factors led the court to conclude that police
conduct with respect to Defendant had exceeded the bounds of constitutional
limitations on searches and seizures in the absence of a warrant. The “traffic stop”
of the vehicle being driven by Defendant was, at best, an exercise of the officer’s
general authority to investigate a very minor, nonviolent summary offense
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committed by a person other than Defendant. The prolongation of the stop to
subject Defendant to an investigation was not, in the court’s view, supported by a
reasonable suspicion that he was engaged in criminal activity, considering he had
committed no apparent offense, vehicular or otherwise, was courteous and
cooperative, and did not display any indicia of impairment. Nor did the conduct of
Defendant, who had done nothing to cause the encounter, warrant a reasonable
belief that he was an armed and dangerous person, justifying a Terry search of his
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person. Finally, the evidence at the hearing that the object felt by the officer on
Defendant’s person was immediately identifiable as contraband was far less
compelling than the evidence found to be insufficient to support such a conclusion
in Fink.
Although this case was a close one in several of its particulars, and the
court was cognizant of the importance of not discouraging a proactive
enforcement of the law, it felt that on balance the conduct of the officer had been
overly zealous with respect to Defendant to the extent that the activity had
exceeded the constitutional bounds against unreasonable, warrantless searches and
seizures, for the reasons discussed above.
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In view of the disposition of the motion on other grounds, it is not necessary to decide whether
the stop of the vehicle on the basis of a discarded cigarette butt was lawful.
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As a general rule, an adult’s possession of a common penknife would not per se warrant a
belief that he or she was armed and dangerous, in the court’s view.
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BY THE COURT,
_________________
J. Wesley Oler, Jr., J.
Michelle H. Sibert, Esq.
Chief Deputy District Attorney
Brian Williams, Esq.
Assistant Public Defender
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