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HomeMy WebLinkAboutCP-21-CR-2920, 2921-2005 COMMONWEAL TH IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. RICHARD A. BASTO CP-21-CR-2920-2005 CP-21-CR-2921-2005 IN RE: OPINION IN SUPPORT OF ORDER DATED JUNE 16. 2006. DENYING THE MOTION OF DEFENDANT TO SUPPRESS EVIDENCE Bayley, J., July 11, 2006:-- Defendant, Richard A. Basto, is charged at CP-21-CR-2920-2005 with possession with intent to deliver schedule I, controlled substance (2 counts),1 unlawful possession of small amount of marijuana,2 unlawful possession of drug paraphernalia (2 counts),3 unlawful delivery or manufacture or possession with intent to deliver drug paraphernalia (2 counts),4 prohibited offensive weapons (2 counts),5 person not to possess, use, manufacture, control, sell or transfer firearms (2 counts),6 and firearms not to be carried without a license (2 counts).7 He is also charged at CP-21-CR-2921- 2005 with unlawful delivery or manufacture or possession with intent to deliver a 1 35 P.S. S 780-113(a)(30). 235 P.S. S 780-113(a)(31). 335 P.S. S 780-113(a)(32). 435 P.S. S 780-113(a)(33). 518 PaC.S. S 908. 618 PaC.S. S 6105. 718 PaC.S. S 6106(a)(1). CP-21-CR-2920-2005 CP-21-CR-2921-2005 schedule II, controlled substance.8 Defendant filed a motion to suppress evidence upon which a hearing was conducted on May 25, 2006. An order was entered on June 16, 2006, denying the motion. We find the following facts. On November 13,2005, at approximately 5:51 p.m., an anonymous call was made at a local pay phone to the Cumberland County 911 dispatcher. The caller stated that a house at 603 Cumberland Pointe Circle contained methamphetamine, and that there were guns in a white BMW with an Arizona license plate that was parked in front. Sergeant Andrew Parsons of the Upper Allen Police Department received the information and went to the property which is in the Cumberland Pointe Apartment Complex in Upper Allen Township, Cumberland County. He saw a white BMW with a Missouri license plate parked near the front of 602 Cumberland Pointe Circle. He made a radio check on the registration plate and the VIN on the BMW. No record was found. He and other officers then went to 603 Cumberland Pointe Circle, and made a request to the occupant to search that residence. Consent was given. A search was conducted and no contraband was found. Subsequently, another anonymous call was received. The caller stated that the wrong house had been searched, and that the intended residence was 602 Cumberland Pointe Circle. 835 P.S. S 780-113(a)(30). -2- CP-21-CR-2920-2005 CP-21-CR-2921-2005 The next day, Sergeant Parsons and Detective Thomas Kauffman were on a surveillance team assembled at the Cumberland Pointe Apartment Complex. Kauffman saw a man come out of 602 Cumberland Pointe Circle and get into the white BMW with the Missouri plate. He radioed Parsons when he saw the vehicle leave the apartment complex. Parsons saw the vehicle on Wilson Road. The window tinting prevented him from seeing inside. He stopped the vehicle because of the window tinting. The driver was Richard A. Basto. Officer Parsons told him why he had been stopped. Basto produced a temporary Missouri registration in his name, proof of valid insurance for the vehicle, and his valid Arizona driver's license. Sergeant Parsons had him get out of the vehicle while he used a measuring device to check the degree of window tint. It registered 19.5 percent of light going into the windows. Sergeant Parsons issued a warning for the summary violation. Officer Ryan Parthemore, who had arrived in another police vehicle, discovered five active warrants for Basto for summary ticket violations. Basto admitted that he had unpaid tickets in another county. Parthemore took him into custody on the warrants and transported him to a central booking center. Defendant's vehicle was on a narrow part of Wilson Road where it partly obstructed the road. Sergeant Parsons contacted a towing service and had the vehicle towed and impounded at the Upper Allen Township garage. It took Officer Parthemore approximately 20 minutes to