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HomeMy WebLinkAboutCP-21-CR-0003219-2011 COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : v. : : : JON PATRICK HERDMAN : OTN: L666946-0 : CP-21-CR-3219-2011 IN RE: OMNIBUS PRE-TRIAL MOTION BEFORE HESS, P.J. OPINION and ORDER Before the Court is Defendant’s Omnibus Pre-trial Motion in the nature of a Motion to Suppress physical evidence and statements. (Defendant’s Omnibus Pre-Trial Motion, filed Aug. 13, 2012). Subsequent to a traffic stop, Defendant was charged with the following: at Count I: Unlawful Possession of a Schedule II Controlled Substance – Cocaine, a violation of 35 P.S. § 780-113(a)(16); at Count II: False Identification to Law Enforcement Authorities, a violation of 18 Pa.C.S.A. § 4914; and at Count III: Driving While Operating Privilege is Suspended or nd Revoked (2 or Subsequent), a violation of 75 Pa.C.S.A. §§ 1543(a) and 6503. (Information, filed Jan. 18, 2012). Defendant has filed a suppression motion asserting that the officer who effectuated the traffic stop of his vehicle lacked both the requisite reasonable suspicion and/or probable cause needed to stop him, in violation of Defendant’s rights under the Fourth and Fourteenth Amendments to the United States Constitution, as well as his rights found in Article I, Section 8 of the Constitution of this Commonwealth. As a result, Defendant requests that all evidence obtained as a result of the traffic stop, detention, and search be suppressed. For the reasons that follow, Defendant’s Motion will be granted. A suppression hearing was held on September 11, 2012, at which the Commonwealth presented the testimony of North Middleton Township Police Officer Matthew Johnston (hereinafter “Ptl. Johnston”). Defendant did not present any witnesses. The testimony and cross-examination of Ptl. Johnston established the following: On October 28, 2011, at approximately 10:45 p.m., Ptl. Johnston was returning from a call concerning a fatal motorcycle accident on Route 74 when he received a dispatch notifying him of an active robbery that was occurring at the Hess Express gas station and convenience store located on North Hanover Street in Carlisle, Pennsylvania. (Notes of Testimony, 5-6, In Re: Omnibus Pretrial Motion, Sep. 11, 2012 (hereinafter “N.T. __”)). At that time, Ptl. Johnston was under the impression that, of the two patrol officers on duty that night, he was the closest in proximity to the Hess Express and, as a result, decided to respond in an attempt to assist. (N.T. 6). Ptl. Johnston testified that when he received the dispatch concerning the robbery, “[t]here was no description of the possible suspects. There was no mention of a vehicle. There was nothing, only that there was an active robbery in place, and that the clerk was inside of the establishment at the time.” (N.T. 6). Additionally, the officer testified that the dispatch did not contain a description of the robber or mention of a weapon. (N.T. 7). Ptl. Johnston testified that, as he continued toward the Hess Express, he turned onto Hamilton Street, “which runs perpendicular to this convenience store. And basically anybody that was coming down that road I was looking at stopping for the fact that we had no description, nothing like that, just to identify anybody that may be a possible suspect leaving the scene of a robbery.” (N.T. 7). Ptl. Johnston testified that as he travelled down Hamilton Street in the direction of the gas station, he came upon a vehicle proceeding in the opposite direction. (N.T. 8). Although to that point he had received no description of a vehicle or suspect, the officer decided to follow the vehicle in the 2 event that such information was soon to follow. In the event the vehicle contained the robbery suspects, they would not “get too far away.” (N.T. 8-9). Ptl. Johnston testified that, although in that area there were multiple roads leading in multiple directions, he had seen no other motorists or pedestrians at that time. (N.T. 9). By the time the vehicle reached the intersection of Calvary Road and the Harrisburg Pike, no further information had yet been received from dispatch. Nonetheless, the officer determined that, because that area was “well-lit,” it was in his best interest to initiate a traffic stop. This he did for reasons of officer safety and because he was in an area with few escape routes were the vehicle occupants to flee on