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HomeMy WebLinkAboutCP-21-JV-0000235-2013 IN THE MATTER OF : IN THE COURT OF COMMON PLEAS R. G., : OF CUMBERLAND COUNTY, Born September 2, 1998 : PENNSYLVANIA : : A JUVENILE : CP-21-JV-235-2013 IN RE: OMNIBUS PRE-TRIAL MOTION TO SUPPRESS BEFORE HESS, P.J. OPINION AND ORDER For consideration at this time is Juvenile’s Omnibus Pre-Trial Motion to Suppress Evidence. (Omnibus Pre-Trial Mot. to Suppress, filed Aug. 30, 2013). Subsequent to an encounter with the police, the Juvenile was charged with possession with the intent to use drug paraphernalia, a violation of 35 P.S. § 780-113(a)(32). The Juvenile has filed this Motion asserting that his interaction with the police officer and the eventual search, which lead to the seizure of evidence, took place without reasonable suspicion, probable cause, or consent. As a result, the Juvenile requests that all evidence obtained be suppressed. For the reasons that follow, the Juvenile’s Motion will be denied. A suppression hearing on Juvenile’s Motion was held on September 30, 2013, where the testimony of Patrolman Michal Scarlato (hereinafter “Ptl. Scarlato”) and the Juvenile was presented. The testimony established the following: At the time of the hearing, Ptl. Scarlato had been employed by the Lower Allen Township Police Department for seven years and had also been assigned to the Cumberland County Drug Task Force for over three years. (Notes of Testimony, 4, In Re: Suppression Hearing, Sept. 30, 2013 (hereinafter “N.T. __”)). On June 11, 2013, he was working in his capacity as a Lower Allen Township officer. (N.T. 4-5). On that day, he was in full uniform and was operating a marked police vehicle with a dog in the back. (N.T. 5, 14, 16). At approximately 1:00 p.m., Ptl. Scarlato was driving in the area of Spanger Mill Road and Milltown Road when he saw R. G., the Juvenile, who was fourteen years old at the time of the incident. (N.T. 5, 18). Ptl. Scarlato was familiar with the Juvenile having dealt with him during an investigation of a house in Lower Allen Township concerning drug usage. (N.T. 5-6). During that investigation, the mother of the house expressed that she did not want R. G. to be at her home. (N.T. 6, 8). Ptl. Scarlato testified that the house in question was approximately half a mile from the location where he observed the Juvenile and the school was approximately two miles from the location where he observed the Juvenile. (N.T. 6, 8). Furthermore, Ptl. Scarlato was aware that school had been dismissed early that day, between 10:00 a.m. and 11:00 a.m. (N.T. 6). Mindful of all this, Ptl. Scarlato, while still in his vehicle, engaged in conversation with the Juvenile. (N.T. 6). After Ptl. Scarlato began talking to the Juvenile, he noticed that traffic was backing up behind him. (N.T. 6). As a result, Ptl. Scarlato asked R. G. to walk to a side street so that they could continue their conversation. (N.T. 6-7). Both the officer and R.G. testified that Ptl. Scarlato spoke to R.G. in a conversational tone. (N.T. 7, 24-25). R.G. was not told that he did not have to speak with the officer. (N.T. 14). Ptl. Scarlato drove to the side street without activating the lights on his vehicle. (N.T. 7). The Juvenile walked to the where Ptl. Scarlato parked. (N.T. 7). The distance that they traveled was approximately thirty feet. (N.T. 36). While talking with R.G., Ptl. Scarlato noticed that his eyes were red, an indication of being under the influence of marijuana. (N.T. 7). R.G. agreed, at the hearing, that he appeared under the influence of marijuana. 2 (N.T. 28). The Juvenile told Ptl. Scarlato that he was walking home from school. (N.T. 8). Since school was dismissed over two hours before the encounter, Ptl. Scarlato was skeptical of the Juvenile’s story and, in fact, suspected that he had been at the house previously mentioned. The officer then asked R.G. whether he had anything on his person that he was not allowed to have. (N.T. 8). The Juvenile responded that he did not, put his hands up, stated that Ptl. Scarlato could search him, and handed Ptl. Scarlato his backpack. (N.T. 8, 10). Ptl. Scarlato searched the Juvenile’s backpack and then patted down the outside of the Juvenile’s clothing. (N.T. 10). At that point, the Juvenile stated that the only thing he had on him was his wallet. (N.T. 10-11). Ptl. Scarlato felt the Juvenile’s wallet in his back right pocket as well as another object. (N.T. 11). Ptl. Scarlato asked the Juvenile what the object was, and the Juvenile stated that he did not know. (N.T. 11). Ptl. Scarlato