HomeMy WebLinkAboutCP-21-CR-2562-2005
COMMONWEALTH
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
v.
CHARGES: (1) UNLAWFUL POSSESSION
DRUG PARAPHERNALIA
(2) DRIVING UNDER THE
INFLUENCE
TERRY E. MOYER
OTN: L245306-5
CP-2l-CR-2562-2005
IN RE: OPINION PURSUANT TO P A. R.A.P. 1925
OLER, 1., March 31, 2006.
In this criminal case involving charges of driving under the influence and
possession of drug paraphernalia, the Commonwealth has filed an appeal to the
Pennsylvania Superior Court from an order of this court granting a suppression
motion filed by Defendant. 1 The suppression motion was based, inter alia, upon
an allegedly unlawful prolongation of a traffic stop?
The basis for the Commonwealth's appeal, as expressed in a statement of
matters complained of on appeal, is as follows:
On January 6, 2006, the defendant filed a Motion to Suppress on the
grounds that he did not knowingly and voluntarily waive his constitutional
rights and that the defendant was unlawfully detained. On January 23,
2006, an evidentiary hearing was held, a transcript of which is pending.
On January 24,2006, this Honorable Court granted relief to the extent that
evidence obtained by the Commonwealth following the return of
defendant's paperwork and "solicitation that he respond" to further
question was suppressed. The issue raised on appeal is whether this
Honorable Court erred in granting relief following the return of the
defendant's paperwork.3
This opinion, in support of the court's suppression ruling, is written
pursuant to Pennsylvania Rule of Appellate Procedure 1925(a).
1 Commonwealth's Notice of Appeal, filed February 21,2006.
2 Defendant's Omnibus Pre-Trial Motion To Suppress, paras. 7-8, filed January 6,2006.
3 Commonwealth's Concise Statement of Matters Complained of on Appeal, filed March 14,
2006.
STATEMENT OF FACTS
As a result of an incident occurring on June 28, 2005, Defendant was
charged with driving under the influence of a controlled substance and possession
of drug paraphernalia.4 Following his formal arraignment on the charges, he filed
an Olnnibus pretrial motion in the form of a motion to suppress. 5 In pertinent part,
the motion was based upon an alleged unlawful prolongation of Defendant's
detention following a traffic stop,6 during which, inter alia, his consent to a
vehicle search was obtained. 7
A hearing was held on Defendant's motion to suppress by the writer of this
opinion on January 23, 2006. The credible evidence at the hearing may be
summarized as follows:
On Tuesday, June 28, 2005, at about 11 :20 p.m. on a back road in South
Middleton Township, Cumberland County, Pennsylvania, Defendant Terry
Eugene Moyer was stopped for a taillight violation by Corpora18 Jonathan Mays
and Trooper Elmer Hertzog of the Pennsylvania State Police.9 Before approaching
the Olds Cutlass which Defendant was driving, Corporal Mays illuminated its
interior with a light and noticed some type of movement on the part of Defendant
and his male passenger. 10
Defendant was a 45-year-old man with an eighth grade education, 11 who
appeared to the court to be somewhat "slow" in terms of his intellectual capacity. 12
4 Information, filed December 6,2005.
5 Defendant's Omnibus Pre-Trial Motion To Suppress, filed January 6,2006.
6 Defendant's Omnibus Pre-Trial Motion To Suppress, paras. 7-8, filed January 6,2006.
7 NT 62-64, Hearing, January 23, 2006 (hereinafter NT ~.
8 See Criminal Complaint, filed August 3, 2005.
9 NT 5-8.
10 NT 8, 26.
11 NT 48.
12 See, e.g., NT 61 (unanswered question).
2
Defendant's license was valid and the vehicle he was driving had not been
reported stolen,13 but Corporal Mays decided to run a check on his criminal
background.14 This check indicated that Defendant had, at some point in the past,
been arrested for a marijuana violation. 15
Corporal Mays asked Defendant to get out of his vehicle and directed him
to the rear of Defendant's vehicle. 16 Trooper Hertzog also positioned himself at
the rear of Defendant's vehicle. 17 Both the corporal and the trooper were in
uniform and armed. 18
Corporal Mays discussed the broken taillight with Defendant, 19 returned his
papers to him,20 gave him a written warning,21 and said that he was "free to
leave.,,22 However, before Defendant could reenter his vehicle, Corporal Mays
called his name and asked to question him further?3 Defendant agreed to answer
additional questions and returned to the rear of his vehicle, where the corporal and
trooper were positioned?4 Corporal Mays proceeded to obtain Defendant's
consent to search his vehicle. 25 Defendant was not advised that he had a right to
refuse the search.26
13 NT 23.
14NT 10,24.