foot. (N.T. 9). In addition, Ptl. Johnston testified that he activated his emergency lights and initiated a traffic stop of Defendant’s Pontiac sedan in order to “clearly identify the person.” (N.T. 10). The officer admitted that no motor vehicle code violations had been observed or formed the basis for the traffic stop. (N.T. 11). Ptl. Johnston testified that, according to his reports, the traffic stop of Defendant’s vehicle had been recorded by 10:45 p.m. At 10:52 p.m. a dispatch was sent out which gave a description of the robbery suspects as “two Black males.” (N.T. 13). As it turned out, Defendant was a Caucasian male and was alone inside the vehicle. Following the traffic stop, a subsequent investigation of both Defendant and the vehicle revealed the presence of cocaine, and it was later determined that Defendant had provided Ptl. Johnston with false identification. Additionally, it was further determined that Defendant’s operating privileges had previously been suspended or revoked. Initially, we note the existence of the well-established burden placed upon the Commonwealth in suppression matters to establish, by a preponderance of the evidence, that the 3 challenged evidence is admissible. Commonwealth v. Joseph, 2011 PA Super 273, 34 A.3d 855, 860 (citing Commonwealth v. Simmons, 2011 PA Super 43, 17 A.3d 399, 402). 75 Pa.C.S. § 6308(b) of the Vehicle Code is the relevant statutory provision and provides as follows: (b) Authority of police officer.-- Whenever a police officer is engaged in a systematic program of checking vehicles or drivers or has reasonable suspicion that a violation of this title is occurring or has occurred, 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 this title. 75 Pa.C.S. § 6308(b). The issue of the amount and type of cause needed for a police officer to initiate a traffic stop was recently addressed in Commonwealth v. Feczko, 2010 PA Super 239, 10 A.3d 1285. In that case, the Superior Court examined the recent changes to § 6308(b) and engaged in a thorough review of the statute’s evolution. The Superior Court provided a succinct summary of the current legal standard surrounding traffic stops, and found as follows: In light of our Supreme Court's interpretation of the current language of Section 6308(b), we are compelled to conclude that the standards concerning the quantum of cause necessary for an officer to stop a vehicle in this Commonwealth are settled; notwithstanding any prior diversity on the issue among panels of this Court. Traffic stops based on a reasonable suspicion: either of criminal activity or a violation of the Motor Vehicle Code under the authority of Section 6308(b) must serve a stated investigatory purpose. Chase, 960 A.2d at 116. In effect, the language of Section 6308(b)—“to secure such other information as the officer may reasonably believe to be necessary to enforce the provisions of this title”—is conceptually equivalent with the underlying purpose of a Terry stop. Id. (quoting 75 Pa.C.S. § 6308(b)). Mere reasonable suspicion will not justify a vehicle stop when the driver's detention cannot serve an investigatory purpose relevant to the suspected violation. In such an instance, “it is encumbent [sic] upon the officer to articulate specific facts possessed by him, at the time of the questioned stop, which would provide probable cause to believe that the vehicle or the driver was in violation of some provision of the Code.” Gleason, 785 A.2d at 989 (citation omitted). See 4 also Chase, 960 A.2d at 116 (reaffirming Gleason's probable cause standard for non-investigative detentions of suspected Vehicle Code violations). Feczko, 10 A.3d 1290-91 (emphasis original). Thus, the Superior Court delineated between those instances where reasonable suspicion alone will serve as a valid basis for a stop and those where it will not. Where there exists reasonable suspicion to believe (1) that criminal activity is afoot, or (2) that a stop will serve an investigatory purpose in determining whether there has been a violation of the vehicle code, then in those instances reasonable suspicion is the minimum quantum of cause needed to initiate a traffic stop. Id. Where a stop would serve no further investigatory purpose in relation to the suspected violation, then in those situations reasonable suspicion will not justify the detention; instead, an officer must have probable cause to believe that a violation of the vehicle code has occurred in order for a stop to be proper. Id. (see also Commonwealth v. Chase, 599 Pa. 80, 960 A.2d 108 (2008) (holding that probable cause of a Vehicle Code violation is needed for a non- investigatory stop)). In determining whether reasonable suspicion exists, the analysis is the same under both Article I, § 8 of the Pennsylvania Constitution and the Fourth Amendment to the United States Constitution. Commonwealth v. Goodwin, 561 Pa. at 351, Fn. 3; See also Commonwealth v. Leonard, 2008 Pa. Super. 