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HomeMy WebLinkAbout92-1904 CriminalCOMMONWEALTH IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 1904 CRIMINAL 1992 CHARGES: (A) RECKLESSLY �• ENDANGERING ANOTHER PERSON (B) FIREARMS NOT TO BE CARRIED WITHOUT A LICENSE (C) POSSESSING DERRICK LEE SMITH INSTRUMENTS OF CRIME AFFIANT: DET. RIC OTN: E007588_HARD KILLI ER 5 IN RE: DEFENDANT'S MOTION TO SUPPRESS BEFORE OLER J. ORDER OF COURT AND NOW, thisAy of May, 1993, upon consideration of Defendants Motion To Suppress, and following a hearing, the Defendant's Motion is DENIED. BY THE COURT, Wesley Oler, J. Thomas A. Placey, Esq. Assistant District Attorney H. Anthony Adams, Esq. Assistant Public Defender :re COMMONWEALTH V. DERRICK LEE SMITH OTN: E007588-5 Oler, J. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 1904 CRIMINAL 1992 CHARGES: (A) RECKLESSLY ENDANGERING ANOTHER PERSON (B) FIREARMS NOT TO BE CARRIED WITHOUT A LICENSE (C) POSSESSING INSTRUMENTS OF CRIME AFFIANT: DET. RICHARD KILLINGER IN RE: DEFENDANT'S MOTION TO SUPPRESS BEFORE OLER, J. OPINION AND ORDER OF COURT In this criminal case in which the Defendant is charged with recklessly endangering,' carrying a firearm without a license,2 and possession of instruments of crime,' Defendant has filed a motion to suppress. The motion is based upon allegedly unlawful searches of Defendant's person, automobile, and briefcase within the automobile. A hearing was held on the motion on Thursday, April 1, 1993, at which time all of the evidence was presented by the Commonwealth. Based upon this evidence, the following Findings of Fact, Discussion and Order of Court are made and entered: ' Act of December 6, 1972, P.L. 1482, §1, 18 Pa. C.S. §2705. 2 Act of December 6, 1972, P.L. 1482, §1, as amended, 18 Pa. C.S. §6106 (Main vol. & 1992 Supp.). 3 Act of December 6, 1972, P.L. 1482, §1, 18 Pa. C.S. §907. No. 1904 Criminal 1992 FINDINGS OF FACT 1. The Defendant and moving party is Derrick Lee Smith. 2. At about 2:30 a.m. on Sunday, October 11, 1992, the Mid -Cumberland Valley Police Department received a report of a fight involving a person with a gun in an alley known as Shamar Avenue, which runs perpendicular to, and between, Burd Street and Fort Street, in the Borough of Shippensburg, Cumberland County, Pennsylvania. 3. Upon arriving at the scene, Police Officer Gregory Scott Martin of the aforesaid Department found a crowd in the area and was told that a man had been waving a gun and had departed in a white or silver Volvo or Nissan automobile with a white license plate bearing the number AA4190. 4. At this time, the individual was spotted on Shamar Avenue returning on foot to the scene, and he was stopped by Officer Lingle and Detective Killinger of the said Department; Officer Martin meanwhile proceeded on foot to search for the vehicle and to determine whether the gun had been disposed of in the vicinity. 5. Defendant, who was given a pat -down search that yielded a set of keys, was placed in a police car at the scene on Shamar Avenue. 6. About 100 yards from the scene on Shamar Avenue, Officer Martin located the vehicle, parked on Fort Street; it had a white Florida license plate bearing the 2 No. 1904 Criminal 1992 number reported to police. 7. Officer Martin opened the unlocked driver's side door of the vehicle, observed a loaded ammunition clip for a 9mm gun in the map pouch on the door, and took possession of the clip. 8. Officer Martin observed a trunk latch in the vehicle, and popped open the trunk by pulling it. 9. Other officers, who had arrived at the vehicle, found a certain box and a closed briefcase inside the trunk. 10. Police opened the briefcase and found a 9mm Rugar gun, with which the aforesaid clip was compatible, inside. 11. The box found was the original box for the gun. 12. The gun had been found within about fifteen minutes of Officer Martin's arrival at the scene of the fight on Shamar Avenue. 13. No search warrant was obtained for a search of the vehicle. 14. Defendant did not give consent for a search of the vehicle. 15. Defendant was not at the vehicle when it was located and searched. 