15 NT 10,24.
16 NT 25.
17NT 11.
18 NT 7, 15,37.
19 NT 10,25.
20 NT 25, 39.
21 NT 10,25.39.
22 NT 25, 39.
23 NT 10-11,26-27,39.
24 NT 11,39,41.
25 NT 11, 28-29, 42.
26 NT 34.
3
This sequence of events was described by Corporal (now Sergeant) Mays
as follows:
. . . I tell him that he is free to leave and he approaches his
vehicle, goes back to his vehicle, gets to the door of his
vehicle.
I turn to go back to my vehicle and then I stop and I turn
back around and call his name out and I asked him if he minds
if I asked him a few questions, there were some things that I
had some questions on. He indicated, no, he didn't mind.
He came back to the rear of the vehicle. I informed him
that I did run a criminal history check to see what-if he had
any priors, some of my thoughts and concerns were the
movement in the vehicle. I informed him that I did find that he
had an arrest for Act 64 in the past, and he indicated that he
was aware of that.
I asked him if he had anything, any kind of controlled
substance or paraphernalia in the vehicle, and he indicated that
he did not. I asked him if he had any on his person and he
indicated that he did not.
So I asked him if I could check his vehicle to make sure
that was the case. He told me that I could. I went back up to
the vehicle and he had a passenger in the vehicle. I asked that
passenger to step out. I left [Defendant] at the rear of the
vehicle with Trooper Hertzog. And the passenger came out
with Trooper Hertzog, and I don't know if it was so
communicated to Trooper Hertzog, but, of course, I wanted
him to keep an eye on these two guys while I am going to be
preoccupied in the vehicle looking around the vehicle.
I started into the interior of the vehicle and either after I
started for a second or prior to me starting, I gave Trooper
Hertzog instructions that I asked him to check and make sure
[Defendant] didn't have anything on his person.27
Under these circumstances, the court found credible Defendant's testimony
that he did not feel that he was free to leave at the time he was asked to answer
further questions and he was not aware that he could refuse consent to the search
27NT 10-12.
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in question?8 Objectively, in the court's view, his perception of the situation in
this regard was a reasonable one.
Drug paraphernalia in the form of a pipe in the vehicle, and a pipe and
"copper screen" on his person, were found,29 and Defendant made inculpatory
statements in response to questions in connection therewith. 30 In one of these
statements, he admitted to having "smoked within an hour of driving the
vehicle.,,31
Defendant was handcuffed and placed under arrest. 32 He was then
transported to a hospital for a blood test to determine the level of any controlled
substances in his system. 33 Thereafter he was taken to a booking center where
Miranda rights were administered to him.34
At the conclusion of the suppression hearing, the court took the matter
under advisement. 35 Subsequently, the order which is the subject of the
Commonwealth's appeal was entered:
AND NOW, this 24th day of January, 2006, upon
consideration of Defendant's 01llllibus Pretrial Motion in the
form of a motion to suppress, and following a hearing. . . , the
motion is granted to the extent that evidence obtained by the
Commonwealth following the return of Defendant's paperwork
to him and solicitation that he respond to further questions is
suppressed. See Commonwealth v. Freeman, 563 Pa. 82, 757
A.2d 903 (2000); Commonwealth v. Gillespie, 54 Cumberland
L.1. 214 (2005).
28 NT 51-52.
29 NT 12, 17,43-44.
30NT 18,44.
31 NT 12.
32 NT 19-20,32.
33 NT 19-20,54.
34 NT 54, 56.
35 Order of Court, January 23, 2006.
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DISCUSSION
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) citing Michigan v. Chesternut, 486 U.S. 567,
573, 108 S. Ct. 1975, 1979, 100 L. Ed. 2d 565, 572 (1988)).
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
P A Super. 15, 815 A.2d 1078 (2003); Commonwealth v. Jackson, 428 Pa. Super.
246, 630 A.2d 1231 (1993); Commonwealth v. Parker, 422 Pa. Super. 393, 619
A.2d 735 (1993); Commonwealth v. Lopez, 415 Pa. Super. 252, 609 A.2d 177
(1992).36 In this regard, the burden is on the Commonwealth to prove, by a
36 For a consent to search obtained during a period of unlawful detention to be deemed valid, the
Commonwealth must 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).
