HomeMy WebLinkAboutCP-21-CR-1039-2004
COMMONWEALTH
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
v.
SHARON GLASER
CP-2l-CR-l039-2004
IN RE: OPINION PURSUANT TO P A. R.A.P. 1925
OLER, 1., December 16,2005.
In this unfortunate drug case in which Defendant suffers from multiple
sclerosis and has received a significant mandatory prison sentence, Defendant has
filed an appeal to the Pennsylvania Superior Court from a judgment of sentence
for Possession with Intent to Deliver a Schedule I Controlled Substance (33
pounds of marijuana), an ungraded felony carrying a penalty in the form of a
maximum period of imprisonment of five years.
Among the issues being pursued by Defendant on appeal are alleged errors
by the writer of this opinion on two pretrial issues-a motion to suppress, arising
out of a stop of Defendant's vehicle, and a motion to dismiss, arising out of a
failure of the Commonwealth to preserve certain evidence.
In this regard, Defendant's statement of matters complained of on appeal
identifies the following issues:
1. Did the Suppression Court err in denying the omnibus
pre-trial motion to suppress all evidence seized from the
Defendant's vehicle in violation of her rights under the
Constitutions of the Commonwealth of Pennsylvania and the
United States:
a. where the stop of said vehicle was not
supported by probable cause to believe that the
Defendant had violated the Vehicle Code and
there was no other basis upon which to lawfully
stop her vehicle?
b. where there was no clear and expressed
endpoint to the stop of the Defendant's vehicle
and she was clearly not free to leave when she
was asked to give her consent such that, under
the totality of the circumstances, the continued
detention of the Defendant was illegal and there
was no causal break in the chain of events that
led to the alleged consent to search her vehicle?
c. where, under the totality of the
circumstances and considering the Defendant's
characteristics, Defendant's consent was not
freely and voluntarily given, regardless of the
legality of or the continuation of the traffic stop
or her continued detention?
d. where, under the totality of the
circumstances, the search of the duffle bags
located in the rear of the Defendant's vehicle and
the separate bags found therein exceeded the
scope of the consent provided by the Defendant?
2. Did the Suppression Court err in denying the
amendment to the Defendant's omnibus pre-trial motion where
the Defendant was subjected to custodial interrogation and
allegedly provided consent to the search of her vehicle prior to
being advised of her rights under Miranda?
3. Assuming arguendo that the search of the Defendant's
vehicle was illegal for lack of valid consent or otherwise, does
the exception to the exclusionary rule known as the "inevitable
discovery doctrine" comport with the enhanced protections of
Article I, section 8 of the Constitution of the Commonwealth of
Pennsylvania, and, if so, was it satisfied?
4. Did the. . . Court err in denying the pre-trial motion to
dismiss the prosecution for violation of the Defendant's
constitutional right to due process where the Commonwealth
and its police agents lost or destroyed audio and video tapes of
the highway stop of the Defendant and failed to provide her
with copies thereof, despite her repeated requests therefore and
assurances that same would be provided, thereby depriving her
of the ability to defend herself and contest the circumstances
leading up to the search of and seizure from her vehicle? 1
This opinion in support of the court's denial of Defendant's suppression
motion and of Defendant's motion to dismiss is written pursuant to Pennsylvania
Rule of Appellate Procedure 1925(a).
1 Defendant's Concise Statement of Matters Complained of on Appeal, filed November 22,2005.
2
STATEMENT OF FACTS
On April 2, 2004, Defendant was arrested2 and charged with Possession
with Intent to Deliver a Schedule I Controlled Substance in violation of Section
13(a)(30) of Pennsylvania's Controlled Substance, Drug, Device and Cosmetic
Act. 3 Following formal arraignment, she filed, inter alia, an omnibus pretrial
motion to suppress evidence4 and a motion to dismiss.5 The former motion sought
suppression of evidence obtained following a stop of Defendant's vehicle and the
latter sought dismissal of the prosecution due to the Commonwealth's failure to
preserve a video recording made from the arresting trooper's vehicle.
A hearing was held on Defendant's motions on October 26, 2004, and
November 5, 2004. The pertinent evidence found credible by the court at the
hearing may be summarized as follows:
On Sunday, April 2, 2004,6 around 1:00 in the afternoon7 an individual who
provided his name, telephone number, and position as a deputy fire chief of a
certain volunteer fire company in Carlisle, Pennsylvania,8 reported by telephone to
the Pennsylvania State Police9 that he was following a white Jeep Cherokee with a
West Virginia registration southbound on Interstate Route 81 in Cumberland
County, Pennsylvania, that the vehicle was "all over the road."lO
2 NT. 10, 31, Pretrial Hearing, October 26, November 5, 2004 (hereinafter NT. ----" Pretrial
Hearing) .
