HomeMy WebLinkAbout93-0498 CriminalCOMMONWEALTH IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
V. 498 CRIMINAL 1993
CHARGE: UNLAWFUL DELIVERY,
MANUFACTURE OR POSSESS-
ION WITH INTENT TO
DELIVER SCH. II, C.S.
SAMUEL CAMPBELL (COCAINE)
OTN: E002704-2 AFFIANT: DET. DAVID FONES
IN RE: DEFENDANT'S MOTION TO SUPPRESS
BEFORE OLER J.
ll ORDER OF COURT
AND NOW, this3 r day of August, 1993, upon consideration of the Defendant's
Motion to Suppress, and following a hearing on the motion and the submission of
briefs, the Defendant's Motion is DENIED.
BY THE COURT,
J_d�/ Wesley OleLd J
Jonathan Birbeck, Esq.
Sr. Assistant District Attorney
Charles Rector, Esq.
Attorney for Defendant
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COMMONWEALTH
V.
SAMUEL CAMPBELL
OTN: E002704-2
Oler, J.
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
498 CRIMINAL 1993
CHARGE: UNLAWFUL DELIVERY,
MANUFACTURE OR POSSESS-
ION WITH INTENT TO
DELIVER SCH. II, C.S.
• (COCAINE)
AFFIANT: DET. DAVID FONES
IN RE: DEFENDANT'S MOTION TO SUPPRESS
BEFORE OLER, J.
OPINION AND ORDER OF COURT
In the present criminal case, the Defendant is charged with possession with
intent to deliver a controlled substance (cocaine).' The Defendant has filed a motion
to suppress evidence, and a hearing was held on the matter on June 2, 1993. Based
upon the evidence presented at the hearing, the following Findings of Fact, Discussion
and Order of Court are made and entered:
FINDINGS OF FACT
1. The Defendant and moving party is Samuel Campbell,' a resident of
Brooklyn, New York, who is in this country from Jamaica on a work visa.'
2. The Defendant has been charged with possession of a controlled substance
with intent to deliver,4 as a result of an incident which occurred on the evening of
1 Act of April 14, 1972, P.L. 233, §13, as amended, 35 P.S. §780-113.
2 Commonwealth u. Campbell, No. 498 Criminal 1993, Suppression Hearing, June 2, 1993,
N.T. 8 (hereinafter N.T. _).
3 N.T. 14.
4 Act of April 14, 1972, P.L. 233, §13, as amended, 35 P.S. §780-113.
498 CRIMINAL 1993
March 19, 1993,5 in the 300 block of North Pitt Street in the Borough of Carlisle,
Cumberland County, Pennsylvania.'
3. At approximately 8:30 p.m. on the aforesaid date, Detective David R. Fones
of the Carlisle Borough Police Department received a phone call from an informant
indicating that there were several Jamaican males in the area of Pitt and North
Streets selling crack cocaine.'
4. During this phone call, the informant stated that one of the males was
wearing a black hooded jacket and three-quarter length tan pants, and that he
normally had gold wire -rim glasses, but was not wearing them on that evening.'
5. Over the period of between one and one and a half years, during which the
informant had been providing Detective Fones with information leading to the arrests
of other individuals for illegal drug activity, Detective Fones has come to know the
identity of the informant; he has always provided Detective Fones with reliable
information and has never provided "phony" information.'
b N.T. 4.
6 N.T. 7-8.
7 N.T. 4-5.
8 N.T. 5.
' N.T. 15-16.
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498 CRIMINAL 1993
6. After proceeding to the 200 block of North Pitt Street in an unmarked cargo,
Detective Fones, who "was displaying a badge around [his] neck,"11 observed the
Defendant wearing the clothes described by the informant and meeting with a known
and convicted drug dealer.12
7. At approximately 9:11 p.m. on the aforesaid date, Detective Fones received
another phone call from the informant, indicating that he had seen the Defendant
make a drug transaction in the area."
8. Detective Fones then observed the Defendant walking north on Pitt Street;
the Defendant was wearing a black hooded three-quarter length jacket and tan pants
and had his hands in his pockets. 14
9. Detective Fones stopped his vehicle, and while he was exiting therefrom the
Defendant removed his hands from his pockets, looked at Detective Fones, and then
put his hands back into his pockets."
10. Upon approaching the Defendant, Detective Fones asked the Defendant for
identification; at that time, the Defendant produced a New York driver's license, and
to N.T. 6.
