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HomeMy WebLinkAboutCP-21-CR-0003304-2010 COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : V. : : : DANIEL GRECH : CP-21-CR-3304-2010 IN RE: MOTION TO SUPPRESS EVIDENCE OPINION AND ORDER OF COURT Masland, J., June 24, 2011: -- Daniel Michael Grech (Defendant) was charged with possession with intent to deliver a controlled substance and carrying a firearm without a license. In a pre-trial motion, Defendant moves to suppress all evidence obtained as a result of the search of his vehicle. Restated briefly, Defendant raises three issues in light of his suppression motion: (1) the legitimacy of the initial traffic stop; (2) the Defendant’s consent to answer the Trooper’s additional questions; and (3) the legitimacy of the Trooper’s reasonable suspicion in regard to the search of the Defendant’s vehicle. For the following reasons, the court grants the Defendant’s motion to suppress. I. Facts On the early morning of November 10, 2010, Defendant was operating a motor vehicle on the Pennsylvania Turnpike. Pennsylvania State Trooper Todaro observed the Defendant’s vehicle and noted that the rear license plate lamp on the left side of the bumper was inoperative. Based on this apparent Motor Vehicle Code violation, Trooper Todaro initiated a traffic stop. CP-21-CR-3304-2010 Trooper Todaro approached the vehicle and initially detected an odor of air freshener, but could not determine the source of the odor. The Trooper then requested license, registration and proof of insurance. The Defendant produced a valid California driver’s license and registration materials, identifying him as the owner of the vehicle. Trooper Todaro engaged the Defendant in conversation about his travel plans. Defendant indicated that he was traveling with his dog from California to Philadelphia for dog breeding purposes. Trooper Todaro returned to his patrol car and conducted a driver’s license and registration search. After finding everything in order, the Trooper re- approached the Defendant and asked him to exit his vehicle so that he could show him the equipment violation. The Trooper walked to the rear of the vehicle, but noted that the Defendant was still in his vehicle. The Trooper approached the right passenger window and observed the Defendant rolling the passenger window up. As the Trooper again walked to the rear of the vehicle, he heard the Defendant exiting the vehicle and the vehicle doors being locked. The Trooper testified that he had never seen, in his eighteen years of experience, someone lock his door when exiting his vehicle for a routine traffic stop. Once the Defendant and the Trooper were at the rear of the vehicle, the Trooper explained the reason for the traffic stop and began preparing a police warning notice for the rear license plate lamp violation. During this time, the Trooper engaged the Defendant in general conversation about his trip. The Defendant indicated that he had left California on November 2, 2010 and drove to Colorado Springs, Colorado to visit family. He left Colorado Springs on -2- CP-21-CR-3304-2010 November 8, 2010 and had been driving essentially straight through to Philadelphia ever since. The Defendant further clarified his travel plans, explaining that he had left California with two dogs, but had dropped one off in Colorado with his cousin for breeding. The Defendant was transporting the remaining dog to Philadelphia for breeding. The Defendant added that he was meeting with Al Middleton who lived on the eastside of Philadelphia. The Defendant did not have the precise address for Mr. Middleton, but believed his address to be close to the hotel in which the Defendant was planning on staying. The Defendant said that Mr. Middleton had reserved and paid for the hotel room and that he would reimburse him upon arrival. Subsequent to this conversation, the Trooper returned all documentation and explained and issued the police warning. The Trooper than advised the Defendant that he was free to leave, after which the Defendant walked back towards the driver’s door of the vehicle and inserted his key into the driver’s door lock. After allowing the Defendant to reach the driver’s side door, the Trooper asked if he could continue speaking with him. The Trooper advised the Defendant for a second time that he was free to leave and the Defendant agreed to answer some questions. During the encounter, Trooper Todaro asked the Defendant whether he possessed anything illegal in the vehicle. The Defendant responded that he did not. The Trooper than asked specifically if he possessed any illegal firearms or knives. Again, the Defendant responded that he did not. The Trooper asked if the Defendant possessed any marijuana in the vehicle. The Defendant responded that his employment required regular drug testing and -3- CP-21-CR-3304-2010 that he did not even smoke cigarettes. When the Trooper asked him again about possessing marijuana, the Defendant responded in the negative. The Trooper asked the Defendant if he possessed any heroin or methamphetamines