get from Wilson Road to the booking center. Approximately five minutes later a booking agent found a bag containing several grams of methamphetamine in a sock of defendant. Detective -3- CP-21-CR-2920-2005 CP-21-CR-2921-2005 Kauffman received the information about that seizure. He and another officer then went to 602 Cumberland Pointe Circle. They talked to Sara White, a girlfriend of defendant, who was outside of the apartment. She agreed to talk to them inside No. 602, which was the apartment of her friend Wendy McCommon whom she was with. White lived with defendant at 29 Robin Court, Lower Allen Township, which was about two miles away. The officers told her that drugs had been found in defendant's possession, and they suspected that there were drugs in her house. White was a leaseholder, and she signed a consent for the search of 29 Robin Court. The officers and she went to the property where a search was conducted that resulted in the seizure of a significant quantity of illegal drugs and paraphernalia, and over thirty-seven hundred dollars in cash. Some of the drugs and paraphernalia were found in a bag hanging inside a hole in a wall, and in an area above a ceiling vent. The next day, the police obtained a search warrant for defendant's vehicle. During a search of the vehicle they recovered inter alia, contraband, drug paraphernalia and two loaded handguns. Defendant raises four issues in support of his motion to suppress evidence. We will review them separately. I. WHETHER IT IS UNLAWFUL FOR THE POLICE TO CONDUCT A TRAFFIC STOP OF A VEHICLE BEARING AN OUT-OF-STATE LICENSE PLATE FOR A WINDOW TINT VIOLATION AS A PRE-TEXTUAL BASIS FOR CONDUCTING AN INVESTIGATORY STOP OF THE VEHICLE TO ATTEMPT TO CORROBORATE -4- CP-21-CR-2920-2005 CP-21-CR-2921-2005 INFORMATION FROM AN ANONYMOUS CALLER? The anonymous tip that there were guns in a white BMW with an Arizona license plate parked in front of 603 Cumberland Pointe Circle was not sufficiently corroborated to legally justify Sergeant Parsons making an investigatory stop of the white BMW with Missouri license plate. See Commonwealth v. Wimbush, 750 A.2d 807 (Pa. 2000). The officer, however, stopped the vehicle because the window tinting prevented him from seeing inside. The Vehicle Code at 75 Pa.C.S. Section 4524(e)(1), provides: No person shall drive any motor vehicle with any sun screening device or other material which does not permit a person to see or view the inside of the vehicle through the windshield, side wing or side window of the vehicle. (Emphasis added.)9 Because Sergeant Parsons could not see inside the vehicle because of window tinting, he had reasonable suspicion to believe that the BMW was being driven in violation of Section 4524(e)(1 ).10 That justified the stop.11 It is not necessary to 9 The statute sets out some exemptions not applicable to passenger cars. The regulations of the Department of Transportation, which are applicable to vehicles that are subject to a periodic safety inspection, provide that acceptable light transmittance levels for a windshield and other windows in a passenger car is 70 percent. 67 Pa. Code SS 175.261-175.265, Table X. 10 The Vehicle Code at 75 Pa.C.S. S 6308(b) provides that whenever a police officer. . . has reasonable suspicion that a violation of this title is occurring or has occurred, he may stop a vehicle. . . to secure such other information as the officer may reasonably believe to be necessary to enforce the provisions of this title. See Commonwealth v. Sands, 887 A.2d 261 (Pa. Super. 2005). Officer Parsons also had probable cause, i.e., articulable and reasonable grounds, to believe that defendant was driving in violation of Section 4524(e)(1). 11 See Commonwealth v. By, 812 A.2d 1250 (Pa. Super. 2002). -5- CP-21-CR-2920-2005 CP-21-CR-2921-2005 establish an actual violation. See Commonwealth v. Palmer, 751 A.2d 223 (Pa. Super. 2000). The argument by defendant that this was an illegal pre-textual stop is without merit because Sergeant Parsons, based on his own observations, had reasonable suspicion to believe that defendant was operating his vehicle in violation of the Vehicle Code. Contrast the facts in Commonwealth v. Lehman, 857 A.2d 686 (Pa. Super. 