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HomeMy WebLinkAbout99-0711 criminalCOMMONWEALTH JEFFREY DAVID BULO IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 99-0711 CRIMINAL TERM IN RE: MOTION OF DEFENDANT TO SUPPRESS EVIDENCE BEFORE BAYLEY, J. OPINION AND ORDER OF COURT Bayley, J., August 30, 1999:-- Defendant, Jeffrey David Bulo, is charged with unlawful possession of a small amount of marijuana? unlawful possession of drug paraphernalia? possession of a prohibited offensive weapon (a switchblade knife)? failing to exhibit a driver's license on demand,4 and unlawful activities (operating a vehicle with unlawful tinted windows)? Defendant filed a motion to suppress evidence upon which a hearing was conducted on August 19, 1999. We find the following facts. On February 19, 1999, at approximately 6:30 p.m., Officer Thomas Kauffman of the Upper Allen Police, while on patrol, stopped a Honda coupe because the rear side ~ 35 P.S. § 780-113(a)(31). 2 35 P.S. § 780-113(a)(32). 3 18 Pa.C.S. § 908. 475 Pa.C.S. § 1511. 5 75 Pa.C.S. § 4107(b)(2). 99-0711 CRIMINAL TERM windows and the back window were tinted to the extent that he could not see into the car through those windows. This was a summary violation of 75 Pa.C.S. Section 4107(b)(2), 4524(e)(1). When Officer Kauffman went to the side of the car he saw that defendant, Jeffrey Bulo, had been driving. There was a passenger in the right front seat and a passenger in the backseat. Defendant told the officer that he had a valid Pennsylvania driver's license but that he did not have it with him. Officer Kauffman saw the person in the backseat covering his face with his hands. He told that person to uncover his face and when he did he recognized him as Carlton Barnhart. The officer knew that there was an outstanding warrant of arrest for Carlton Barnhart on a charge of assault. The officer had Barnhart get out of the car and he took him into custody, cuffed him, and put him in his police car. Officer Kauffman was aware that there had been a previous incident in the Borough of Camp Hill during which Carlton Barnhart was arrested for having a gun under a seat of a car in which he was a passenger. The officer had defendant and the other passenger get out of the car. He patted both men down for weapons and found none. He intended to issue defendant a warning for the tinted window violation and to verify that defendant had a valid driver's license. Detective Michael McLaughlin and Sergeant James Adams had arrived as backup. Officer Kauffman told Detective McLaughlin what had occurred and what he knew about Barnhart. Detective McLaughlin was aware of the Camp Hill incident, that Barnhart had a drug record and was a suspect in a stabbing. Detective McLaughlin decided to do what he called a "Terry sweep of the inside of the car for weapons." He -2- 99-0711 CRIMINAL TERM opened the door of the car, leaned inside and saw a switchblade knife lying on the left rear floor. He asked who owned it and defendant said "It's not Barnhart's, it's mine." Defendant was arrested for possession of the prohibited switchblade knife. The owner of the car was Ann Bulo. Defendant was a licensed driver but the front seat passenger was not. The vehicle was therefore towed. The car was impounded and an inventory search was conducted during which marijuana and drug paraphernalia were found that form the basis for the drug charges against defendant. DISCUSSION The stop of defendant's car for a summary offense was proper when Officer Kauffman observed the violation of the unlawful tinted windows. Commonwealth v. Swanger, 453 Pa. 107 (1973). The arrest of Carlton Barnhart was authorized by Pa.R.Crim. P. 122 which provides that a warrant for arrest may be executed by a police officer at any place within the Commonwealth: After Barnhart was arrested, cuffed, and placed in the patrol car, a warrantless search of the interior of the vehicle in which he had been a passenger was not justified as incident to the lawful arrest. Commonwealth v. White, 543 Pa. 45 (1995). Nor did the arrest of Barnhart on the warrant for assault, or the knowledge that the police had as to his activities, provide probable cause to believe that there was evidence of a crime within defendant's car that would justify a warrantless arrest on exigent circumstances. Id. A police officer can conduct a lawful pat-down search for weapons of an arrestee's companion if the officer effectuating the arrest reasonably believes that the -3- 99-0711 CRIMINAL TERM companion is armed and dangerous. Commonwealth v. Graham, 554 Pa. 472 (1998). The purpose of such a pat-down under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2 889 (1968), is not to discover evidence of a crime but to allow a police officer to proceed with their duties without fear of violence. Commonwealth v. Graham, supra. Officer Kauffman patted down defendant and the other passenger after he had placed Barnhart under arrest and secured him in his police car. No weapons were found.6 The officer was then in a position to issue defendant a citation for the illegally tinted windows. Defendant had a valid driver's license but did not have it with him. The Vehicle Code at 75 Pa.C.S. Section 1511 provides: (a) General rule.--Every licensee shall possess a driver's license issued to the licensee at all times when driving a motor vehicle and shall exhibit the license upon demand by a police officer, and when requested by the police officer the licensee shall write the licensee's name in the presence of the officer in order to provide identity. (b) Production to avoid penalty.--No person shall be convicted of violating this section or section 1501(a) (relating to drivers required to be licensed) if the person: (1) produces at the headquarters of the police officer who demanded to see the person's license within 15 days of the demand, a driver's license valid in this Commonwealth at the time of the demand; or (2) if a citation has been filed, produces at the office of the issuing authority, within 15 days of the filing of the citation, a driver's license valid in this Commonwealth on the date of the citation. There is no evidence that defendant knew that there was an outstanding arrest 6 Because nothing was seized from defendant we need not determine if the circumstances justified that pat-down based on a reasonable belief that defendant was armed and dangerous. -4- 99-0711 CRIMINAL TERM warrant for Carlton Barnhart. The police did not observe any furtive movement of the occupants of the vehicle when it was stopped. There is no evidence that the police had any reasonable belief that defendant or his passenger had a weapon inside the vehicle that posed a danger to them. Thus, Detective McLaughin's entry into defendant's car was not authorized as a "Terry sweep." Therefore, the discovery of the switchblade knife must be suppressed. Items seized during an inventory search are admissible into evidence only if the vehicle is lawfully within the custody of the police and the search is motivated in order to safeguard the contents of the vehicle as contrasted to a search designed to uncover evidence of a crime. Commonwealth v. Brandt, 244 Pa. Super. 154 (1976). Because the arrest and taking defendant into custody was tainted by the illegal seizure of the switchblade knife, see Commonwealth v. Carroll, 427 Pa. Super. 1 (1993), there was no legal basis to impound defendant's car pursuant to the Motor Vehicle Code at 75 Pa.C.S. Section 3352. Accordingly, the inventory search that was conducted after the car was impounded is also tainted and all evidence seized as a result of that search must be suppressed. ORDER OF COURT AND NOW, this ~) ~ day of August, 1999, the motion of defendant to suppress all evidence seized from his vehicle, IS GRANTED. -5- 99-0711 CRIMINAL TERM Jaime Keating, Esquire For the Commonwealth Ellen Barry, Esquire Public Defender Scott Brenneman, Certified Legal Intern B~y the Cou~,~. ~/,~/' Edgar B. Bayley, J.~ :saa -6-