3 Criminal Complaint, filed April 2, 2004; Act of April 14, 1972, P.L. 233, ~13(a)(30), as
amended, 35 P.S. ~780-113(a)(3) (2005 Supp.).
4 Defendant's Omnibus Pretrial Motion, filed July 1,2004.
5 Defendant's Motion To Dismiss/End Prosecution for a Due Process Violation, filed October 8,
2004.
6 NT. 10, Pretrial Hearing.
7 NT. 21, Pretrial Hearing.
8 Commonwealth's Ex. 2, at 1, Pretrial Hearing, October 26, November 6, 2004 (hereinafter
Commonwealth's Ex. ----" Pretrial Hearing).
9 NT. 65-68, Pretrial Hearing.
10 Commonwealth's Ex. 2, at 1, Pretrial Hearing.
3
At the beginning of the call, the caller reported their position as being at
mile marker 38.11 During the course of the call, he noted that "[i]f they're not
drinking they're probably sleeping cause, I mean, it's just, just unbelievable." He
reported that "I won't pass them them that's how bad it is," that "nobody is really
passing this vehicle they're just kind of hanging back," and that the vehicle
"[j]ust . . . about ran a car off the road.,,12 The caller was able to obtain a license
plate number and transmitted it to the State Police barracks with which he was in
contact. 13
Pennsylvania State Trooper Brian Overcash at this time was at a
northbound rest stop on Route 81 one mile south of the reported traffic,14 which
was in Cumberland County. IS He responded to a radio message from the
barracks,16 was told that a citizen was following a possible drunk driver, 17
proceeded northbound to a U_turn,18 and then proceeded southbound until, about
six minutes later, 19 he sighted the Jeep Cherokee ahead ofhim?O
Over a distance of approximately a mile,21 at a speed of about 60 miles-per-
hour,22 the trooper observed the vehicle deviate from its lane of traffic three
times23 -once when the vehicle's passenger side tires went onto the berm, and
11 Commonwealth's Ex. 2, at 1, Pretrial Hearing.
12 Commonwealth's Ex. 2, at 2, 5, Pretrial Hearing.
13 Commonwealth's Ex. 2, at 3, Pretrial Hearing.
14 N.T. 11-12, Pretrial Hearing.
15 NT. 12, Pretrial Hearing.
16 NT. 12, Pretrial Hearing.
17 NT. 12-13, 16, Pretrial Hearing.
18 NT. 12, Pretrial Hearing.
19 NT. 43, Pretrial Hearing.
20 NT. 12, Pretrial Hearing.
21 NT. 16,44, Pretrial Hearing.
22 NT. 17, Pretrial Hearing.
23 NT. 16-17, Pretrial Hearing.
4
twice when the vehicle strayed into the passing lane?4 On one of the latter
occasions, the vehicle made "a quick, jerking movement to the left and back,,,25 on
the other it went almost entirely into the adjacent lane before correcting its line of
travel, and on neither of these incursions into the left lane did the driver employ a
. 126
turn sIgna .
Trooper Overcash activated his siren and overhead lights and eventually
succeeded in stopping the vehicle.27 When he approached the vehicle, the trooper,
a ten-year veteran of the force28 with extensive training in detection of controlled
substances, including marijuana,29 perceived an odor of raw marijuana30
emanating from the driver's side window.31 Defendant, who was the driver and
sole occupant of the vehicle, denied, when asked, that she had any marijuana. 32
Defendant appeared to the trooper to be tired, confused and possibly under
the influence, 33 and seemed to be physically unable to reach over to the
passenger's side of the vehicle for her driver's license and vehicle registration. 34
The trooper retrieved these for her from the passenger area and again asked her if
she could explain the marijuana smell.35 She responded that she was coming from
New York City and had smoked marijuana earlier. 36 She said that she had been
24 NT. 16-17, Pretrial Hearing.
25 NT. 17, Pretrial Hearing.
26 NT. 17, Pretrial Hearing.
27 NT. 12, Pretrial Hearing. The vehicle did not respond immediately to the trooper's signals. Id.
12,21.
