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HomeMy WebLinkAbout99-1254 criminalCOMMONWEALTH · IN THE COURT OF COMMON PLEAS OF · CUMBERLAND COUNTY, PENNSYLVANIA vs. · 99-1254 CRIMINAL ASMARA DESSEY VASSER ' IN RE: OPINION IN SUPPORT OF ORDER DENYING MOTION TO SUPPRESS EVIDENCE On October 19, 1999, the undersigned entered an order denying the defendant's motion to suppress in the captioned case. This opinion is written in support of that order. - On April 4, 1999, at approximately 8:30 p.m., police officer, Thomas L. Day, Jr., was .dispatched to the intersection of North West and West North Streets in the borough of Carlisle. A report had been received that shots had been fired in that area. Cpl. Day was the first to arrive at the intersection when he observed the defendant, Asmara Vasser, walking north away from the intersection. The defendant was the only person in the area at the time. Cpl. Day turned his vehicle north on West Street intending to speak with Vasser who, as a potential witness, may have had some knowledge of shots having been fired. As the officer approached Vasser, the defendant turned and looked at him. The defendant then tamed right onto West Penn Street and proceeded into Memorial Park in the direction of North Pitt Street. Without having communicated with the defendant in any manner, Cpl. Day parked his police vehicle. As he was doing so, he noticed that Mr. Vasser dropped what appeared to be a "white paperish item." N.T. '11. The defendant then continued to walk through Memorial Park and into a group of trees. He emerged from the trees where he encountered Officer Kurtz. Officer Kurtz had proceeded to the 300 block of North Pitt Street at the radioed request of Cpl. Day. Officer Kurtz asked the 99-1254 CRIMINAL defendant whether he had heard any shooting. Vasser replied that he had heard some noise but didn't see anyone. The end of the encounter with the defendant was described by Officer Kurtz as follows: A I just said I'll see you later. I mean he took off walking, again, at a normal pace. Q What direction did he go when he took off?. A He would have walked a few feet east, and then north again on Pitt Street. Q When you got out of your car or at any point in time in your encounter with the defendant, did you raise your voice at him at all? A No. Q Did you display your weapon? A No Q Did you tell him he was under arrest? A No. Q Did you make any threatening gestures towards him? A No. Q Did you call him over to you? A No. Q The amount of time that you spent with the defendant, approximately how much time? A I would say actually talking to him, maybe about a minute. N.T., p. 33. · 99-1254 CRIMINAL , In the meantime, Cpl. Day had proceeded to the area where the defendant had discarded what later turned out to be crack cocaine. It was then that Cpl. Day advised patrols in the area that Vasser was now wanted on the drug charge. Shortly thereafter, the defendant was arrested. In support of his motion to suppress evidence, the defendant cites the case of Com. v. Matos, 543 Pa. 449, 672 A.2d 769 (1996). In that case, the Pennsylvania Supreme Court, interpreting the Pennsylvania Constitution, reached a result different from the United States Supreme Court decision in Com. v. Hodari, 499 U.S. 621, 111 S.Ct. 1547, 113 L.Ed.2d 690 (1991). In Hodari, the police had approached a group of young persons who fled. One of the youths discarded what appeared to be a small rock before he was tackled and handcuffed by one of the police officers. The rock turned out to be crack cocaine. The United States Supreme Court held that even if the officers' pursuit had not been based upon reasonable suspicion, the drugs discarded were not the illegal fruit of a "seizure" of the person of the defendant under the Fourth Amendment. The Pennsylvania Supreme Court, in Matos, held that the Pennsylvania Constitution embodies a stronger notion of privacy than the United States Constitution. The court concluded that when police, without probable cause or reasonable suspicion, pursue a citizen, the abandonment of any contraband by that person stems from an impermissible seizure. The court · observed, however, that numerous cases in Pennsylvania have dealt with a distinction between a "seizure" and "a mere encounter" between citizen and police officer. One case cited is not unlike the case sub j Udice. In Comv. Hall, 475 Pa. 482, 380 A.2d 1238 (1977), plain-clothes police officers were patrolling in an unmarked automobile in an area where narcotic transactions frequently occurred. 99-1254 CRIMINAL They observed three individuals on a sidewalk near a tavem. The officers made a U-turn, double-parked their car, and exited the vehicle with the intention of confronting the three individuals. As they approached, the defendant was observed reaching into his pocket and dropping a ball of tissue paper which contained heroin. In that case, the court noted that there was "nothing in the constitution which prevents a policeman from addressing questions to anyone on the streets." Id., 380 A.2d at1241. The Hall case stands for the proposition that simply approaching a person to ask that person questions does not amount to a forcible stop. Thus, any contraband discarded by the defendant in that situation is admissible. Were this not the role, of course, the police would either approach no one or would be required to abandon all contraband discarded by anyone they approached. See also Com. v. Brown, 388 Pa. Super. 187, 565 A.2d 177 (1989) ( a police detective' s action in parking on sidewalk next to defendant' s vehicle combined with his partner's action in walking quickly in the defendant's direction was a noncoercive encounter rather than a forcible stop). In this case, shots had been fired within the borough. The police believed that Vasser may have had information concerning that incident. The defendant was simply being approached by the police when he abandoned contraband. There was no chase. The officers had not, by means of physical force or any other show of authority, attempted to restrain the defendant's liberty. In fact, after a brief conversation Officer Kurtz allowed the defendant to go on his way. Our order of October 18, 1999, denying the defendant' s suppression motion, found that his situation was readily distinguishable from that presented in Com. v. Matos, supra.supra. For 99-1254 CRIMINAL the foregoing reasons, we continue to believe that to be the case. April 10,2000 "'~~~,&' K~'. Hess, J. Jaime Keating, Esquire Chief Deputy District Attorney Timothy Clawges, Esquire Assistant Public Defender :rlm