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HomeMy WebLinkAbout01-0542 CriminalCOMMONWEALTH Vo JAMES D. MOORE IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 01-0542 CRIMINAL TERM CHARGE: (1) UNLAWFUL POSSESSION OF SMALL AMOUNT OF MARIJUANA (2) UNLAWFUL POSSESSION OF DRUG PARAPHERNALIA IN RE: DEFENDANT'S OMNIBUS PRETRIAL MOTION BEFORE OLER, J. OPINION and ORDER OF COURT OLER, J., August 27, 2001. In this criminal case, Defendant was charged with the summary offense of driving without a license,~ and the misdemeanor offenses of possession of a small amount of marijuana2 and possession of drug paraphernalia,3 as the result of an incident on October 26, 2000. He pled guilty to the summary offense, and filed an omnibus pretrial motion for relief as to the misdemeanor charges.4 Defendant's omnibus pretrial motion sought (1) dismissal of the misdemeanor charges pursuant to Section 110 of the Crimes Code5 and (2) suppression of evidence on the basis of an unlawful stop of Defendant's vehicle6 and an unlawful search of the vehicle.7 A hearing was held on the motion on June 27, 2001, and August 3,2001. ~ Act of June 17, 1976, P.L. 162, 81, as amended, 75 Pa. C.S.A. 81501(a) (2001 Supp.). 2 Act of April 14, 1972, P.L. 233, 813, as amended, 35 P.S. 8780-113(a)(31)(2001 Supp.). 3 Act of April 14, 1972, P.L. 233, 813, as amended, 35 P.S. 8780-113(a)(32)(2001 Supp.). 4 Defendant's Omnibus Pre-trial Motion, filed May 14, 2001; see Pa. R. Crim. P. 578. 5 Defendant's Omnibus Pre-trial Motion, paragraphs 27-33; Act of December 6, 1972, P.L. 1482, 81, 18 Pa. C.S.A. 8110 (provision respecting bar of prosecution by former prosecution for different offense). 6 Defendant's Omnibus Pre-trial Motion, paragraphs 6-16. 7 Defendant's Omnibus Pre-trial Motion, paragraphs 17-26. For the reasons stated in this opinion, Defendant's motion to dismiss and motion to suppress will be denied. STATEMENT OF FACTS On Thursday, October 26, 2000, at about 12:45 p.m., a detective with the Upper Allen Township Police Department,8 who was in plainclothes and was experienced in drug investigations, observed three men in a Subaru automobile which was parked near the intersection of independence Avenue and Gettysburg Road. On the pretext that he was lost and needed directions, the detective approached the vehicle. The Subaru contained a man in the driver's seat, a man in the front passenger's seat, and Defendant in the rear seat. During the course of his observation of the vehicle, the detective saw a black and silver pipe, which he assumed was being used to smoke marijuana, in the hand of the front seat passenger and subsequently in the hand of the driver, in receiving directions, he also perceived an odor of burnt marijuana emanating from the vehicle. The detective withdrew from the immediate vicinity of the Subaru and called for assistance of uniformed personnel. However, prior to their arrival, Defendant got out of the car, walked to his Ford Festiva, which was parked nearby, and proceeded to drive away on Gettysburg Road. The men in the Subaru were detained by police and, pursuant to a direction of the detective, a uniformed Upper Allen Township police officer also effected a stop of Defendant's Ford Festiva. A videotape of the events which transpired subsequent to the stop reveals that the officer, after securing Defendant's permission to employ the videotape recorder, stated: Okay, my name[']s9 Officer Kauffman from Upper Allen Police[. T]he reason i stopped you is a[--] an officer looking 8 Upper Allen Township is in Cumberland County, Pennsylvania. 9 The court has edited slightly the transcript of the audio portion of the videotape to correct typographical errors or to insert punctuation. 2 into something here back the road and need to talk to you about it. You have a driver's license handy?l° It developed that Defendant did not have a driver's license with him, ~ but claimed to have a valid Oregon license.~2 During the succeeding 26 minutes, the officer variously conversed with Defendant and attempted through computer checks to determine the status of Defendant's Oregon license. ~3 During this period, Defendant advised the officer that he had been a park ranger in Oregon,TM that his wife had also been in the Forestry Service in Oregon,~5 and that they had recently moved to Pennsylvania because she had received a scholarship at Penn State University. 