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HomeMy WebLinkAbout01-2123 CRIMINALCOMMONWEALTH Vo VERNON LEE McCLURE, SR., · OTN: H264271-0 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 01-2123 CRIMINAL TERM CHARGES: (1) UNLAWFUL POSSESSION OF SMALL AMOUNT OF MARIJUANA (2) UNLAWFUL POSSESSION OF DRUG PARAPHERNALIA IN RE: OMNIBUS PRETRIAL MOTION BEFORE OLER~ J. OPINION and ORDER OF COURT OLER, J., February 8, 2002. In this criminal case, Defendant has been charged with unlawful possession of a small amount of marijuana~ and unlawful possession of drug paraphernalia.2 For disposition at this time is an omnibus pretrial motion in the form of a motion to suppress filed on behalf of Defendant.3 This case presents the issue of whether a stop of Defendant based upon an error as to his identity has been shown to have been supported by specific and articulable facts warranting a belief that he was involved in criminal activity. A hearing was held on Defendant's motion on January 3, 2002, and briefs have been submitted by the Commonwealth and Defendant. For the reasons stated in this opinion, Defendant's motion to suppress will be granted. Act of April 14, 1972, P.L. 233, § 13, as amended, 35 P.S. § 780-113(a)(31). Act of April 14, 1972, P.L. 233, § 13, as amended, 35 P.S. § 780-113(a)(32). Omnibus Pre-Trial Mot., filed Dec. 11, 2001, paras. 3-11. STATEMENT OF FACTS This case arises out of an attempt by law enforcement officers to serve an arrest warrant on a certain African-American male suspected of drug offenses.4 Police believed that the suspect resided in an apartment complex in Mount Holly Springs Borough, Cumberland County, Pennsylvania, but did not know in which of two twelve-unit buildings within the complex he lived.5 The owner of the apartment complex had told officers that one apartment in each building was rented to African-Americans; however, the owner was able neither to identify which apartment was rented to the suspect nor even to confirm whether the suspect was, in fact, a tenant in the apartment complex.6 The Commonwealth presented the testimony of a Pennsylvania State Trooper who participated in the events at issue.7 The trooper's testimony, which the court found entirely credible, was basically uncontradicted and may be summarized as follows: On October 4, 2001, the trooper and other officers from various federal, state and local agencies went to the apartment complex where the suspect was believed to reside to serve the arrest warrant.8 The trooper "might have seen a picture of [the suspect] at the staging area briefly for a few seconds" before arriving at the apartment building, but relied on a description of the suspect as a "dark skinned black male," approximately 5' 11" and 150 pounds.9 While several officers entered one of the apartment buildings in an attempt to confirm whether or not the suspect rented the apartment, the trooper was stationed at the south entrance of that building,l° In this position, he saw a yellow taxicab pull into the 4 N.T. 5, Hr'g, Jan. 3, 2002 (hereinafter N.T. 2002 (hereinafter Commonwealth's Ex. ~. 5 N.T. 6-8, 21-23. 6 N.T. 22. 7 N.T. 5. 8 N.T. 5. 9 N.T. 12-13. l0 N.T. 8-9. Commonwealth's Ex. 2, Hr'g, Jan. 3, 2 parking lot of the apartment complex; however, he could not tell whether the cab had any passengers. The trooper briefly entered the apartment building and was told that the suspect was not in the apartment in that building.12 The trooper stepped back outside of the entrance and saw a yellow taxicab exiting the parking lot.13 He made eye contact with a passenger in the back seat of the cab whom he identified as an African-American male with a "thin black face" whose "eyes were wide as if he were scared.''14 Although this was "all [he] saw," the trooper asked an officer of the Mount Holly Springs Borough Police Department to pull over the cab.15 The officer testified that he, in a marked police car, stopped the cab within a few miles of the apartment complex.16 The passenger immediately identified himself as Vernon Lee McClure and produced a Pennsylvania identification card in that name. 17 The officer decided to further detain, but not to arrest, Defendant until the affiant for the arrest warrant, who could identify the suspect, arrived at the scene,la While Defendant was detained in the police car, officers found a "baggy" that contained marijuana in the back ll N.T. 9-10, 12. 12 N.T. 9-13. The trooper testified that he was inside the apartment building for approximately 15 seconds before returning outside. N.T. 13. 13 N.T. 10-11, 16-18. 14 N.T. 11-12. 15 N.T. 11-12. 16 N.T. 26-28, 33-34. The officer also testified that Defendant resembled the suspect with respect to several facial characteristics. N.T. 29. However, since the issue in this case is whether reasonable suspicion existed to initiate the stop, the only relevant testimony was that of the trooper who made the decision to stop Defendant. N.T. 11, 26; see Commonwealth v. Zhahir, 561 Pa. 545, 552, 751 A.2d 1153, 1156 (2000) (stating that whether reasonable suspicion exists is dependent upon circumstances known to police at time in which the inference first arose). 