in the vehicle. The Defendant responded in the negative, but chuckled and broke eye contact during the response. The Trooper determined based on his training that the Defendant’s answers were deceptive. The Trooper requested the Defendant’s consent to search the vehicle, which the Defendant refused. At this point, the Trooper detained the Defendant to conduct an exterior K9 search of the vehicle. During the search, the K9 indicated the presence of potential contraband at the rear hatch area and the side rear door seam. Based on the results of the exterior K9 search, the Trooper obtained a search warrant for the interior of the vehicle. Upon the execution of the warrant, the Trooper recovered a black gym bag lying on the floor between the middle-row of bench seats. The bag contained 11 individual clear plastic heat sealed bags containing a green vegetable matter suspected to be marijuana. A field test produced a positive result and confirmed the substance as marijuana. The Trooper also recovered a handgun and ammunition under the vehicle’s center console. II. Discussion A. Initial Traffic Stop Defendant challenges the legitimacy of the initial traffic stop. He objects on the grounds that Trooper Todaro did not have reasonable suspicion that a violation of Motor Vehicle Code § 4303(b) had occurred at the time of the traffic -4- CP-21-CR-3304-2010 stop. Defendant argues that although one of the license plate lamps on his vehicle was not illuminated, the Commonwealth failed to present evidence that his license plate was in violation of the statute and related regulations. The court disagrees. In order for an initial traffic stop to be constitutional, an officer must be able to point to specific and articulable facts to create reasonable suspicion that a defendant is in violation of the Motor Vehicle Code. Commonwealth v. Holmes, 14 A.3d 89, 96 (Pa. 2011); 75 Pa. C.S. § 6308(b). Here, Trooper Todaro had reasonable suspicion that the Defendant was in violation of Motor Vehicle Code, § 4303(b). The section requires that a rear license plate be in “conformance with regulations of the department.” 75 Pa. C.S. § 4303(b). The relevant regulation specifies that a registration plate lamp “shall emit white light and make the registration plate visible from a distance of fifty feet.” 67 Pa. Code § 175.66(k). In this case, Trooper Todaro observed the Defendant’s vehicle’s left license plate lamp was not working. Based on this observation, Trooper Todaro had reasonable suspicion that the Defendant was in violation of the Motor Vehicle Code and initiated a legitimate traffic stop. For his part, Defendant incorrectly argues that the lamp malfunction is not part of the Motor Vehicle Code and therefore cannot create reasonable suspicion of a violation. Defendant asserts that the malfunctioning lamp is not a violation of § 4303(b) because the registration plate could be clearly seen fifty feet from the vehicle. However, Defendant’s argument ignores the regulation’s dual requirement that a registration plate be both illuminated by white light and visible -5- CP-21-CR-3304-2010 from fifty feet away. 75 Pa. Code § 4303(b). Because the lamp was not in proper working order at the time the traffic stop was initiated, Trooper Todaro’s reasonable suspicion of a Motor Vehicle Code violation was valid. The Defendant further relies on Commonwealth v. Holmes where the Superior Court found “an officer must articulate at least some fact or facts to support his inference or conclusion.” Holmes, 14 A.3d at 93. However, Defendant’s reliance on Holmes in misplaced. In Holmes, an officer observed a vehicle with objects hanging from the review mirror, obstructing the driver’s view. Id. at 91. The officer initiated a traffic stop, believing the vehicle to be in violation of Section 4524(c) of the Motor Vehicle Code, which prohibits “driving a vehicle with any object hung from the rearview mirror that would materially impair the driver’s vision through the front windshield.” Id. The Holmes court found that the officer did not have reasonable suspicion that a violation of the Motor Vehicle Code had occurred because there was no evidence of the size or general description of the object. Id. at 97. Without independent evidence describing the object hanging from the rearview mirror, the officer could not form reasonable suspicion that the object materially impaired the driver’s vision. Id. Here, Trooper Todaro’s observation of the malfunctioning lamp was a sufficient fact to support his reasonable belief that the Motor Vehicle Code had been violated. He directly observed the inoperable license plate lamp, violating the lighting requirement of Section 4303(b). Unlike in Holmes, Trooper Todaro did not have to make an inferential leap from his observation and a -6- CP-21-CR-3304-2010 potential Vehicle Code violation. As such, the Defendant’s reliance on Holmes is misplaced. B. Mere Encounter Defendant argues that the second round of questioning by the Trooper was not part of a mere encounter, but an improper extension of the initial detention. Defendant