16 He indicated that his child had been playing with his wallet and that his Oregon license must have been displaced in the 17 process. As the officer attempted to ascertain the status of Defendant's license, the basic purpose of the stop was reiterated in the following exchange between Defendant and the officer: JAMES D. MOORE: ! have a question? OFFICER THOMAS KAUFFMAN: Yeah. JAMES D. MOORE: Why did ! get pulled over? OFFICER THOMAS KAUFFMAN: What? JAMES D. MOORE: Why did ! get pulled over? OFFICER THOMAS KAUFFMAN: Cause you were in the car with those guys back there. JAMES D. MOORE: On lunch break? lo Commonwealth's ~ Commonwealth's ~2 Commonwealth's ~3 Commonwealth's ~4 Commonwealth's ~5 Commonwealth's 16 Commonwealth's ~7 Commonwealth's Exhibit 2 (transcript), at 1. Exhibit 2 (transcript), at e. Exhibit 2 (transcript), at 3. Exhibit 1 (videotape). Exhibit 2 (transcript), at 6. Exhibit 2 (transcript), at 6. Exhibit 2 (transcript), at 6. Exhibit 2 (transcript), at 1, 9. 3 OFFICER THOMAS KAUFFMAN: Yeah. There's a little more to it than that but I think you know what I mean. JAMES D. MOORE: I don't[. C]an you explain it to me? OFFICER THOMAS KAUFFMAN: Well the other officer will definitely explain it to you in a minute. Right now our problem is we got to see if you have a license .... la When the officer's efforts to ascertain the status of the license by means of a computer check proved unsuccessful, he proceeded to return an insurance card which Defendant had provided to him to Defendant, to issue a citation to Defendant for driving without a license, and to explain the procedure to Defendant for bringing his license to the Upper Allen Township Police Station and for dealing with the citation. 19 This exchange then ensued: OFFICER THOMAS KAUFFMAN: Okay, you have any questions? JAMES D. MOORE: Ah, I stop to have lunch with those guys and I get pulled over for it. OFFICER THOMAS KAUFFMAN: Yeah, well we handled that with them. JAMES D. MOORE: Okay. OFFICER THOMAS KAUFFMAN: Okay. JAMES D. MOORE: Okay. OFFICER THOMAS KAUFFMAN: Okay, that'; it you[']r[e] free to go, thank,'. Hey ah, you don't happen to have any drugs or anything on you do you? JAMES D. MOORE: No, as... OFFICER THOMAS KAUFFMAN: Is it all right if I look before you go? JAMES D. MOORE: Sure.2° ~8 Commonwealth's Exhibit 2 (transcript), at 7-8 (emphasis added). 19 Commonwealth's Exhibit 2 (transcript), at 9-1 1; see Commonwealth's Exhibit 1 (videotape). 20 Commonwealth's Exhibit 2 (transcript), at 9-1 1 (emphasis added). 4 The subsequent search of the vehicle allegedly disclosed the presence of a small amount of marijuana and drug paraphernalia in the form of two pill bottles and a plastic baggie.2~ A review of the videotape reveals that a period of three seconds elapsed between the officer's statement to Defendant that he was free to go and his inquiry as to whether Defendant was in possession of drugs.22 During this three-second period, the officer fumed, took two steps, and fumed back to face Defendant.23 The detective who had initially viewed the men in the Subaru had by this time also approached Defendant's vehicle from behind on foot and positioned himself next to it.24 Defendant pled guilty to the citation which had been issued to him for driving without a license.25 He completed payment of the fine, fees and costs to the issuing authority on January 18, 2001.26 A criminal complaint charging Defendant with the drug offenses was filed on February 6, 2001 ;27 he was formally arraigned on April 17, 2001;28 and he filed the omnibus pretrial motion for relief subjudice on May 14, 2001.29 :~ See Criminal Complaint, affidavit of probable cause, :: Commonwealth's Exhibit 1 (videotape). :3 Commonwealth's Exhibit 1 (videotape). :4 Commonwealth's Exhibit 1 (videotape). :s Defendant's plea was apparently entered by mail. payment receipts). :6 Defendant's Exhibit 1 (citation and payment receipts). dated February 6, 2001. See Defendant's Exhibit 1 (citation and :7 District Justice Transcript, at 1, filed March 15, 2001. According to averments in Defendant's omnibus pretrial motion for relief, a criminal complaint charging the drug offenses was filed on October 27, 2001, the complaint was dismissed following a preliminary hearing before the Honorable Gayle Elder on January 22, 2001, a new complaint was filed on February 6, 2001 before a different district justice, and the case was bound over for court by that district justice following a second preliminary hearing on March 14, 2001. Defendant's Omnibus Pre-trial Motion, paragraphs 1-4. :8 Acknowledgment of Arraignment form, filed April 17, 2001. :9 Defendant's Omnibus Pre-trial Motion. 