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HomeMy WebLinkAboutCP-21-JV-0000205-2014 IN THE INTEREST OF A.S.M. : THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : A JUVENILE : CP-21-JV-205-2014 IN RE: A.S.M.’s PRETRIAL MOTION TO SUPPRESS OPINION AND ORDER At issue is A.S.M.’s motion to suppress evidence gathered during a “stop and frisk.” A.S.M. was located at a neighbor’s house when police arrived at the residence to speak with the owner of the house in connection to a series of burglaries. (Notes of Testimony, In Re: Transcript of Proceedings – Pretrial Motion, 5-7, January 12, 2015 (hereinafter “N.T. at __”)). At the time the police arrived at the residence, they had no information as to the identity of A.S.M. nor did they suspect he was involved in the burglaries for which they were investigating the owner of the residence. (N.T. at 8, 31). After making contact with the owner of the residence, and with the owner’s consent, Officer Roberts scaled the privacy fence surrounding the back yard. (N.T. at 7). Sergeant Shope advised Officer Roberts that A.S.M. made “furtive movements” at the patio table. (N.T. at 24). Upon approaching A.S.M., Officer Roberts noticed a “bulge” in A.S.M.’s front pants pocket. (N.T. at 25). After receiving no response upon asking A.S.M. what was in his pants, Officer Roberts conducted a Terry frisk, citing officer safety. (N.T. at 25-26). Officer Roberts stated that the identity of the object was immediately known as a marijuana pipe, as it had distinct ridges which he was familiar with from previous encounters with such devices. (N.T. at 27). As a result of the frisk, Officer Roberts seized the pipe, placed A.S.M. in handcuffs, and sent the pipe to the lab for testing. (N.T. at 28, 34). At the time of the frisk, there was no other indication that A.S.M. was involved in the burglaries, under the influence of a controlled substance, or in possession of any type of contraband or weapon. (N.T. at 31-32). Officer Roberts also stated that the pipes, such as the one he found in A.S.M.’s pocket, could be used to smoke non-contraband substances. (N.T. at 34). Officer Roberts added, however, that he had never seen one used in a lawful manner. (N.T. at 35). A.S.M. has challenged the stop and frisk conducted by Officer Roberts on the basis that the officer lacked the necessary facts to support a reasonable belief required to conduct the frisk and, further, that the pipe was not “immediately apparent” as contraband and therefore did not give rise to probable cause for the officer to remove the pipe from A.S.M.’s pocket. “To justify a frisk incident to an investigatory stop, the police need to point to specific and articulable facts indicating the person they intend to frisk may be armed and dangerous; otherwise, the talismanic use of the phrase 'for our own protection,' … becomes meaningless." Commonwealth v. Cooper, 994 A.2d 589, 593 (Pa. Super. Ct. 2010) (quoting Commonwealth v. Myers, 728 A.2d 960, 963 (Pa. Super. Ct. 1999)). Further, “when conducting a Terry frisk police need to have a reasonable belief that the person searched is armed and presently dangerous; but, mere presence at the premises to be searched does not justify a belief that the individual is armed and dangerous.” In the Interest of J.V., 762 A.2d 376, 381 (Pa. Super. Ct. 2000) (citing Ybarra v. Illinois, 444 U.S. 85 (1979)). At the hearing, some of the officers testified that they observed A.S.M. making “furtive movements” prior to Officer Roberts scaling the fence and entering the back yard. Upon approaching A.S.M., Officer Roberts stated that A.S.M. was non-responsive to his questions. However, Officer Roberts also stated that A.S.M. did not verbalize any 2 threats, did not attempt to flee from Officer Roberts, and was not the source of the police officers’ stated reason for being at the house. Though Mr. Lizardi was alleged to have possessed stolen weapons, there was no action by A.S.M. or observation of him which would indicate that he was a threat to the police officers’ safety. Merely being at the wrong place at the wrong time is not justification for a search. In the Interest of J.V., 762 A.2d 376. Having an object in one’s pocket without reaching for it or threatening an officer does not give leave for a frisk by police. Commonwealth v. Cooper, 994 A.2d 589. Therefore, A.S.M.’s motion to suppress on the grounds that the officer lacked specific and articulable facts to frisk A.S.M. should be granted. Assuming, however, that the pat down in this case was justified, we examine A.S.M.’s second argument that the evidence should be suppressed because a pipe is not “immediately apparent” as contraband and therefore did not give rise to probable cause for the officer to remove the pipe from A.S.M.’s pocket. In the Interest of B.C., 683 A.2d 919 (Pa. Super. Ct. 1996), established that the plain feel doctrine, founded in Minnesota v. Dickerson, 508 U.S. 366 (1993), is constitutional under the