127, ¶ 8, 951 A.2d 393, 396. The essence of the analysis is an objective one: whether “‘the facts available to the officer at the moment of the [intrusion] “warrant a man of reasonable caution in the belief” that the action taken was appropriate.’” Id. The analysis, similar to that of probable cause, requires an examination of the totality of the circumstances, with a lesser showing required to determine reasonable suspicion in terms of both quantity or content and reliability. Commonwealth v. Zhahir, 561 Pa. 545, 751 A.2d 1153, 1156 (2000). “The question of whether reasonable suspicion existed at the time of a detention must be 5 answered by examining the totality of the circumstances to determine whether there was a particularized and objective basis for suspecting the detainee of criminal activity.” Commonwealth v. Freeman, 563 Pa. 82, 90, 757 A.2d 903, 908 (2000) (emphasis added). Conversely, a determination of probable cause is supported where an officer is able to articulate specific facts possessed by him at the time of the questioned stop, which would lead a reasonable person to believe that it is more probable than not that a crime had been committed by the one who was stopped. Commonwealth v. Lindblom, 2004 PA Super 270, ¶ 4, 854 A.2d 604, 607; Commonwealth v. Battaglia, 2002 PA Super 209, 802 A.2d 652; Commonwealth v. Cook, 2004 PA Super 449, 865 A.2d 869. Probable cause is not a determination which requires certainty; rather, it exists “when criminality is one reasonable inference, not necessarily even the most likely inference.” Lindblom, 2004 PA Super 270, ¶ 4. (citing Commonwealth v. Stroud, 699 A.2d 1305, 1308 (Pa. Super. 1997). Applying the foregoing, we find that Ptl. Johnston had neither the reasonable suspicion nor the probable cause required by our precedents to effectuate a legitimate stop of Defendant’s vehicle. Ptl. Johnston candidly testified that at the time the vehicle stop was initiated, he had “nothing.” There was no description of the suspects whom he sought or the vehicle involved in the robbery; moreover, Ptl. Johnston was unaware of whether or not a vehicle had even been utilized in the robbery. Ptl. Johnston testified that he observed no motor vehicle violations while he followed Defendant, and that he pulled over Defendant’s vehicle purely to “identify the person” in what was a “well-lit area.” Quite simply, Ptl. Johnston had neither reasonable suspicion to believe that criminal activity was afoot, nor that a stop would serve an investigatory purpose in determining whether there had been a violation of the vehicle code. Additionally, Ptl. Johnston lacked probable cause to believe that Defendant had engaged in a violation of the 6 vehicle code or any crime at all. As a result, all evidence obtained as a result of the stop will be suppressed, and the following order will be entered: ORDER th AND NOW, this 16 day of October, 2012, upon consideration of Defendant’s Omnibus Pre-trial Motion, and following hearing, Defendant’s Motion is GRANTED, and any and all evidence obtained as a result of the stop of the Pontiac sedan on October 28, 2011 is hereby suppressed. BY THE COURT, Kevin A. Hess, P.J. Jaime Keating, Esquire First Assistant District Attorney Michael Halkias, Esquire Deputy Public Defender :rlm 7 COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : v. : : : JON PATRICK HERDMAN : OTN: L666946-0 : CP-21-CR-3219-2011 IN RE: OMNIBUS PRE-TRIAL MOTION BEFORE HESS, P.J. ORDER th AND NOW, this 16 day of October, 2012, upon consideration of Defendant’s Omnibus Pre-trial Motion, and following hearing, Defendant’s Motion is GRANTED, and any and all evidence obtained as a result of the stop of the Pontiac sedan on October 28, 2011 is hereby suppressed. BY THE COURT, Kevin A. Hess, P.J. Jaime Keating, Esquire First Assistant District Attorney Michael Halkias, Esquire Deputy Public Defender :rlm