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HomeMy WebLinkAboutCP-21-CR-2278-2005 COMMONWEAL TH IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. KEVIN RYAN GORDON CP-21-CR-2278-2005 IN RE: MOTION OF DEFENDANT TO SUPPRESS EVIDENCE OPINION AND ORDER OF COURT Bayley, J., January 27, 2006:-- Defendant, Kevin Ryan Gordon, is charged with counts of tampering with evidence,1 possession with intent to deliver a schedule I controlled substance (cocaine),2 loitering and prowling at nighttime,3 and criminal use of a communication facility.4 He filed a motion to suppress evidence upon which a hearing was conducted on January 12, 2006. We find the following facts. At approximately 8:00 p.m., on September 10,2005, officers with the Cumberland County Drug Task Force executed a search warrant at 145 Mulberry Avenue, Carlisle, Cumberland County. James Gant was inside the residence. While searching for evidence of illegal drugs, Gant's cell phone rang. Gant told Officer Jeffrey Kurtz, that he could answer the phone. Kurtz answered, and the caller 118 Pa.C.S. S 4910(1). 235 P.S. S 780-113(a)(30). 318 Pa.C.S. S 5506. 418 Pa.C.S. S 7512. CP-21-CR-2287 -2005 identified -2- CP-21-CR-2287 -2005 himself as K Baby. Kurtz did not know who the person was. K Baby asked for Jimmy. Kurtz gave the phone to Gant, who talked to K Baby. Kurtz then got back on the phone and placed at $350 order for "product." K Baby said he would be right over. After a period of time Kurtz called back, and K Baby told him he was right around the corner and would be there in about a minute. Kurtz radioed this information to Officer Dale who was in uniform in a marked patrol car. Officer Dale immediately saw two males walk onto Mulberry Avenue approximately one block from Number 145. One was Kevin Gordon. When the males were approximately 50 to 60 feet from Number 145, Officer Dale pulled up, and while in his patrol car he said, "come here - can I talk to you." One stayed, but Gordon immediately ran. Officer Dale, believing that Gordon was K Baby, gave chase in his car and was joined by other officers. Approximately five minutes after Officer Kurtz had radioed Officer Dale, defendant was cornered and taken into custody. The police backtracked to an area approximately one-half block from 145 Mulberry Avenue where they had just seen defendant hiding, where they recovered a bag of cocaine next to a tree. Defendant was taken to a booking center where the police later found a cell phone under a chair he had been sitting in, and a processor card for that phone under a door. Citing Article I, Section 8 of the Pennsylvania Constitution, defendant maintains that the cocaine, cell phone and phone card must be suppressed. As to the cocaine, the first issue is whether the pursuit by the police was a seizure. See Commonwealth v. Matos, 672 A.2d 769 (Pa. 1996). If it was not a seizure, then the contraband was -3- CP-21-CR-2287 -2005 abandoned property, lawfully found by the police. Id. If the pursuit was a seizure, then the abandonment was coerced, and the police must have had either probable cause to make the seizure or a reasonable suspicion to make an investigatory detention of defendant. Id. A police officer may effect a precautionary seizure where there is reasonable suspicion that criminal activity is afoot. Id. It is well established that a police officer may conduct brief investigatory stop of an individual if the officer observes unusual conduct which leads him to reasonably conclude, in light of his experience, that criminal activity may be afoot. Commonwealth v. Spears, 743 A.2d 512 (Pa. Super. 1999). In the case sub judice, the initial request of Officer Dale to defendant and his companion to come over to his police car so he could talk to them, was an encounter. When defendant ran, and was chased by Officer Dale and other police officers, that was a seizure. Accordingly, the final issue is whether Officer Dale had a reasonable suspicion that criminal activity was afoot sufficient to seize defendant for an investigative detention. Officer Dale had the following information: (1) During the search of 145 Mulberry Avenue for illegal drugs, Officer Kurtz, using the phone of James Gant who was in the residence, ordered $350 of "product," i.e., illegal drugs, from K Baby. (2) K Baby told Officer Kurtz that he would be right over. (3) After a period of time, Kurtz called back, and K Baby told him that he was right around the corner and would be there in a minute. -4- CP-21-CR-2287 -2005 (4) Officer Dale then saw two males, one of whom was Kevin Gordon, walk onto Mulberry Avenue approximately one block from Number 145. (5) When the males were approximately 50 to 60 feet from Number 145, the place and at the time K Baby was expected, Officer Dale asked them to "come here - can I talk to you." (6) Gordon immediately ran. Based on the totality of those circumstances, Officer Kurtz had reasonable suspicion to believe that Gordon was K Baby who was about to deliver illegal drugs at 145 Mulberry Avenue. Accordingly, while the police pursuit of defendant was a seizure, Officer Dale had a reasonable suspicion that criminal activity was afoot that warranted an investigatory detention. Therefore, the cocaine which was alleged abandoned by defendant during the chase, is admissible against him at trial. Based upon the recovery of cocaine, the police had probable cause to arrest defendant and transport him to the booking center. He was in lawful custody when he allegedly abandonment the cell phone and processor card; therefore, that evidence is not subject to suppression. For the foregoing reasons, the following order is entered. ORDER OF COURT AND NOW, this suppress evidence, IS DENIED. day of January, 2006, the motion of defendant to -5- CP-21-CR-2287 -2005 By the Court, Edgar B. Bayley, J. Jonathan R. Birbeck, Esquire Assistant District Attorney Dean Reynosa, Esquire F or Defendant :sal -6- COMMONWEAL TH V. KEVIN RYAN GORDON IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CP-21-CR-2278-2005 IN RE: MOTION OF DEFENDANT TO SUPPRESS EVIDENCE AND NOW, this suppress evidence, IS DENIED. Jonathan R. Birbeck, Esquire Assistant District Attorney Dean Reynosa, Esquire F or Defendant :sal ORDER OF COURT day of January, 2006, the motion of defendant to By the Court, Edgar B. Bayley, J.