HomeMy WebLinkAboutCP-21-CR-0000962-2010COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
V. : CHARGE: POSS. W. INTENT TO DELIVER
SCHED. I CONT. SUBSTANCE
VICTOR JUNIOR TAPIA :
OTN: 1544362-0 : CP -21 -CR -0962-2010
IN RE: DEFENDANT'S SECOND OMNIBUS PRETRIAL MOTION
OPINION AND ORDER OF COURT
OLER, J., March 8, 2011.
In this criminal case which began as a traffic stop on the Pennsylvania Turnpike
due to tinted glass on the vehicle and eventually resulted in an arrest of the driver for
felony possession with intent to deliver a controlled substance (marijuana), Defendant has
filed an omnibus pretrial motion in the form of a motion to suppress.l The bases for
suppression being pursued at this time by Defendant are indicated in his brief in support
of the motion as follows:
The Issues in this case are: (1) whether [the] continued questioning [by the
affiant] of the driver [Defendant] regarding the contents of the car constituted an
investigative detention; (2) if so, whether the detention was justified by reasonable
suspicion; (3) if there was an illegal detention, whether the driver's subsequent partial
consent to search the vehicle were [sic] tainted by the illegal detention; and (4) even if the
detention was justified, whether the evidence should be suppressed due to the troopers'
warrantless search .2
For the reasons stated in this opinion, Defendant's motion to suppress will be
granted.
STATEMENT OF FACTS
On Friday, March 5, 2010, at 2:21 in the afternoon, a Pennsylvania State Trooper
assigned to the Newville Barracks on the Pennsylvania Turnpike saw a BMW automobile
with heavily tinted windows traveling westbound on the Turnpike in Hopewell
' [Second] Omnibus Pretrial Motion, filed September 20, 2010.
2 Defendant's Brief in Support of Omnibus Motion To Suppress, at 4, submitted January 21, 2011.
Township, Cumberland County, Pennsylvania.' He stopped the vehicle due to its tinted
windows ,4 and removed Defendant, who was its driver and sole occupant, from the
vehicle .5
An air -freshener smell emanated from the vehicle, the trooper could see in the
interior McDonald's bags and fast food wrappers,6 and he observed that the interior of the
vehicle contained "little luggage."' The vehicle was not stolen,' and Defendant identified
its owner as his spouse.9 The trooper issued a written warning regarding the equipment
violation, returned Defendant's paperwork to him, told Defendant that he was free to go,
and "concluded [the] traffic stop."10
However, possibly while Defendant was still facing him," the trooper engaged
Defendant in further conversation. 12 His actions in this regard were as follows, according
to his testimony:
Q And go through the conversation you had with the Defendant outside of
the car.
A As I recall, I spoke to him about the violation, issued the written
warning, and I then released him from the traffic stop advising him that he was free to go,
and then I concluded my traffic stop and I asked him if he was willing to answer any
questions.
Q And just so we can be very clear, take us step by step through the exact
order of what you just explained.
'Notes of Testimony, 4-5, Suppression Hearing, January 5, 2011 (hereinafter N.T. �.
4 N.T. 5-6.
'N.T. 6.
6 N.T. 16.
N.T. 8.
'See N.T. 16.
9 N.T. 16. Although the female to whom the vehicle was registered did not share Defendant's last name,
no evidence was offered at the hearing on Defendant's suppression motion to challenge Defendant's
representation on this point and the trooper did not regard the lack of identity of last names of spouses as
itself indicative of criminal activity. N.T. 26.
10 N.T. 6, 7.
" N.T. 7. At another point in his testimony, the trooper indicated that Defendant may have turned to go
back to his vehicle. N.T. 21.
12 N.T. 6.
2
A What I do is I address the violator with the particular paperwork that I
am issuing, whether it be a citation or a written warning. In this case it was a written
warning only. I had the Defendant sign the written warning acknowledging that he
received it. He did so. I then advised him that I was going to conclude my traffic stop and
that he was free to leave and then I engaged in a conversation.
I stayed talking to him at that point in time. I know some officers allow
the Defendants to [walk away] and get themselves back in the vehicle and stuff like that,
but he was already out of the vehicle and I just continued to talk to him, and I asked if he
was willing to answer any questions... 13
In response to this, Defendant agreed to answer questions. 14 His answers to the
questions were recounted by the trooper as follows:
Q And then what was the conversation once you asked him if he would
answer any questions?
A The conversation revolved around his activities that day regarding his
travel itinerary. He indicated he was on his way to Buena Vista, Pennsylvania. I was not
familiar with Buena Vista, Pennsylvania. He indicated that he was in the Pittsburgh area
and that he had worked for a bank, helping to set up banks, and that he was just at this
bank.... Capital One Bank.
