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HomeMy WebLinkAboutCP-21-JV-0000171-2013 IN THE MATTER OF : IN THE COURT OF COMMON PLEAS COLBY R. : OF CUMBERLAND COUNTY, Born January 2, 1996 : PENNSYLVANIA : : A JUVENILE : CP-21-JV-171-2013 IN RE: MOTION TO SUPPRESS BEFORE HESS, P.J. OPINION AND ORDER For consideration at this time is Juvenile’s Motion to Suppress. (Mot. Suppress, filed Jul. 16, 2013). Subsequent to a traffic stop, the Juvenile was charged with violating the following: Unlawful Possession of Drug Paraphernalia, a violation of 35 Pa.C.S. 780-113(a)(32); Maximum Speed Limits, a violation of 75 Pa.C.S. §3362(a)(3); Persons Ineligible for a Licensing – Junior Driver’s License, a violation of 75 Pa.C.S. §1503(c)(1); and Restraint Systems, a violation 75 Pa.C.S. §4581(a)(2)(ii). The Juvenile has filed the instant suppression motion contesting the seizure of drug paraphernalia. For the reasons that follow, the motion will be denied. A suppression hearing on Juvenile’s Motion was held on August 5, 2013, where the Commonwealth presented the testimony of Pennsylvania State Troopers Timothy Janosco and Timothy Hook. This testimony established the following: Trooper Janosco was on patrol with Trooper Hook shortly before 1:00 in the morning on April 30, 2013. (Notes of Testimony, 4, In Re: Transcript of Proceedings Suppression Hearing, Aug. 5, 2013 (hereinafter N.T. __)). At that time, the troopers began to follow a red Ford Focus for over three-tenths of a mile. (N.T. 12). The troopers used the speedometer in their vehicle to ascertain that the Ford Focus was traveling over sixty miles per hour in a forty-five mile per hour zone. (N.T. 4, 12). A certificate of speedometer accuracy was admitted, and Trooper Janosco identified the Juvenile as the driver and sole occupant of the Ford Focus. (N.T. 5, 14). The troopers began to conduct a traffic stop with Trooper Hook approaching the driver’s side of the vehicle and Trooper Janosco approaching the passenger side. (N.T. 4). The windows were down on both sides of the vehicle. (N.T. 15). While standing at the passenger side of the vehicle, Trooper Janosco detected the odor of burned marijuana emanating from the vehicle and noticed a multicolored glass smoking pipe between the seat and center console of the vehicle that the Juvenile was driving. (N.T. 4-6). At the request of Trooper Janosco, the Juvenile handed the pipe to Trooper Hook. (N.T. 7-8). Trooper Janosco testified that he was instructed at the Pennsylvania State Police Academy to identify narcotics and drug paraphernalia and subsequently trained in Advanced Roadside Impairment Detection Enforcement (ARIDE). (N.T. 6). Trooper Janosco went on to testify that he has five years of experience in dealing with marijuana and has encountered between 50 and 100 pipes like the one in question here. (N.T. 6). As a result of this incident, the Juvenile was charged with the following: Unlawful Possession of Drug Paraphernalia, a violation of 35 Pa.C.S. 780-113(a)(32); Maximum Speed Limits, a violation of 75 Pa.C.S. §3362(a)(3); Persons Ineligible for a Licensing – Junior Driver’s License, a violation of 75 Pa.C.S. §1503(c)(1); and Restraint Systems, a violation 75 Pa.C.S. §4581(a)(2)(ii). Before us now, is the Juvenile’s suppression motion challenging the seizure of the pipe. 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 challenged evidence is admissible. Commonwealth v. Joseph, 34 A.3d 855, 860 (Pa. Super. 2011) (quoting Commonwealth v. Simmons, 17 A.3d 399, 402 (Pa. Super. 2011)). Considering such, “[t]he admissibility of evidence is a matter addressed to the sound discretion of the trial 2 court. . . an appellate court may only reverse upon a showing that the trial court abused its discretion.” Commonwealth v. Turner, 982 A.2d 90, 91 (Pa. Super. 2009) (quoting Commonwealth v. Harris, 888 A.2d 862, 868 (Pa. Super. 2005)). It is axiomatic that our Motor Vehicle Code provides for maximum speed limits. 75 Pa.C.S. § 3362(a). Police officers, charged with the duty of enforcing the speed limits of our roadways, are statutorily authorized to time the rate of speed of any vehicle by means of the use of a vehicle equipped with a tested and calibrated speedometer, provided that the speed is timed for a distance of not less than three-tenths of a mile. 75 Pa.C.S. § 3368(a), (b). Here, the incident occurred in a forty-five mile per hour zone. Trooper Hook followed the Juvenile for over three-tenths of a mile. Trooper Hook testified, and provided documentation showing, that the police vehicle they were using was equipped with a tested and calibrated speedometer. Using such, the troopers timed Juvenile as traveling over sixty miles per hour. Accordingly, the troopers had probable cause to believe that the Juvenile was in violation of the Motor Vehicle Code and to initiate a legitimate traffic stop. Having determined that the initial traffic stop was justified, we turn to the warrantless seizure of the pipe from the Juvenile’s automobile. The Fourth Amendment to the United States Constitution, as well as Article I, Section 8 of the Pennsylvania Constitution, protects citizens from “unreasonable searches and seizures.” U.S. Const. Amend. IV; P.A. C. Art. I, §8. ONST Warrantless searches and seizures are proscribed as unreasonable per se, unless conducted pursuant to one of the specifically established and well-delineated exceptions to the warrant requirement. Simmons, 17 A.3d at 403 (citing Katz v. United States, 389 U.S. 347, 357 (1967)). The “plain view” doctrine is one such exception. In Commonwealth v. McCree, 924 A.2d 621 (Pa. 2007), our Supreme Court granted allowance of appeal in an attempt to clarify the 3 requirements of the plain view exception. However, only a plurality of three justices signed onto the Opinion Announcing the Judgment of the Court (hereinafter “OAJC”), and then-Justice (now Chief Justice) Castille authored a concurring opinion not joined by and other justice. Id. at 631- 32. Justice Castille joined the plurality’s opinion except with respect to its discussion of the “status and contours of the ‘[limited] automobile exception’ to the warrant requirement under Article I, Section 8 of the Pennsylvania Constitution.” Id. at 634 (Castille, J., concurring). The Superior Court has since analyzed the precedential value of McCree on several occasions. See Commonwealth v. Miller, 56 A.3d 424 (Pa. Super. 