HomeMy WebLinkAboutCP-21-CR-3141-2005
COMMONWEALTH
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
v.
KEVIN LEROY
JACKSON
CP-21-CR-3141-2005
IN RE: DEFENDANT'S OMNIBUS PRETRIAL MOTION
BEFORE OLER, J.
OPINION and ORDER OF COURT
OLER, 1., August 28, 2006.
In this criminal case, Defendant has been charged with carrying a firearm
without a license and possession of a firearm by a person convicted of certain
crimes. 1 For disposition at this time is Defendant's 01llllibus Pretrial Motion in
the form of a motion to suppress.
The grounds for the motion are (1) the lack of a lawful basis for a stop of
Defendant's vehicle, (2) an unlawful prolongation of a detention of Defendant
beyond the period of any lawful detention, (3) the invalidity of consent given by
Defendant for a search of his vehicle, due to the occurrence of the consent during a
period of unlawful detention and/or its involuntary nature resulting from coercion,
and (4) an extension of the search beyond the physical scope of the consent?
A hearing on Defendant's motion to suppress was held on May 17, 2006.
Based upon the evidence presented at the hearing, the motion will be denied.
STATEMENT OF FACTS
The pertinent evidence which the court, in its capacity as trier-of-fact,
found credible at the suppression hearing may be summarized as follows. In the
course of his duties as a highway patrol officer, Pennsylvania State Trooper Bryan
Henneman, routinely ran record checks of the registrations of motor vehicles
1 Information, filed February 17,2006; see 18 Pa. C.S. ~6106(a)(1); 18 Pa. C.S. ~6105.
which he observed. 3 He did so without stopping or otherwise interfering with the
vehicles in question, and utilized the vehicle records databank available through
his on-board computer for this purpose.4 On average, he checked the validity of
the registrations of between ten and fifteen vehicles per day in this way, on a
random basis and as his other responsibilities permitted. 5
On Saturday, December 17, 2005, at about 7:30 p.m., Trooper Henneman
was on duty in an unmarked patrol vehicle traveling south on Interstate Route 81
in Southampton Township, Cumberland County, Pennsylvania.6 He utilized the
occasion to run a registration check on a vehicle with a Georgia license plate
which was also traveling south and received a response from the Georgia
Registration and Title Information System that the "registration status [was]
expired. ,,7 Thus believing that the vehicle did not have a valid registration,
Trooper Henneman initiated a traffic stop.8 He was not aware, prior to
approaching the vehicle on foot, that its occupants were two black males.9
Defendant was the driver and owner of the vehicle, a 1999 Hyundai Sonata
automobile. 10 Upon reaching the passenger's side of the vehicle, Trooper
Henneman observed in plain view a marijuana stem and flakes of marijuana on the
shirt of the passenger. 11 Without revealing this observation of a controlled
substance, the trooper retrieved from Defendant an apparently valid vehicle
2 NT. 4-5, Hearing on Defendant's Omnibus Pretrial Motion, May 17, 2006 (hereinafter NT.
~.
3 NT. 8.
4 NT. 8-9, 52.
5 NT. 8, 50-51.
6 NT. 7-8, 10.
7 NT. 10; Commonwealth's Exhibit 1, Hearing on Defendant's Omnibus Pretrial Motion, May
17,2006 (hereinafter Commonwealth's Exhibit~.
8 10,49.
9 NT. 36, 48.
10 NT. 10,25,31.
11 NT. 11.
2
registration and returned to his police car on the pretext of preparing a warning
with respect to the registration. 12
In fact, the vehicle stop had evolved at this point into an investigative
detention arising out of the trooper's observation of marijuana in the vehicle, and
neither Defendant nor the passenger was free to leave pending the completion of
the investigation. 13 While purportedly preparing a written warning, Trooper
Henneman radioed for back-up. 14 The trooper's explanation for not revealing that
he had noticed the marijuana was as follows:
Q [Y]ou said you didn't tell the occupants of the
vehicle about [the observation of marijuana on the passenger's
shirt] at that time for officer safety reasons.
A Correct.
Q Why not? What's the concern there, that you
wouldn't divulge that at that particular time?
A At that point in time I didn't know-still didn't
know who I was dealing with. I didn't know if they had any
weapons in the vehicle, on their persons. I didn't want them to
flee. I didn't want to get shot.
Q Okay. Do weapons and drugs to together, in your
experience?
A Absolutely. IS
Back-up arrived on the scene within about fifteen minutes in the form of
Pennsylvania State Trooper Doug Rost. 16 Defendant and the passenger were
ordered out of Defendant's car, and they were told of Trooper Henneman's
observation. 17 Trooper Henneman solicited Defendant's consent to search the
vehicle for drugs, advising him that he was not required to consent and that, if
12 NT. 14-15.
13 NT. 17-18,30.
14NT. 16-17.