He was traveling from New Jersey to ... Pittsburgh to Capital One Bank
to help them set that bank up and he was just there the week before to help set that bank
up and he was on his way back down again, and I remember that I hadn't seen very much
luggage in the vehicle. He indicated that he was going to be out there for about a week, as
he was there before for about a week."
"Buena Vista is an unincorporated community in Elizabeth Township, Allegheny
County, Pennsylvania, ... located just outside of Pittsburgh" with a ZIP code of 15018.16
However, the trooper was unfamiliar with the community and had Defendant speak by
telephone with a sergeant with the Pennsylvania State Police who was stationed at the
New Stanton Barracks 17 and who, apparently, also was not familiar with the
community. 18 During the telephone conversation, which the trooper heard from
Defendant's side, Defendant advised the sergeant that he had not consented to a search of
13 N.T. 6-7.
14 N.T. 7.
" N.T. 7-8.
16 Retrieved from Wikipedia , Buena Vista, Pennsylvania, Wikipedia, hhtp:Hen.wikipedia.org/wiki/Buena-
Vista,-Pennsylvania (last accessed March 5, 2011); See N.T. 23.
17 N.T. 8.
" N.T. 8-9.
3
his vehicle,19 but did give the trooper permission to view the interior of the vehicle from
the outside.20
Having clarified Defendant's refusal to consent to more than a view of the interior
of the vehicle from the outside ,2i and in particular his refusal to consent to an interior
search and a search of the trunk,22 the trooper wrote "refused" on a consent form.23
According to Defendant, notwithstanding his telling the trooper that he was in a hurry to
leave, he was told that he would have to wait for a K-9 unit to arrive. 24 In this regard, the
trooper conceded that he "may have" told Defendant that he had a drug dog on the
way, ,25 and the trooper testified that he "had him" on the roadside while waiting for the
K-9 unit to arrive. 26 Defendant estimated the temperature at this time to be about 20
degrees .27 Another trooper arrived and remained on the scene during the wait for the K-9
unit. 28 About an hour after being summoned, a third member of the state police in the
person of a K-9 officer arrived with his dog. 29
The canine "followed his nose," jumping through an open window into the
vehicle, and found nothing in the interior. 30 He subsequently alerted on the trunk from
outside the vehicle.31 Upon being advised that if a search warrant were required the car
19 N.T. 9.
20 N.T. 9-10. Prior to hearing this, the trooper had been under the impression that Defendant had
consented to a search. N.T. 9-10.
21 N.T. 10.
22 N.T. 10, 12, 41.
23 N.T. 12.
24 N.T. 37-38.
2s N.T. 28.
26 N.T. 27. The court found the affiant's testimony entirely forthright and credible.
27 N.T. 40.
2s N.T. 32-33.
29 N.T. 27, 14.
30 N.T. 43.
31 N.T. 39.
0
would be ripped apart in the process of the search, Defendant consented to a search,
volunteered that there was marijuana in the trunk, and made other incriminating
statements.32 On the basis of this information, the trooper obtained a search warrant for
the vehicle.33
DISCUSSION
Statement of law. On a defendant's suppression motion, "[t]he Commonwealth
shall have the burden of going forward with the evidence and of establishing that the
challenged evidence was not obtained in violation of the defendant's rights." Pa.
R.Crim.P. 581(H). The standard of proof is a preponderance of the evidence.
Commonwealth ex rel. Butler v. Rundle, 429 Pa. 141, 239 A.2d 426 (1968).
"Encounters with police may be classified as mere encounters, non-custodial
detentions, custodial detentions and formal arrests." Commonwealth v. Ellis, 379 Pa.
Super. 337, 354, 549 A.2d 1323, 1331 (1988). Generally, a mere encounter does not
implicate constitutional protections, but a non-custodial detention, which occurs when a
reasonable person would believe that he or she is not free to leave an officer's presence,
is a seizure for constitutional purposes. Id, citing Michigan v. Chesternut, 486 U.S. 567,
571, 108 S.Ct. 1975, 1979 (1988).34 The validity of a seizure of the non-custodial
detention variety (sometimes referred to as a Terry stop, an investigatory detention, or an
intermediate detention 35) is dependent upon a reasonable suspicion on the part of the
detaining officer, based upon specific and articulable facts, that criminal activity is afoot.
See Commonwealth v. Dales, 2003 PA Super 118, 820 A.2d 807; 1 Wasserbly,
Pennsylvania Criminal Practice §6.01 (1991).
32 N.T. 39; see also N.T. 33.
"See Application for Search Warrant, Police Incident Number T05-5030034, dated March 5, 2010.
