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HomeMy WebLinkAboutCP-21-JV-140-2009 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CP-21-JV-140-2009, CP-21-JV-173-2009 PROBATION REFERRED JUVENILE IN THE MATTER OF BRANDON S., BORN 01/23/93 A JUVENILE IN RE: MOTION TO SUPPRESS EVIDENCE OPINION AND ORDER In this case, the juvenile, Brandon S., was a passenger in a vehicle which was lawfully stopped by Harrisburg City Police on December 11, 2009. The driver and other occupant of the vehicle were adult males, both of whom were subsequently arrested pursuant to valid outstanding arrest warrants. Because Brandon was only sixteen years old, the Harrisburg City Police contacted his mother, Melody S.. Ms. S. agreed to pick up her son at the Harrisburg Police Station. Prior to transportation, the officer told Brandon that he needed to pat him down before he could enter the rear of the patrol car. In the course of a subsequent search, it was discovered that Brandon had marijuana on his person. Two questions are presented in this case. The first is whether the police officer was entitled, as a legal matter, to transport the juvenile to the police station to be picked up by his mother. The second is whether, prior to transporting a juvenile in his patrol car, it was lawful to effectuate a pat-down search to ensure the safety of the officer on the trip. The family is an institution which preceded governments. Its sanctity was universally recognized before judges or statutes or constitutions or welfare organizations were known to man. The right of a child to a mother and a mother to a child are rights created by natural law. They are rights attributable to the nature of mankind rather than to the enactments of law. In Re Rinker, 180 Pa.Super. 143, 147, 117 A.2d 780, 783 (1955). No Pennsylvania case stands for the exact proposition that an officer may return a child to the police station to be picked up at the request of a parent. Despite the seeming common sense notion that a parent should be able to request the reasonable help of the state in a situation, such as the one sub judice, a thorough review of Pennsylvania cases seems to lack a specific holding of such a basic and general belief of proper parenting. Pennsylvania cases do, however, stand for the proposition that parents possess duties, rights, responsibilities and privileges over their children, and that when acting in the good faith interest of the children, parents should be able to use reasonable means to enforce those duties. The Supreme Court of Pennsylvania has defined the parental duty as follows: There is no simple or easy definition of parental duties. Parental duty is best understood in relation to the needs of a child. A child needs love, protection, guidance, and support. These needs, physical and emotional, cannot be met by a merely passive interest in the development of the child. Thus, this court has held that the parental obligation is a positive duty which requires affirmative performance. This affirmative duty encompasses more than a financial obligation; it requires continuing interest in the child and a genuine effort to maintain communication and association with the child. Because a child needs more than a benefactor, parental duty requires that a parent “exert himself 2 to take and maintain a place of importance in the child’s life.” In re C.M.S., 832 A.2d 457, 462 (Pa.Super. 2003) (citing In re Burns, 474 Pa. 615, 379 A.2d 535 (1977)). See In re: G.P.-R., 851 A.2d 967, 976 (2004) (internal citation omitted). We believe we should examine the actions of the police, in acquiescing to the mother’s request, in light of what the Pennsylvania Supreme Court has said with respect to the rights and duties of parents. Brandon was in Harrisburg on the afternoon of December 11, 2009, in the company of two adults for whom there were outstanding bench warrants. His mother was completely unaware of his situation. Her agreement with the officer’s offer that her son be taken back to the police station so that she could pick him up was not unreasonable. In fact, it was an affirmative exercise of a very clear parental duty. Moreover, Ms. S. was entitled to the help of the state in utilizing reasonable efforts to promote the welfare of her child. See In re E.F.V., 461 A.2d 1263 (Pa.Super. 1983). police No Pennsylvania case has dealt with the other issue sub judice of whether a officer taking an individual, in this case a juvenile (who is not subject to arrest and where there is a lack of probable cause for his own arrest), back to the police station to be picked up by his mother may be patted down and subject to a brief Terry-style frisk before being transported in the rear of the police vehicle. The parties cite to two cases which, while similar in their facts, are not dispositive of this issue. First, the Commonwealth cites Commonwealth v. Rehmeyer, supra, for the proposition that “An officer may conduct a limited pat down search for weapons where an officer chooses to transport an individual in the officer’s patrol car.” (Commonwealth’s Brief Following Suppression Hearing, hereinafter “Commonwealth’s Brief __”, 4.) Rehmeyer does not stand for 3 the broad reading the Commonwealth would like to give to it. In Rehmeyer, the court examined whether contraband seized from the defendant by a York City Police Officer pursuant to a traffic stop was lawfully obtained. Rehmeyer, 349 Pa. Super. at 178. The Officer in that case pulled over a vehicle and, upon speaking with the defendant-driver, detected the smell of alcohol on the driver’s breath. Id. Because the Officer believed his case was borderline at best, he decided not to arrest the defendant. Id. Instead, the Officer suggested that the defendant call home and have a family