Loading...
HomeMy WebLinkAbout94-1744 CriminalCOMMONWEALTH : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : : 94-1744 CRIMINAL TERM : CHARGE: (A) UNLAWFUL POSSESSION v. : OF SCHEDULE I : CONTROLLED SUBSTANCE : (B) UNLAWFUL POSSESSION : OF DRUG PARAPHERNALIA : (C) UNLAWFUL POSSESSION OF : SMALL AMOUNT OF : MARIJUANA KENNETH P. McPHERSON : AFFIANT: SGT. MATTHEW SHUEY OTN: E564464-5 : IN RE: DEFENDANT'S OMNIBUS PRETRIAL MOTION (MOTION TO SUPPRESS) BEFORE OLER, J. ORDER OF COURT AND NOW, this ~day of March, 1995, upon careful consideration of Defendant's Omnibus Pretrial Motion in the form of a Motion To Suppress, and following a hearing, the motion is DENIED. BY THE COURT, J~&~ley Oler~~ j.~t ~ - William I. Gabig, Esq. Sr. Assistant District Attorney Ellen K. Barry, Esq. First Assistant Public Defender Samuel Rivera Certified Legal Intern Public Defender Office :rc COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : : 94-1744 CRIMINAL TERM : CHARGE: (A) UNLAWFUL POSSESSION v. : OF SCHEDULE I : CONTROLLED SUBSTANCE : (B) UNLAWFUL POSSESSION : OF DRUG PARAPHERNALIA : (C) UNLAWFUL POSSESSION OF : SMALL AMOUNT OF : MARIJUANA KENNETH P. McPHERSON : AFFIANT: SGT. MATTHEW SHUEY OTN: E564464-5 : IN RE: DEFENDANT'S OMNIBUS PRETRIAL MOTION (MOTION TO SUPPRESS) BEFORE OLER, J. OPINION and ORDER OF COURT Oler, J. In this criminal case the Defendant is charged with several drug offenses - unlawful possession of a Schedule I controlled substance (marijuana),~ unlawful possession of drug paraphernalia,2 and unlawful possession of a small amount of marijuana.3 The charges arose out of an early morning encounter in the Borough of West Fairview between Defendant, among others, and a borough police officer. For disposition at this time is an omnibus pretrial motion to suppress evidence filed by Defendant on the basis of an illegal detention, search and seizure. A hearing on the motion was held on Act of April 14, 1972, P.L. 233, ~13(a)(16), 35 P.S. §780- 113(a)(16). Id., ~13(a)(32), 35 P.S. ~780-113(a)(32). Id., ~13(a)(31), 35 P.S. §780-113(a)(31). 94-1744 CRIMINAL TERM Friday, February 17, 1995.4 For the reasons stated in this Opinion, the motion to suppress will be denied. Findinqs of Fact 1. The Defendant and moving party is Kenneth P. McPherson, an eighteen-year-old having a date of birth of January 19, 1976. 2. On Saturday, August 13, 1994, at a little after 1:00 a.m., Officer Matthew T. Shuey, a member of the police department of the Borough of West Fairview, Cumberland County, Pennsylvania, was in uniform, alone, on routine patrol in the borough in a police car. 3. At that time, Officer Shuey was traveling south on Third Street. 4. At the intersection of Third Street and North Street, the officer began to turn left onto North Street when he noticed a group of people in the direction he had been traveling on Third Street. 5. This group was in and around a green and black automobile about a hundred yards beyond the intersection; the automobile was parked on the east side of Third Street, facing the officer's direction, in front of a house with an address of 139 Third Street; the group appeared to consist of juveniles or young adults. 6. The residence at 139 Third Street had been the site of previous police responses, although not on this particular night. 7. The automobile was not one which the officer associated 4 Briefs have been submitted by the parties. 2 94-1744 CRIMINAL TERM with the residence. 8. Under an ordinance of the borough, a curfew for persons under 18 was in effect between the hours of 10:00 p.m. and 6:00 a.m. 9. The officer stopped in the course of his left turn and backed up so that he could proceed on Third Street. 10. When the group saw him do so, those who were outside the car started to disperse quickly, and one person disappeared into the residence. 11. The officer pulled his patrol car to the curb, in front of the parked automobile, and saw a male in the driver's seat make a furtive movement toward the floor. 12. Defendant was sitting in the front passenger's seat. 13. The officer approached the automobile on foot on the driver's side and discovered that the rear, side window had been removed. 14. The male in the driver's seat identified himself as Robert E. Hummer, with a date of birth of April 8, 1976. 15. The driver said that the automobile belonged to a "friend." 16. The officer checked the license plate by radio transmission and was told that the automobile was not among those reported stolen. 17. Because of the earlier furtive movement by the driver, 3 94-1744 CRIMINAL TERM Officer Shuey asked the driver if he could search the car and the driver consented to the search. 18. At this point, Defendant stepped out of the car and tried to leave the scene by walking away between two houses. 19. The officer told him to return and he complied. 20. The search of the vehicle by the officer yielded a plastic sandwich bag containing suspected marijuana under the driver's seat. 21. The officer placed the driver under arrest and continued the search. 22. Under the passenger's seat he found another plastic sandwich bag containing suspected marijuana. 23. The officer directed Defendant to empty his pockets, resulting in the production of suspected drug paraphernalia in the form of a wood-and-metal smoking pipe. 24. The Defendant was formally arrested and a bag of marijuana was found in his wallet.5 25. The car had not in fact been stolen, and the missing window was apparently the result of a prior theft of equipment from it. Discussion Statement of law. With respect to interactions between police s See Brief in Support of Defendant's Motion To Suppress, at 3; Brief of the Commonwealth, at 3. 4 94-1744 CRIMINAL TERM officers and members of the public, it has been said that "[e]ncounters 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. Ellis, 379 Pa. Super. 