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HomeMy WebLinkAbout93-1332 Criminal COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : 1322 CRIMINAL 1993 : CHARGES: (A) UNLAWFUL POSSESSION v. : OF SCH. I, C.S.; : (B) UNLAWFUL POSSESSION : OF DRUG PARAPHERNALIA; : (C) UNLAWFUL DELIVERY, : MANUFACTURE OR POSSESSION : WITH INTENT TO DELIVER : SCH. I, C.S. PHILLIP L. LEIUS : OTN: (A-B) E-0037612 : (C) E-0037995 IN RE: DEFENDANT'S MOTION TO SUPPRESS EVIDENCE BEFORE OLER, J. ORDER OF COURT AND NOW, this ~ ~ day of September, 1994, upon consideration of Defendant's Motion To Suppress Evidence and for the reasons stated in the accompanying Opinion, the motion is GRANTED. Observations by police, inculpatory statements of Defendant, and physical evidence seized by police in connection with the second period of detention referred to in this Opinion are SUPPRESSED. BY THE COURT, J.~Wesley 01~, Jr., 'Jl Jonathan R. Birbeck, Esq. Sr. Assistant District Attorney Gary Lysaght, Esq. Attorney for Defendant :rc COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : 1322 CRIMINAL 1993 : CHARGES: (A) UNLAWFUL POSSESSION : OF SCH. I, C.S.; : (B) UNLAWFUL POSSESSION v. : OF DRUG PARAPHERNALIA; : (C) UNLAWFUL DELIVERY, : MANUFACTURE OR POSSESSION : WITH INTENT TO DELIVER : SCH. I, C.S. PHILLIP L. LEIUS : OTN: (A-B) E-0037612 : (C) E-0037995 IN RE: DEFENDANT'S MOTION TO SUPPRESS EVIDENCE BEFORE OLER, J. OPINION and ORDER OF COURT Oler, J. In the present Controlled Substance, Drug, Device and Cosmetic Act case involving charges of possession of marihuana,~ possession of marihuana with intent to deliver,2 and possession of drug paraphernalia,3 Defendant has filed a Motion To Suppress Evidence.4 The motion is based upon an allegedly excessive prolongation of a traffic stop.5 A hearing on the motion was held on Friday, June 3, 1994, and Thursday, July 28, 1994. For the reasons stated in this Opinion, the motion will be granted. ~ Act of April 14, 1972, P.L. 233, §13(a)(16), 35 P.S. §780- 113(a)(16). ~ Id., S13(a)(30), 35 P.S. §780-113(a)(30). Id., ~13(a)(32), as added, 35 P.S. ~780-113(a)(32). Defendant's Motion To Suppress Evidence, filed March 23, 1994. Id., paragraphs 6-7. 1322 CRIMINAL 1993 FINDINGS OF FACT 1. Defendant and moving party is Phillip Lance Leius, an adult individual residing in Ohio at the time of the incident in question but living at 3409 Anchor Street, Alexandria, Virginia, at the time of the hearing herein.6 2. On Thursday, August 5, 1993,? Defendant was driving a Buick automobile which he owned in an eastwardly direction on the Pennsylvania Turnpike;8 he was going to visit his sister in Philadelphia.9 3. Defendant did not have any passengers in his vehicle.~° 4. Defendant's vehicle was a fairly new automobile which he had recently rebuilt; however, it lacked some chrome and "a few other odds and ends" and, as Defendant conceded, may have looked somewhat "screwy.,,~ 5. Defendant's vehicle had temporary Ohio license plates on 6 Hearing on Defendant's Motion To Suppress Evidence, July 28, 1994, N.T. 2 [hereinafter N.T. (July 28, 1994)]; Hearing on Defendant's Motion To Suppress Evidence, June 3, 1994, N.T. 7 [hereinafter N.T. (June 3, 1994)]. N.T. 5 (June 3, 1994). N.T. 3 (July 28, 1994); N.T. 23 (June 3, 1994). N.T. 11 (July 28, 1994). N.T. 13 (July 28, 1994). N.T. 14 (July 28, 1994). 2 1322 CRIMINAL 1993 it;~2 Defendant had recently purchased this car from his family's business in Ohio and he had a temporary registration certificate for it.~3 6. Prior to entering Cumberland County, Defendant found that he needed to use a restroom; however, he had to bypass one of the plaza areas due to a disabled vehicle on the entrance ramp.TM 7. At 5:55 p.m., as Defendant passed milepost 218 on the Turnpike in Cumberland County, approaching the Plainfield plaza at which he intended to stop, he was speeding at the rate of 69 miles per hour in a 55-mile-per-hour zone.