5 DISCUSSION Motion for Dismissal Based upon Section 110 of Crimes Code Section 110 of the Crimes Code provides, in pertinent part, as follows: Although a prosecution is for a violation of a different provision of the statutes than a former prosecution or is based on different facts, it is barred by such former prosecution under the following circumstances: (1) The former prosecution resulted in... a conviction.., and the subsequent prosecution is for: (ii) any offense.., arising from the same criminal episode, if such offense was known to the appropriate prosecuting officer at the time of the commencement of the first trial and was within the jurisdiction of a single 30 court .... However, the single-court jurisdiction criterion of the statute is not satisfied where (a) the "former prosecution" was for a summary offense within the original jurisdiction of a district justice and concluded with a guilty plea in that court and (b) the "subsequent prosecution" is for a misdemeanor or felony within the original jurisdiction of the court of common pleas. See Commonwealth v. Beatty, 500 Pa. 284, 455 A.2d 1194 (1983) (Vehicle Code summary offense and aggravated assault); Commonwealth v. Kresge, 317 Pa. Super. 405, 464 A.2d 384 (1983) (Game Law summary offense and possession of firearm without a license); cf Commonmealth v. Failor, 770 A.2d 310 (Pa. 2001) (former prosecution and subsequent prosecution both for Vehicle Code summary offenses within original jurisdiction of district justice). Based upon the foregoing, Defendant's motion for dismissal of the misdemeanor drug charges pending in this court under the Controlled Substance, Drug, Device and Cosmetic Act, predicated upon the occurrence of a prior Act of December 6, 1972, P.L. 1482, §1, 18 Pa. C.S.A. §110. 6 summary conviction in the court of a district justice for driving without a license in violation of the Vehicle Code, will be denied. Motion To Suppress Evidence General. On a motion to suppress evidence arising out of an allegedly illegal search by police, the burden is upon the Commonwealth to show by a preponderance of the evidence that the challenged evidence was not obtained in violation of the defendant's rights. See Pa. R. Crim. P. 581(h); Commonwealth v. Stoops, 723 A.2d 184, 186 (Pa. Super. Ct. 1998), appeal denied, 560 Pa. 744, 747 A.2d 368 (1999). Legality of stop of vehicle. "Encounters between the public and the police that do not involve a formal arrest may be categorized as mere encounters, non- custodial detentions, and custodial detentions." Commonwealth v. Brown, 388 Pa. Super. 187, 189-90, 565 A.2d 177, 178 (1989); see Commonwealth v. Ellis, 379 Pa. Super. 337, 354, 549 A.2d 1323, 1331 (1988), appeal denied, 522 Pa. 601, 562 A.2d 824 (1989). The latter two types of contact constitute seizures for purposes of the Fourth Amendment to the Federal Constitution and Article I, Section 8, of the Pennsylvania Constitution, and are invalid if unreasonable. Commonwealth v. Diaz, 442 Pa. Super. 238, 251-52, 659 A.2d 563, 569-70 (1995), appeal denied, 542 Pa. 658, 668 A.2d 1123 (1995). The constitutionality of a non-custodial detention, referred to in various contexts as a Terry stop, a traffic stop, an investigative stop, an investigative detention, an investigatory stop, and an investigatory detention,3~ is dependent upon the existence of "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, 740 A.2d. 267, 269 (Pa. Super. Ct. 1999), quoting Commonwealth v. Myers, 728 A.2d 960, 962 (Pa. Super. Ct. 1999), appeal denied, 563 Pa. 613,757 A.2d 930 (Pa. 2000). ~ Commonwealth v. Rogers, 741 A.2d 813 (Pa. Super. Ct. 1999), appeal granted, 563 Pa. 675, 759 A.2d 922 (2000). 7 In the present case, Defendant was one of three occupants of a car, two of whom were perceived to be passing a marijuana pipe between them, and the odor of burnt marijuana was detected emanating from their vehicle. The detective's belief that criminal activity was afoot among the three occupants, in the form of their common use of marijuana, was not unreasonable, in the court's view, and justified the stop of Defendant for investigatory purposes. Legality of search of vehicle. In the present case, the Commonwealth's position that the search of Defendant's vehicle was lawful is predicated upon the validity of the initial stop of his vehicle32 and the validity of his consent to the search of the vehicle.33 The first issue has been discussed in the preceding section of this opinion. With regard to the second issue, it is well settled that police may search a vehicle without a warrant or probable cause if the owner of the vehicle validly consents to the search. Commonwealth v. Yedinak, 450 Pa. Super. 