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HomeMy WebLinkAboutCP-21-CR-002968-2012 COMMONWEALTH : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA v. : : MYCHAL JAMAL BROADWAY : CP-21-CR-2968-2012 IN RE: OMNIBUS PRE-TRIAL MOTION TO SUPPRESS OPINION and ORDER OF COURT FINDINGS OF FACTS Peck, J., October 16, 2013. On September 29, 2012, Officers Bowen, Weber, and Nailor of the New Cumberland Police Department were on patrol during the Apple Festival in New 1 Cumberland, Pennsylvania. Officers Bowen and Weber were in uniform and on 23 bicycles. Officer Nailor was in an unmarked SUV. At approximately 1:30 P.M., the three officers were talking together on Market 4 Street. A driver stopped and alerted them that a black man and a white man were 5 fighting on the 100 block of Bridge Street, which was a block away. The location of the fight was on the other side of the building from where the officers were talking to each 67 other. The officers immediately responded. 1 Notes of Test., May 3, 2013, p. 4-5, 21, 32 (hereinafter “N.T. at ___.”). 2 N.T. at 5. 3 N.T. at 5. 4 N.T. at 5, 17. 5 N.T. at 6, 21. 6 N.T. at 33. 7 N.T. at 6. A half block from where the fight was reported to be occurring, Officers Bowen and Weber saw a black man and a white man walking up Maple Alley and away from the 8 100 block of Bridge Street. The officers encountered the two men approximately a minute after the driver alerted the officers to the fight and approximately 150 yards from 9 where they had spoken to the driver. No other persons were present in the immediate 10 vicinity. From previous unrelated incidents, Officers Bowen and Weber recognized the 11 black man to be Mychal Jamal Broadway (“the Defendant”). Both officers were aware 12 of the Defendant’s criminal history. Officer Bowen had been involved in an arrest of 13 the Defendant in which a gun was found on his person. 14 Officers Bowen and Weber began peddling toward the men. Officer Weber testified that they called out to get the men’s attention to make them stop to let them 15 know they were coming up towards the men. Officer Bowen testified that the officers did not call out but that the Defendant turned, saw the officers, and took off running 1617 before they said anything. The Defendant was wearing a backpack. Officer Bowen 8 N.T. at 6-7, 21-22, 33. 9 N.T. at 23. 10 N.T. at 14, 17-18. 11 N.T. at 7-8, 19, 23. 12 N.T. at 7-8, 19, 23. 13 N.T. at 7-8. 14 N.T. at 8, 21. 15 N.T. at 22. 16 N.T. at 8, 19. 17 N.T. at 10, 22. 2 1819 gave chase. Officer Weber remained with the other individual who did not run away. He told Officer Weber that the Defendant had been in an altercation with another 20 individual. Officer Bowen pursued the Defendant and quickly found him hiding under a 2122 stairway behind a house. The house was not the Defendant’s residence. The 23 Defendant no longer had his backpack on when Officer Bowen found him. Officer 24 Bowen told the Defendant to come out and he complied. Officer Bowen asked the Defendant where the backpack was located and the Defendant motioned with his head 25 where it could be found. Officer Bowen placed the Defendant in handcuffs and then 26 patted him down. Officer Bowen reached into the Defendant’s pocket and removed a 27 little baggie of marijuana. He also found a cell phone in the Defendant’s sock and a 28 lighter. Officer Bowen walked the Defendant back to where the other officers were 29 waiting. Officer Bowen placed the Defendant in the back of the SUV that had been 18 N.T. at 8. 19 N.T. at 8, 23. 20 N.T. at 25, 27. 21 N.T. at 9, 24. 22 N.T. at 20. 23 N.T. at 10-11. 24 N.T. at 10. 25 N.T. at 10. 26 N.T. at 11. 27 N.T. at 11, 16. 28 N.T. at 11. 29 N.T. at 11. 3 30 driven there by Officer Nailor and went to look for the backpack. He located the 31 backpack about ten feet away from where the Defendant had been found. While Officer Bowen was looking for the backpack, the Defendant made an unsolicited statement to Officer Nailor that there was additional marijuana in his 3233 backpack. Officer Nailor then gave Miranda warnings to the Defendant. The Defendant again made an unsolicited statement to Officer Nailor that there was marijuana 34 in the backpack and that it was his backpack. Within three to five minutes, Officer Bowen returned to the SUV with the 35 Defendant’s backpack. The Defendant made an unsolicited statement, “that’s my 36 backpack.” When Officer Bowen asked if he could look inside, the Defendant said “go 37 ahead.” Inside the Defendant’s backpack, Officer Bowen found additional bags of 38 marijuana, a bottle with two kinds of pills inside, a shirt, a scale, and packing material. 39 The Defendant also stated that he had been in a fight over money. The Defendant was thereafter charged with Unlawful Delivery, Manufacture, Possession with Intent to Deliver a Schedule I Controlled Substance, Marijuana, Unlawful Possession Small 30 N.T. at 11-12, 28, 34. 31 N.T. at 11-12. 32 N.T. at 38. 33 N.T. at 28-29, 38-39. 34 N.T. at 39. 35 N.T. at 12, 35. 36 N.T. at 29, 36. 37 N.T. at 12. 38 N.T. at 12. 39 N.T. at 12. 