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HomeMy WebLinkAbout94-1719 CriminalCOMMONWEALTH : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : v. : 94-1719 CRIMINAL TERM : : CHARGES: (A) UNLAWFUL POSSESSION : OF SCHEDULE II : CONTROLLED SUBSTANCE : (B) POSSESSION OF A SMALL : AMOUNT OF MARIJUANA SANDY LEO FORLIZZI : AFFIANT: DET. DAVID FONES OTN: E965544-6 : IN RE: DEFENDANT'S OMNIBUS PRETRIAL MOTION (MOTION TO SUPPRESS) BEFORE OLER, J. OPINION OF COURT Oler, J., April ll, 1995 This criminal case arises out of a stop in April of 1994 of a pickup truck being driven by Defendant. The truck contained marijuana, and Defendant had on his person several pieces of crack cocaine and additional marijuana. Charges of unlawful possession of a small amount of marijuana~ and unlawful possession of a Schedule II Controlled Substance2 were filed against him. On December 21, 1994, Defendant filed an omnibus pretrial motion to suppress evidence on the basis of a lack of probable cause for the vehicle stop,3 lack of probable cause or consent for the vehicle search,4 and lack of probable cause for, or incidence See Act of April 14, 1972, P.L. 233, §13(a)(31), 35 P.S. ~780-113(a)(31). See Act of April 14, 1972, P.L. 233, §13(a)(16), 35 P.S. ~780-113(a)(16). Defendant's omnibus pretrial motion, paragraph 7. Defendant's omnibus pretrial motion, paragraph 9. NO. 94-1719 CRIMINAL TERM to arrest of, a search of his person,s A hearing on the suppression motion was held by the writer of this Opinion on Wednesday, January 11, 1995. At the hearing, the Commonwealth presented the testimony of two police officers; Defendant presented no evidence. Following the hearing, the court entered this order: AND NOW, this llth day of January, 1995, upon consideration of the Defendant's Omnibus Pretrial Motion in the form of a Motion to Suppress, and following a hearing, the motion is denied. Defendant was subsequently found guilty of the charges following a bench trial by the Honorable Edgar B. Bayley on Monday, February 27, 1995. He was sentenced to pay the costs of prosecution and fines totaling $200, and to undergo a period of probation with supervision. On March 1, 1995, Defendant filed a post-sentence motion to arrest judgment. The motion was predicated upon alleged error by the suppression court "in not suppressing the fruits of the illegal search of the Defendant's truck and person."~ s Defendant's omnibus pretrial motion, paragraph 10. ~ Optional Post-Sentence Motion (Pursuant to Pa. R. Crim. P. 1410), paragraph 5. It is noted that an arrest of judgment would not be a proper form of relief for an erroneous failure to suppress. See Commonwealth v. Williams, 411 Pa. Super. 586, 602 A.2d 350 (1992) (motion in arrest of judgment not to be granted upon diminished record). 2 NO. 94-1719 CRIMINAL TERM STATEMENT OF FACTS In the late evening hours of Friday, April 29, 1994, before midnight, a neighbor of R.S. Mowery, which is a construction company on Hamilton Street between Clay Street and Spring Road in the Borough of Carlisle, called police and reported suspicious persons in a pickup truck around the building at the business.8 The business was not open at that hour.9 Carlisle Borough Police Officer Thomas Leon Day, who was in uniform and driving a marked police car in which a non-uniformed officer, Detective David R. Fones, was a passenger, was dispatched to the scene.~° As the officers turned onto Hamilton Street from Spring Road, heading north, a pickup truck that was parked on the street in front of the Mowery business with its lights out pulled away "in a hurry" from the curb, turned its headlights on, and passed the police car heading south.~ The truck contained three persons.~2 Officer Day made a U-turn, and as he did so the truck 7 N.T. 3-4, 18, Suppression Hearing, January 11, 1995 (hereinafter N.T. ~). N.T. 3-5, 14. N.T. 4, 30. N.T. 3-5, 19-20. Detective Fones was wearing a "neck badge." Id. 19. N.T. 5, 19-20. N.T. 7, 22. 3 NO. 94-1719 CRIMINAL TERM indicated by turn signal that it would make a right turn from Hamilton onto Spring Road.TM Instead, the vehicle made an abrupt left turn onto Spring Road, suggestive of an evasive action.TM As the police attempted to catch up to the truck, the vehicle left the cartway and cut across property of a tire store at the intersection of Spring Road and Hanover Street, proceeding over a curb in the process, and entered Hanover Street.~5 The truck began to accelerate,~6 and it reasonably appeared that the driver was attempting to flee.