11 N.T. 8.
12 N.T. 6.
13 N.T. 6-7.
14 N.T. 7.
15 N.T. 8.
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498 CRIMINAL 1993
Detective Fones identified himself as a police officer.18
11. Detective Strine, an officer of the Carlisle Borough Police Department, then
arrived on the scene in an unmarked carr' and wearing a police raid jacket.18
12. After Detective Strine arrived on the scene and motioned the Defendant
towards him, the Defendant, without being asked, told the police officers that they
could search him;19 this search revealed $230.00 in U.S. currency in the Defendant's
shirt pocket and Jamaican money in his wallet.20
13. After a search by a police dog of the area where the Defendant was
stopped,21 the Detectives discovered a dry plastic bag containing a white chunky
substance on top of the snow;22 the contents of this bag weighed approximately seven
grams23 and field tested positive for cocaine."
14. The Detectives put the $230.00 found in the Defendant's pocket in an
is
N.T. 8.
17
N.T. 6.
18
N.T. 8.
is
N.T. 8-9.
20
N.T. 9.
21
N.T. 9.
22
N.T. 10.
23
N.T. 12.
24
N.T. 12, 14.
H
498 CRIMINAL 1993
envelope or bag at the police station and placed a series of envelopes along the wall;
a police dog "hit on" the envelope containing the United States currency found in the
Defendant's pocket.25
15. At no time during the events on the aforesaid date did Detective Fones or
any other officer observe the Defendant appearing to engage in illegal activity.28
DISCUSSION
In the present case, the Defendant is seeking suppression of the money taken
from his shirt pocket, the plastic bag allegedly containing crack cocaine, and any
statements which the Defendant made to the police. In seeking this relief, the
Defendant contends the following: (1) that the Defendant was not seen engaging in
suspicious or criminal activity; (2) that the information received from the informant
was unreliable and vague; (3) that the police lacked probable cause or reasonable
suspicion to stop the Defendant; and (4) that there was no evidence connecting the
Defendant to the cocaine found in the snow. These issues will be discussed seriatim.
Statement of the law. In examining the propriety of a police officer's conduct
which is the subject of a suppression motion of the present type, the court must make
"two separate inquiries: 1) the legality of the initial stop; and 2) the propriety of the
officers' subsequent actions." Commonwealth v. Smith, 396 Pa. Super. 6, 10, 577 A.2d
25 N.T. 13-14.
26 N.T. 27.
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498 CRIMINAL 1993
1387, 1388 (1990), allocatur denied, 527 Pa. 610, 590 A.2d 296 (1991). If the Court
finds that the initial stop by the police officer was illegal, all evidence stemming
therefrom is to be suppressed.
With respect to the legality of the police officer's initial stop of a suspect, it has
been noted that "[a] police encounter with a suspect may properly be characterized as
a mere encounter, an investigative detention, a custodial detention, or a formal arrest."
Commonwealth v. Douglass, 372 Pa. Super. 227, 238, 539 A.2d 412, 417, allocatur
denied, 520 Pa. 595, 552 A.2d 250 (1988). "A `mere encounter' (or request for
information) need not be supported by any level of suspicion, but it carries no official
compulsion to stop or respond.... An `investigative detention' must be supported by
reasonable suspicion; it subjects the suspect to a stop and a period of detention, but
does not involve such coercive conditions as to constitute the functional equivalent of
arrest." Id. at 238-39, 539 A.2d at 417-18. Moreover, "Wo justify an initial stop, a
police officer must rely on specific and articulable facts, which if taken together with
rational inferences from those facts, reasonably warrant that intrusion."
Commonwealth v. Smith, 396 Pa. Super. 6, 10, 577 A.2d 1387, 1388 (1990), allocatur
denied, 527 Pa. 610, 590 A.2d 296 (1991).
With respect to whether a police officer possesses reasonable suspicion
warranting an investigatory stop of a suspect, it has been held by the United States
Supreme Court that, under the totality of circumstances, an anonymous tip, which has
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498 CRIMINAL 1993
been sufficiently corroborated and which exhibits sufficient indicia of reliability, can
justify an investigatory stop of a defendant. Alabama v. White, 496 U.S. 325, 110 S.
Ct. 2412, 110 L. Ed. 2d. 301 (1983). Similarly, the courts of Pennsylvania have held
that information received from a confidential informant, when verified by facts
obtained via a police officer's independent investigation, may provide a sufficient basis
for an investigatory stop. See Commonwealth v. Smith, 396 Pa. Super. 6, 577 A.2d
1387 (1990), allocatur denied, 527 Pa. 610, 590 A.2d 296 (1991); Commonwealth v.
Crawford, 42 Cumb. L.J. 162 (1991).
In the event that the officer's initial stop is found to be legal, the next step in
the court's analysis is to examine the propriety of the off'icer's actions subsequent to
that stop. In this regard, "an investigative detention must be temporary and last no
longer than is necessary to effectuate the purpose of the stop." Florida v. Royer, 460
U.S. 491, 500, 103 S. Ct. 1319, 1325, 75 L. Ed. 2d. 229, 238 (1983). Moreover, "the
investigative methods employed should be the least intrusive means reasonably
available to verify or dispel the officer's suspicion in a short period of time." Id.