28 NT. 10, Pretrial Hearing.
29 NT. 28-30, Pretrial Hearing.
30 NT. 27, Pretrial Hearing.
31 NT. 22, Pretrial Hearing.
32 NT. 22, Pretrial Hearing.
33 NT. 22-23, Pretrial Hearing.
34 NT. 22, Pretrial Hearing.
35 NT. 22, Pretrial Hearing.
36 NT. 22, Pretrial Hearing.
5
diagnosed with multiple sclerosis,37 but conceded that she did not have a
prescription for the marijuana. 38
At this point, Trooper Overcash determined that a search of the vehicle
should be conducted,39 either pursuant to Defendant's consent40 or, in lieu thereof,
pursuant to a warrant. 41 He proceeded with the process of verifying the validity of
Defendant's driver's license and registration, requested another trooper, who had
arrived on the scene, to confirm the smell of marijuana from outside of
Defendant's vehicle,42 and then directed Defendant to exit the vehicle.43
Defendant stumbled to the ground outside her vehicle,44 was helped to her
feet by the troopers,45 requested to be permitted to sit in Trooper Overcash's
vehicle,46 and was assisted to a seat there by the troopers.47 She declined an offer
of an ambulance 48 and medical treatlnent. 49
Trooper Overcash was concerned about her well-being and told her that he
did not feel she should be driving. 50 In response to a question as to whether
someone could come and pick her up, she indicated that she knew no one locally
who could do so. 51 She concluded that perhaps it would be best for her to get a
37 NT. 22, Pretrial Hearing.
38 NT. 22, Pretrial Hearing.
39 NT. 38, Pretrial Hearing.
40 NT. 38, 56 Pretrial Hearing.
41 NT. 56, Pretrial Hearing.
42 NT. 23-24, Pretrial Hearing.
43 NT. 24, Pretrial Hearing.
44 NT. 24, 36, 78, 88-90, Pretrial Hearing.
45 NT. 24, 36, 78, 88-90, Pretrial Hearing.
46 NT. 36, 88, Pretrial Hearing.
47 NT. 36, 88, Pretrial Hearing.
48 NT. 25, Pretrial Hearing.
49 NT. 36, Pretrial Hearing.
50 NT. 25, Pretrial Hearing.
51 NT. 25, Pretrial Hearing.
6
nearby motel room, and was given the option of leaving her vehicle secured at the
scene or having it towed to the motel. 52 She opted for the latter. 53
The trooper requested her permission to search her vehicle, including
baggage and compartments, 54 for marijuana. 55 She consented to the search. 56
Inside the vehicle, the trooper found the odor of marijuana sufficiently
strong as to be both "incredible"57 and "overwhelming.,,58 In the rear area of the
vehicle, accessible either from the cabin or by lifting the hatch, 59 the trooper found
two large duffle bags.60 When he unzipped one of them,61 he found that the odor
of marijuana was "just like something exploding up into your face. It was
incredible. ,,62
The contents of the duffle bags included black, plastic garbage bags that the
trooper tore open to expose numerous one-pound clear plastic bags of marijuana. 63
Defendant was placed under arrest and handcuffed,64 approximately one-half hour
after the stop had occurred.65 She was transported to the local State Police
Barracks66 where, after being administered Miranda warnings,67 she admitted that
the marijuana was hers but claimed that it was not for distribution to anyone else.68
52 NT. 25, Pretrial Hearing.
53 NT. 25-26, Pretrial Hearing.
54 NT. 57-58, Pretrial Hearing.
55 NT. 26, Pretrial Hearing.
56 NT. 26, Pretrial Hearing.
57 NT. 27, Pretrial Hearing.
58 NT. 27, Pretrial Hearing.
59 NT. 27, 64, Pretrial Hearing.
60 NT. 27, Pretrial Hearing.
61 NT. 27, Pretrial Hearing.
62 NT. 58, Pretrial Hearing.
63 NT. 33-35, Pretrial Hearing.
64 NT. 30-31, Pretrial Hearing.
65 NT. 44, Pretrial Hearing.
66 NT. 31, Pretrial Hearing.
7
At no time during the incident did Trooper Overcash subject Defendant to
force, coercion or any type of overbearing conduct. 69 She subsequently thanked
him several times for the manner in which he had treated her. 70
Trooper Overcash's patrol car was equipped on the occasion of the stop
with a digital video recording device 71 that was activated when his siren and
overhead lights went on and which recorded his pursuit of Defendant and possibly
captured some of the events following the stop.72 Trooper Overcash relied on
another trooper's assumption of responsibility for preservation of the recording for
evidentiary purposes.73 Unfortunately, the digital recording system in question
was relatively new at the time,74 the preservation of recordings depended upon an
e-maiC5 communication to one of two individuals at the barracks who were
capable of effecting the information retrieval, 76 and the recording was not
immediately preserved-either because the trooper who assumed responsibility for
communicating the request made an error in sending the e-mail requesting it or
because the e-mail was overlooked or otherwise mishandled when it was
received.77 By the time Trooper Overcash realized that an error had occurred, the