15 NT. 51.
16 NT. 20, 42.
17 NT. 18.
3
consent was not given, the trooper would apply for a search warrant.18 The
solicitation, according to the trooper, was not limited to a request to search for
items in the vehicle which were in plain view only,19 and in this regard the court
found his testimony more credible than Defendant's testimony to the contrary.20
No physical coercion or threat by either trooper was involved in this
solicitation, and Defendant voluntarily consented, both verbally and in writing, to
a search of his vehicle?l The written consent form executed by Defendant
identified the vehicle to be searched as a "1999 Hyundai Sonata" owned by
Defendant and described the item(s) being searched for as "illegal contraband." It
noted that any of the following items, if discovered in the search for illegal
contraband, would be subject to seizure: "[a]ny contraband, the fruits of a crime,
or things otherwise criminally possessed," "[p ]roperty which is or has been used
as the means of committing a criminal offense," and "[p ]roperty which constitutes
evidence of the commission of a criminal offense.,,22 The form contained the
following additional language:
I, Kevin Jackson, have been requested by Tpr Henneman of the
Pennsylvania State Police to give my consent for police
officers to search place( s), item( s), or vehicle( s) described
above for the items described above. I have been told that I do
not have to give my consent. I understand that I have the right
to refuse this request, and that the police may not be able to
conduct this search without a search warrant unless I give my
consent. Nonetheless, I voluntarily give my consent to the
police to conduct this search?3
18 NT. 23, 43.
19 See NT. 24, 27, 44, 47,53-54.
20 See NT. 61-62.
21 The court did not find credible Defendant's contention that he had been frightened by conduct
of the troopers into consenting to the search. See NT. 21, 23-26, 61-62.
22 Commonwealth's Exhibit 2.
23 NT. 24-25; Commonwealth's Exhibit 2.
4
In the search, Trooper Henneman found a handgun in a brown bag in the
trunk of the vehicle, along with a 15-round magazine loaded with ammunition?4
Defendant conceded that he did not have a permit to carry the gun.25 As a
consequence, approximately one-half hour after his vehicle had been stopped, he
was placed under arrest.26 According to his "multiple-page rap sheet," he had
been convicted of various statutorily-enumerated crimes which rendered his
possession of the gun additionally unlawful. 27
DISCUSSION
General. In ruling on a motion to suppress, the court is guided by several
well-established principles of federal and state law. The Fourth Amendment to the
United States Constitution guarantees that "[t]he right of the people to be secure in
their persons, houses, papers, and effects, against umeasonable searches and
seizures, shall not be violated. . .." Section 8 of Article I of the Pennsylvania
Constitution provides that "[t]he people shall be secure in their persons, houses,
papers and possessions from umeasonable searches and seizures. . .." As a
general rule, evidence seized in violation of these constitutional limits is subject to
suppression. Alderman v. United States, 394 U.S. 165, 171, 89 S. Ct. 961, 965, 22
L. Ed. 2d 176, 188-89 (1969); Commonwealth v. Rood, 686 A.2d 442 (Pa.
Commw. Ct. 1996).
When, in a suppression hearing, a constitutional right is alleged to have
been violated, the burden rests upon the Commonwealth to prove by a
preponderance of the evidence that the evidence in question was not obtained in an
unconstitutional manner. Commonwealth v. Eliff, 300 Pa. Super. 423, 428, 446
A.2d 927, 929 (1982).
24 NT. 27.
25 NT. 27, 31.
26 NT. 48.
27 NT. 28.
5
Legality of stop of vehicle. Section 6308(b) of the Pennsylvania Vehicle
Code provides in pertinent part as follows:
Whenever a police officer . . . has reasonable suspicion that
a violation of [the Vehicle Code] is occurring or has occurred,
he may stop a vehicle, upon request or signal, for the purpose
of checking the vehicle's registration. . . .
Act of June 17, 1976, P.L. 162, S 1, as amended, 75 Pa. C.S. S6308(b). A foreign
vehicle which is not registered in Pennsylvania may be operated in the
Commonwealth only if it is duly registered in its home state?8
Under the statutory standard, an "officer must be able to relay specific and
articulable facts that would give rise to a reasonable suspicion that the person is
driving" under circumstances constituting a violation of the Vehicle Code.
Commonwealth v. Sands, 2005 PA Super. 372, ,-r26, 887 A.2d 261, 272 (driving
under the influence). "'[R]easonable suspicion' does not require that the activity
in question is unquestionably criminal before an officer may investigate further."
