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HomeMy WebLinkAbout01-1985 CRIMINALCOMMONWEALTH JAMES LEWIS BREON IN RE: IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 01-1985 CRIMINAL TERM MOTION OF DEFENDANT TO SUPPRESS EVIDENCE BEFORE BAYLEY, J. OPINION AND ORDER OF COURT Bayley, J., January 2, 2002:-- Defendant, James Lewis Breon, is charged with a count of unlawful possession of drug paraphernalia.1 He filed a motion to suppress evidence upon which a hearing was conducted on December 18, 2001. We find the following facts. On June 13, 2001, at 4:41 a.m., Officer Scott Pellman of the Mechanicsburg Police Department responded to a burglary in the Borough of Mechanicsburg. He arrived at the Joseph James Jewelers, and found that entry into the building had been made through a window. Various items had been taken from the Jewelers. The officer discovered several watches on the ground next to the point of entry. There are railroad tracks behind the building, approximately 50 yards from the point of entry. At 5:04 a.m., another police officer saw two people on the railroad tracks to the rear of the building. The officer brought the people, one of whom was defendant, James Breon, to the side street across from the point of entry of the burglary. Officer Pellman went to where they 1 35 P.S. § 780-113(a)(32). 01-1985 CRIMINAL TERM were. Defendant said that his car, which was nearby, had broken down. The officers did not know either person. Officer Pellman said to them, "Would you empty your pockets." Both of them did, with defendant removing a marijuana smoking pipe from one of his pockets. Another officer then took defendant to his car. No evidence was obtained linking defendant or the person he was with to the burglary of the jewelry store. DISCUSSION Defendant maintains that the discovery and seizure of the marijuana smoking pipe violated his constitutional rights, and therefore, the evidence must be suppressed. There was no probable cause to arrest defendant for any crime when he was initially detained. Officer Pellman testified that at the time he had the two persons empty their pockets, there was a question of whether they had been involved in the burglary. Given the hour of the night, with defendant and the other person having been located behind the building containing the jewelry store a short time after the store had been burglarized, their brief detention for investigative purposes was warranted. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); Commonwealth v. Melnyczenko, 234 Pa. Super. 317 (1974). In Commonwealth v. Hicks, 434 Pa. 153 (1969), the Supreme Court of Pennsylvania outlined a police officers authority during a Terry investigative stop: [e]ven if probable cause to arrest is absent, the police officer may still legitimately seize a person.., and conduct a limited search of the individual's outer clothing in an attempt to discover the presence of -2- 01-1985 CRIMINAL TERM weapons which might be used to endanger the safety of the police officer and others, if the police officer observes unusual and suspicious conduct on the part of the individual seized which leads him reasonably to conclude that criminal activity may be afoot and that the person with whom he is dealing may be armed and dangerous. (Emphasis added.) In Commonwealth v. Pinney, 474 Pa. 210 (1977), the Supreme Court further outlined the requirements for a Terry limited search, explaining it is justified: ·.. on the ground that it protects a police officer's safety. The United States Supreme Court was careful to point out, [554 Pa. 477] however, in both Terry and the companion case of Sibron v. New York, 392 U.S. 40, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968), that in the case of a self-protective search for weapons, a police officer must be able to point to particular facts from which he could reasonably infer that the individual was armed and dangerous. In Commonwealth v. Graham, 721 A.2d 1075 (Pa. 1998), the Supreme Court of Pennsylvania stated: We have long accepted the principles of Terry and its companion case Sibron, that if the protective search goes beyond that which is necessary to determine whether the suspect is armed, it is no longer valid, and its fruits will be suppressed. Terry, 392 U.S. at 29, 88 S.Ct. at 1884; Sibron, [554 Pa, 479] 392 U.S. at 65-66, 88 S.Ct. at 1904. See also Commonwealth v. Norris, 498 Pa. 308, 316, 446 A.2d 246, 249 (1982); Pinney, 474 Pa. at 217, 378 A.2d at 296; Hicks, 434 Pa. at 158, 253 A.2d at 279. In the case sub judice, after defendant had been lawfully detained for investigative purposes, Officer Pellman told him to empty his pockets. That was a search. It was not a limited protective pat-down authorized by Terry. Accordingly, the evidence seized must be suppressed. -3- 01-1985 CRIMINAL TERM AND NOW, this suppress evidence, IS GRANTED. ORDER OF COURT day of January, 2002, the motion of defendant to By the Court, Daniel Sodus, Esquire For the Commonwealth Timothy L. Clawges, Esquire For Defendant :saa Edgar B. Bayley, J. -4-