34 As, of course, are a custodial detention and a formal arrest. Commonwealth v. Ellis, 379 Pa. Super. 337,
549 A.2d 1323 (1988).
" Non-custodial detentions "are also commonly referred to as Terry stops, ... investigatory detentions
and intermediate detentions." Commonwealth v. Ellis, 379 Pa. Super. 337, 354 n.5, 549 A.2d 1323, 1331
n.5 (1988).
5
The reasonable suspicion of criminal activity afoot necessary to support a seizure
of this type must be more than a "mere hunch." Commonwealth v. Paterson, 405 Pa.
Super. 17, 591 A.2d 1075 (1991). Stated otherwise, it must rise above the level of a
"policeman's intuition." Commonwealth v. Lopez, 415 Pa. Super. 252, 262, 609 A.2d
177, 182 (1992).
The detention authorized in a traffic stop may not extend beyond the time
necessary for the effectuation of its purpose. United States v. Leal, 385 F.Supp.2d 540,
547 (W.D. Pa. 2005), citing Florida v. Royer, 460 U.S. 491, 103 S.Ct. 1319 (1983) (an
investigative detention must be temporary and last no longer than is necessary to
effectuate the purpose of the stop). On the other hand, in appropriate circumstances such
a detention may devolve into a permissible mere encounter 36 or evolve into a permissible
non-custodial detention premised upon the development of a reasonable suspicion on the
part of the officer of additional criminal activity afoot.37
The former can occur when an officer terminates the detention involved in the
traffic stop in such a manner that a reasonable person would believe he or she is free to
leave, and then reinstitutes contact under circumstances which do not disabuse the person
of this understanding. Commonwealth v. Freeman, 563 Pa. 82, 757 A.2d 903 (2000);
Commonwealth v. Strickler, 563 Pa. 47, 757 A.2d 884 (2000). Unfortunately, this rule is
more easy to state than to apply and its potential for unintended consequences in the form
of systematic abuse has been described rather vividly by one trial court as follows:
Saint Vitus' Dance, a symptom of Sydenham chorea, is a disorder which
produces movements that are purposeless. In Pennsylvania this disorder has evolved into
the Strickler/Freeman Dance, because, as set forth in Strickler, "the transition between
detention and a consensual exchange can be so seamless that the untrained eye may not
notice it has occurred." This Dance is initiated when "certain persons" are stopped for
summary violations of the Vehicle Code. They are issued a warning or a summons and
then told they are free to leave. The officer starts to walk away, then turns and says
something along the lines of—can I talk to you for a minute—we have had a lot of people
36 See Commonwealth v. Freeman, 563 Pa. 82, 757 A.2d 903 (2000); Commonwealth v. Strickler, 563 Pa.
47, 757 A.2d 884 (2000).
37 See Commonwealth v. Helm, 456 Pa. Super. 370, 375, 690 A.2d 739, 742 (1997), citing Commonwealth
v. Jackson, 428 Pa. Super. 256, 630 A.2d 1231 (1993), allocator denied, 537 Pa. 647, 644 A.2d 733
(1994).
6
transporting drugs on this highway, you wouldn't have any illegal drugs in your car
would you?" The person, of course, says "No," prompting the officer to immediately ask
for consent to search the vehicle. Rather than leave, a purposeless legal consent is given
because the "certain person," and this is the fiction, is considered to have reasonably
believed that he [rarely a she] was free to leave. Notwithstanding that there is no probable
cause to conduct a search, suspicion alone prevails and contraband is found during the
consensual search of the vehicle. The consent to search is not a result of the initial
detention because the officer has seamlessly turned it into a mere encounter. In the
experience of this trial judge who has seen the Dance many times, it is performed by a
person who is male, young, and most often a minority. While these variables change
slightly from case to case, we have never seen or heard of the Dance performed by either
a male or female who is old and white. In the opinion of this judge, the Dance,
unfortunately and certainly not as intended by its creators, is being utilized as a legal and
virulent form of profiling in Pennsylvania.38
The latter, where a traffic stop evolves into an additional period of permissible
non-custodial detention, can occur when information, in the form of specific and
articulable facts, obtained prior to the completion of the purpose of the traffic stop leads
the detaining officer to a reasonable suspicion that additional criminal activity is afoot,
warranting further investigation. See Commonwealth v. Freeman, 563 Pa. 82, 90, 757
A.2d 903, 908 (2000). The fact, however, that a person refuses to waive a constitutional
right to refuse consent to a search is not itself a factor to be considered in determining
whether criminal activity may be afoot.39
With respect to the issue of whether a seizure, implicating constitutional
protections, has occurred, "an evaluation . . . must be viewed in light of all the
circumstances and whether a reasonable person would have believed he or she was free to
leave." Commonwealth v. Jackson, 428 Pa. Super. 246, 255, 630 A.2d 1231, 1236 (1993),
quoting Michigan v. Chesternut, 486 U.S. 567, 573, 108 S. Ct. 1975, 1979, 100 L. Ed. 2d
565, 572 (1988). The fact that a person has been advised at one point that he or she is free
to leave does not preclude the possibility that intervening circumstances will negate the
effect of such advice on a reasonable mind. See Commonwealth v. Freeman, 563 Pa. 82,
757 A.2d 903 (2000).
" Commonwealth v. Powell, 58 Cumb. 214 (2009).