~5 8. At the said milepost, a Pennsylvania state trooper was positioned in an unmarked police car, in uniform, monitoring eastbound traffic with a radar unit.~ 9. The trooper pursued Defendant into the Plaza parking area, where Defendant parked.~7 10. As Defendant started to get out of his car to go to the ~2 N.T. 16-17 (June 3, 1994); N.T. 7 (July 28, 1994). N.T. 4, 7 (July 28, 1994). N.T. 20 (July 28, 1994). N.T. 5-7, 14 (June 3, 1994); N.T. 7-8, 20 (July 28, 1994). N.T. 5-6 (June 3, 1994). N.T. 6 (June 3, 1994). The trooper testified that he activated his flashing lights to effect the traffic stop. N.T. 14 (June 3, 1994). Defendant testified that he had parked before realizing that a police car was behind him. N.T. 13 (July 28 1994). ' 3 1322 CRIMINAL 1993 bathroom, the trooper told him to get back in his car and Defendant complied.TM 11. The trooper approached Defendant's car, asked Defendant for his driver's license and registration, and received them from Defendant.~9 12. The trooper returned to his car and attempted to check the validity of the registration and license by way of police radio.2° 13. The trooper did not receive registration information in response to his radio inquiry; he returned to Defendant's car and proceeded to ask questions about the vehicle and check the Vehicle Identification Number.2~ 14. Defendant was detained for more than fifteen minutes, during which time he asked the trooper a number of times if he could go to the bathroom.2~ 15. In the absence of the information he had requested, the trooper felt that he did not have a basis to detain Defendant further; accordingly, he issued a written warning to Defendant N.T. 13 (July 28, 1994). N.T. 13 (July 28, 1994); N.T. 7 (June 3, 1994). N.T. 13 (July 28, 1994); Defendant actually had driver's licenses from two states - Ohio and Georgia. N.T. 7 (June 3, 1994). ~ N.T. 15-16 (June 3, 1994); N.T. 13-14 (July 28, 1994). 2~ N.T. 19-21 (June 3, 1994); N.T. 8 (July 28, 1994). 4 1322 CRIMINAL 1993 regarding his speeding and allowed him to leave for the bathroom.23 16. At this point, the trooper regarded his "interaction with Mr. Leius [to be] over";24 Defendant, on the other hand, "wasn't really sure.''25 17. Defendant went into the plaza facility to use the restroom.26 18. Defendant remained in the facility for a brief period only.27 19. While Defendant was in the plaza facility, the trooper received confirmation by way of the police radio of the validity of Defendant's driver's license information;28 he was also told that Defendant had a "criminal record, .... criminal background," or "criminal history," without further specification.29 20. According to the trooper, he drove around the plaza and returned to a vicinity "near [Defendant's] vehicle.-3° 21. According to Defendant, the trooper "zipped up in front N.T. 20 (June 3, 1994); N.T. 17 (July 28, 1994) N.T. 8 (June 3, 1994). N.T. 17 (July 28, 1994). N.T. 5 (July 28, 1994). N.T. 16 (July 28, 1994). N.T. 8, 24 (June 3, 1994). N.T. 8, 24 (June 3, 1994). N.T. 8 (June 3, 1994). 5 1322 CRIMINAL 1993 of my car when I was getting back into it and kind of blocked me in. ,,31 22. The trooper advised Defendant "that the information that [he] received indicated there was a problem with the registration and [that he'd] like to see that .... ,,32 23. The trooper had not actually received any information regarding the registration.33 24. Defendant again produced his temporary registration, which satisfied the trooper.34 25. Nevertheless, according to the trooper, "[a]t that point in time, I was also looking in the rear of the vehicle," through the window.35 26. Defendant consented to a search by the trooper of some luggage in the back seat, but he did not consent to a search of the trunk; instead, Defendant maintained that he did not have a means of access to the trunk.36 27. The trooper went to his police car and communicated by N.T. 15 (July 28, 1994). N.T. 9 (June 3, 1994); N.T. 8 (July 28, 1994). N.T. 8 (June 3, 1994). N.T. 9 (June 3, 1994); N.T. 16 (July 28, 1994). N.T. 9 (June 3, 1994). N.T. 12 (June 3, 1994). 