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HomeMy WebLinkAboutCP-21-JV-0000279-2013 IN THE MATTER OF : IN THE COURT OF COMMON PLEAS Z.N.H. : OF CUMBERLAND COUNTY, Born March 27, 1997 : PENNSYLVANIA : : A JUVENILE : CP-21-JV-279-2013 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 Nov. 5, 2013). Subsequent to a traffic stop, the Juvenile was charged with possession of a small amount of marijuana for personal use, a violation of 35 P.S. 780-113(a)(31)(i) and unlawful possession of drug paraphernalia, a violation of 35 P.S. 780(a)(32). The Juvenile has filed this Motion asserting that the search of his items was performed without probable cause or valid 1 consent. As a result, the Juvenile requests that all evidence obtained be suppressed. For the reasons that follow, the Juvenile’s Motion will be granted. A suppression hearing on Juvenile’s Motion was held on November 18, 2013, where the testimony of Sergeant James Lynam (hereinafter “Sgt. Lynam”) was presented. The testimony established the following: On August 21, 2013, Sgt. Lynam was patrolling Interstate 81 in Cumberland County. He was in full uniform and operating a marked police vehicle. On that day, Sgt. Lynam observed a vehicle following the vehicle in front of it, at a distance of approximately one car length. The vehicle in question was not speeding. Furthermore, 1 No testimony or argument specifically concerning drug paraphernalia was presented during the 11/18/2013 Suppression Hearing. Sgt. Lynam testified that the suspect vehicle was not weaving and only the distance at which it was following the vehicle in front of it drew his attention. After observing the suspect vehicle for approximately one quarter of a mile, Sgt. Lynam initiated a traffic stop. There were three individuals inside the vehicle. In addition to the driver, the Juvenile, Z.N.H., was in the rear of the car. Z.N.H.’s brother was in the front passenger seat. When Sgt. Lynam approached the vehicle, he detected the odor of burnt marijuana and saw the emptied “guts” of a cigar in the front armrest on the passenger’s side. Sgt. Lynam testified that he was familiar with the aroma of burnt marijuana from his training at the Police Academy and from his experience as a law enforcement officer. Sgt. Lynam then asked the driver for consent to search the vehicle, but the driver denied the request. As a result, Sgt. Lynam summoned the Pennsylvania State Police Canine Unit to assist in the possible detection of narcotics. The Juvenile and other occupants waited outside of the vehicle for the arrival of the canine unit. While waiting, Z.N.H.’s brother requested to retrieve his cell phone from inside the vehicle. The brother informed the officer he was a student at Shippensburg University, that his brother was visiting him there, and that they were now on their way to the train station so that Z.N.H. could return to Philadelphia. Z.N.H.’s brother wanted his phone so that he could call the train station and see if Z.N.H. was going to miss his train. Sgt. Lynam denied the request but informed the occupant that another trooper, who had then arrived on the scene, could retrieve the phone for him if granted permission. After receiving permission from the driver, the other trooper retrieved the phone, and, in doing so, observed a “metal grinder.” Sgt. Lynam testified that the type of metal grinder that 2 was observed is commonly used for grinding marijuana, though Z.N.H.’s brother stated that the grinder was used for tobacco. Eventually, a trooper arrived with a state police drug detection canine. The canine was lead around the exterior of the vehicle and gave an alert, indicating the presence of a controlled substance. Subsequently, the driver approached Sgt. Lynam and offered consent for a search of the vehicle out of a desire to get the affair over with. The driver of the vehicle signed a Waiver of Rights and Consent to Search form that Sgt. Lynam filled out. Sgt. Lynam then searched the vehicle. In addition to the interior of the vehicle, Sgt. Lynam searched a denim jean jacket that was located in the back seat of the vehicle, directly next to where Z.N.H was sitting. The jacket belonged to Z.N.H., but Z.N.H. had not consented to a search of any of his personal property and had not been asked for his consent. Sgt. Lynam testified that he did not ask to whom the jacket belonged before he searched but that there was no indication that the jacket belonged to anyone other than Z.N.H. Ultimately, two plastic bags containing marijuana were found in the jacket and field tested. The standards regarding the quantum of cause necessary for an officer to stop a vehicle in this Commonwealth are now well settled; traffic stops based on a reasonable suspicion of either criminal activity or a violation of the Motor Vehicle Code under Section 6308(b) must serve a stated investigatory purpose. Commonwealth v. Feczko, 10 A.3d 1285, 1290-91 (Pa. Super. 