Pennsylvania Constitution. Following B.C., the Pa. Superior Court articulated that the plain feel doctrine to a stop and frisk applies when: (i) the officer is lawfully in a position to detect the contraband; (ii) the incriminating nature of the contraband is immediately apparent; and (iii) the officer has a lawful right of access to the object. Commonwealth v. Stoner, 710 A.2d 55, 58 (Pa. Super. Ct. 1998) (citing In the Interest of B.C., supra)). Both Commonwealth v. Fink, 700 A.2d 447 (Pa. Super. Ct. 1997), and Commonwealth v. Stoner, 710 A.2d 55, 58 (Pa. Super. Ct. 1998), examined the issue of 3 whether marijuana pipes are “immediately apparent” as contraband under the plain feel doctrine. These cases involved instances in which an officer with particular experience in drug interdiction stopped a defendant and conducted a lawful Terry frisk. The officers in both those cases stated that they immediately knew the pipe in the defendant’s pocket was contraband. The determinative test from Fink and Stoner, however, was whether the officers had particularized evidence to suggest that the object in the defendant’s possession was actually used in an unlawful manner. In Fink, supra, the Superior Court held that suppression was warranted because the contours of the pipe were the sole source of the officer’s belief that the pipe was contraband. Fink, 700 A.2d 451. The officer in Fink admitted that the pipe could have been used for entirely legal purposes and that he had no evidence or knowledge of the defendant’s intention to use the pipe for an unlawful purpose. Id. at 450-51. The Fink court stated that because a pipe can be used to smoke substances which are not contraband, mere possession of a pipe is not “immediately apparent” as contraband. Id. at 451. The Pennsylvania Supreme Court confirmed the reasoning of the Fink court by stating that “the immediately apparent requirement of the plain feel doctrine is not met when an officer conducting a Terry frisk merely feels and recognizes by touch an object that could be used to hold either legal or illegal substances, even when the officer has previously seen others use that object to carry or ingest drugs.” Commonwealth v. Stevenson, 744 A.2d 1261, 1266 (Pa. 2000). Further “an officer's subjective belief that an item is contraband is not sufficient unless it is objectively reasonable in light of the facts and circumstances that attended the frisk.” Commonwealth v. Zhahir, 751 A.2d 1153, 1163 (Pa. 2000) (holding that “vials of 4 cocaine, which was consistent with cocaine packaging \[the officer\] had encountered in previous narcotics cases” combined with the sheer number (98) and nature of the containers, was not consistent with legitimate purposes). Meanwhile, in Stoner the Superior Court stated that where the officer’s belief is based on some other corroborating evidence, suppression is not warranted. Stoner, 710 A.2d 55, 59. The Stoner court based this reasoning on a factual distinction between Fink, supra, and Commonwealth v. Trenge, 451 A.2d 701 (Pa. Super. Ct. 1982). The officer in Fink, as noted, had no other basis for the belief that the pipe in the defendant’s possession was contraband other than his experience in confiscating similar objects in the past. Conversely, the Stoner court noted, the officer in Trenge smelled marijuana emanating from the vehicle at the time of the stop, which provided the officer with sufficient evidence to believe the pipe was used for smoking a controlled substance. The Stoner court stressed that, similar to Trenge, the officer in Stoner noted a smell of marijuana prior to conducting the frisk and therefore, based on the totality of the evidence, had sufficient grounds for the belief that the pipe was used for an unlawful purpose. The Superior Court even noted that “had \[the officer's\] detection of the contours of the pipe been the sole source of his information, we would agree with appellant that the second element of this test had not been met, and therefore that the evidence should have been suppressed.” Commonwealth v. Stoner, 710 A.2d 55, 58. ORDER th AND NOW, this 28 day of January, 2015, upon A.S.M.’s Pretrial Motion to Suppress, and following a suppression hearing thereon, A.S.M.’s Motion is GRANTED, 5 and any and all evidence obtained as a result of the stop and frisk of A.S.M. is hereby suppressed. BY THE COURT: _________________________ Kevin A. Hess, P.J. 6 IN THE INTEREST OF A.S.M. : THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : A JUVENILE : CP-21-JV-205-2014 IN RE: A.S.M.’S PRETRIAL MOTION TO SUPPRESS ORDER th AND NOW, this 28 day of January, 2015, upon A.S.M.’s Pretrial Motion to Suppress, and following a suppression hearing thereon, A.S.M.’s Motion is GRANTED, and any and all evidence obtained as a result of the stop and frisk of A.S.M. is hereby suppressed. BY THE COURT: _________________________ Kevin A. Hess, P.J. Jamie Keating, Esquire Ron Turo, Esquire Christopher McCabe, Legal Intern :rlm