recording could no longer be retrieved. 78
67 NT. 31, Pretrial Hearing.
68 NT. 31, 32, Pretrial Hearing.
69 See, e.g., NT. 79, Pretrial Hearing.
70 NT. 32-33, Pretrial Hearing.
71 NT. 41-42, Pretrial Hearing.
72 NT. 47-48, Pretrial Hearing.
73 NT. 45, 49, 59, Pretrial Hearing.
74 NT. 55, Pretrial Hearing.
75 NT. 45, Pretrial Hearing.
76 NT. 42, Pretrial Hearing.
77 NT. 50, 79-81, Pretrial Hearing.
78 NT. 46, Pretrial Hearing..
8
Following the hearing, at which no testimony or exhibits were presented on
behalf of Defendant, the court entered the following order:
AND NOW, this 5th day of November, 2004, upon
consideration of Defendant's Omnibus Pretrial Motion for
Relief in the form of a Motion To Suppress... [and]
Defendant's Motion To Dismiss/End Prosecution for a Due
Process Violation, . . . and following a hearing, the Defendant's
motions are denied, without prejudice to Defendant's right to
request of the trial court an instruction to the jury that an
adverse inference may be drawn with respect to the loss of
certain evidence by the Commonwealth. . . .79
At a subsequent bench trial, the prosecution and defense entered into the
following stipulated facts, to be supplemented by a transcript of the preliminary
hearing in the case, a transcript of the call by the citizen following Defendant on
Route 81 to the State Police Barracks, and a laboratory report:
. . . [B]ack on April 12th [sic], 2004, there was a call of the
911 [sic] for the Defendant driving erratically in Southampton
Township, Cumberland County. She was pulled over. The
police officer smelled a strong odor of marijuana. He asked
the Defendant whether she had marijuana in the car. She said,
no, she didn't. He confronted her with the fact that he smelled
marijuana. She said that she had smoked some marijuana
earlier in the car.
They ran a check on it. It turns out that it came back that if
was unburnt marijuana that he smelled, not burnt marijuana.
She got out of the car. She was a little wobbly. Pursuant to a
search, they found 33 pounds of marijuana in the car.
* * * *
The trooper, if called to testify, would testify that 33
pounds of marijuana, the way it was packaged, is consistent
with the intent to deliver that marijuana. 80
The laboratory report corroborated the alleged character and weight of the
substance seized from Defendant's vehicle. The State Police communications
79 Order of Court, November 5, 2004.
80 NT. 4-5, Trial, July 14,2005.
9
transcript and the preliminary hearing transcript were basically consistent with the
evidence summarized above from the court's hearing on Defendant's pretrial
motions.81 Defendant did not request at the trial that the court draw an inference
adverse to the prosecution with respect to the loss of the digital recording by the
Commonwealth.
Defendant was found guilty as charged by the Honorable Edward E.
Guido. 82 She was sentenced on September 6, 2005, to state prison in accordance
with the mandatory minimum sentence prescribed by the legislature. 83 However,
she remains at liberty on bail pending disposition of her appeal. 84
DISCUSSION
Stop of Defendant's vehicle. Under Section 6308(b) of the Vehicle Code,85
"[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 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 information as the officer may reasonably believe to be
necessary to enforce the provisions of [the Vehicle Code]." The standard of
suspicion required for such a stop is "tantamount to probable cause." See
Commonwealth v. Bolton, 2003 P A Super. 314, 6, 831 A.2d 734, 736.
Under Section 3334 of the Vehicle Code, "no person shall. . . move [a
vehicle] from one traffic lane to another... without giving an appropriate
81 One difference in Trooper Overcash's testimony at the preliminary hearing and at the pretrial
hearing was in his recollection at the preliminary hearing that Defendant had handed her papers
directly to him; at the hearing before this court, his recollection was that he had retrieved the
papers for her when she proved unable to do so herself. Compare NT. 22, Pretrial Hearing, with
NT. 5, Preliminary Hearing, April 23, 2004.
