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HomeMy WebLinkAboutCP-21-JV-0000313-2014 IN THE MATTER OF TRISTAN M.C., a Juvenile IN THE COURT OF COMMON PLEAS OF THE NINTH JUDICIAL DISTRICT CP-21-JV-313-2014 IN RE: OMNIBUS PRETRIAL MOTION TO SUPPRESS OPINION AND ORDER OF COURT PROCEDURAL HISTORY Juvenile filed an Omnibus Pretrial Motion on February 20, 2015, seeking the suppression of all physical evidence seized as a result of a traffic stop on August 16, 2014. A hearing on the merits of the Motion was held on March 9, 2015, and the a transcript. FINDINGS OF FACT 1 1. On August 16, 2014, Juvenile, a 16 year old male, was a passenger in a motor vehicle, a Honda Accord, being operated by another male that had one other male passenger, one of whom was also under the age of 18. 2. At approximately 12:26 a.m., a Pennsylvania State Trooper encountered the Accord traveling erratically on Walnut Bottom Road in Shippensburg Township, Cumberland County. 1 From the filed written allegation 3. A traffic stop was conducted in the parking lot of the Shippensburg Shopping Center. 4. The result of the traffic stop was that the vehicle operator was arrested for Driving Under the Influence of drugs. 5. The Trooper who made the traffic stop was backed up by two other Troopers, who covered the passengers of the vehicle and provided security while the primary Trooper conducted an investigation. 6. The backup Trooper observing Juvenile noted when viewing inside the vehicle a large plastic baggie, gallon size, that appeared to contain marijuana that was visible when the vehicle glove box was opened. 7. At the conclusion of the traffic stop that resulted in the DUI arrest, the backup Trooper had Juvenile, who was the driver side back seat passenger of the Accord, exit the vehicle. 8. nor as verbally uncooperative. 9. The backup Trooper conducted a pat down search for officer safety of Juvenile and felt a cellophane packet, not a plastic baggie, containing material in the front pants pocket of Juvenile when he was patted down. 10. The size of the material in the packet was about the diameter of the backup size of a half dollar coin. redacted for publication 2 11. The backup Trooper indicated at the hearing that it was immediately apparent that the object he felt in the front pant pocket of Juvenile was contraband; specifically he believed it to be a packaged small amount of marijuana. 12. The backup Trooper indicated that the cellophane nature of the container was similar to what would be found sealing a pack of cigarettes or cigars to sale. 13. The suspected marijuana, seen in glove box, turned out to be catnip. 14. The suspected small marijuana found in Juvenile front pants pocket was thought to be enough material for a rolled cigarette and is now believed to be which is the street name for synthetic marijuana. 15. A video recording of the entire traffic stop was made and specifically the time markers from 25:40 through 25:50 were viewed as to the pat down of Juvenile. 16. Additionally, the video shows the well-lit parking lot area where the search was conducted. 2 17. Juvenile was charged with possession of a controlled or counterfeit substance. 18. ment was apparent at the hearing. DISCUSSION Statement of law. The assumption of dangerousness has been applied to the policecitizen traffic stop encounters. The United States Supreme Court allows police officers during traffic stops to order drivers and passengers from the car without suspicion to ensure police officer safety. Pennsylvania v. Mimms, 434 U.S. 106, (1977), Maryland v. Wilson, 519 U.S. 408 Brendlin 2 From the filed written allegation redacted for publication 3 v. California, 551 U. S. 249, 255 (2007). In a traffic-stop set Arizona v. Johnson, 555 U.S. 327 (2009). The justification for a pat down of the driver Id. d under Terry \[v. Ohio, 392 U.S. 1 (1968)\] unless the officer can articulate facts that establish an individualized, objective basis for perceiving a threat of armed violence. In developing this precedent, the Supreme Court has made it abundantly clear that an individual's location, standing alone, does not provide sufficient grounds for a Terry Commonwealth v. Grahame, 7 A.3d 810, 816 (Pa. 2010). Our Pennsylvania Supreme Court requires that have a particularized, objective basis for a protective search; an individual's mere Id. at 817. The ruling in Grahame is a reiteration of an earlier decision that justifiable only if the officer has identified particular facts and circumstances from which he can reasonably infer that the suspect may be armed; the resulting search is then limited to a frisk for concealed weapons; and the seizure of non-threatening contraband is further limited to only those items immediately apparent as such upon tactile Commonwealth v. Zhahir, 751 A.2d 1153, 1160 (Pa. 2000). Taking judicial notice that all who deal in illicit drugs may be armed as grounds for a Terry search clashes with the totality standard, as well as the premise that the concern for the safety of the officer must arise from the facts and circumstances of the particular case.Id. at 1162. redacted for publication 4 The United States Supreme Court considered the question of whether an officer may also properly seize non-threatening contraband "plainly felt" during a Terry search. Minnesota v. Dickerson, 508 U.S. 366 (1993). In Dickerson, the Court adopted the plain feel doctrine, which allows a police officer to seize non-threatening contraband detected through the officer's sense of touch during a Terry frisk if the officer is lawfully in a position to detect the presence of contraband, the incriminating nature of the contraband is immediately apparent from its tactile