~7 As the truck failed to respond to a siren and flashing lights, the assistance of other police cars located in the direction of the truck's travel was requested.~8 The truck eventually pulled off Hanover Street and proceeded a certain distance into a parking lot of a nursing home, where it stopped.~9 Including Officer Day and Detective Fones, and including their vehicle, five police officers (all in uniform with the exception of Detective Fones) and three ~3 N.T. 5, 20. ~4 N.T. 5, 20. ~ N.T. 20-21. ~6 N.T. 5, 21. ~7 N.T. 21. ~8 N.T. 21. ~9 N.T. 7, 21. 4 NO. 94-1719 CRIMINAL TERM police cruisers were on the scene.2° Defendant was the driver of the truck;2~ a male passenger in the truck was known by Detective Fones to be a drug dealer, and a female passenger was known by him to be a drug user.22 For the safety of police, the occupants were directed to exit the truck.23 The occupants were told of the report concerning the vehicle at the Mowery site and Officer Day asked Defendant if he would permit a search of the vehicle for any items that might have been stolen from the business.24 Defendant said that he had nothing to hide and told the officer to go ahead.2s Marijuana was found in a cigarette package above the driver's visor.26 Police at this point reasonably believed that the Defendant had committed the offense of possession of marijuana.27 He was directed to empty his pockets.28 As Defendant pulled a cellophane cigarette wrapper out of his pocket, Detective Fones 20 N.T. 29. 2~ N.T. 8. ~ N.T. 30. ~3 N.T. 12-13. 24 N.T. 7-8, 15-16. 2s N.T. 8, 10-11. ~6 N.T. 8, 23. 27 N.T. 27. 28 N.T. 28. 5 NO. 94-1719 CRIMINAL TERM recognized its contents as being several pieces of crack cocaine.29 Defendant attempted to reinsert the wrapper into his pocket, a struggle ensued between him and Detective Fones, and the item was recovered by police.3° Defendant was handcuffed and formally placed under arrest, for possession of marijuana and possession of cocaine.3~ A search of his person disclosed additional marijuana concealed in a plastic bag in his underwear.32 DISCUSSION Vehicle stop. In general, "an officer may stop and briefly detain and question an individual if the investigating officer can point to specific and articulable facts which reasonably warrant the belief that criminal activity is afoot. These brief investigatory stops are not considered to be arrests." 1 Wasserbly, Pennsylvania Criminal Practice S6.01 (1991). "A policeman who lacks the requisite level of information for probable cause is not required to simply shrug his shoulders and allow a crime to occur or a criminal to escape." Id. S6.02. Even in the absence of probable cause, an investigating police officer may stop and briefly detain an individual, as long as the officer can point to specific and articulable N.T. 28. N.T. 24, 28. N.T. 28-29. N.T. 24. 6 NO. 94-1719 CRIMINAL TERM facts, which, in conjunction with the natural inferences derived from those facts, warrant the intrusion.33 A citizen's report of suspected criminal activity, and corroboration of the report to the extent of the suspect's discovery in the reported location, are facts which may warrant an investigatory stop, even though the investigating officer does not personally observe manifest illegal activity at the time of the stop. See Commonwealth v. Janiak, 368 Pa. Super. 626, 534 A.2d 833 (1987) (investigatory stop of suspected drunk driver based on citizen report upheld); Commonwealth v. Fry, No. 94-1080 Criminal Term (Cumberland Co.) (September 1, 1994) (same). Where additional facts tending to support a reasonable belief that criminal activity is afoot are present, the justification for an investigatory stop is correspondingly greater. "An investigative detention, of course, 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). Probable cause is "those facts and circumstances available at the time of the arrest which would justify a reasonable prudent man in the belief that a crime has been committed and that the individual arrested was the probable perpetrator." Commonwealth v. Dickerson, 3~ 1 Wasserbly, Pennsylvania Criminal Practice ~6.02 (1991). 7 NO. 94-1719 CRIMINAL TERM 468 Pa. 599, 605, 364 A.2d 677, 680 (1975). Under Section 6308 of the Vehicle Code, it is also provided as follows: (b) Authority of Police officer.- Whenever a police officer ... has articulable and reasonable grounds to suspect a violation of [the Vehicle Code], he may stop a vehicle, upon request or signal, for the purpose of checking the vehicle's registration, proof of financial responsibility, vehicle identification number or engine number or the driver's license, or to secure such other information as the officer may reasonably believe to be necessary to enforce the provisions of [the Vehicle Code]. Act of June 17, 1976, P.L. 162, §1, as amended, 75 Pa. C.S. §6308(b) (1994 Supp.); see Commonwealth v. McElroy, 428 Pa. Super. 