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HomeMy WebLinkAbout01-0936 CriminalCOMMONWEALTH : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : vs. : 01-0936 CRIMINAL : : ROBERT JEROME MCGILL : IN RE: DEFENDANT’S OMNIBUS PRETRIAL MOTION BEFORE HESS, J. OPINION AND ORDER Before the court is the omnibus pre trial motion of the defendant in the nature of a motion to suppress evidence. The facts adduced at the suppression hearing, held on August 28, 2001, are as follows. On April 21, 2001, at 1:10 a.m., Corporal Jerry Oberdorf of the Pennsylvania State Police conducted a traffic stop of a vehicle operated by the defendant on Route 81, approximately one- half mile south of milepost 49 in Cumberland County. Cpl. Oberdorf had clocked the defendant’s vehicle traveling eighty-three miles per hour in a sixty-five mile-per-hour zone. Upon effecting a traffic stop, Cpl. Oberdorf approached the driver’s side of the vehicle while his partner, Trooper Michael Mitchell, approached the passenger’s side of the vehicle. Almost immediately, Cpl. Oberdorf discovered that the Pennsylvania inspection sticker displayed on the defendant’s windshield was counterfeit. He explained to the defendant, Mr. McGill, that he would be issuing some citations. Cpl Oberdorf then went to his patrol car and prepared two citations, one for speeding and one for the possession and display of counterfeit inspection stickers. Upon returning to the defendant’s vehicle, Cpl. Oberdorf, believing that he would have 01-0936 CRIMINAL a difficult time hearing the defendant speak due to the noise of traffic, asked Mr. McGill to step to the rear of his vehicle so that he could explain the citations. After explaining the citations to the defendant, Cpl. Oberdorf handed the defendant his documents and a copy of both citations. Cpl. Oberdorf then asked the defendant if he had any more inspection stickers in the car. The defendant indicated to the corporal that there were none. Cpl. Oberdorf then asked the defendant if he could search the car for more inspection stickers. The defendant agreed to the search but then asked what the basis of the search was. Cpl. Oberdorf indicated that he wanted to make sure that there were no more stickers in the car. The defendant again agreed to allow the officer to search the vehicle. Cpl. Oberdorf, while conducting the search, discovered a rolled up cigarette that had a very strong odor to it. He also found a baggie containing thirty-seven vials of tobacco laced with phencyclidine, a controlled substance. At that point, both the defendant and the passenger were taken into custody and placed into the patrol car. Interaction between police and citizens may be characterized variously as a “mere encounter,” an “investigative detention,” or a “custodial detention.” Police may engage in a mere encounter absent any suspicion of criminal activity and the citizen is not required to stop or to respond. Com. v. Vasquez , 703 A.2d 25, 30 ( Pa.Super. 1997). If the police action becomes too intrusive a mere encounter may escalate into an investigatory stop or seizure. Com. v. Jackson , 630 A.2d 1231, 1233 (1993). If the interaction rises to the level of an investigative detention, the police must possess reasonable suspicion that criminal activity is afoot and the citizen is subject to a stop and a period of detention. Id. Probable cause must support a custodial detention or arrest. 2 01-0936 CRIMINAL Situations involving a request for consent to search following an initial lawful detention have posed difficult analytical questions for the courts. Commonwealth v. Strickler , 757 A.2d 884 (Pa. 2000). The Pennsylvania Supreme Court has recently dealt with this precise issue in Commonwealth v. Strickler , supra , and Commonwealth v. Freeman , 757 A.2d 903 (Pa. 2000). In Strickler , supra, at approximately 12:40 a.m., an officer noticed a car parked at the side of a rural road. Id . at 886. Standing about fifteen feet from the car were two men who appeared to be urinating. Id . The officer asked to see their driver’s licenses, which they produced, and returned to his vehicle to check on the validity of the licenses and to determine whether there were any outstanding warrants for either of the men. Id . The officer returned their driver’s licenses and told them that it was not appropriate to stop along the road and urinate on someone else’s property. Id . at 887. He then thanked them for their cooperation and began walking toward his cruiser. Id . After taking a few steps toward his car, the