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HomeMy WebLinkAbout99-0391 criminalCOMMONWEALTH Vo ROBERT BRICE HUSTED IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 99-0391 CRIMINAL TERM IN RE: MOTION TO SUPPRESS EVIDENCE OPINION AND ORDER OF COURT Bayley, J., May 26, 1999:-- Defendant, Robert Brice Husted, is charged with a count of unlawful posses- sion of drug paraphernalia.1 He filed a motion to suppress evidence on which a hearing was conducted on May 25, 1999. We find the following facts. On December 7, 1998, at approximately 1:45 p.m. an informant called Patrolman Michael Cranga at the Mechanicsburg Police Station. The informant said that (1) Robert Husted was a drug user, (2) he was then standing on the square in Mechanicsburg waiting for a bus, and (3) he was possibly traveling to Harrisburg to purchase heroin. The informant described Husted as a white male approximately six feet tall with light brown hair and glasses. Patrolman Cranga placed Husted's name into the Metro Warrant system and received a print out of two outstanding warrants for his arrest. One warrant was for retail theft and the other was for nonpayment of fines and costs. Patrolman Cranga told Detective Boch what he had learned. Detective Boch knew Husted from having gone to school with him. The two officers then went to the square in Mechanicsburg. When they arrived they saw Husted standing on a corner at a bus stop. Husted acknowledged who he was, and that his 1. 35 P.S. 780-113(a)(32). 99-0391 CRIMINAL TERM birth date was the same as listed on the two arrest warrants. He was then arrested and searched. A needle with a cap and a makeshift cooker were found in a pouch in his pocket. Those items constitute the basis of the charge of unlawful possession of drug paraphernalia and are the items that defendant seeks to suppress for admission into evidence at trial. Defendant cites Commonwealth v. Lewis, 394 Pa. Super. 403 (1990), in support of his motion to suppress. In Lewis, a police officer saw defendant in an area in which drugs were known to be sold. The officer told defendant to leave the area and defendant walked across the street. He then turned and grinned at the officer. The officer placed defendant under arrest for '~failure to disperse" and conducted a search which resulted in the seizure of packets of cocaine. The Superior Court of Pennsylvania reversed the trial court that denied a motion to suppress evidence. The Superior Court held that there was no probable cause for the officer to arrest defendant under the Crimes Code at 18 Pa.C.S. Section 5502, titled "Failure of disorderly person to disperse upon official order." It further held that the officer did not have probable cause to believe that defendant was engaged in committing a drug offense. The Court noted: Appellant contends that his arrest for failure to disperse was pretextual. The term 'pretext arrest' is used to describe an arrest made only to conduct a search without a warrant. 'When the arrest is merely a subterfuge for conducting a search, the search is illegal in spite of the validity of the arrest. Amador-Gonzales [Gonzalez] v. United States, 391 F.2d 308 (5th Cir. 1968).' Commonwealth v. Freeman, 222 Pa. Super. 178, 181,293 A.2d 84, 85 (1972). -2- 99-0391 CRIMINAL TERM Commonwealth v. Tenney, 227 Pa. Super. 337, 339, 324 A.2d 401,402 (1974). See also: Commonwealth v. Freeman, 222 Pa. Super. 178, 181,293 A.2d 84, 85 (1972). It is not necessary in this case to determine whether appellant's arrest was pretextual, for even the arrest for failure to disperse was unsupported by probable cause and improper. Appellant's conduct did not evidence a violation of any criminal law, and the record is clear that Rawle did not have anything more than an unsupported suspicion that appellant intended to engage in drug related activity. The evidence in this case was seized as a direct consequence of the unlawful arrest. As such, it was 'fruit of the poisonous tree' and should have been suppressed. (Emphasis added.) Defendant in the case sub judice, maintains that his arrest was a pretext to conduct a search of his person without a search warrant. However, unlike the facts in Lewis where there was no outstanding warrant for the arrest of the defendant, here there were two outstanding warrants for defendant's arrest. Pa.R.Crim. P. 122 title "Execution of Arrest Warrant," provides: (a) A warrant of arrest may be executed at any place within the Commonwealth. (b) A warrant for arrest may be executed by a police officer. Because the police had two warrants for the arrest of defendant, the search of his person in this case was incidental to a lawful arrest. Commonwealth v. McBride, 391 Pa. Super. 113 (1990). That the arrest warrants provided the officers with the ability to arrest defendant and search his person incident to a lawful arrest, a search that could not have legally been conducted on the general information provided to Patrolman Cranga by the informant, is of no legal import. Accordingly, the following order is entered. -3- 99-0391 CRIMINAL TERM ORDER OF COURT AND NOW, this '~1 day of May, 1999, the motion of defendant to suppress evidence, IS DENIED. Michael Schwoyer, Esquire For the Commonwealth Aria Waller, Esquire For Defendant By the Cou"~-~/ ,2 Edg . ayleg,'J. I ;saa -4-