17 N.T. 28. la N.T. 28-30. The affiant for the arrest warrant, a detective with the Drug Task Force in Dauphin County, Pennsylvania, did not testify at the hearing on this issue. N.T. 6. 3 seat of the cab.~9 Officers later found another "baggy" and drug paraphernalia in the back of the patrol car.2° Defendant was subsequently arrested and charged with the aforementioned offenses. Defendant was not the subject of the arrest warrant. DISCUSSION Statement of Law Under the search and seizure provisions of both Article I, Section 8, of the Pennsylvania Constitution and the Fourth Amendment to the United States Constitution, police may make a brief, investigatory "stop" of a vehicle if police have "reasonable suspicion" that an occupant of the vehicle has committed, or is committing, a crime. Commonwealth v. Jackson, 548 Pa. 484, 488, 698 A.2d 571, 572-73 (1997); see United States v. Hensley, 469 U.S. 221, 226-27, 105 S. Ct. 675, 679-80, 83 L. Ed. 2d 604, 610- 11 (1985). Under the reasonable suspicion standard, on a suppression motion the Commonwealth bears the burden of establishing, by a preponderance of the evidence, that the "officers [had] a particularized and objective basis for suspecting the particular person stopped of criminal activity." In re D.M., 781 A.2d 1161, 1163 (Pa. 2001) (quoting United States v. Cortez, 449 U.S. 411,417-18, 101 S. Ct. 690, 695, 66 L. Ed. 2d 621, 629 (1981)); see Pa. R. Crim. P. 581. Mere "hunches" that a person is involved in criminal activity do not establish reasonable suspicion, nor does "good faith" on the part of the detaining officer justify a stop. Terry v. Ohio, 392 U.S. 1, 22, 88 S. Ct. 1868, 1880, 20 L. Ed. 2d 889, 906 (1968). Rather, reasonable suspicion requires that officers, based on the totality of circumstances known to them at the time that the decision to detain was made, be able "to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant [the stop]." Id. at 21, 88 S. Ct. at 1880, 20 L. Ed. 2d at 906; accordD.M., 781 A.2d at 1163. If the Commonwealth fails to meet this burden, any evidence obtained as a result of the stop must be suppressed as 19 N.T. 30. 2o N.T. 31-32. 4 tainted. WongSun v. United States, 371 U.S. 471,487-88, 83 S. Ct. 407, 417, 9 L. Ed. 2d 441, 455 (1963); Commonwealth v. Arch, 439 Pa. Super. 606, 612-13, 654 A.2d 1141, 1143-44 (1995). In developing reasonable suspicion, officers are not limited to their own personal observations; they may justifiably consider reports and descriptions obtained from other officers regarding a suspect. Jackson, 548 Pa. at 488-89, 698 A.2d at 573; see Hensley, 469 U.S. at 226-27, 105 S. Ct. at 679-80, 83 L. Ed. 2d at 610-11. When an officer detains an individual based on a third-party's description of the suspect, courts must evaluate several factors to determine whether the officer had reasonable suspicion to stop the particular individual. Commonrvealth v. Jackson, 359 Pa. Super. 433, 438, 519 A.2d 427, 430 (1986). Of these factors, specificity of the description is most important. Arch, 439 Pa. Super. at 612-13, 654 A.2d at 1143-44; see also Illinois v. Wardlorv, 528 U.S. 119, 124, 120 S. Ct. 673, 676, 145 L. Ed. 2d 570, 576 (2000). If the description relied upon by the detaining officer is overly general, meaning that it could apply to a relatively large group, similarities between the description and the individual detained are insufficient to establish reasonable suspicion in the absence personal observations by the officer of suspicious behavior that linked the particular individual with the offense. See Arch, 439 Pa. Super. at 612-14, 654 A.2d at 1144; Commonwealth v. Berrios, 437 Pa. 338, 341-42, 263 A.2d 342, 344 (1970). Commonwealth v. Arch, which dealt with a factual situation analogous to the present case, is instructive with respect to the application of the reasonable suspicion standard. In Arch, an officer began surveillance on a white Toyota parked outside of a motel after receiving a police radio report that three black males, wanted in connection with an assault, were driving a white Toyota. Arch, 439 Pa. Super. at 609-10, 654 A.2d at 1142-43. The officer observed the defendant, a black male, walking towards the front of the building. Id Upon seeing the officer, the defendant stopped, turned around and began walking to the rear of the building. Id Based on these observations and the description of the suspects and their vehicle, the officer detained the defendant inside his motel room. Id Although police later determined that he was not one of the suspects in the assault, 5 drugs and drug paraphernalia were found in plain view in the room and were later used to support defendant's conviction for drug offenses. Id The Superior Court held that the description of the suspects, even in conjunction with the "suspicious behavior" observed by the officer, did not establish reasonable suspicion to warrant a stop of the defendant. Id at 612-13, 654 A.2d at 1144. The Court emphasized that the officer lacked a specific description of the suspects -- beyond their racial characteristics -- and that he had no basis for concluding that the defendant was associated with the white Toyota, or even that the white Toyota was the particular one used by the suspects in the assault. Id at 612-14, 654 A.2d at 1144. With respect to