6 1322 CRIMINAL 1993 radio with a Pennsylvania State Police corporal.37 28. The corporal was a member of the Canine Enforcement Unit of the Bureau of Emergency and Special Operations; he was "detached to" (had an office at) the Bedford State Police Station; his geographical area of responsibility encompassed about twenty Pennsylvania counties.TM At the time of the transmission, he was a few miles away on the Turnpike.39 29. State troopers in the vicinity had been advised earlier in the day that the corporal would be in the area and would be "available if they wanted to request [his] services"; the corporal had brought his drug dog with him for this purpose.4° 30. The trooper advised the corporal that "he was at the Plainfield Plaza [and that h]e had an individual stopped there that was extremely nervous.,,4~ 31. It took the corporal about ten minutes to reach the Plainfield Plaza.42 32. He arrived at 6:53 p.m.,43 about an hour after Defendant N.T. 12 (June 3, 1994). N.T. 27, 37 (June 3, 1994). N.T. 37 (June 3, 1994). N.T. 37-38 (June 3, 1994). N.T. 36 (June 3, 1994). N.T. 28 (June 3, 1994). N.T. 28 (June 3, 1994). 7 1322 CRIMINAL 1993 had been initially detained for speeding.44 33. The corporal was in uniform45 and had his dog with him.4~ · 47 the corporal spoke with 34 With the dog still in his car, the trooper and then approached Defendant and asked to search his car. 48 35. Defendant appeared to the corporal to be "very nervous" and "fidgety.-49 35. Defendant said that they could search the interior of the car but that the trunk was not accessible.5° 36. In searching the interior of the car, the corporal "opened up the glove box, and [he] saw a trunk release button, and · .. asked [Defendant] if he would open up the trunk."5~ 37. Defendant stated that the trunk would not open and refused a request by the corporal that he "place the key into the ignition and turn it and push the [trunk release] button .... ..52 See Finding of Fact 7 supra· N.T. 36 (June 3, 1994). N.T. 30 (June 3, 1994)· N.T. 10 (July 28, 1994)· N.T. 28-29 (June 3, 1994). N.T. 29 (June 3, 1994). N.T. 29 (June 3, 1994). N.T. 29 (June 3, 1994). N.T. 29 (June 3, 1994). 8 1322 CRIMINAL 1993 38. When asked if he would permit the corporal's dog to search his vehicle, Defendant initially said that he would, but then changed his mind when told that the dog would be able to detect drugs in the trunk from the back seat.53 39. Defendant refused to sign a paper authorizing a vehicle search.54 40. The corporal eventually brought the dog from his vehicle and told Defendant that "the dog could breathe any air he wanted to and [Defendant] could not stop him from doing that.''5~ 41. Defendant apparently agreed with this observation,s~ 42. Defendant was ordered to back away from his car, because the dog was "vicious.,,sT 43. The dog circled Defendant's car several timess8 and eventually "hit" on the trunk area.s9 44. The corporal opened the trunk, using the ignition key in combination with the glove box trunk-release button.60 N.T. 30 (June 3, 1994). N.T. 10 (July 28, 1994). N.T. 10 (July 28, 1994). N.T. 31 (June 3, 1994). N.T. 11 (July 28, 1994). N.T. 11 (July 28, 1994). N.T. 32 (June 3, 1994). N.T. 32 (June 3, 1994). 9 1322 CRIMINAL 1993 45. In the trunk, the corporal found and seized marihuana and drug paraphernalia.6~ ." 46. In the course of the events related above, Defendant reasonably believed that he was not free to leave the police presence during two periods: (a) from the time of the initial approach of the trooper at the plaza until the time that Defendant was allowed to go to the restroom,62 and (b) from the time of his emergence from the facility when the Trooper told him that a problem existed with his registration through and including the time that his trunk was searched.63 STATEMENT OF LAW Constitutional proscriptions on unreasonable searches and seizures. Under the fourth amendment to the federal constitution, it is provided that "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures shall not be violated .... ..64 Under Article I of the Pennsylvania Constitution, it is provided that "[t]he people shall be secure in their persons, houses, papers and possessions from unreasonable searches and seizures .... 