2010). However, reasonable suspicion will not justify detention where a traffic stop would serve no further investigatory purpose in relation to the suspected violation; instead, an officer must have probable cause to believe that a violation of the vehicle code has occurred. Id. (“Mere reasonable suspicion will not 3 justify a vehicle stop when the driver’s detention cannot serve an investigatory purpose relevant to the suspected violation.”); see also Commonwealth v. Chase, 960 A.2d 108 (Pa. 2008) (holding that probable cause of a Vehicle Code violation is needed for a non- investigatory stop). In such instances, the officer must articulate specific facts that were possessed by him at the time of the questioned stop that would provide probable cause to believe there was a violation of the Code. Feczko, 10 A.3d at 1291 (quoting Commonwealth v. Gleason, 785 A.2d 983, 989 (Pa. 2001)). Section 3310 of the Vehicle Code, entitled “Following too closely,” provides as follows: “(a) General rule.--The driver of a motor vehicle shall not follow another vehicle more closely than is reasonable and prudent, having due regard for the speed of the vehicles and the traffic upon and the condition of the highway.” 75 Pa.C.S. § 3310(a). Because this language is clear and unambiguous, it should be construed according to its plain meaning. Commonwealth v. Bybel, 779 A.2d 523, 524 (Pa. Super. 2001) (citing Commonwealth v. Stanley, 446 A.2d 583, 587 (Pa.1982). Initially, we recognize that no further investigatory purpose concerning a violation of Section 3310 could have been, or was attempted to be, advanced by Sgt. Lynam’s stop. As such, probable cause and the articulation of specific facts that were possessed by Sgt. Lynam at the time of the stop are required. In a case discussing a similar issue, the Pennsylvania Supreme Court questioned how a suppression court could independently assess whether an officer had reasonable grounds for a traffic stop without being provided additional information as to why the officer concluded the vehicle “was follow\[ing\] another vehicle more closely than is reasonable and prudent.” Commonwealth v. Holmes, 14 A.3d 89, 97 (Pa. 2011). Here, we are provided with little 4 or no information. Sgt. Lynam testified the vehicle in question was traveling at the speed limit and that he only followed it for a quarter of a mile. The observations and testimony of Sgt. Lynam lack any negative findings regarding the factors stated in the Code. As such, we are left with nothing more than a conclusion. While mindful of the challenges police face in the “often competitive enterprise of ferreting out crime,” Johnson v. United States, 333 U.S. 10, 14 (1948), we must also respect that “an individual does not lose all reasonable expectation of privacy when he takes to the highway in a vehicle. A police officer must have specific facts justifying the intrusion.” Commonwealth v. Slonaker, 795 A.2d 397, 400 (Pa. Super. 2002). Here, there are no such facts. Even if the stop was lawful in this case, we are satisfied that the evidence should be suppressed because Z.N.H. had a legitimate expectation of privacy in his jacket, which expectation was not waived by the driver’s consent to the search of the vehicle. In this regard, 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) (citing Commonwealth v. Simmons, 17 A.3d 399, 402 (Pa. Super. 2011)). 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. CONST. Art. I, §8. 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)). Actual, voluntary consent to a search eliminates the warrant and probable cause 5 requirements. Commonwealth v. Danforth, 576 A.2d 1013, 1022 (Pa. Super. 1990), appeal granted, 585 A.2d 467 (Pa. 1990), affirmed sub nom. “Under Pennsylvania law, a defendant charged with a possessory offense has standing to challenge a search.” Commonwealth v. Brown, 64 A.3d 1101, 1107. (Pa. Super. 2013). “To prevail in a challenge to the search and seizure, however, a defendant accused of a possessory crime must also establish, as a threshold matter, a legally cognizable expectation of privacy in the area searched.” Commonwealth v. Caban, 60 A.3d 120, 126 (Pa. Super. 