352, 358, 676 A.2d 1217, 1220 (1996), appeal denied, 548 Pa. 618, 693 A.2d 588 (1997). However, as a general rule, consents to searches during illegal detentions have been held invalid. See, e.g., Commonwealth v. Helm, 456 Pa. Super. 370, 690 A.2d 739 (1997); Common~vealth v. Jackson, 428 Pa. Super. 246, 630 A.2d 1231 (1993), appeal denied, 537 Pa. 647, 644 A.2d 733 (1994); Commonwealth v. Parker, 422 Pa. Super. 393, 619 A.2d 735 (1993); Commonwealth v. Lopez, 415 Pa. Super. 252, 609 A.2d 177 (1992), appeal denied, 533 Pa. 598, 617 A.2d 1273 (1992); Commonwealth v. Leius, 43 Cumberland L.J. 459 (1994).34 32 Commonwealth's post-hearing brief, at 1-4. 33 Commonwealth's post-hearing brief, at 5-8. 34 A contrary determination would require a showing by the Commonwealth that the "defendant's consent was an independent act of free will and not a product of the illegal detention." Commonwealth v. Dixon, No. 01-0375 Criminal Term, slip op. at 11 (Ct. Com. Pl. Cumberland Co. August 2, 2001) (Bayley, J.). Defendant's status at the time he consented to the search of his vehicle was not illegal if it had evolved into a mere encounter,35 or if it remained within the parameters of a proper investigative detention.36 The court is of the view that it had not evolved into a mere encounter, but that it did remain within the parameters of a proper investigative detention. With respect to the issue of whether Defendant's status at the time of the search had evolved into a mere encounter, the possibility of such an occurrence has been recognized in Commonwealth v. Strickler, 563 Pa. at 68-72, 757 A.2d at 895-97(also rejecting per se rule requiring advice to motorist of freedom to leave before evolution from detention to mere encounter can be recognized). "We . . . endorse," the Pennsylvania Supreme Court has stated, "... [a rule] which allows for the possibility of a mere encounter following a traffic stop or similar detention .... "Id at 72, 757 A.2d at 897. The test of whether a seizure is in effect is an objective one, "entailing a determination of whether, in view of all surrounding circumstances, a reasonable person would have believed that he was free to leave." Id at 58, 757 A.2d at 889. "In making this determination, courts must apply the totality-of-the-circumstances approach, with no single factor dictating the ultimate conclusion .... "Id at 59, 757 A.2d at 890. In the present context, among the factors to be considered is "that there remains at work some pertinent psychological dynamic based upon the relative positions of authority as between the officer and a citizen-subject, and an immediately-preceding exercise of the officer's authority." Id at 74, 757 A.2d at 898. While also a factor, "[t]he conferral of the 'free-to-go' advice is, itself, not a reason to forego a totality assessment ." Id at 75 n.24, 757 A.2d at 899 n.24. ~5 See Commonwealth v. Strickler, 563 Pa. 47, 757 A.2d 884 (2000). 36 See Commonwealth v. Freeman, 563 Pa. 82, 757 A.2d 903 (2000). 9 A review of the transcript of the contact between Defendant and the uniformed officer in the present case, and of the videotape, reveals that Defendant was told that he was being stopped because of his activity in the Subaru, that he was told that the detective who viewed this activity would be speaking with him about the incident, and that the circumstances surrounding the advice that he was free to leave, which included the detective's arrival upon the scene and the immediacy of questions concerning drugs, were more suggestive of a decision by police to prolong the detention for investigative purposes than to end it. Based upon the totality of the circumstances, it is the view of the court that the Commonwealth has not shown that a reasonable person in Defendant's position would have believed that he was free to leave when he was subjected to an inquiry as to whether he was in possession of drugs and when he was asked to consent to a search.37 With respect to the issue of whether the continued detention of Defendant remained within the parameters of a proper investigative detention, several points of law may be mentioned. First, the subjective intent of the officer is not dispositive of the legality of the detention. See Whren v. United States, 517 U.S. 806, 813, 116 S. Ct. 1769, 1774, 135 L.Ed. 2d 89, 97-98 (1996) (holding that a police officer's subjective intent is irrelevant so long as there is objective 37 In this regard, the court is unable to agree with the Commonwealth's position that, "[u]nder these circumstances, the Court should find that the initial