testified that, at first, the object felt like a bullet, but when he pulled it out it was a “socket.” (N.T. 11). Ptl. Scarlato noticed that there was burnt marijuana inside the socket and detected the odor of burnt marijuana when he smelled it. (N.T. 11). After Ptl. Scarlato retrieved the socket, a second officer arrived on the scene. (N.T. 15). When the Juvenile testified, he stated that he did hand Ptl. Scarlato his backpack, but he did not tell Ptl. Scarlato that he could search his person. (N.T. 22). The Juvenile further stated that he would not have consented to having his person searched because he knew that he had the socket in his pocket and that he did not feel as if he was free to leave. (N.T. 22, 34). It is clear, however, that R.G. did not say anything to the officer which would have limited the scope of his consent. 3 The Juvenile argues that there was no reasonable suspicion, probable cause, or knowing and voluntary consent for the encounter or search. We first take up the Juvenile’s encounter with Ptl. Scarlato. To secure the right of citizens to be free from government intrusion, our Supreme Court has defined three categories of police-citizen interactions that require ascending levels of suspicion in order for law enforcement to justify such interactions. Commonwealth v. Beasley, 761 A.2d 621, 624 (Pa. Super. 2000). Those three categories are mere encounters, investigative detentions, and custodial detentions. Id. A mere encounter need not be supported by any level of suspicion and no constitutional provision prohibits an officer from approaching a citizen in public to make inquiries. Id. (citing Commonwealth v. Riley, 715 A.2d 1131, 1134 (Pa. Super. 1998); Commonwealth v. Boswell, 721 A.2d 336, 339-40 (Pa. 1998)). On the other hand, an investigative detention “carries an official compulsion to stop and respond, but the detention is temporary, unless it results in the formation of probable cause for arrest,…[s]ince this interaction has elements of official compulsion it requires reasonable suspicion of unlawful activity.” Commonwealth v. Jones, 874 A.2d 108, 116 (Pa. Super. 2005). Finally, “a ‘custodial detention’ must be supported by probable cause; it is deemed to arise when the conditions and/or duration of an investigating detention become so coercive as to be the functional equivalent of arrest.” Commonwealth v. Douglass, 539 A.2d 412, 418 (Pa. Super. 1988) (citing Dunaway v. New York, 442 U.S. 200, (1979)). “The line between a mere encounter and an investigative detention cannot be precisely defined ‘because of the myriad of daily situations in which policemen and citizens confront each other on the street.’” Commonwealth v. Mendenhall, 715 A.2d 4 1117, 1120 (Pa. 1998) (quoting Commonwealth v. Jones, 378 A.2d 835, 839 (Pa. 1977)). However, a mere encounter may rise to an investigatory detention or seizure if the police action becomes too intrusive. Beasely, 761 A.2d at 624. To decide if a mere encounter has escalated into investigatory detention, it must be determined if the police have conducted a seizure of the person involved. Id. The Pennsylvania Supreme Court has stated: To decide whether a seizure has occurred, we apply the following objective test: a court must consider all the circumstances surrounding the encounter to determine whether the police conduct would have communicated to a reasonable person that the person was not free to decline the officers' requests or otherwise terminate the encounter. In applying this test, it is necessary to examine the nature of the encounter. Circumstances to consider include, but are not limited to, the following: the number of officers present during the interaction; whether the officer informs the citizen they are suspected of criminal activity; the officer's demeanor and tone of voice; the location and timing of the interaction; the visible presence of weapons on the officer; and the questions asked. Otherwise inoffensive contact between a member of the public and the police cannot, as a matter of law, amount to a seizure of that person. Commonwealth v. Boswell, 721 A.2d 336, 340 (Pa. 1998) (internal citations and quotations omitted). There is little question that Ptl. Scarlato’s preliminary interaction with the Juvenile was a mere encounter. Ptl. Scarlato was driving down the road, saw an individual that he recognized walking along the road, and engaged in conversation with him while remaining in his vehicle. The question is whether the request that the Juvenile move to the side street so that the conversation could be continued transformed the encounter into an investigative detention. We are satisfied that it did not. As stated above, case law is clear that officers may approach citizens to make inquiries without any level of suspicion. See also Commonwealth v. Coleman, 19 A.3d 5 1111, 1116 (Pa. Super. 