2012) (citing Commonwealth v. Strickland, 707 A.2d 531, 534 (Pa.Super.1998), appeal denied, 727 A.2d 130 (1998)). Here, it must be determined whether, after the driver of the vehicle gives consent for the vehicle to be searched, a passenger of the vehicle has an expectation of privacy in clothing that is located in the back seat, next to where he was sitting. While cases have touched on closely related issues, no Pennsylvania case has addressed the precise issue at hand. Having been charged with a possessory crime, Z.N.H. has standing to challenge the search, and we take up the question of his expectation of privacy. In Commonweatlh v. Viall, 890 A.2d 419 (Pa. Super. 2005), a vehicle was pulled over for having a burnt out taillight. In addition to the driver, the driver’s wife was in the front passenger seat and there were three passengers in the rear of the car. Id. at 421. Ultimately, the driver of the vehicle gave consent for a search and drugs were found in the back seat of vehicle. Id. at 421, 423. A passenger who was in the back seat of the vehicle sought to have the evidence suppressed, and the Superior Court stated, “\[w\]hile passengers in an automobile may maintain a reasonable expectation of privacy in the contents of luggage they placed inside an automobile it would be unreasonable to maintain a subjective expectation of 6 privacy in locations of common access to all occupants.” Id. at 423 (citations and quotations omitted). In doing so, the Superior Court acknowledged that in certain circumstances passengers do possess an expectation of privacy for their belongings in a vehicle—but not as to locations that other occupants can access. In Viall, the Superior Court then went on two emphasize that there were four other passengers in the automobile, two of whom were in the back seat with the appellant, and concluded “it would be unreasonable for Appellant to have expected to maintain a privacy interest in objects which were placed inside the car and not shielded from the view of the many others occupying the same small space.” Id. Here, the situation is distinguishable from Viall in that Z.N.H. did not share the back seat of the automobile with anyone else. More importantly, the contraband was found in a jacket not in a common area. Since Viall, the Superior Court has also stated, “consent is only valid in locations to which the consenting party has rightful access; while a vehicle's driver can consent to a search of the passenger compartment, the driver does not have such access to the passenger's luggage or containers and cannot consent to searches of those items.” Commonwealth v. Grahame, 947 A.2d 762 (Pa. Super. 2008) (Kelly, J., Dissenting), reversed, 607 Pa. 389 (2010). Thus, case law is clear that vehicle passengers may maintain an expectation of privacy in their belongings under certain circumstances. We believe those circumstances are present in this case. Z.N.H was alone in the back seat and was the only one with access to the jacket. No evidence was presented that would suggest the driver jointly owned, possessed, or controlled Z.N.H.’s jacket. As such, we find that Z.N.H. had a legitimate expectation of privacy in the jacket. 7 Courts in other jurisdictions have reached supportive holdings. People v. Stage, 86 Cal.Rptr. 701(4th Dist. 1970) (owner’s consent to search of vehicle does not allow officer to search passenger’s jacket found on the seat when officer knows jacket belongs to passenger), State v. Friedel, 714 N.E.2d 1231 (1999) (driver’s consent to search of his vehicle did not provide valid consent for a search of passenger’s purse and it was unreasonable for the officers to conclude that it did). ORDER AND NOW, this day of December, 2013, upon consideration of Juvenile’s Omnibus Pre-Trial Motion to Suppress, and following a hearing, the Motion is GRANTED, and all evidence obtained as a result of stop of the vehicle on August 21, 2013 is hereby suppressed. BY THE COURT, Kevin A. Hess, P.J. 8 IN THE MATTER OF : IN THE COURT OF COMMON PLEAS Z.N.H. : OF CUMBERLAND COUNTY, Born March 27, 1997 : PENNSYLVANIA : : A JUVENILE : CP-21-JV-279-2013 IN RE: OMNIBUS PRE-TRIAL MOTION TO SUPPRESS BEFORE HESS, P.J. ORDER AND NOW, this day of December, 2013, upon consideration of Juvenile’s Omnibus Pre-Trial Motion to Suppress, and following a hearing, the Motion is GRANTED, and all evidence obtained as a result of stop of the vehicle on August 21, 2013 is hereby suppressed. BY THE COURT, Kevin A. Hess, P.J. District Attorney’s Office Public Defender’s Office Juvenile Probation Office