4 Amount of Marijuana, Unlawful Possession of Drug Paraphernalia, and Disorderly Conduct. CONCLUSIONS OF LAW The Defendant argues that the police’s seizure of him via the chase, and the subsequent search of his person and property violated the State and Federal Constitutions. Defendant further avers that any statements he made were in violation of Miranda. As such, the Defendant has moved to suppress all evidence obtained therefrom. This Court disagrees in part and agrees in part. The Stop of the Defendant Article 1, Section 8 of the Pennsylvania Constitution and the Fourth Amendment of the United States Constitution protect against unreasonable searches and seizures. In re D.M., 781 A.2d 1161, 1163 (Pa. 2001). In setting forth the standard for the reasonableness of a search and seizure, Pennsylvania courts follow the United States Supreme Court’s decision in Terry v. Ohio, 392 U.S. 1 (1968). In Terry, the Court held that an officer may briefly detain an individual where they have a reasonable suspicion that criminal activity is afoot. Terry, 392 U.S. at 30. The totality of the circumstances must be considered to determine whether the police had a reasonable suspicion. In re D.M., 781 A.2d at 1163 (citation omitted). The “officers must have a particularized and objective basis for suspecting the particular person stopped of criminal activity.” Id. (citation omitted). Unprovoked flight may be considered among the relevant contextual considerations since “nervous, evasive behavior is a pertinent factor in determining reasonable suspicion.” Id. at 1164. 5 In the case of In re D.M., an officer received an anonymous call describing an individual on a specific corner that had a gun. 781 A.2d at 1164. The Court stated that this information standing alone was insufficient to support a finding of reasonable suspicion. Id. Upon arriving at the scene, the officer saw the defendant, who matched the description given in the call. Id. at 1162. As the officer approached, the defendant turned and fled the scene. Id. at 1164. The Court stated that, “flight is the consummate act of evasion” … and, therefore, “[the defendant's] flight coupled with the anonymous caller's information was sufficient to arouse the officer's suspicion that criminal activity was afoot at the time he stopped the [defendant].” Id.; See also, Commonwealth v. Leonard, 951 A.2d 393 (Pa. Super. 2008); Commonwealth v. Brown, 904 A.2d 925 (Pa. Super. 2006). Likewise in the present case, the officers were provided with information regarding a fight and a general description of the two individuals involved. Almost contemporaneously, the officers saw two individuals who met the general description in close proximity to where the fight was said to have been occurring. No one else was present in the vicinity. Both officers knew the Defendant’s criminal history. The Defendant fled immediately upon seeing the officers. The police effectuated the stop of Defendant following his flight. Based on the totality of the circumstances, the officers had reasonable suspicion that criminal activity was afoot and were justified in pursuing and stopping the Defendant. 6 The Defendant’s Abandoned Backpack During the pursuit, the Defendant abandoned his backpack. No improper or unlawful act can be committed by the officers prior to the evidence being abandoned because any initial illegality taints the seizure of the evidence and it cannot be said to have been voluntarily abandoned or relinquished. Commonwealth v. Taylor, 33 A.3d 1283, 1286 (Pa. Super. 2011) appeal denied, 47 A.3d 847 (Pa. 2012)(emphasis added). As discussed above, there was no illegality on the part of the officers prior to the Defendant abandoning the backpack. There is no privacy expectation in property that has been voluntarily abandoned or relinquished. Commonwealth v. Byrd, 987 A.2d 786, 790 (Pa. Super. 2009). In the present case, Officer Bowen observed that Defendant was wearing a backpack when he fled and that Defendant no longer had his backpack when he was found. After a brief search Officer Bowen was able to locate the backpack only ten feet from where the Defendant had been hiding. The Defendant voluntarily abandoned the backpack during flight when he threw it in a yard that did not belong to him, and then hid in a location away from the backpack. See e.g. In Interest of Evans, 717 A.2d 542, 545 (Pa. Super. 1998) (finding that where the defendant, who was standing on the street and threw a plastic bag of drugs in response to seeing the police, the defendant had abandoned the drugs). The Defendant's behavior manifested a clear intent to relinquish control of the backpack. 7 The Search of the Defendant’s Person and Subsequent Statements A police officer may conduct a pat-down search for weapons if he or she reasonably fears that the person with whom he or she is dealing may be armed and dangerous. Terry, 392 U.S. at 27. The existence of reasonable suspicion to conduct a pat- down search of an individual must be judged in light of the totality of the circumstances confronting the police officer. Taylor, 771 A.2d at 1268-69. Officer Bowen had information that there had been a fight and reasonably suspected the Defendant was a participant. Upon seeing the officers, the Defendant immediately fled. The Defendant was wearing a backpack on his person. Officer Bowen had been involved in a prior arrest of the Defendant in which he had been in possession of an unregistered firearm. In light of the totality of the circumstances in the instant case, Officer