Commonwealth v. Ulman, 2006 PA Super. 142, ,-r15, 902 A.2d 514,518. Nor must
the "officer. . . establish that an actual violation of the. . . Vehicle Code occurred
prior to stopping a vehicle." Commonwealth v. Palmer, 751 A.2d 223, 226 (Pa.
Super. 2000) (emphasis added) (citation omitted).
Computer-accessed data bases of public records are generally recognized as
a permissible source of information for stops by police. See, e.g., Commonwealth
v. Bolton, 2003 P A Super. 314, ,-r,-r8, 13, 831 A.2d 734, 736 (stop of vehicle based
on information retrieved from NCIC data base). Indeed, such sources have been
"consistently. . . held to support a probable cause determination that a crime was
committed. . .." Commonwealth v. Chernosky, 2005 P A Super. 157, ,-rIO, 874
A.2d 123, 126.
The fact that the information upon which the officer bases his or her
reasonable suspicion is found, in retrospect, to have been untrue does not in itself
28 Act of June 17, 1976, P.L. 162, ~1, as amended, 75 Pa. C.S. ~~1301(a), 1303(a).
6
vitiate the legality of the stop. See, e.g., Commonwealth v. Spencer, 2005 P A
Super. 381, ,-r2, 888 A.2d 827, 828.
"The purpose of the exclusionary rule is to deter police misconduct [by
rendering such misconduct unproductive in a prosecutorial sense], [thereby]
protect[ing] citizens' privacy from improper police activity. . .." Commonwealth
v. Spencer, 2005 PA Super. 381, ,-r2, 888 A.2d 827,828.
In the present case, Trooper Henneman suspected that a violation of the
Vehicle Code was occurring in the form of the operation of an umegistered motor
vehicle on a Pennsylvania highway. This suspicion was reasonably based upon a
normally reliable source and was not the product of any improper conduct on his
part.
The stop of the vehicle was thus authorized under Section 6308(b) of the
Vehicle Code,29 and an exclusion of evidence resulting from the stop would fail to
serve the exclusionary rule's purpose. Accordingly, Defendant's motion to
suppress evidence will not be granted on the ground that the stop of the vehicle
was illegal.
Allegedly unlawful prolongation of traffic stop. "The lawful detention
inherent in 'a permissible traffic stop may evolve into an unlawful detention when
the authorized purpose of the stop is completed and the Defendant is not
released. ", Commonwealth v. Gillespie, 54 Cumberland L.1. 214, 219 (2005),
quoting Commonwealth v. Leius, 43 Cumberland L.1. 459, 468 (1994).
However, "a proper investigative detention focusing upon one violation
may, in appropriate circumstances, be extended or resumed for purposes of pursuit
of a second suspected violation." Commonwealth v. Gillespie, 54 Cumberland L.1.
214, 221 (2005); see Commonwealth v. Freeman, 563 Pa. 82, 89-90, 757 A.2d
29 As noted in the text, the information possessed by Trooper Henneman actually rose to the level
of probable cause and, to the extent that the standard for a stop set forth in Section 6308(b) of the
Vehicle Code may be regarded as constitutionally infirm in the present context, or as the
functional equivalent of a probable cause standard, the basis for the stop was not lacking in
sufficiency.
7
903, 907-08 (2000). In this regard, "[i]n order to justify detaining [a] driver for
further questioning [when the proper purpose of a traffic stop has been concluded],
the officer must have 'reasonable suspicion of illegal transactions in drugs or of
any other serious crime. ", Commonwealth v. Lopez, 415 Pa. Super. 252, 261, 609
A.2d, 177, 182 ( 1992) (citations omitted). Stated otherwise, "a police officer may,
short of an arrest, conduct an investigative detention if he has a reasonable
suspicion, based upon specific and articulable facts, that criminality is afoot."
Commonwealth v. Stevenson, 2006 PA Super. 38, ,-r30, 894 A.2d 759,771. Where
this level of suspicion exists, "[a] policeman. . . is not required to simply shrug his
shoulders and allow a crime to occur or a criminal to escape." Wasserbly,
Pennsylvania Criminal Practice S6.02 (1991).
In the present case, the presence of marijuana in plain view on a passenger
in Defendant's vehicle represented a specific and articulable fact warranting a
reasonable suspicion on the part of Trooper Henneman that criminal activity was
afoot. Consequently, his continuation of the occupants' detention for purposes of
an investigation of this new suspected criminal activity was constitutionally
permissible, and Defendant's motion to suppress can not be granted on the ground
of an unlawfully prolonged detention.