investigative detention had ended. As such Sergeant Kauffman's request to search the vehicle was a mere encounter and not a seizure." Commonwealth's post-hearing brief, at 6. While it is apparent that the actions of the uniformed officer were undertaken with the holding of Strickler in mind, courts have been cautioned against rulings which place form over substance in the area of constitutional rights. Otherwise, as Justice Jackson eloquently observed many years ago, [o]ur heritage of constitutional privileges and immunities is only a promise to the ear to be broken to the hope, a teasing illusion like a munificent bequest in a pauper's will. Edwards v. California, 314 U.S. 160, 186, 62 S. Ct. 164, 172, 86 L. Ed. 119, 132 (1941) (Jackson J., concurring). 10 justification for the police officer's actions); Strickler, 563 Pa. at 64, 757 A.2d at 893. Second, when the duration of a proper investigative detention is extended unreasonably, the validity of the detention will cease. Commonwealth v. Higgins, 346 Pa. Super. 238, 248, 499 A.2d 585, 590 (1985). "[I]n assessing whether a detention is too long in duration to be justified as an investigative stop, we consider it appropriate to examine whether the police diligently pursued a means of investigation that was likely to confirm or dispel their suspicions quickly, during which time it was necessary to detain the defendant." Id. Third, a proper investigative detention focusing upon one violation may, in appropriate circumstances, be extended or resumed for purposes of pursuit of a second suspected violation. See Freeman, 563 Pa. at 90, 757 A.2d at 907-08. However, the extended or second detention must be based upon reasonable suspicion as to the second offense. Lopez, 415 Pa. Super. at 261, 609 A.2d at 181- 82.38 Finally, the "reasonable suspicion" test for a proper investigative detention--in terms of the existence of specific and articulable facts which, if taken together with rational inferences from those facts, reasonably warrant a belief that criminal activity is afoot--has been previously recited. In the present case, the circumstances which led the court to conclude that the stop of Defendant's vehicle was lawful for investigative purposes have been set forth above. The detention, which was not of an unusual duration, focused for a period upon the officer's attempt to verify Defendant's claim that he had a valid out-of-state license, produced a citation when verification was lacking, and was 38 Thus, "when conducting a routine traffic stop, an officer may request a driver's license and vehicle registration, run a computer check and issue a citation. Upon producing a valid driver's license and registration, the driver must be allowed to proceed on his way, without being subject to further delay by police for additional questioning. In order to justify detaining the driver for further questioning, 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 181-82 (citations omitted) (emphasis added). 11 extended for a very brief period to pursue the initial purpose of the stop. Based upon the foregoing authority, the court is unable to agree with Defendant that his detention at the time he consented to a search of his vehicle was unlawful.39 ORDER OF COURT AND NOW, this 27th day of August, 2001, upon consideration of Defendant's omnibus pretrial motion in the form of a motion to dismiss and a motion to suppress, and for the reasons stated in the accompanying opinion, the motion is denied. /s/J. Wesley Oler, Jr. J. Wesley Oler, Jr., J. Michael W. Mervine, Esq. Assistant District Attorney Timothy L. Clawges, Esq. Assistant Public Defender 39 The evidence in the case also did not support a finding that Defendant's consent to the search was involuntary. See Strickler, 563 Pa. at 57, 757 A.2d at 889 (holding that, where underlying encounter is found lawful, voluntariness of consent becomes exclusive issue). 12 13 COMMONWEALTH Vo JAMES D. MOORE IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 01-0542 CRIMINAL TERM CHARGE: (1) UNLAWFUL POSSESSION OF SMALL AMOUNT OF MARIJUANA (2) UNLAWFUL POSSESSION OF DRUG PARAPHERNALIA IN RE: DEFENDANT'S OMNIBUS PRETRIAL MOTION BEFORE OLER, J. ORDER OF COURT AND NOW, this 27th day of August, 2001, upon consideration of Defendant's omnibus pretrial motion in the form of a motion to dismiss and a motion to suppress, and for the reasons stated in the accompanying opinion, the motion is denied. BY THE COURT, J. Wesley Oler, Jr., J. Michael W. Mervine, Esq. Assistant District Attorney Timothy L. Clawges, Esq. Assistant Public Defender