16. Upon Officer Martin's return to the scene on Shamar Avenue, Defendant was formally told he was under arrest. DISCUSSION Statement of the law. With respect to the alleged unlawful search of 3 No. 1904 Criminal 1992 Defendant's person, it should be noted that "[o]ne of the exceptions to the constitutional rule that a search warrant is required before a search is that the police may properly search a person who is lawfully arrested, if the search is incidental to and part of the arrest." Commonwealth v. Harris, 429 Pa. 215, 218, 239 A.2d 290, 291 (1990), citing Preston v. United States, 376 U.S. 364, 84 S. Ct. 881, 11 L. Ed. 2d 777 (1964). A warrantless search incident to an arrest is said to be justified "by the need to seize weapons and other things which might be used to assault an officer or effect an escape, as well as by the need to prevent the destruction of the evidence of the crime...." Preston v. United States, 376 U.S. 364, 367, 84 S. Ct. 881, 883, 11 L. Ed. 2d 777, 780 (1964). The warrantless search exception is qualified, however, in that a search can be incident to an arrest 'only if it is substantially contemporaneous with the arrest and confined to the immediate vicinity of the arrest." Commonwealth v. Harris, 429 Pa. 215, 218, 239 A.2d 290, 292 (1990). Moreover, "[t]o be constitutionally valid, a warrantless arrest must be based on probable cause." Commonwealth v. Bynum, 265 Pa. Super. 13, 16, 401 A.2d 776, 777 (1979). The law with respect to these two limitations will be addressed seriatim. "The test for the occurrence of an arrest has often been defined as the happening of any act that indicates an intention to take the individual into custody and subjects him to the actual control and will of the person making the arrest." ' U.S. Const. amend. IV; Pa. Const. Art. I, §8. 4 No. 1904 Criminal 1992 Commonwealth v. Benson, 280 Pa. Super. 20, 27, 421 A.2d 383, 386 (1980) (citations omitted). Consequently, "[a]n arrest may thus be effectuated without the actual use of force and without a formal statement of arrest." Id. The question as to whether an arrest has occurred is to be "viewed in light of the reasonable impression conveyed to the person subjected to the seizure rather than in terms of the subjective view of the police officer." Id. With respect to the issue of probable cause in the context of a warrantless arrest, it should be noted that the "totality of the circumstances" analysis of Illinois v. Gates, 462 U.S. 213, 103 S. Ct. 2317, 76 L. Ed. 2d 257 (1983), has been adopted in the Commonwealth of Pennsylvania.' "In utilizing the Gates approach as it applies to a warrantless arrest, a police officer must make a practical common sense decision whether, given all of the circumstances known to him at that time, including hearsay information, there is a fair probability that a crime was committed and that the suspect committed the crime." Commonwealth v. Butler, 354 Pa. Super. 533, 537-538, 512 A.2d 6671 669-670 (1986). It has been further stated that the probable cause test is not the equivalent of proof beyond a reasonable doubt but one of probabilities, not certainties. Commonwealth v. Dickerson, 468 Pa. 599, 605, 364 A.2d 677, 681 (1976). With respect to searches of items such as Defendant's automobile and briefcase, we note that searches and seizures conducted outside of the judicial process, without 5 See Commonwealth v. Gray, 509 Pa. 476, 503 A.2d 921 (1985). No. 1904 Criminal 1992 prior approval by a magistrate, have generally been held to be unreasonable under the Fourth Amendment.' A well-established exception to the warrant requirement exists in regard to "certain automobile searches based on the inherent mobility of vehicles, with the consequent practical problems in obtaining a warrant prior to infringing a legitimate expectation of privacy, and on the `diminished expectation of privacy which is accorded automobiles because of their open construction, their function, and their subjection to a myriad of state regulations."' Commonwealth v. Milyak, 508 Pa. 2, 7-8, 493 A.2d 1346, 1349 (1985). A warrantless search of a vehicle is said to be justified where a police officer has independent probable cause to believe that evidence of a crime is concealed within the vehicle. Commonwealth v. Lewis, 442 Pa. 98, 275 A.2d 51 (1971). The scope of a warrantless search of a vehicle is as broad as a magistrate could authorize in a warrant specifically describing the place to be searched. United States v. Ross, 456 U.S. 798, 102 S. Ct. 3079, 73 L. Ed. 2d 750 (1982). Moreover, once the requirement of probable cause is satisfied, the exigencies regarding the inherent mobility of a vehicle and inadequate time to obtain a search warrant render a warrantless vehicle search proper even when the accused is in police custody. Commonwealth v. Baker, 518 Pa. 145, 541 A.2d 1381(1988); Commonwealth v. Milyak, 508 Pa. 2, 493 A.2d 1346 (1985). "This same probable cause also justifies the search of every part of the vehicle and its contents that could conceal the object of the search." ' See Katz v. United States, 389 U.S. 347, 357, 88 S. Ct. 507, 514, 19 L. Ed. 2d 576, 585 (1967). W No. 1904 Criminal 1992 Commonwealth v. Elliot, 416 Pa. Super. 