Defendant's allegedly "suspicious behavior," the court stated that the "mere fact that [the defendant] walked back toward the rear of the motel after allegedly seeing [the officer] did not constitute proper grounds for [the] stop." Id at 613, 654 A.2d at 1144. Because the officer lacked a particularized basis for suspecting the defendant of criminal activity, the evidence obtained as a result of the stop was tainted and subject to suppression. Id Application of Law to Facts in the present case, as in Arch, the general description of the suspect in conjunction with the trooper's brief observations of Defendant did not provide police with a "particularized and objective basis" for concluding that Defendant was the suspect identified in the arrest warrant. See D.M., 781 A.2d at 1163. Reasonable suspicion may be established solely on the basis of a description of a suspect only when that description is sufficiently specific to limit its applicability to a small number of persons. Berrios, 437 Pa. at 341-42, 263 A.2d at 344. In this case, the trooper who made the decision to stop Defendant relied on a description of the suspect as a "dark-skinned black male," approximately 5' ii" and 150 pounds. This description would fit a large number of African-American males, and, thus, provides insufficient grounds to establish reasonable suspicion. See Commonwealth v. Anderson, 481 Pa. 292, 295-97, 392 A.2d 1298, 1299- 1300 (1978) (holding that description of individual as 5' i0" African-American male with a "bush" hairstyle is too general to establish reasonable suspicion). 6 To establish reasonable suspicion in cases in which the decision to stop was based largely on a general description of a suspect, the Commonwealth is required to present evidence of suspicious behavior that connects the detained individual to the suspect. Berrios, 437 Pa. at 341-42, 263 A.2d at 344. In this case, from personal observations, the trooper was able to state only that the person in the back of the taxicab was an African- American male who had a "thin black face" and wide eyes, a description that arguably would allow police to detain any African American male in the vicinity of the apartment complex. Because the trooper lost sight of the vehicle for the period in which the taxicab allegedly turned around in the parking lot, he was unable to state whether the cab had dropped off a passenger, had picked up a passenger, or had made any other movements signaling its destination. At the time the decision to detain was made by the trooper, police could not conclude that Defendant was associated with an apartment, or even that an apartment was rented to the suspect of the arrest warrant. The "mere fact" that Defendant was staring at police as the taxicab drove out of the parking lot did not link Defendant with the apartments or the suspect and did not "constitute proper grounds for [the] stop." Arch, 439 Pa. Super. at 613, 654 A.2d at 1144. Although the court has no doubt that the law enforcement officers acted entirely in good faith, this fact in itself will not support a sanction of the stop. See Terry, 392 U.S. at 22, 88 S. Ct. at 1880, 20 L. Ed. 2d at 906. While police are justified in relying upon descriptions from other officers in detaining suspects, reasonable suspicion requires the officers to be able to articulate grounds that indicate a "particularized" suspicion of the individual detained. D.M., 781 A.2d at 1163. Neither the trooper's testimony nor any other evidence presented during the suppression hearing provided a basis with which to compare the appearance of the suspect and Defendant. The respective ages of the suspect and Defendant were not placed in evidence, nor does the record contain a picture of Defendant for comparison purposes.2~ In light of the consideration that the burden was on the Commonwealth to Defendant did not appear at the suppression hearing. N.T. 3. 7 establish reasonable suspicion, the court does not find itself in a position to hold that the stop was valid. For the foregoing reasons, the following order will be entered: ORDER OF COURT AND NOW, this 8th day of February, 2002, after careful consideration of Defendant's omnibus pretrial motion in the form of a motion to suppress, following a hearing, and for the reasons stated in accompanying opinion, the motion is granted. BY THE COURT, Michelle H. Sibert, Esq. Assistant District Attorney Timothy L. Clawges, Esq. Assistant Public Defender Attorney for Defendant /s/J. Wesley Oler, Jr. J. Wesley Oler, Jr., J. 9 COMMONWEALTH IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA VERNON LEE McCLURE, SR., : OTN: H264271-0 NO. 01-2123 CRIMINAL TERM CHARGES: (1) UNLAWFUL POSSESSION OF SMALL AMOUNT OF MARIJUANA (2) UNLAWFUL POSSESSION OF DRUG PARAPHERNALIA IN RE: OMNIBUS PRETRIAL MOTION BEFORE OLER~ J. ORDER OF COURT AND NOW, this 8th day of February, 2002, after careful consideration of Defendant's omnibus pretrial motion in the form of a motion to suppress, following a hearing, and for the reasons stated in accompanying opinion, the motion is granted. BY THE COURT, Michelle H. Sibert, Esq. Assistant District Attorney Timothy L. Clawges, Esq. Assistant Public Defender Attorney for Defendant J. Wesley Oler, Jr., J.