officer turned around and asked Strickler if he had anything illegal in his car. When Strickler answered that he did not, the officer then asked him "if he wouldn't mind if I took a look through his car." Id . Strickler hesitated. The officer then explained to him that he did not have to say yes. After explaining that he did not have to consent, the officer asked again, “Do you mind. Is it okay with you if we just take a quick search of your vehicle?” Id . At this point, Strickler consented to a search. Id . Upon searching the car, the officer found, between the console and the front passenger seat, an object that looked and smelled like a marijuana smoking pipe. Strickler was arrested and charged with possession of drug paraphernalia. Id . 3 01-0936 CRIMINAL In Freeman , supra, a Pennsylvania State Police trooper was observing westbound traffic on Interstate 80 in Monroe County when he noticed two vehicles traveling fairly close together, switching lanes and jockeying for position in "cat and mouse" fashion. The trooper proceeded to stop one of the vehicles, which was driven by Diana Freeman ("Freeman"), while another officer stopped the second vehicle. Freeman , 757 A.2d at 904-905. The trooper requested Freeman's driver's license and registration card and then returned to his patrol car, which was parked behind Freeman's vehicle, to conduct a radio check on the documents. Id at 905. While checking on these documents, the trooper learned from the other officer that the occupants of the other vehicle contradicted Freeman’s story to the trooper. Id . Returning to Freeman’s car, the trooper gave Freeman a written warning, returned her license and registration card, and informed her that she was free to leave. Id . The trooper went back to his patrol car while Freeman remained parked. Id . The trooper returned to her vehicle and again asked whether Freeman was traveling with the second car. Id . When she replied that she was not, the trooper informed her that the occupants of the second car had said otherwise and asked her to get out of the vehicle. Id . Freeman did so, walking to the rear of the car. Id . At this point, the trooper asked Freeman for consent to search her vehicle, which Freeman granted. Id . The Pennsylvania Supreme Court noted in Strickler and Freeman that, once the purpose for a traffic stop has been completed, the question then becomes whether an individual has reasons to believe that he is or is not free to end the police/citizen encounter. Strickler , 757 A.2d at 891. While allowing for the possibility of a mere encounter after a traffic stop, the court 4 01-0936 CRIMINAL assessed the totality of the circumstances and considered what it referred to as non-exclusive list of factors deemed relevant to determine whether a seizure had been effected. Id . at 897-898. The Supreme Court stated: Various courts and commentators have frequently set forth non-exclusive lists of factors deemed relevant to the determination of whether a seizure has been effected. For example, the presence or absence of police excesses has played a particularly significant role in United States Supreme Court jurisprudence. Physical contact or police direction of a citizen-subject's movements has also been regarded as a central consideration. This Court has also stressed more subtle factors, for example, the demeanor of the police officer, the location of the confrontation, the manner of expression used by the officer in addressing the citizen, and the content of the interrogatories or statements. Additionally, in the context of a police/citizen interaction that follows a lawful detention, we find that the existence and character of the initial investigative detention merits separate consideration as a relevant factor. Significantly, this Court recognized that there is some coercive aspect even in non- detentive interactions between law enforcement officers and citizens. Id. at 898. [Citations Omitted.] The Supreme Court further stated: We also agree with Robinette that the degree to which the transition between the traffic stop/investigative detention and the subsequent encounter can be viewed as seamless, thus suggesting to a citizen that his movements may remain subject to police restraint, is a pertinent factor… "few motorists would feel free ... to leave the scene of a traffic stop without being told they might do so." While recognizing the Supreme 5 01-0936 CRIMINAL Court's holding in Robinette that 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 . at 898-899. [Citations