In making [ a] determination of whether a consent is free and
voluntary, the following factors may be taken into consideration:
. the person's knowledge of the right to refuse to consent to the
search;
. the maturity, sophistication and mental or emotional state of the
defendant (including age, intelligence and capacity to exercise free
will); and
. the presence or absence of physical contact or police direction of
the subject's movements, the demeanor of the police officer, the
manner of expression used by the officer in addressing the subject,
the location of the encounter, and the content of the interrogatories
or statements.
Commonwealth v. Rosas, 2005 PA Super. 183, ~21, 875 A.2d 341,349 (2005).
6
preponderance of the evidence,37 that the period of detention when the consent was
obtained was lawful. Commonwealth v. Acosta, 2003 P A Super. 15, 815 A.2d
1078 (2003); Pa. R Crim. P. 58l(H).
A totality-of-the-circumstances test is to be applied in a determination of
whether a reasonable person would have felt free to leave. Commonwealth v.
Freeman, 563 Pa. 82, 757 A.2d 903 (2000).
Factors relevant to such an assessment include: the existence
and nature of any prior seizure; whether there was a clear and
expressed endpoint to any such prior detention; the character of
police presence and conduct in the encounter under review (for
example-the number of officers, whether they were
uniformed, whether police isolated subjects, physically touched
them or directed their movement, the content or manner of
interrogatories or statements, and "excesses" factors stressed
by the United States Supreme Court); geographic, temporal and
environmental elements associated with the encounter; and the
presence or absence of express advice that the citizen-subject
was free to decline the request for consent to search. In
general, a full examination must be undertaken of all coercive
aspects of the police/citizen interaction.
Commonwealth v. Freeman, 563 Pa. 82, 88-89, 757 A.2d 903, 906-07 (2000).
The conferral of "free-to-go" advice is not automatically dispositive of the
Issue of whether a traffic stop has been effectively terminated. See
Commonwealth v. Strickler, 563 Pa. 47, 76 n.24, 757 A.2d 884, 899 n.24 (2000).
And, as noted, advice to the motorist that he or she has a right to refuse the request
for a search is a factor tending to support the proposition that a reasonable person
would not feel compelled to remain. See, e.g., Commonwealth v. Strickler, 563
Pa. 47, 757 A.2d 884 (2000).
Thus, in Commonwealth v. Strickler, 563 Pa. 47, 757 A.2d 884 (2000), a
case which did not involve the exercise of authority inherent in a vehicle stop, the
Pennsylvania Supreme Court held constitutionally sound a consensual search of a
37 Commonwealth v. DeWitt, 530 Pa. 299, 608 A.2d 1030 (1992).
7
vehicle of a pedestrian who had been publicly urinating where he was expressly
told by police that he did not have to consent to the search. And in
Commonwealth v. Freeman, 563 Pa. 82, 757 A.2d 903 (2000), a consensual search
of a vehicle of a motorist lawfully stopped was held constitutionally unsound
where actions of the officers subsequent to a purported termination of the stop
suggested a reassertion of control over the individual.
In applying fourth amendment and other constitutional principles which
were intended to safeguard individual freedom, courts have been cautioned against
rulings which place form over substance at the expense of those rights. As Justice
Jackson observed many years ago, when such caution is disregarded by the courts
[o]ur heritage of constitutional privileges and immunities
[becomes] 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, 1., concurring).
In the present case, where ( a) Defendant's vehicle was stopped for an
equipment violation late at night on a back road by two members of the state
police who were armed and in uniform, (b) Defendant was removed from the
vehicle and detained at the back of his vehicle, (c) the purpose of the traffic stop
was completed and there was no legal basis for further detention, (d) before
Defendant could get back into his vehicle he was requested to respond to further
interrogation regarding drugs, (e) during this extended period Defendant gave his
consent to a search of his vehicle without having been advised of his right to
refuse consent, and (f) Defendant's belief that he was under detention at this time
and did not have a right to refuse consent was reasonable, notwithstanding that he
had been fleetingly told that he was "free to leave" before being subjected to
further questions, the court was of the view that Defendant's consent was given
during a period of unlawful detention and that the Commonwealth did not prove
that this consent was an independent act of free will and not the product of the
8
illegal detention. For this reason, the court entered the order of suppression from
which the Commonwealth has appealed.
BY THE COURT,
1. Wesley Oler, Jr., 1.
Jaime M . Keating, Esq.
First Assistant District Attorney
Taylor P. Andrews, Esq.
Chief Public Defender
9