337, 353, 549 A.2d 1323, 1331 (1988). The term 'mere encounter' refers to certain non-coercive interactions with the police that do not rise to the level of a seizure of the person under the fourth amendment. For example, a 'mere encounter' occurs if the police simply approach a person on a public street in order to make inquiries. See Commonwealth v. Hall, 475 Pa. 482, 488, 380 A.2d 1238, 1241 (1977)." Commonwealth v. Brown, 388 Pa. Super. 187, 189-90, 565 A.2d 177, 178 (1989). Although mere encounters do not implicate the provisions of the fourth amendment, "both non-custodial and custodial detentions are seizures of the person that trigger fourth amendment protection." Commonwealth v. Bennett, 412 Pa. Super. 603, 613, 604 A.2d 276, 280-81 (1992). A non-custodial detention or "forcible stop" occurs when a police officer temporarily detains an individual by means of physical force or a show of authority for investigative purposes. In order to justify a forcible stop under the fourth amendment, the police must point to specific and articulable facts that, taken together with the rational inferences from those facts, reasonably indicate that criminal activity may be afoot. Custodial detention is a more severe form of government intrusion in which the conditions or duration of the police detention approximate the level of restraint associated with a formal arrest. 5 94-1744 CRIMINAL TERM In order to justify custodial detention, the police must have probable cause to believe that an offense has been or is being committed. Id., 604 A.2d at 281 (citations omitted). Reasonable suspicion is reviewed by considering the totality of the circumstances as viewed through the eyes of the trained and experienced police officer. See Commonwealth v. Epps, 415 Pa. Super. 231, 608 A.2d 1095 (1992). A broken window in a car, for instance, can form the basis for an officer's reasonable suspicion that the car is stolen. Id. "Probable cause exists when an officer has knowledge of sufficient facts and circumstances, gained through trustworthy information, to warrant a prudent [person] to believe that the person seized has committed a crime." Commonwealth v. Kohl, 532 Pa. 152, 166, 615 A.2d 308, 315 (1992). A mere encounter may, of course, ripen into an investigative detention based on reasonable suspicion, and "[a]n investigative detention ... may ripen into an arrest based on probable cause when police uncover additional information confirming earlier suspicions." 1 Wasserbly, Pennsylvania Criminal Practice §6.02 (1991); see, e.g., Commonwealth v. Hamme, 400 Pa. Super. 537, 583 A.2d 1245 (1990). With respect to searches of automobiles, this Court has in the past noted that "consents to searches during illegal detentions have been held invalid." Commonwealth v. Leius, 43 Cumberland L.J. 6 94-1744 CRIMINAL TERM 459, 468-69 (1994), citing Commonwealth v. Jackson, 428 Pa. Super. 246, 630 A.2d 1231 (1993), appeal denied, Pa. , 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). On the other hand, a police officer may rely on the apparent authority of a person to authorize a search. Commonwealth v. Quiles, 422 Pa. Super. 153, 619 A.2d 291 (1993); Commonwealth v. Blair, 394 Pa. Super. 207, 575 A.2d 593 (1990). A third party's proper consent to a search can effectively foreclose a defendant's fourth amendment objection to it. Commonwealth v. Gibbons, 379 Pa. Super. 285, 549 A.2d 1296 (1988). And a passenger's standing to object to a search of a vehicle not owned by him or her is at best uncertain. See Rakas v. Illinois, 439 U.S. 128, 99 S. Ct. 421, 58 L. Ed. 2d 387 (1978). Application of law to facts. In the present case, it is believed that Officer Shuey's approach of the group on Third Street represented a mere encounter, entirely proper in view of the hour, the borough curfew, the youthful appearance of the group's members, their sudden exodus at the sight of a police car, and past experiences at the residence. In combination with these circumstances, the officer's observation that the vehicle was not associated with the residence, the furtive movement of the driver, the absence of a window in the 94-1744 CRIMINAL TERM vehicle, and the driver's explanation that the vehicle was owned by a "friend" constituted "specific and articulable facts that, taken together with the rational inferences from those facts, reasonably indicated that criminal activity [might] be afoot." These facts warranted an investigatory detention of the occupants. The driver had at least apparent authority to authorize a search of the vehicle, the driver's consent was effective to permit the search undertaken, and Defendant was a mere passenger in the vehicle searched. Defendant's response to the search in the form of an attempt to leave the scene and the officer's discovery of marijuana under his seat constituted, in combination with the other circumstances, "sufficient facts and circumstances, gained through trustworthy information, to warrant a prudent [person] to believe that [Defendant] committed a crime." This probable cause justified a custodial detention of Defendant having the severity of a formal arrest, and a search in connection therewith.6 Following his formal arrest, a search incident thereto was similarly permissible. ORDER OF COURT AND NOW, this ~ day of March, 1995, upon careful consideration of Defendant's Omnibus Pretrial Motion in the form of 6 It is the rule, of course, that a search conducted immediately prior to a formal arrest is as valid as a search conducted subsequent to and incident to the arrest provided the officer had probable cause to arrest prior to the search and as long as the contraband discovered in the search is not used as justification or probable cause for the arrest. Commonwealth v. Trenge, 305 Pa. Super. 386, 451A.2d 701 (1982). 8 94-1744 CRIMINAL TERM a Motion To Suppress, and following a hearing, the motion is DENIED. BY THE COURT, s/ J. Wesley Oler, Jr. J. Wesley Oler, Jr., J. William I. Gabig, Esq. Sr. Assistant District Attorney Ellen K. Barry, Esq. First Assistant Public Defender Samuel Rivera Certified Legal Intern Public Defender Office :rc 9