member give him a ride or receive a ride home in the patrol car. Id. The defendant accepted the offer from the Officer, but prior to allowing the defendant to ride in the patrol car the Officer advised the defendant that he would have to under go a pat-down search for weapons. Id. A concealed weapon was discovered during the search, which was in violation of the Uniform Firearms Act. Id. The court held this search to be lawful. Id. at 179. The issue in Rehmeyer was: Whether a police officer who properly proposes to take a citizen home in his patrol car can subject that citizen to a pat-down search for weapons where there is no reason to believe he is armed and the individual is not under arrest though the officer has probable cause to arrest. We hold that an officer may conduct a limited pat-down search for weapons in such a situation. Id. at 179 (emphasis added). The Superior Court reversed the trial court which had held that “because Rehmeyer was not placed under arrest, the officer had to be operating under a reasonable belief that Appellee was armed and dangerous before conducting the pat-down search.” Id. The Superior Court held that Terry and Hicks do not compel this result. “Only in those situations where the officer lacks probable cause to arrest must he reasonably suspect that the individual with whom he is dealing is armed before conducting a legitimate protective 4 search.” Id. at 180 (emphasis added). Thus, the holding of Rehmeyer is merely an affirmation of Terry and Hicks that there are two situations where an officer may pat-down an individual: that it “must be based on either a probable cause to arrest or a policeman’s reasonable suspicion that the individual with whom he is dealing is armed and dangerous.” Id. The right of an officer to pat- down a person is not limited to only those situations where he has probable cause to arrest a person and does arrest the person. Id. Neither Terry nor Hicks require an arrest – probable cause, in and of itself, is sufficient. Id. Second, the Commonwealth cites Commonwealth v. Bedsaul, 444 A.2d 717, 718 (Pa. Super. 1982). In Bedsaul, the police were investigating the presence of a male intruder, at an all- female college dormitory, who was claimed to be in a stupefied condition. Id. at 717. The defendant entered the building without reason to be there. Id. The police concluded that no serious criminal activity had taken place and decided not to arrest the defendant. Id. The police offered to drive the defendant home because of his condition. He accepted, but before he was allowed to ride in the patrol car, the officer patted down his outer clothing. Id. 717-18. This pat- down produced a small plastic vile containing pills and a hypodermic syringe. Id. at 718. The Superior Court did not stray from the principles announced in Terry and Hicks which allow pat- down searches in the two situations described above. The court held that “warrantless searches are permissible where the officer observes the suspicious nature of the individual’s behavior and reasonably concludes that the individual may be contemplating the commission of a crime and may be carrying a dangerous weapon.” Id. at 718 (citing Commonwealth v. Hicks, 434 Pa. 153, 253 A.2d 276 (1969)). The court went on to state the following: It is inconceivable that the appellant went to the dormitory for the purpose of conducting a 5 gentlemanly visit; his presence was rightfully feared by the young women and justifiably viewed by [the officer] with caution and apprehension. . . . The mere act of arriving at the dormitory without invitation and in a dazed condition was alarming enough and provided sufficient cause to reasonably infer that criminal activity was afoot. . . . Although no arrest was made, [the officer] acted reasonably when assuming that the appellant may well have entered the patrol car with a concealed deadly weapon. Id. Again, the court held nothing more than what has been consistent law in this Commonwealth that where an officer has a reasonable belief that the person with whom he is presently dealing is armed and dangerous he may conduct a pat-down search – especially when he is about to be placed in the rear of a patrol car for transport. Interestingly, this case involves something of an admixture of the foregoing principles. It involves a situation where, even though the police officer had not made an arrest for a crime, Brandon was not given an option of being transported back to the police station. Rather, he was required to go along for the ride. Brandon’s detention, for this purpose, was the functional equivalent of an arrest. The cases have held that where there is probable cause to arrest, though the individual is not actually arrested, he may be subject to a pat-down prior to transportation. Rehmeyer, 349 Pa.Super. at 179. We are satisfied that a pat-down search is equally warranted where, as here, there was no probable cause to arrest but that the individual was, for all intents and purposes, taken into custody. ORDER AND NOW, this day of June, 2010, the motion of the juvenile in the form of a 6 motion to suppress evidence is DENIED. BY THE COURT, _______________________________ Kevin A. Hess, P. J. Office of District Attorney Office of Public Defender Juvenile Probation :rlm 7 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CP-21-JV-140-2009, CP-21-JV-173-2009 PROBATION REFERRED JUVENILE IN THE MATTER OF BRANDON WILLIAM S., BORN 01/23/93 A JUVENILE IN RE: MOTION TO SUPPRESS EVIDENCE ORDER AND NOW, this day of June, 2010, the motion of the juvenile in the form of a motion to suppress evidence is DENIED. BY THE COURT, _______________________________ Kevin A. Hess, P. J. Office of District Attorney Office of Public Defender Juvenile Probation :rlm