82 Order of Court, July 14,2005.
83 Order of Court, September 6,2005.
84 NT. 7, Trial, July 14,2005.
85 Act ofJune 17, 1976, P.L. 162, ~l, as amended, 75 Pa. C.S. ~6308(b) (2005 Supp.).
10
signal. . . .,,86 Under Section 3802 of the Code, a person may not drive a vehicle
while under the influence of alcohol, a controlled substance, or a combination
thereof which renders the person incapable of safe driving.87 Roadway indicia of
driving under the influence include erratic driving, 88 unsafe driving, 89 and
violations of the statutory rules of the road.90 In addition, a reliable citizen report
of suspected driving under the influence, with some element of corroboration
viewed by police, can justify a vehicle stop.91
In the present case, Defendant's observed traffic violations, her observed
erratic and unsafe driving, and the report by a local deputy fire chief of suspected
drunk driving, corroborated by Trooper Overcash's prompt personal observations
thereof, provided probable cause for the trooper's belief, prior to the stop of
Defendant's vehicle, as to the occurrence of a violation of the Vehicle Code. In
this regard, the case is much closer factually to those of Commonwealth v. Cook92
and Commonwealth v. Lindblom,93 than that of Commonwealth v. Gleason94 and
its progeny. In the latter case, the Pennsylvania Supreme Court upheld a trial
court's suppression of evidence based upon an illegal vehicle stop on the
following facts:
86 Act of June 17, 1976, P.L. 162, ~l, 75 Pa. C.S. ~3334(a).
87 Act of September 30,2003, P.L. 120, ~16, 75 Pa. C.S. ~3802 (2005 Supp.).
88 See Commonwealth v. Montini, 712 A.2d 761, 765 (Pa. Super. Ct. 1998); Commonwealth v.
Lawrentz, 453 Pa. Super. 118, 123,683 A.2d 303,305 (1996).
89 See Lawrentz, 453 Pa. Super. at 123, 683 A.2d at 305; Commonwealth v. Hamme, 400 Pa.
Super. 537, 541, 583 A.2d 1245, 1247 (1990); Commonwealth v. Petro, No. 94-1619 Crim. T.
(Cumberland Co. Nov. 1, 1995).
90 See, e.g., In re KR.B., 2004 PA Super 157,4,851 A.2d 914,917.
91 See Commonwealth v. Spencer, 2005 PA Super. 381, 10; Commonwealth v. Lohr, 715 A.2d
459,461 (Pa. Super. Ct. 1998); Commonwealth v. Janiak, 368 Pa. Super. 626, 631, 534 A.2d 833,
835 (1987); cf Commonwealth v. Lindblom, 2004 PA Super. 270, 7, 854 A.2d 604, 607;
Commonwealth v. Swartz, 2001 PA Super. 340, 6, 787 A.2d 1021, 1024.
92 2004 PA Super. 449, 865 A.2d 869.
932004 PA Super. 270, 854 A.2d 604.
94567 Pa. 111, 785 A.2d 983 (2001).
11
On July 21, 1998, in the early morning hours, Officer Guy
Rosato of the Westtown-East Goshen Police Department was
on patrol traveling westbound on the West Chester Pike, a/kla
Route 3, in East Goshen Township. The West Chester Pike is
a four lane divided highway. Officer Rosato noticed a gray
Mazda approximately eight to ten car lengths in front of him.
He followed the vehicle and observed it cross the solid fog line
on two or three occasions over a distance of approximately one
quarter mile. During the period that Officer Rosato was
following the vehicle, there were no other vehicles on the
roadway. Nevertheless, Officer Rosato decided to investigate
as to the reason for this behavior [and stopped the vehicle].
Gleason, 567 Pa. at 115, 785 A.2d at 985.
In Commonwealth v. Lindblom, the Pennsylvania Superior Court reversed
an order of the trial court suppressing evidence on the following facts:
On October 21, 2001, at approximately 10:40 p.m., a
private citizen named Greg Bergman was driving behind
Appellee's vehicle and saw it weave back and forth across the
yellow and white lines. Appellee's vehicle crossed 11/ 2 feet
over the double yellow line four or five times, straddled the
double yellow line, and crossed the berm by one set of tires
four or five times. Mr. Bergman called 911, reported his
observations and continued to follow Appellee until Officer
Eckels of the Ross Township police appeared. Mr. Bergman
stayed about 20 to 30 feet behind Appellee's vehicle, following
the vehicle in a westerly direction from Babcock Boulevard
through Laurel Gardens and onto Perry Highway. He followed
Appellee's vehicle into a residential neighborhood, then waited
for the police to arrive when Appellee drove down a dead-end
street.
When Officer Eckels arrived, Mr. Bergman told the officer
that Appellee drove down the dead-end street and had not
come back out. Mr. Bergman identified Appellee's vehicle and
described the erratic driving. Officer Eckels located
Appellee's vehicle as it drove past him on the dead-end street
and initiated the traffic stop. . . ."