s9 Commonwealth v. Leius, 43 Cumberland L.J. 459, 468 (1994).
7
Consent to a search given during a period of illegal detention is presumptively
invalid, even if voluntarily given, "unless the Commonwealth can demonstrate that [the]
consent was an `independent act of free will' and not `the product of the illegal
detention."' Commonwealth v. Freeman, 563 Pa. 82, 92, 757 A.2d 903, 909 (2000)
(citations omitted). And, in general, evidence that is the fruit of an illegality, such as an
unlawful detention, must be suppressed. See Commonwealth v. Helm, 456 Pa. Super. 370,
375, 690 A.2d 739, 742 (1997). Examples of such evidence would include statements40
and a search warrant .41
Application of law to facts. In the present case, the court finds itself unable to
conclude, based on the evidence presented at the suppression hearing, that the physical
evidence and statements obtained following the effectuation of the purpose of the traffic
stop of Defendant were not the product of an unlawful period of detention. In this regard,
and assuming for purposes of argument that the traffic stop had been effectively
terminated by the trooper in accordance with the Strickler/Freeman formula, (1) the smell
of an air freshener coming from the interior of the vehicle, the absence of much luggage
in the interior of the vehicle, the presence of fast food items in the vehicle, and the
driver's statement that he was traveling from New Jersey to an existing community in the
Pittsburgh area were not in themselves facts sufficient to support more than a mere hunch
that criminal activity was afoot in the form of the transportation of an unlawful controlled
substance, (2) the trooper's advice to Defendant that a K-9 unit had been summoned to
the scene, the passage of an hour while the trooper "had" Defendant on the roadside in
20 -degree weather, the arrival of police backup during this period, and Defendant's
advice to police of his need to be elsewhere, supported a conclusion that Defendant's
professed belief that he was not free to leave during this period was a reasonable one, and
40 Commonwealth v. Helm, 456 Pa. Super. 370, 375, 690 A.2d 739, 742 (1997).
41 See generally Wong Sun v. U.S., 371 U.S. 471, 487-88, 83 S.Ct. 407,417 (1963).
8
(3) Defendant's ultimate consent to a search of the vehicle and inculpatory statements,
even if deemed voluntary, were irreparably tainted by the illegality of the detention.42
Accordingly, the following order of court will be entered:
ORDER OF COURT
AND NOW, this 8th day of March, 2011, upon consideration of Defendant's
Second Omnibus Pretrial Motion in the form of a motion to suppress, following a hearing
held on January 5, 2010, and for the reasons stated in the accompanying opinion, the
motion is granted and the physical evidence and statements of Defendant obtained by the
Commonwealth following the expressed conclusion of the traffic stop of Defendant's
vehicle are suppressed.
BY THE COURT,
s/ J. Wesley Oler, Jr.
J. Wesley Oler, Jr., J.
Joshua M. Yohe, Esq.
Assistant District Attorney
Karl E. Rominger, Esq.
Attorney for Defendant
42 Given the disposition of Defendant's motion on this basis, it is unnecessary to consider other grounds
for suppression advanced by Defendant.
9
COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
V. : CHARGE: POSS. W. INTENT TO DELIVER
SCHED. I CONT. SUBSTANCE
VICTOR JUNIOR TAPIA :
OTN: 1544362-0 : CP -21 -CR -0962-2010
IN RE: DEFENDANT'S SECOND OMNIBUS PRETRIAL MOTION
ORDER OF COURT
AND NOW, this 81h day of March, 2011, upon consideration of Defendant's
Second Omnibus Pretrial Motion in the form of a motion to suppress, following a hearing
held on January 5, 2010, and for the reasons stated in the accompanying opinion, the
motion is granted and the physical evidence and statements of Defendant obtained by the
Commonwealth following the expressed conclusion of the traffic stop of Defendant's
vehicle are suppressed.
BY THE COURT,
J. Wesley Oler, Jr., J.
Joshua M. Yohe, Esq.
Assistant District Attorney
Karl E. Rominger, Esq.
Attorney for Defendant