2011) (both the United States and Pennsylvania Supreme Courts have held that the approach of a police officer followed by questioning does not constitute a seizure). Here, Ptl. Scarlato asked the Juvenile to accompany him to the side street so that they would not hold up traffic, a legitimate concern and request. The surrounding circumstances lack an intrusive nature that would escalate the encounter into a seizure. Ptl. Scarlato was the only officer present when the request was made, he used a conversational tone while asking the Juvenile, there was no application of force, the Juvenile did not get in the car with the officer, the lights on the police vehicle were not turned on, the entire encounter took place in the middle of the day while other vehicles were passing by, and Ptl. Scarlato did not do anything to physically restrain the Juvenile from leaving. Courts have found that more intrusive actions than the circumstances presented here were not enough to elevate an encounter. E.g., Commonwealth v. Au, 42 A.3d 1002, 1009 (Pa. 2012) (police officer’s request for identification did not transform his encounter with defendant into an unconstitutional investigatory detention); Commonwealth v. Coleman, 19 A.3d 1111, 1116 (Pa. Super. 2011) (telling individual to take hands out of his pockets did not turn encounter into seizure); Commonwealth v. Conte, 931 A.2d 690, 694 (Pa. Super. 2007) (pulling up behind an apparently disabled vehicle and turning lights on police vehicle was a mere encounter that one would feel free to terminate). As such, based on the totality of the circumstances, we find that the Ptl. Scarlato’s interaction with the juvenile was a mere encounter with no level of suspicion needed. 6 To establish a valid consensual search, the Commonwealth must prove that consent was given during a legal police interaction and that the consent was given voluntarily. Commonwealth v. Reid, 811 A.2d 530, 544 (Pa. 2002). If a search is authorized, the standard for measuring the scope of consent granted “is based on an objective evaluation of what a reasonable person would have understood by the exchange between the officer and the person who gave the consent.” Id. at 548-49. Defendant’s knowledge that the search would turn up contraband is irrelevant to whether consent to search was voluntary since the reasonable person test presupposes an innocent person. Florida v. Bostick, 501 U.S. 429, 437-38 (1991). Since we have already determined that the underlying police interaction was legal, the remaining questions are if the consent for the search was given voluntarily and, if so, if the scope was exceeded. Here, Ptl. Scarlato never requested to search; instead, the testimony is clear the Juvenile offered it sua sponte. As such, we clearly view the consent as voluntary. The more difficult issue is whether the scope of consent was exceeded when Ptl. Scarlato searched the Juvenile’s person. In an objective evaluation of what a reasonable person would have understood by the exchange, we find that the scope was not exceeded. Here, the officer’s testimony stated that the Juvenile put his hands up when he offered to be searched. A reasonable person would understand that to be an invitation to search the consenter’s person. Furthermore, there was no testimony that the Juvenile objected in any way to having his clothing patted down after his bag was searched so as to notify the officer that the consent was exceeded. Instead, the Juvenile made a point of saying that the object that the officer felt was the Juvenile’s wallet. It is clearly only in hindsight that the Juvenile takes exception to the pat-down. 7 ORDER AND NOW, this day of November, 2013, upon consideration of Juvenile’s DENIED Omnibus Pre-Trial Motion to Suppress, and following hearing the Motion is . BY THE COURT, Kevin A. Hess, P.J. 8 IN THE MATTER OF : IN THE COURT OF COMMON PLEAS R. G. : OF CUMBERLAND COUNTY, Born September 2, 1998 : PENNSYLVANIA : : A JUVENILE : CP-21-JV-235-2013 IN RE: OMNIBUS PRE-TRIAL MOTION TO SUPPRESS BEFORE HESS, P.J. ORDER AND NOW, this day of November, 2013, upon consideration of Juvenile’s DENIED Omnibus Pre-Trial Motion to Suppress, and following hearing the Motion is . BY THE COURT, Kevin A. Hess, P.J. District Attorney’s Office Public Defender’s Office Juvenile Probation Office