Validity of consent to search vehicle. With respect to the issue of whether
the consent given by Defendant for a search of his vehicle was invalid as the
product of an unlawful detention, it is certainly true that consents to searches
obtained during periods of unlawful detention are generally deemed invalid. See,
e.g., Commonwealth v. Acosta, 2003 PA Super. 15, 815 A.2d 1078;
Commonwealth v. Jackson, 428 Pa. Super. 246, 630 A.2d 1231 (1993);
Commonwealth v. Parker, 422 Pa. Super. 393, 619 A.2d 735 (1993);
Commonwealth v. Lopez, 415 Pa. Super. 252, 609 A.2d 177 (1992). However, it
follows from the conclusion reached in the preceding section of this opinion-that
Defendant's continued detention was not illegal-that his consent can not be
deemed invalid on that ground.
8
With respect to the issue of whether the consent was involuntary, due to
police coercion, it is well settled that "[ w ]hether an individual has voluntarily
consented to a search is one of fact which must be determined in each case from
the totality of the circumstances." Commonwealth v. Rosas, 2005 P A Super. 183,
,-r20, 875 A.2d 341, 349 (citation omitted). In this regard, "the Commonwealth
must prove that a consent is the product of an essentially free and unconstrained
choice-not the result of duress or coercion, express or implied, or a will
overborne-under the totality of the circumstances." Id (citation omitted).
Circumstances to be considered in making this determination include "the
person's knowledge of the right to refuse to consent to the search" and the nature
of the officers' conduct. Id at ~21, 875 A.2d at 349. An officer's advice to a
suspect that he or she will attempt to secure a search warrant in the absence of
consent does not in itself render the suspect's consent involuntary.
Commonwealth v. Mack, 568 Pa. 329, 796 A.2d 967 (2002).
In the present case, the credible evidence did not reveal conduct on the part
of the troopers that could remotely be characterized as coercive with respect to
Defendant's consent. In addition, Defendant was expressly advised that he did not
have to give his consent. Based upon the totality of the circumstances, the court
finds itself in agreement with the Commonwealth's position that the consent of
Defendant to the search was voluntary.
Alleged extension of search beyond scope of consent. With respect to
consent searches of automobiles, the Pennsylvania Superior Court has stated as
follows:
It is well established that the government may search a vehicle
without a warrant. . . if the owner of the vehicle voluntarily
consents to the search. . .. Furthermore, the scope of a search
is generally limited to the areas where the object of the search
may be found, but the party consenting to a search may restrict
authorization to defined areas. . .. The standard for measuring
the scope of a suspect's consent under the Fourth Amendment
is that of objective reasonableness-what would the typical
9
reasonable person have understood by the exchange between
the officer and subject?
Commonwealth v. Yedinak, 450 Pa. Super. 352, 358, 676 A.2d 1217, 1220 (1996)
(citations omitted). In general, it may be said that consent to search one's vehicle
for drugs authorizes a search of closed containers in the vehicle. See Florida v.
Jimeno, 500 U.S. 248, 111 S. Ct. 1801, 114 L. Ed. 2d 297 (1991).
In the present case, the court has resolved adversely to Defendant the
factual issue of whether the consent to search solicited by Trooper Henneman was
limited by its terms to those items in Defendant's vehicle which were in plain
view. For this reason, Defendant's motion to suppress will not be granted on the
ground that the search conducted by the trooper exceeded the scope of the consent
gIVen.
Based upon the foregoing, the following order will be entered:
ORDER OF COURT
AND NOW, this 28th day of August, 2006, upon consideration of
Defendant's 01llllibus Pretrial Motion in the form of a motion to suppress,
following a hearing held on May 17, 2006, and for the reasons stated in the
accompanying opinion, the motion is denied.
BY THE COURT,
s/ 1. Wesley Oler, Jr.
1. Wesley Oler, Jr., 1.
Daniel 1. Sodus, Esq.
Senior Assistant District Attorney
Royce L. Morris, Esq.
320 Market Street
P.O. Box 1268
Harrisburg, P A 17108-1268
Attorney for Defendant
10
11
COMMONWEALTH
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
v.
KEVIN LEROY
JACKSON
CP-21-CR-3141-2005
IN RE: DEFENDANT'S OMNIBUS PRETRIAL MOTION
BEFORE OLER, J.
ORDER OF COURT
AND NOW, this 28th day of August, 2006, upon consideration of
Defendant's 01llllibus Pretrial Motion in the form of a motion to suppress,
following a hearing held on May 17, 2006, and for the reasons stated in the
accompanying opinion, the motion is denied.
BY THE COURT,
1. Wesley Oler, Jr., 1.
Daniel 1. Sodus, Esq.
Senior Assistant District Attorney
Royce L. Morris, Esq.
320 Market Street
P.O. Box 1268
Harrisburg, P A 17108-1268
Attorney for Defendant