65 "The N.T. 32 (June 3, 1994). N.T. 15 (July 28, 1994). N.T. 10, 15, 18 (July 28, 1994). U.S. Const., amend. IV. Pa. Const., art. I, S8. 10 1322 CRIMINAL 1993 protections of individual privacy against unreasonable government searches and seizures under Article I ... of the Pennsylvania Constitution are more expansive than those afforded under the Fourth Amendment of the United States Constitution." Commonwealth v. Parker, 422 Pa. Super. 393, 399, 619 A.2d 735, 738 (1993). These constitutional provisions embody "'a precious right - hard earned and easily lost - to be free of arbitrary police intrusion on individual privacy and free movement.'" Commonwealth v. Bennett, 412 Pa. Super. 603, 624, 604 A.2d 276, 286 (1992), quoting United States v. Goodling, 695 F.2d 78, 84 (4th Cir. 1982). On a suppression motion based upon an alleged violation of this right, the Commonwealth bears the burden of proof by a preponderance of the evidence. Commonwealth v. Craig, No. 2029 Criminal 1993 (Cumberland Co. August 26, 1994) (Sheely, p.j.).66 Types of encounters with polic~. "Encounters with police may be classified as mere encounters, non-custodial detentions, custodial detentions and formal arrests." Commonwealth v. Ellis, 379 Pa. Super. 337, 354, 549 A.2d 1323, 1331 (1988).67 "The ~ Citing Pa. R. Crim. P. 323(h) and Commonwealth v. DeWitt, 530 Pa. 299, 301, 608 A.2d 1030, 1031 (1992). ~7 Non-custodial detentions "are also commonly referred to as Terry stops, traffic stops, investigatory detentions and intermediate detentions." Commonwealth v. Ellis, 379 Pa. Super. 337, 354 n.5, 549 A.2d 1323, 1331 n.5 (1988). Such detentions are "seizures" for constitutional purposes, but involve fewer constitutional protections. See Commonwealth v. Bennett, 412 Pa. Super. 603, 604 A.2d 276 (1992); Commonwealth v. Ellis, 379 Pa. Super. 337, 549 A.2d 1323 (1988). 11 1322 CRIMINAL 1993 classification of the encounter determines the applicability and scope of the constitutional protections .... " Id. Whatever classification system may be applied to police conduct, constitutional rights are implicated when a "seizure" of one's person is involved. "'An evaluation as to whether a seizure has occurred must be viewed in light of all the circumstances and whether a reasonable person would have believed he or she was free to leave.'" Commonwealth v. Jackson, 428 Pa. Super. 246, 255, 630 A.2d 1231, 1236 (1993), quoting Michigan v. Chesternut, 486 U.S. 567, 573, 108 S. Ct. 1975, 1979, 100 L. Ed. 2d 565, 572 (1988). The analysis involved is necessarily on a case-by-case basis. Commonwealth v. Bennett, 412 Pa. Super. 603, 604 A.2d 276 (1992). Factors to be considered in such an evaluation include whether police were in uniform68 and whether the person was told that he or she was free to leave.69 Investigatory stops in genera]. "[A]n 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." ~ See Commonwealth v. Queen, Pa. , 639 A.2d 443 (1994); Commonwealth v. Bennett, 412 Pa. Super. 603, 604 A.2d 276 (1992); Commonwealth v. Todd, 401 Pa. Super. 106, 584 A.2d 1002 (1991). ~ See Commonwealth v. Gumby, 398 Pa. Super. 155, 580 A.2d 1110 (1990). 12 1322 CRIMINAL 1993 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 facts, which, in conjunction with the natural inferences derived from these facts, warrant the intrusion.TM "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. Harper, 485 Pa. 572, 583, 403 A.2d 536, 542 (1979). Stops by police for Vehicle Code violations. Under Section 6308 of the Vehicle Code, it is provided that [w]henever 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 70 1Wasserbly, Pennsylvania Criminal Practice ~6.02 (1991). 