499, 504, 611 A.2d 7271 729 (1992). It should be noted that the factual situation in Commonwealth v. Baker, 518 Pa. 145, 541 A.2d 1381 (1988) is similar to the facts presented in the instant case. In Baker, an informant notified police that the defendant had been waving a gun at another individual in an alley. Id. at 147, 541 A.2d at 1382. The informant "described the vehicle [that the defendant] was driving as an old beat -up red convertible with the top down." Id. Moments later, the police located the defendant sitting in a red convertible in a nearby parking area. Id. Additional officers were summoned while the police maintained surveillance of the defendant. Id. Before additional officers arrived on the scene, the defendant drove off and police lost sight of the vehicle. Id. The vehicle was subsequently located in a Salvation Army parking lot, "not far from where it had been parked before." Id. The officers "maintained surveillance for ten to fifteen minutes while [the defendant] was seen sitting on some steps near the automobile, and then approached and stopped [the defendant after he] re-entered the vehicle and began to back out of the parking space." Id. A warrantless search of the defendant's vehicle resulted in the recovery of a revolver from underneath the driver's seat and a machete from the passenger side of the vehicle. Id. at 148, 541 A.2d at 1383. It is noteworthy in the Baker case that the total elapsed time from the informant's tip until the defendant's arrest was approximately thirty minutes. Id. In affirming the Superior Court's holding that the revolver constituted 7 No. 1904 Criminal 1992 admissible evidence, our Supreme Court "relied upon the presence of probable cause and exigent circumstances to excuse the need for a warrant." Id. The Court further held that an alternative to an immediate search of the defendant's vehicle would have been to immobilize the vehicle and obtain a warrant. Id. at 149, 541 A.2d at 1383. The Court also noted, however, that immobilization was, in fact, an alternative and not a requirement. Id. Application of law to facts. In the instant case, Police Officer Gregory Martin of the Mid -Cumberland Valley Police Department responded to a report of a fight involving an individual with a gun and was informed by witnesses that the individual had departed in a white or silver Volvo or Nissan automobile with a white license plate bearing the number AA4190. Moments later, the Defendant was spotted returning to the scene on foot and was stopped by Officer Lingle and Detective Killinger. The Defendant was given a pat -down search that yielded a set of keys and placed in a police car. Based upon the foregoing authority, the information available to the officers on the scene, and the actions taken by the officers, the Court finds that the Defendant was under arrest upon his return to the scene, that the police officers possessed probable cause to arrest the Defendant without a warrant, and that the pat -down search was a lawful search incident to a lawful arrest. With respect to the search of the Defendant's vehicle and briefcase contained therein, which yielded a loaded ammunition clip for a 9mm pistol in the map pouch of 1.1 No. 1904 Criminal 1992 the driver's side door and a 9mm Rugar pistol in a briefcase in the trunk, we find that a warrantless search of the vehicle was justified based upon the following circumstances: (1) the amount of time which had elapsed between the incident and location of the Defendant's vehicle; (2) the fact that the police did not recover the pistol from the Defendant; (3) the description of the Defendant's vehicle given to police officers by witnesses, which included the license plate number; (4) the inherent mobility of automobiles;' and (5) the proximity of the Defendant's vehicle to the scene of the crime. Consequently, we find that the warrantless search of the Defendant's vehicle, which yielded a loaded ammunition clip for a 9mm pistol and a 9mm pistol, was lawful. Based upon the foregoing authority, the following Order will be entered: ORDER OF COURT AND NOW, thisAay of May, 1993, upon consideration of Defendant's Motion To Suppress, and following a hearing, the Defendant's Motion is DENIED. BY THE COURT, 'a J. Wesley Oler, Jr. V J. � ' The fact that the Defendant was in custody at the time his vehicle was located and searched does not extinguish the exigencies regarding the inherent mobility of vehicles, nor does it prohibit police officers from conducting a warrantless search if probable cause has been established. Commonwealth v. Baker, 518 Pa. 145, 149, 541 A.2d 1381, 1383 (1988); Commonwealth v. Milyak, 508 Pa. 2, 493 A.2d 1346 (1985). 7 No. 1904 Criminal 1992 Thomas A. Placey, Esq. Assistant District Attorney H. Anthony Adams, Esq. Assistant Public Defender : rc 10