contends that he was neither free to go nor did he consent to further questioning and therefore all evidence obtained as a result of this continued detention must be suppressed. The court disagrees. There are periods of police questioning, “involving no seizure or detentive aspect (mere or consensual encounters), that need not be supported by any level of suspicion.” Commonwealth v. Strickler, 757 A.2d 884, 889 (Pa. 2000). A mere encounter is established where an individual is no longer under police domination, but remains voluntarily. Id. Given the totality of the circumstances, the test to determine the nature of the interaction is if a reasonable person would believe he was free to leave. Id. The Strickler court noted that although “the admonition to a motorist that he is free to leave is not a constitutional imperative, the presence or absence of such a clear, identified endpoint to the lawful seizure remains a significant, salient factor in the totality assessment.” Id. In the instant case, the initial detention for the Motor Vehicle Code violation ended when Trooper Todaro handed the Defendant his documentation and verbally told the Defendant he was free to leave. The Defendant received his materials and promptly turned his back on the Trooper and walked towards the driver’s door of the vehicle. The Trooper only reengaged him once the -7- CP-21-CR-3304-2010 Defendant had put the key into the driver’s side door lock. At that time, the Trooper again advised the Defendant that he was free to leave, yet still, the Defendant voluntarily agreed to answer additional questions. Furthermore, Trooper Todaro never made physical contact with the Defendant nor did the Trooper raise his voice or make any threatening gestures towards the Defendant. Thus the court concludes that a reasonable person under these circumstances would have felt he was free to leave. C. Reasonable Suspicion of Criminal Activity Finally, the Defendant argues that Trooper Todaro did not have reasonable suspicion that criminal activity was afoot at the time he informed the Defendant he was being detained. The Defendant asserts that his responses to the Trooper’s limited line of questioning prior to the detention were not sufficiently evasive as to give rise to reasonable suspicion. The court agrees. In order for an officer to detain a defendant an officer must have reasonable suspicion that criminal activity is afoot. Holmes, 14 A.3d at 96. Reasonable suspicion must be established by specific and articulable facts. Id. The fundamental inquiry to a court becomes if given an objective calculation of the circumstances, would a reasonable person believe the officer’s action was appropriate. Commonwealth v. Zhahir, 751 A.2d 1153, 1156 (Pa. 2000); Pa. Const. Art. 1, § 8. In the instant case, Trooper Todaro identified six facts that aroused his suspicion: (1) a strong odor of air freshener in the Defendant’s vehicle; (2) the Defendant’s locking of the doors when exiting the vehicle; (3) the peculiar nature -8- CP-21-CR-3304-2010 of the Defendant’s travel plans; (4) the fact that the Defendant was traveling from a narcotics source region; (5) the time of the Defendant’s travel; and (6) the Defendant’s overly detailed response to the Trooper’s question regarding marijuana possession. These facts are not sufficient to create reasonable suspicion. In Commonwealth v. Dales the Superior Court granted the defendant’s motion to suppress after finding the officer lacked reasonable suspicion of criminal activity. Commonwealth v. Dales, 820 A.2d 807, 809 (Pa. Super. 2003). In Dales, the officer initiated a traffic stop after noting the defendant’s vehicle was in violation of the Motor Vehicle Code. Id. During the traffic stop, the officer noted three facts during his encounter with the defendant: (1) several air fresheners; (2) an unusual, but unidentified, chemical aroma emitting from the vehicle; and (3) the defendant’s nervousness when responding to questions. Id. at 809 – 10. The court held that these facts were insufficient to establish “anything more than a hunch of possible criminal activity.” Id. at 815. Just like in Dales, Trooper Todaro had insufficient facts to establish reasonable suspicion of criminal activity. As in Dales, where the officer noted air freshener but was unable to identify the source of the chemical aroma emitting from the vehicle, Trooper Todaro identified the smell of the masking agent but was unable to see any air fresheners. Assuming he had seen air fresheners, it would not be unreasonable to use them when traveling long distances with a dog. In addition, Trooper Todaro did not detect any odor of chemicals to indicate the presence of contraband. -9- CP-21-CR-3304-2010 The court in Dales found the defendant’s nervousness when answering questions insignificant when not backed by further evidence. Similarly, the Defendant’s nervousness when answering the Trooper’s questions regarding marijuana is not enough to establish reasonable suspicion. The facts in this case are comparable to the facts in Dales. Thus, Trooper Todaro did not have enough evidence to find reasonable suspicion of criminal activity. In contrast, compare Commonwealth v. Kemp where the Superior Court denied the defendant’s motion to suppress when the officer articulated clear evidence to support reasonable suspicion. Commonwealth v. Kemp, 961 A.2d 1247, 1250 (Pa. Super. 