Omitted]. In Strickler , supra, the Court found the necessary break in the sequence of the events, thus holding the consent valid. In holding the consent valid the court noted, “Although the officer did not make the endpoint to the lawful detention an express one, there was an endpoint nonetheless; moreover, the officer confined his subsequent conduct and conformed his requests in a manner consistent with a consensual encounter and expressly advised Strickler of his right to refuse consent.” Id . at 901. In Freeman , the Court found no break in the sequence of events which would isolate the consent from the prior coercive interaction, and therefore held that Freeman’s consent was invalid. Freeman , 757 A.2d at 909. In the present case, like Freeman , there was no break in the sequence of events which would isolate the consent from the prior coercive interaction. Once the officer handed the defendant his citations, the purpose for the stop was complete. We are satisfied, in this case, that the defendant could not, thereafter, have felt free to leave. He was involved in more than a “mere encounter.” In making this determination, we apply the totality of the circumstances approach noting that no single factor dictates the ultimate conclusion as to whether a seizure had occurred. Strickler , 657 A.2d at 890. Here, the officer had asked the defendant to step out of his vehicle shortly after 1:00 o’clock in the morning. The officer was standing directly in front of him and after handing citations to him immediately proceeded to ask if he could search the defendant’s car. The officer 6 01-0936 CRIMINAL did not expressly tell the defendant he was free to leave nor did he, by his actions, suggest that the encounter had concluded. In addition, Cpl. Oberdorf did not inform the defendant that he could decline consent to search. The encounter in this case had, we believe, risen to the level of an “investigative detention.” The question then becomes whether, in seeking consent to search, the corporal had a reasonable suspicion that criminal activity was afoot. In making that determination, we find the case of Commonwealth v. Germann , 621 A.2d 589 (Pa. Super. 1993) instructive. In Germann , the officer effected a traffic stop on a vehicle he observed to be in poor condition and with what appeared to be a false or fraudulent inspection sticker. Id. at 591. The officer concluded that the stickers were fraudulent and therefore asked the defendant for his license and registration. After handing the information over to the officer, the defendant was asked to step out of the vehicle. Id . The officer conducted a search of the vehicle and found two more illegal inspection stickers, rolling papers and multiple glassine baggies, one of which contained cocaine. Id . The court stated that the conclusions drawn by the officer from the poor condition of the defendant’s vehicle and the impending expiration of the fraudulent sticker amounted to no more than a mere hunch or suspicion that additional stickers would be found inside the car. Id. at 593. We find that the officer in the instant matter did not have reasonable suspicion to believe that additional fraudulent inspections stickers would be found in the defendant’s car. In Germann, the court noted that a car being in poor condition and the impending expiration of an illegal sticker, at best, gave an officer a mere hunch or suspicion that additional stickers could be found. In the matter sub judice , there is not any evidence of the defendant’s car being in poor 7 01-0936 CRIMINAL condition or that the illegal sticker was close to expiration. Thus, we conclude that Corporal Oberdorf did not have reasonable suspicion to search the defendant’s car. ORDER AND NOW, this day of October, 2001, the omnibus pretrial motion of the defendant in the nature of a motion to suppress evidence is GRANTED. BY THE COURT, _______________________________ Kevin A. Hess, J. Daniel Sodus, Esquire Assistant District Attorney Timothy Clawges, Esquire Assistant Public Defender : rlm 8 COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : vs. : 01-0936 CRIMINAL : : ROBERT JEROME MCGILL : IN RE: DEFENDANT’S OMNIBUS PRETRIAL MOTION BEFORE HESS, J. ORDER AND NOW, this day of October, 2001, the omnibus pretri al motion of the defendant in the nature of a motion to suppress evidence is GRANTED. BY THE COURT, _______________________________ Kevin A. Hess, J. Daniel Sodus, Esquire Assistant District Attorney Timothy Clawges, Esquire Assistant Public Defender : rlm