Lindblom, 2004 P A Super. at 3-4, 854 A.2d at 606.
In Commonwealth v. Cook, the Pennsylvania Superior Court upheld an
order of the trial court declining to suppress evidence on the following facts:
12
At approximately 11:15 to 11:20 p.m. on July 20, 2001,
Trooper Daniel A. Woods, off duty, followed a red Cavalier
through Mount Jewett and partially down Hazel Hurst hill, and
observed that the vehicle traveled into the parking lane, nearly
striking the curb, and was otherwise erratically driving, and
reported this information to the State Police dispatcher.
He further observed that the defendant crossed the fog line
two to three times, one-half to one-third of the car width,
during the time which he followed the vehicle which was close
to a mile. He did not report this information directly to
Trooper Kraynick. Subsequently, Trooper Kraynick received
information from the Police Communications Officer stating
that Trooper Woods had encountered an erratic driver.
Subsequently, Trooper Kraynick came upon a red Chevy
Cavalier east of Hazel Hurst on Route 6, followed the vehicle
for approximately one mile and saw the defendant drive over
the right fog line to the extent of half the vehicle width, three
times, and then rapidly jerk back into his lane of travel.
Based on observations, Trooper Kraynick stopped the
defendant and subsequently arrested him for driving under the
influence of alcohol.
The Police Communications Officer also told Trooper
Kraynick that the car was a red Cavalier and the first three
letters of the license plate.
Cook, 2004 P A Super. at 1-2, 865 A.2d at 872.
For the foregoing reasons, it is believed that this court's denial of
Defendant's request to suppress evidence on the ground that the stop of her
vehicle was illegal was correct.
Investigatory detention and consent to search in context thereof
Interaction with police which rises to the level of a detention implicating
constitutional protections respecting a seizure of one's person occurs when a
reasonable person in the subject's position would not believe that he or she is free
to leave. Commonwealth v. Jackson, 428 Pa. Super. 246, 255, 630 A.2d 1231,
1236 (1993) (Cercone, 1., dissenting), quoting Michigan v. Chesternut, 486 U.S.
567, 573, 108 S. Ct. 1975, 1979, 100 L. Ed. 2d 565, 572 (1988).
13
The lawful detention inherent in "[a] permissible traffic stop may evolve
into an unlawful detention when the authorized purpose of the stop is completed
and the Defendant is not released." Commonwealth v. Leius, 43 Cumberland L.1.
459, 468 (1994). Consents to searches obtained during a period of unlawful
detention are generally deemed invalid. See, e.g., Commonwealth v. Acosta, 2003
PA Super 15, 11,815 A.2d 1078, 1083; Commonwealth v. Jackson, 428 Pa. Super.
246, 250, 630 A.2d 1231, 1233 (1993); Commonwealth v. Lopez, 415 Pa. Super.
252, 262, 609 A.2d 177, 182 (1992); cf Commonwealth v. Parker, 422 Pa. Super.
393, 400-01, 619 A.2d 735, 730-39 (1993).
However, a proper detention focusing upon one violation may, in
appropriate circumstances, be extended or resumed for purposes of pursuit of a
second suspected violation. See Commonwealth v. Freeman, 563 Pa. 82, 89-90,
757 A.2d 903, 907-08 (2000). In this regard, the general rule is pertinent that a
detention of a person by police for purposes of investigation is compatible with
constitutional search and seizure provisions where there are "specific and
articulable facts which, if taken together with rational inferences from those facts,
reasonably warrant a belief that criminal activity is afoot...." Commonwealth v.
McDonald, 1999 PA Super. 259, 4, 740 A.2d 267,269, quoting Commonwealth v.
Myers, 1999 PA Super 41, 6, 728 A.2d 960, 962. Thus, "[i]n order to justify
detaining [a] driver for further questioning [when the initial purpose of a traffic
stop has been concluded], the officer must have 'reasonable suspicion of illegal
transactions in drugs or of any other serious crime. ", Lopez, 415 Pa. Super. at
261, 609 A.2d at 182, quoting Commonwealth v. Robinson, 399 Pa. Super. 199
582 A.2d 14 (1990). When this level of suspicion exists, "[a] policeman. . . is not
required to simply shrug his shoulders and allow a crime to occur or a criminal to
escape." Wasserbly, Pennsylvania Criminal Practice 96.02 (1991).