13 1322 CRIMINAL 1993 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 reasonable 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.). 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. [W]hen conducting a routine traffic stop, an officer may request a driver's license and vehicle registration, run a computer check and issue a citation. Upon producing a valid driver's license and registration, the driver must be allowed to proceed on his way, without being subject to further delay by police for additional questioning. In order to justify detaining the driver for further questioning, the officer must have reasonable suspicion of illegal transactions in drugs or of any other serious crime. Commonwealth v. Lopez, 415 Pa. Super. 252, 261, 609 A.2d 177, 181- 82 (1992) (citations omitted). Articulable and reasonable grounds for detention. The fact 14 1322 CRIMINAL 1993 71 that a person may appear nervous when confronted by police, or is known to have a criminal record,72 will not normally, per se, constitute specific and articulable facts which reasonably warrant the belief that criminal activity is afoot. Nor does it seem that one's exercise of a constitutional right not to submit to a search should in itself suggest criminality. Stated succinctly, an officer who effects, prolongs or resumes an investigatory stop "must have more than a hunch." In the Interest of S.D., 429 Pa. Super. 576, 579, 633 A.2d 172, 174 (1993); see Commonwealth v. Bennett, 412 Pa. Super. 603, 622, 604 A.2d 276, 285 (1992); Commonwealth v. Espada, 364 Pa. Super. 604, 607, 528 A.2d 968, 969 (1987). A "[p]oliceman's intuition" is insufficient for such purposes. Commonwealth v. Lopez, 415 Pa. Super. 252, 262, 609 A.2d 177, 182 (1992). Taint of unlawful detention. An otherwise reasonable search may be tainted by an illegal detention. Id. at 608, 528 A.2d at 969. Similarly, consents to searches during illegal detentions have been held invalid. See, e.g., 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. ~ Commonwealth v. Jackson, 428 Pa. Super. 246, 630 A.2d 1231 (1993) (Defendant nervous when confronted, hands shaking); cf. Commonwealth v. Bennett, 412 Pa. Super. 603, 604 A.2d 276 (1992); United States v. Goodling, 695 F.2d 78 (4th Cir. 1982). 72 Commonwealth v. Parker, 422 Pa. Super. 393, 619 A.2d 735 (1993). 15 1322 CRIMINAL 1993 Super. 252, 609 A.2d 177 (1993). APPLICATION OF LAW TO FACTS In this case, the Court has found, based upon the circumstances recited above, that Defendant was subjected to two periods of investigatory detention. The first period represented a permissible traffic stop, based on articulable and reasonable grounds to suspect a violation of the Vehicle Code - namely, speeding. The second period of detention, however, was premised more on a hunch - a policeman's intuition arising out of Defendant's unknown criminal background, his perceived nervousness, and his unwillingness to cooperate in a search of his trunk. Without in any way questioning the officers' good faith, the Court does not believe that these constituted specific and articulable facts reasonably warranting the belief that criminal activity was afoot and justifying further detention of Defendant for investigatory purposes. It follows that observations made by police, inculpatory statements made by Defendant, and physical evidence seized by police in connection with this period of detention must be suppressed. ORDER OF COURT AND NOW, this ~ day of September, 1994, upon consideration of Defendant's Motion To Suppress Evidence and for the reasons stated in the accompanying Opinion, the motion is GRANTED. 16 1322 CRIMINAL 1993 Observations by police, inculpatory statements of Defendant, and physical evidence seized by police in connection with the second period of detention referred to in this Opinion are SUPPRESSED. BY THE COURT, s/ J. Wesley Oler, Jr. J. Wesley Oler, Jr., J. Jonathan R. Birbeck, Esq. Sr. Assistant District Attorney Gary Lysaght, Esq. Attorney for Defendant :rc 17