69, 630 A.2d 35 (1993) (adoption of "articulable and reasonable grounds" standard for evaluation of propriety of traffic stop); Commonwealth v. Jumper, No. 1433 Criminal 1993 (Cumberland Co., May 18, 1994) (Hess, J.). When a lawful stop of a vehicle has been made, it is permissible for an officer to remove the occupants from the vehicle for his or her reasonable safety. Commonwealth v. Brown, Pa. Super. , A.2d __, (No. 03877 Phila. 1993) (January 25, 1995); Commonwealth v. Elliott, 376 Pa. Super. 536, 546 A.2d 654 (1988). In the present case, the hour of the night, the closed status of the Mowery business, the report of a neighbor of suspicious persons at the site in a pickup truck, the discovery of the truck 8 NO. 94-1719 CRIMINAL TERM in front of the premises with its lights out, its sudden departure as police approached, and its use of a deceptive turn signal, execution of a shortcut through private property, crossing of a curb and rapid acceleration constituted specific and articulable facts reasonably warranting a belief that criminal activity was afoot, and justifying the initiation of an investigatory stop by Officer Day and Detective Fones. The stop was also defensible under Section 6308 of the Vehicle Code.34 In view of the information known to police about the occupants, consisting of the foregoing events and the drug history of two of them,3s the precautionary instruction that they remove themselves from the vehicle was also permissible. Consent search of vehicle. 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. 459, 468-69 (1994), citing Commonwealth v. Jackson, 428 Pa. Super. 246, 630 A.2d 1231 (1993), appeal denied, 428 Pa. 246, 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). ~ See, e.g., Act of June 17, 1976, P.L. 162, ~1, 75 Pa. C.S. ~3334 (turning movements and required signals). 3~ The Pennsylvania Superior Court has "join[ed] the growing number of courts who have taken judicial notice of the fact that drug dealers are likely to be armed and dangerous." Commonwealth v. Patterson, 405 Pa. Super. 17, 22, 591 A.2d 1075, 1078 (1991). 9 NO. 94-1719 CRIMINAL TERM On the other hand, where a driver of a vehicle is being lawfully detained and he or she voluntarily, knowingly and intelligently consents to a search of the vehicle, a warrantless search is not unlawful. Commonwealth v. Elliott, 376 Pa. Super. 536, 546 A.2d 654 (1988); see Commonwealth v. Walsh, 314 Pa. Super. 65, 460 A.2d 767 (1983). "The question of whether an arrested individual has voluntarily consented to a search 'is one of fact which must be determined in each case from the totality of the circumstances.'" Commonwealth v. Elliott, 376 Pa. Super. 536, 553, 546 A.2d 654, 662 (1988), quoting Commonwealth v. Walsh, 314 Pa. Super. 65, 74, 460 A.2d 767, 771 (1983). In this case, the Defendant was the driver of the vehicle, was being lawfully detained, was not physically restrained or under arrest, was not threatened or coerced, was apprised of the circumstances which had occasioned the stop of the vehicle, and, when asked whether he would permit a search of the vehicle, told the officer without equivocation to go ahead, because he had nothing to hide. Under the totality of the circumstances, the court believes that Defendant's consent was voluntary, knowing, intelligent and effective. Seizure of druqs on Defendant's person. As a general rule, a search of one's person incident to a lawful arrest is a permissible undertaking by police. See Commonwealth v. Kendall, __ Pa. Super. , 649 A.2d 695 (1994). It is also the rule that a search 10 NO. 94-1719 CRIMINAL TERM 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). In this case, the discovery of marijuana above the driver's seat where Defendant had been sitting, in combination with the other known events of the evening, justified a reasonable belief by police that a crime had been committed and that Defendant was the probable perpetrator. This probable cause warranted Defendant's arrest, and rendered permissible a search of his person immediately prior thereto, as well as a search subsequent to and incident to the arrest, for drugs or weapons. For these reasons, the Defendant's omnibus pretrial motion in the form of a motion to suppress was denied. Hon. Edgar B. Bayley Alison Taylor, Esq. Sr. Assistant District Attorney Ellen K. Barry, Esq. First Assistant Public Defender 11