impression and the officer has a lawful right of access to the object. Id. at 373-75. plain feel doctrine is only applicable where the officer conducting the frisk feels an object whose mass or contour makes its criminal character immediately apparent. Id. at 375If, after feeling the object, the officer lacks probable cause to believe that the object is contraband without conducting some further search, the immediately apparent requirement has not been met and the plain feel doctrine cannot justify the seizure of the object. Commonwealth v. Stevenson, 744 A.2d 1261, 1266 (Pa. 2000). The immediately apparent requirement is not met when an officer 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.Id. at 1266. Subsequent to Grahame and Zhahir, our Pennsylvania Supreme Court determined that Article 1, Sec. 8 of the Pennsylvania Constitution affords no greater protection than the Fourth Amendment of the United States Constitution and that Pennsylvania has now adopted the Federal Automobile Exception Standards. Commonwealth v. Gary, 91 A.3d 102, 104 (Pa. 2014). No exigency beyond the redacted for publication 5 inherent mobility of a vehicle needs to be present for an officer to search a vehicle with probable cause. Id. Application of law to facts. The first issue to be determined is whether there was lawful justification for a pat down search of the passenger Juvenile. The second inquiry is whether upon conducting that pat down is whether the object felt by the Trooper was immediately recognized as unlawful by his sense of touch. the Accord and detention of all its occupants during the investigation of the Vehicle Code violation was lawful. See Arizona v. Johnson, 555 U.S. 327 (2009). The adoption of the Federal Automobile Exception standards does not authorize search of all occupants. The investigating Trooper stopped a vehicle with three occupants in a well-lit parking lot of a retail shopping center. In addition to the investigating Trooper, there were two backup Troopers providing cover during the investigation. At the conclusion of the investigation, the cover Trooper who had been watching Juvenile was aware that the operator was under the influence of drugs, that a cache of what appeared to be marijuana was visible in the glove compartment, and that Juvenile was verbally uncooperative. Based on this knowledge, the backup Trooper conducted a Terry search of Juvenile based on the backup belief that Juvenile could be armed and dangerous on those facts. There was no information as to any prior history or current court supervision of any of the occupants. There was no indication on approach of the investigating Trooper or from the cover Troopers of any furtive movements, gestures, or redacted for publication 6 readily apparent clothing bulges in the twenty (20) plus minutes of observation that would have heightened the attention for weapons. The theory that guns follow drugs is not a particularized objective fact upon which to base an individual search. The combination of facts in this case, including the vehicle engagement in vehicular criminal activity, is insufficient to provide a reasonable basis on these facts for the backup Trooper to have conducted a Terry search. See Commonwealth v. Grahame, 7 A.3d 810 (Pa. 2010); Commonwealth v Zhahir, 751 A.2d 1152 (Pa. 2000). The above conclusion that there was no reasonable basis for the backup Trooper to conduct a Terry search effectively ends the discussion; however, it must be noted that the subsequent search resulting in seizure and allegations of possession of a small amount of marijuana is also not supported. The backup knowledge of the insobriety of the driver, presence of drugs in the vehicle, combined with the pat down, led him to the logical conclusion that what he felt was contraband is clear by simple deduction. The law is not by deduction that material felt is contraband; rather the law only allows for an invasive search when an officer immediately knows the nature of the object felt to be a specific contraband. Here, the Trooper by plain feel could tell that what he felt was not a weapon, keys or any other lawful item in the pocket of a 16 year old. The conclusion is that the backup Trooper could tell that what was felt could be used to carry illegal substances but the specific nature of what was in the pocket of the Juvenile was not known by that simple act of pat down. Thus, even if there had been reasonable grounds to conduct a pat down search, the items found would have been suppressed based on lack of redacted for publication 7 immediate knowledge of the item. See Commonwealth v. Stevenson, 744 A.2d 1261 (Pa. 2000) To paraphrase another Pennsylvania Supreme Court decision: There was no testimony that Juvenile's clothing had any unusual bulges or that this Juvenile or any other vehicle occupant had prior involvement with the law or was currently under any supervision, or any testimony that Juvenile made any furtive movements giving rise to suspicions that Juvenile was armed and dangerous. On officer's statement that he patted Juvenile down for his own safety does not rise to the level of particularized or reasonable suspicion that the Juvenile was armed and dangerous. In the absence of any specific, articulable facts establishing that Juvenile was armed and dangerous, the frisk unlawful. See In the Interest of S.J., 713 A.2d 45, 48 (Pa. 1998) ORDER OF COURT th AND NOW27 March 2015 , this day of GRANTED. Omnibus Pretrial Motion to Suppress, the Motion to Suppress is BY THE COURT, ________________________ Thomas A. Placey C.P.J. Distribution: Jaime M. Keating First Assistant District Attorney Ron A. Turo Deputy Public Defender redacted for publication 8