2012); Commonwealth v. Liddie, 21 A.3d 229 (Pa. Super. 2011); Commonwealth v. Brown, 23 A.3d 544 (Pa. Super. 2011). In doing so, the Superior Court has stated that the plain view doctrine permits “the warrantless seizure of an object when: (1) an officer views the object from a lawful vantage point; (2) it is immediately apparent to him that the object is incriminating; and (3) the officer has a lawful right of access to the object.” Miller, 56 A.3d at 429 (citing Brown, 23 A.3d 544). In the instant matter, we begin our analysis with the first prong of the plain view doctrine test, whether Trooper Janosco viewed the pipe from a lawful vantage point. Troopers Janosco and Hook were justified in stopping the Juvenile. The troopers lawfully approached the automobile that he was driving as it had been stopped for speeding. From that position, Trooper Janosco viewed the pipe through the open window of the automobile. Thus, Trooper Janosco was acting lawfully when he noticed the pipe in the Juvenile’s car between the seat and center console. Next, we must determine if the incriminating nature of the pipe was immediately apparent. “In determining whether the incriminating nature of an object is immediately apparent . . . we look to the totality of the circumstances. An officer can never be one hundred percent 4 certain that a substance in plain view is incriminating, but his belief must be supported by probable cause.” Turner, 982 A.sd at 92 (internal citation omitted). The officer’s training and experience should be considered when evaluating the totality of the circumstances. Liddie, 21 A.3d at 236. Initially, we note that pipes may be used to smoke tobacco or other legal substances so the incriminating nature of a pipe is not immediately apparent in all instances. However, in cases involving the searches of defendant’s person, where a police officer detected the odor of marijuana, the observation of a pipe stem protruding from the defendant’s pocket provided sufficient probable cause to arrest the defendant. Commonwealth v. Trenge, 451 A.2d 701, 710 (Pa. Super 1982). Here, the observation of the pipe was combined with Trooper Janosco detecting the odor of burned marijuana. Moreover, Trooper Janosco was trained to identify narcotics and drug paraphernalia at the Pennsylvania State Police Academy. He has had additional training in ARIDE and over five years of normal patrol functions that have involved dealing with marijuana. Trooper Janosco testified that he has encountered between 50 and 100 pipes similar to the one in question. Since Trooper Janosco was experienced and trained in dealing with marijuana and paraphernalia and detected the odor of burnt marijuana, we find that the incriminating nature of the pipe was immediately apparent. Finally, we turn to the third prong. In doing so, we must consider Pennsylvania’s limited automobile exception to the warrant requirement. See Turner, 982 A.2d 93-94. The Pennsylvania Supreme Court has never recognized the federal automobile exception to allow warrantless searches or seizures under Article I, Section 8 of the Pennsylvania Constitution. Brown, 23 A.3d at 553. “Instead, in at least five cases, majorities of our Supreme Court have rejected the federal automobile exception in favor of what the plurality in McCree dubbed the 5 ‘limited automobile exception.’” Id. As previously noted, Justice Castille joined the plurality’s opinion in McCree except with respect to its discussion of the “status and contours of the ‘[limited] automobile exception’ to the warrant requirement under Article I, Section 8 of the Pennsylvania Constitution.” McCree, 924 at 634 (Castille, J., concurring). As such, we must conclude that Justice Castille’s concurrence in McCree narrowly inures the plurality’s OAJC with precedential value regarding automobile searches and seizures in the following limited respect: where police officers observe incriminating-looking contraband in plain view in a vehicle from a lawful vantage point, the lack of advance notice and opportunity to obtain a warrant provides the officers with a lawful right of access to seize the object in questions. Brown, 23 A.3d at 557. We have already concluded that Trooper Janosco observed the incriminating pipe in plain view from a lawful vantage point. Nothing in the testimony established that the troopers had advance notice about the pipe being in the Juvenile’s automobile. Thus, the troopers had no time or opportunity to obtain a warrant before observing the pipe in plain view. Accordingly, the troopers had lawful access to seize the pipe, satisfying the third –and final– prong of the plain view doctrine test. ORDER th AND NOW, this 16 day of August, 2013, upon consideration of Juvenile’s Motion to Suppress, and following a suppression hearing held August 5, 2013, Juvenile’s Motion is DENIED . BY THE COURT, Kevin A. Hess, P.J. 6 IN THE MATTER OF : IN THE COURT OF COMMON PLEAS COLBY R. : OF CUMBERLAND COUNTY, Born January 2, 1996 : PENNSYLVANIA : : A JUVENILE : CP-21-JV-171-2013 IN RE: MOTION TO SUPPRESS BEFORE HESS, P.J. ORDER th AND NOW, this 16 day of August, 2013, upon consideration of Juvenile’s Motion to Suppress, and following a suppression hearing held August 5, 2013, Juvenile’s Motion is DENIED . BY THE COURT, Kevin A. Hess, P.J. Public Defender’s Office District Attorney’s Office Juvenile Probation