The smell of marijuana emanating from a person's vehicle is, of course, a
specific and articulable fact reasonably warranting a belief that criminal activity is
afoot. See Commonwealth v. Trenge, 305 Pa. Super. 386, 399, 451 A.2d 701,708
14
(1982); Commonwealth v. White, 20 Pa. D. & C. 4th 208, 217 (1992); cf
Commonwealth v. Pullano, 295 Pa. Super. 68, 70-71, 440 A.2d 1226, 1227-28
(1982).
Accordingly, even if Defendant's position were to be accepted that the
purpose of the traffic stop had been completed at the time her consent to a search
of the vehicle was solicited, her continued detention prior to the request for
purposes of a drug investigation was warranted, particularly given the erratic and
unsafe driving she had exhibited. For this reason, the court was unable to accede
to Defendant's position that her consent to search the vehicle was invalid due to its
occurrence during a period of illegal detention.
Voluntariness of consent. "[T]he Commonwealth bears the burden of
establishing that a consent [to search a vehicle] is the product of an essentially free
and unconstrained choice-not the result of duress or coercion, express or implied,
or a will overborne-under the totality of the circumstances." Commonwealth v.
Strickler, 563 Pa. 47, 53, 757 A.2d 884, 901 (2000). The fact that a person is
being detained at the time consent is requested,95 the fact that he or she is not
advised that consent need not be given,96 and the fact that he or she knows that the
search will produce evidence of a crime are not, in themselves, dispositive of the
issue of voluntariness. 97
In the present case, the umebutted evidence of the Commonwealth lent
itself to a conclusion that Defendant had not been subjected to conditions of duress
or coercion, or to circumstances in which her will was overborne. In fact, Trooper
Overcash acted in a wholly compassionate, solicitous and concerned way in terms
of his interaction with her. Accordingly, the court did not believe that evidence
95 Acosta, 2003 PA Super. at 19, 815 A.2d at 1086.
96 See Acosta, 2003 PA Super. at 19, 815 A.2d at 1086; cf Strickler, 563 Pa. at 51,757 A.2d at
901.
97 See Strickler, 563 Pa. at 54, 757 A.2d at 901.
15
obtained pursuant to Defendant's consent to search the vehicle was suppressible
on the ground that her consent was involuntary.
Scope of consent to search. The Pennsylvania Supreme Court has stated
that the scope of a search "extends to the entire area in which the object of the
search may be found" and properly includes the opening and inspection of
containers and other receptacles where the object may be secreted. Reese, 520 Pa.
at 33, 549 A.2d at 911, quoting Us. v. Ross, 456 U.S. 798, 820-821, 102 S.Ct.
2157, 2170-71, 72 L. Ed. 2d 572 (1982); see Commonwealth v. Bailey, 376 Pa.
Super. 291, 296, 545 A.2d 942, 944 (1988). In view of this principle, as well as
the express scope elicited by the trooper from Defendant, the court was unable to
agree with Defendant's position that her consent did not authorize his intrusion
into the black garbage bags contained in her duffle bags in the back of the vehicle.
Custodial interrogation/request for consent to search. A person is not to be
subjected to custodial interrogation by police in the absence of Miranda warnings.
Commonwealth v. Ford, 539 Pa. 85, 98, 650 A.2d 433, 439 (1994). In this
context, custody means under formal arrest or subject to the functional equivalent
of formal arrest. Commonwealth v. Smith, 575 Pa. 203, 224, 836 A.2d 5, 34
(2003), quoting Stansbury v. California, 511 U.S. 318, 322, 114 S. Ct. 1526, 1528-
29, 128 L. Ed. 2d 293 (1994). Interrogation means a question or actions of police
designed to elicit testimonial information from the person under arrest.
Commonwealth v. Fisher, 564 Pa. 505,519,769 A.2d 1116,1125 (2001).
An investigatory detention is not the functional equivalent of a formal
arrest. See Commonwealth v. Busch, 713 A.2d 97, 101 (Pa. Super 1998). Nor
does the fact that a person being subjected to an investigatory detention is a focus
of suspicion for a crime transform the detention into the functional equivalent of
an arrest. Stansbury, 511 U.S. at 324, 114 S. Ct. at 1529, 128 L. Ed. at 325; Smith,
575 Pa. at 224. "[T]he ultimate inquiry is simply whether there is a formal arrest
or restraint on freedom of movement of the degree associated with a formal
arrest." Commonwealth v. Beheler, 463 U.S. 1121, 1125, 103 S. Ct. 3517, 3520,
16
77 L. Ed. 2d 1275 (1983), quoting Oregon v. Mathiason, 429 U.S. 492, 495
(1977).