2008). In Kemp, the officer initiated a traffic stop after observing the defendant in violation of the Motor Vehicle Code. Id. The officer testified that as soon as the driver rolled down the window, he was hit with an extremely strong odor of air freshener. Id. at 1251. Upon viewing the interior of the vehicle, he observed several air fresheners, including an open jar of a masking agent. Id. In addition, when the officer questioned the passengers, they did not respond and appeared extremely nervous. Id. During the questioning, the passengers produced an apparently counterfeit New Jersey identification card and a Florida driver’s license. Id. The passengers also informed the officer that an absent third-party owned the vehicle, but were unable to identify the owner’s name. Id. Finally, the officer could detect a faint smell of marijuana emitting from inside the vehicle. Id. The Kemp court found that these facts were sufficient to give reasonable suspicion of criminal activity. Id. at 1254. The court noted that the presence of -10- CP-21-CR-3304-2010 multiple air fresheners, the extreme nervous behavior of the Defendants, the presence of counterfeit documents and the fact that the Defendants were operating a vehicle owned by a third-party are characteristics of drug couriers. Id. The instant case is distinguishable from Kemp. First, unlike in Kemp where the officer noted multiple air fresheners and an opened jar of masking agent, Trooper Todaro was not able to identify the source of the odor and only found two air fresheners in the Defendant’s vehicle after the interior search had been completed. Second, the Defendant’s manner of securing the vehicle is easily explained by the fact that the vehicle contained a live and valuable animal. Also, the Defendant was able to prove he was the registered owner of his vehicle. In addition, the Defendant raises questions about the relevance of originating from a “source state.” In Commonwealth v. Vasquez, the Superior Court held that drug courier profiles (frequent and quick trips originating from a “source city,” payment in cash, etc.) alone cannot establish reasonable suspicion of criminal activity. Commonwealth v. Vasquez, 703 A.2d 25, 34 (Pa. Super. 1997). Accordingly, the fact that the Defendant originated from California and was traveling at night is not enough for Trooper Todaro to establish reasonable suspicion. Furthermore, although Defendant’s travel plans were somewhat unusual, he fully and credibly described the nature of his breeding business and the reasons for his trip to Pennsylvania. Moreover, none of the behavior was illegal and thus cannot serve as a basis for reasonable suspicion. -11- CP-21-CR-3304-2010 In addition, unlike the driver in Kemp, the Defendant was driving his own vehicle and produced valid documentation and identification. Finally, the Defendant’s overly detailed answer and break of eye contact do not in themselves create reasonable suspicion of criminal activity. The Defendant clearly answered all of Trooper Todaro’s questions concerning illegal activity in the negative, which should not have arisen any suspicion. There was no evidence of extreme nervous behavior like that present in Kemp. Given the totality of the circumstances, Trooper Todaro failed to articulate sufficient facts to give rise to reasonable suspicion. More than a mere hunch is required. Therefore, the detention and subsequent search of the Defendant’s vehicle were improper and all evidence discovered as a result must be suppressed. III. Conclusion Based on the foregoing, the court grants the Defendant’s motion to suppress evidence that was obtained during the interior search of the Defendant’s vehicle. Because the Trooper did not have reasonable suspicion that there was criminal activity afoot, the continued detention and subsequent search of the Defendant’s vehicle were improper. For the foregoing reasons, the following order is entered. -12- CP-21-CR-3304-2010 ORDER OF COURT AND NOW, this _________ day of June, 2011, the Defendant’s motion to suppress evidence obtained during the interior search of the Defendant’s vehicle, IS GRANTED By the Court, ___________________________ Albert H. Masland, J. Joshua Yohe, Esquire For the Commonwealth Richard Q. Hark, Esquire For Defendant :saa -13- COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : V. : : : DANIEL GRECH : CP-21-CR-3304-2010 IN RE: MOTION TO SUPPRESS EVIDENCE ORDER OF COURT AND NOW, this _________ day of June, 2011, the Defendant’s motion to suppress evidence obtained during the interior search of the Defendant’s vehicle, IS GRANTED By the Court, ___________________________ Albert H. Masland, J. Joshua Yohe, Esquire For the Commonwealth Richard Q. Hark, Esquire For Defendant :saa