2004). Notwithstanding, defendant maintains that Section 4524(e)(1) is applicable only to vehicles registered in Pennsylvania. He argues that enforcement of Section 4524(e)(1) violates the Full Faith and Credit clause in Article IV, Section 1 of the United States Constitution. His position is without merit. The conduct prohibited by Section 4524(e)(1) is not an inspection violation. Defendant's BMW, which is registered in Missouri, does not have to be inspected in Pennsylvania in order to be driven here.12 Section 4524(e)(1) is a substantive statute applicable to all vehicles driven in Pennsylvania. Whether defendant's vehicle, because it does not permit a person to see or view the inside, could be lawfully driven in Missouri or any other state, does not 12 The Vehicle Code at 75 Pa.C.S. S 1303(a), provides: General rule.-A nonresident owner of any foreign vehicle may operate or permit the operation of the vehicle within this Commonwealth without registering the vehicle in this Commonwealth or paying any fees to the Commonwealth, provided the vehicle at all times when operated in this Commonwealth is duly registered and in full compliance with the registration requirements of the place of residence of the owner. .. (Emphasis added.) -6- CP-21-CR-2920-2005 CP-21-CR-2921-2005 involve its registration.13 The Full Faith and Credit clause did not ban Sergeant Parsons from stopping defendant based upon reasonable suspicion that he was violating Section 4524(e)(1). II. WHETHER THE EVIDENCE OBTAINED FROM THE PERSON OF THE DEFENDANT DURING PROCESSING WAS THE FRUIT OF THE POISONOUS TREE FLOWING FROM THE ILLEGAL TRAFFIC STOP AND SHOULD THEREFORE BE SUPPRESSED BECAUSE ITS DISCOVERY RESULTED FROM A VIOLATION OF THE DEFENDANT'S FOURTH AMENDMENT RIGHT TO BE FREE OF ILLEGAL SEARCHES AND SEIZURES? Because there was no illegal traffic stop, this argument is without merit. III. WHETHER CONSENT TO SEARCH OBTAINED FROM THE DEFENDANT'S GIRLFRIEND WAS INVALID AS BEING THE PRODUCT OF COERCIVE POLICE ACTION, WHEN THE POLICE PROMISED THAT THEY WOULD NOT CHARGE HER IN EXCHANGE FOR HER GIVING CONSENT TO SEARCH HER RESIDENCE AND WHETHER EVIDENCE OBTAINED FROM THE SEARCH SHOULD THUS BE 13Actually, defendant's vehicle does not comply with Missouri law. Mo. Ann. Stat. S 307.173 provides that, "Any person may operate a motor vehicle with the front side wing vents or windows located immediately to the left and right of the driver that have a sun screening device, in conjunction with safety glazing material, that has a light transmission of thirty-five percent or more. . . any sun screening device applied to front side wing vents or windows located immediately to the left and right of the driver in excess of the requirements of this section shall be prohibited. . . ." -7- CP-21-CR-2920-2005 CP-21-CR-2921-2005 SUPPRESSED? -8- CP-21-CR-2920-2005 CP-21-CR-2921-2005 Detective Kauffman testified that no promises or threats were made to Sara White before she signed a consent to search 29 Robin Court. Weighing the credibility of all of the witnesses, we find as a fact that the police did not promise White that they would not charge her in exchange for her consent to search her residence. Her consent was not a product of coercive police action. IV. WHETHER THE EVIDENCE OBTAINED FROM THE DEFENDANT'S CAR FOLLOWING THE ISSUANCE OF THE WARRANT WAS FRUIT OF THE POISONOUS TREE FROM THE ILLEGAL TRAFFIC STOP AND THE EVIDENCE OBTAINED THEREFROM AND THE ILLEGAL SEARCH OF THE DEFENDANT'S RESIDENCE BASED UPON THE INVALID CONSENT OBTAINED FROM DEFENDANT'S GIRLFRIEND AND SHOULD THEREFORE BE SUPPRESSED? Because the traffic stop was legal, and the consent of Sara White to search her residence at 29 Robin Court was valid, this argument is without merit. For the foregoing reasons, the order entered denying a motion of defendant to suppress evidence was appropriately entered on June 16, 2006. (Date) Edgar B. Bayley, J. Christin Mehrtens-Carlin, Esquire Assistant District Attorney Nathan Wolf, Esquire F or Defendant :sal -9-