A request to search has been widely held not to constitute interrogation or
conduct by police designed to elicit information of a testimonial nature. See, e.g.,
Us. v. Lewis, 287 U.S. App. D.C. 306, 921 F.2d 1294, 1303 (D.C. Cir.
1990); Us. v. Faruolo, 506 F.2d 490, 495 (2d Cir. 1974); Smith v. Wainwright,
581 F.2d 1149, 1152 (5th Cir. 1978); Us. v. Glenna, 878 F.2d 967, 971 (7th Cir.
1989); Cody v. Solem, 755 F.2d 1323, 1330 (8th Cir. 1985); Us. v. Lemon, 550
F.2d 467, 472 (9th Cir. 1977); Us. v. Rodriguez-Garcia, 983 F.2d 1563, 1568
(10th Cir. 1993); Us. v. St. Claire, 2005 U.S. Dist. LEXIS 5262, 12-13; U S. v.
Hidalgo, 7 F.3d 1566, 1568 (11th Cir. 1993); State v. Juarez, 120 N.M. 499, 903
P.2d 241, 246 (N.M. Ct. App.), cert. denied, 899 P.2d 1138 (N.M. 1995); State v.
Kiriluk, 975 P.2d 469, 473 (UT. App. 1999); State v. Crannell, 750 A.2d 1002,
1009, 170 Vt. 387, 393 (2000); Everett v. State, 893 So. 2d 1278, 1286 (Fl. 2004).
In the present case, where Defendant's consent to a search of her vehicle
was provided while she ( a) remained at the scene of the stop of her vehicle, (b)
had not been advised that she was under arrest, told that she had committed a
crime, handcuffed or otherwise placed in physical restraint, (c) had not been
touched by law enforcement authorities except for purposes of assisting her
balance, (d) was seated in a patrol car at her request because of her physical
condition, (e) had been offered and declined an ambulance, and (e) had been
offered the option of having her car towed to a motel where she would be staying
or leaving it secured at the scene of the stop, her situation, in the court's view, was
properly describable as that of an investigative detention rather than a formal
arrest or the functional equivalent thereof.
Furthermore, the request to search was not interrogation designed to elicit
testimonial information. For these reasons, the court did not believe that evidence
was suppressible in this case on the ground that Defendant was subjected to
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custodial interrogation, without benefit of Miranda warnings, at the time she
consented to a search of her vehicle.
Loss of evidence by Commonwealth. It is a well settled constitutional
principle that evidence, the exculpatory nature of which is apparent, must be
preserved by the Commonwealth.98 However, as a general rule, a failure of police
to preserve evidence which is merely of potential value to a defendant is not a
denial of due process of law unless the defendant can show bad faith on the part of
police99 or the prosecution itself attempts to make use of the unpreserved evidence
(through testimony or other evidence relating to it).lOO
In the present case, involving a failure of police to preserve a digital
recording of Defendant's stop and possibly of other events leading to her arrest,
where ( a) the failure was at most a matter of negligence rather than bad faith, (b)
the Commonwealth did not attempt to use testimony or other evidence relating to
the unpreserved evidence at trial or otherwise, (c) it was not only not apparent to
police prior its loss that the recording would have been exculpatory, but no
evidence has been presented to suggest that the recording would have depicted
anything other than what prosecution witnesses testified happened, and ( e )
Defendant chose not to request at trial that an inference adverse to the
Commonwealth be drawn from its failure to preserve the evidence, the court
remains of the view that the prosecution's loss of the evidence did not require a
dismissal of the case against Defendant.
98 See Murphy v. Tillia, 359 Pa. Super. 302, 310, 518 A.2d 1246, 1250 (1986).
99 See Arizona v. Youngblood, 488 U.S. 51, 58, 109 S. Ct. 333, 337, 102 L. Ed. 2d 281, 289
(1988).
100 See Commonwealth v. Deans, 530 Pa. 514,518,610 A.2d 32,34 (1992).
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Therefore, it is believed that the denials of Defendant's pretrial motion to
suppress and motion to dismiss were not incorrect on the bases suggested in
Defendant's statement of matters complained of on appeal.101
BY THE COURT,
1. Wesley Oler, Jr., 1.
Jaime M. Keating, Esq.
Chief Deputy District Attorney
Robert A. Graci, Esq.
8th Floor
213 Market Street
Harrisburg, P A 17101
Attorney for Defendant
101 In view of the court's disposition of the motions on the grounds stated in this opinion, it was
not necessary to consider the effect of the inevitable discovery doctrine or the automobile
exception related to search warrants.
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