Absent consent by the suspect, if such methods entail a search of the suspect incident
to the stop, this search must be reasonable and limited in scope to a precautionary
search of the suspect for possible concealed weapons. Terry v. Ohio, 392 U.S. 1, 88 S.
Ct. 1868, 20 L. Ed. 2d. 889 (1968); see also Commonwealth v. Cavalieri, 336 Pa. Super.
252, 485 A.2d 790 (1984).
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498 CRIMINAL 1993
On the other hand, if the suspect gives consent to be searched by the police
officer, "[s]o long as the consent is voluntarily given and the person consenting has
authority to consent, a warrantless search is proper." Commonwealth v. Elliot, 376 Pa.
Super. 536, 553, 546 A.2d 654, 662 (1988), allocatur denied, 521 Pa. 617, 557 A.2d 721
(1989). Furthermore, if the suspect gives voluntary consent while being justifiably
detained on reasonable suspicion, the evidence obtained via this search will be
admissible. See Florida v. Royer, 460 U.S. 491, 497, 103 S. Ct. 1319, 1323-24, 75 L.
Ed. 2d. 229, 239 (1983).
With respect to abandoned property, it is well settled in Pennsylvania that such
property "may be obtained and used for evidentiary purposes by the police. The
evidence must be suppressed only if the abandonment has been coerced by unlawful
police action." Commonwealth v. Williams, 269 Pa. Super. 544, 547, 410 A.2d 8351
836 (1979) (emphasis added). In this regard, it has been held by the Pennsylvania
Supreme Court that, if "[t]he causative factor in the abandonment [of the property] ...
was the unlawful and coercive action of the police," then this property shall be deemed
inadmissible. Commonwealth v. Jeffries, 454 Pa. 320, 327, 311 A.2d 914, 918 (1973).
On the other hand, if the property is abandoned by a defendant "before any active,
unlawful, or improper police conduct focusing on [the defendant] took place," then such
property will not be suppressed. Commonwealth v. Hall, 240 Pa. Super. 89, 91-92, 367
A.2d 724, 725 (1975), affirmed, 475 Pa. 482, 380 A.2d 1238 (1977).
498 CRIMINAL 1993
Application of law to facts. In the present case, this Court is of the opinion that
Detective Fones' initial stop of the Defendant was legal. Detective Fones had received
information from a confidential informant whose identity was known to Detective
Fones and who had provided reliable information to him in the past. Moreover,
Detective Fones proceeded to the area in which the informant had indicated that the
Defendant was engaged in illegal drug activity. Once there, Detective Fones observed
the Defendant wearing the clothing described by the informant and observed the
Defendant meeting with a known and convicted drug dealer. Under the holding of
Alabama v. White, the totality of the circumstances indicates that the tip had been
sufficiently corroborated and exhibited sufficient indicia of reliability to provide
Detective Fones with the reasonable suspicion necessary to support the investigatory
stop of the Defendant.
Additionally, this Court is also of the opinion that the Defendant's consent to
be searched by Detective Fones and Detective Strine was voluntarily given. Without
being asked by the police officers, the Defendant indicated that the police officers could
search him because he did not have any drugs on him.Z7 Since the Defendant
voluntarily consented to a search while being justifiably detained on reasonable
suspicion, the money found in his shirt pocket should not be suppressed.
Finally, with respect to the bag of cocaine found on top of the snow within
27 N.T. 8-9.
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498 -CRIMINAL 1993
twelve inches of where the Defendant was stopped, there is no indication in the record
that such evidence was the result of unlawful police coercion. As indicated above,
Detective Fones possessed reasonable suspicion to justify an investigatory stop of the
Defendant. Moreover, the Defendant allegedly discarded the plastic bag before
Detective Fones exited his police car and approached the Defendant. Given the time
at which, and circumstances under which, the plastic bag was allegedly abandoned by
the Defendant, this Court cannot say that such abandonment was the result of an
unlawful stop. Consequently, the Defendant's motion to suppress the plastic bag must
also be denied.28
ORDER OF COURT
AND NOW, this day of August, 1993, upon consideration of the Defendant's
Motion to Suppress, and following a hearing on the motion and the submission of
briefs, the Defendant's Motion is DENIED.
BY THE COURT,
s/ J. Wesley Oler, Jr
J. Wesley Oler, Jr. J.
28 The alleged lack of connection of the item with Defendant is a trial matter, relating to
the Defendant's guilt or innocence, as opposed to a suppression issue.
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498 CRIMINAL 1993
Jonathan Birbeck, Esq.
Sr. Assistant District Attorney
Charles Rector, Esq.
Attorney for Defendant
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