Bowen reasonably suspected that the Defendant may be armed and dangerous and, therefore, was justified in conducting a pat-down search of the Defendant for the officer’s safety. However, the search of the Defendant exceeded the permissible scope of the pat- down search that was narrowly defined in Terry. The purpose of the pat-down search is not the discovery of evidence, but to allow the officer to pursue his investigation without fear for his or her safety. Taylor, 771 A.2d at 1269. Because the sole justification of the search is the protection of the police officer and others nearby, the search must be confined in scope to an intrusion reasonably designed to discover guns, knives, clubs or other hidden instruments for the assault of the police officer. Wilson, 927 A.2d at 279, 285 (Pa. Super. 2007). “Following a protective pat-down search of a suspect's person, a 8 more intrusive search, such as reaching into a suspect’s pocket, can only be justified where the officer reasonably believed that what he had felt appeared to be a weapon.” Id. (emphasis in original). “If the protective search goes beyond what is necessary to determine if the suspect is armed, it is no longer valid under Terry and its fruits will be suppressed.” Wilson, 927 A.2d at 285. In Wilson, the Superior Court concluded that an officer conducted a lawful pat- down search but that neither his testimony nor the physical characteristics of the seized evidence established that the object he felt in the defendant’s coat pocket reasonably appeared to be a weapon. 927 A .2d at 285. The Officer testified that he felt a “hard large ball” in the Defendant’s pocket. Id. The Officer seized the item and determined it to be 12 tiny knotted baggie corners containing cocaine. Id. at 286. Such testimony was insufficient to establish a concern for a weapon. Id. at 927 A.2d at 285. The Superior Court therefore held that the officer’s subsequent search and seizure of the drugs in the defendant’s coat pocket exceeded the lawful scope of Terry. 927 A.2d at 282. Likewise in the present case, neither Officer Bowen’s testimony nor the physical characteristics of the seized evidence established that the little baggie of marijuana in the Defendant’s pocket was reasonably believed by Officer Bowen to be a weapon. Officer Bowen did not articulate sufficient facts to show a concern for a weapon. Officer Bowen’s testimony on this point was that, based on his dealings with this Defendant before, Officer Bowen cuffed the Defendant, patted him down, reached in and took an item out of his pocket, and found some drugs on him. Such testimony, without more descriptive terms of the Officer’s reasonable belief of a weapon in Defendant’s pocket, is 9 insufficient to establish justification for reaching into Defendant’s pocket during the frisk. In addition, the physical facts and characteristics of a small bag of marijuana found in the Defendant’s pocket does not support the idea that the officer reasonably believed such evidence to be a weapon. Officer Bowen’s removal of the objects from the Defendant’s pocket exceeded the lawful scope of a pat-down search as defined by Terry. Therefore, the baggie of marijuana found in the Defendant’s pocket will be suppressed. This Court further finds no merit in the contention that any statements given by the Defendant were in violation of Miranda. Initial statements by the Defendant were made 40 during a lawful investigative detention. Any subsequent statements made by the Defendant were either voluntarily and spontaneously made by the Defendant or given after Officer Nailor had Mirandized the Defendant. Accordingly, Defendant’s motion to suppress any statements he made is denied. Accordingly, the following order is entered: ORDER OF COURT th AND NOW, this 16 day of October, 2013, for the reasons set forth in the accompanying opinion, the Defendant’s Omnibus Pre-Trial Motion To Suppress is DENIED with respect to the contents of the abandoned backpack and with respect to any 40 We note even if the initial statement made by the Defendant regarding the location of his backpack was in violation of the Defendant’s Constitutional rights, such evidence would have been inevitably discovered by Officer Bowen. 10 statements made by the Defendant. The Defendant’s Motion To Suppress is GRANTED with respect to the physical search of the Defendant’s person. BY THE COURT, s/ Christylee L. Peck Christylee L. Peck, J. Jaime Keating, Esq. First Assistant District Attorney Linda S. Hollinger, Esq. First Assistant Public Defender 11 COMMONWEALTH : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA v. : : MYCHAL JAMAL BROADWAY : CP-21-CR-2968-2012 IN RE: OMNIBUS PRE-TRIAL MOTION TO SUPPRESS ORDER OF COURT th AND NOW, this 16 day of October, 2013, for the reasons set forth in the accompanying opinion, the Defendant’s Omnibus Pre-Trial Motion to Suppress is DENIED with respect to the admissibility of the contents of the abandoned backpack and with respect to any statements made by the Defendant. The Defendant’s Motion To Suppress is GRANTED with respect to the physical search of the Defendant’s person. BY THE COURT, _________________________ Christylee L. Peck, J. Jaime Keating, Esq. First Assistant District Attorney Linda S. Hollinger, Esq. First Assistant Public Defender