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HomeMy WebLinkAboutCP-21-CR-0002147-2015 COMMONWEALTH OF : IN THE COURT OF COMMON PLEAS OF PENNSYLVANIA : CUMBERLAND COUNTY, PENNSYLVANIA : : v. : CP-21-CR-0002147-2015 : KENNEDY ANTHONY RICHARDS : : : IN RE: MOTION TO SUPPRESS PHYSICAL EVIDENCE OPINION AND ORDER OF COURT BREWBAKER, J., May 16, 2016 Findings of Fact 1.On May 13, 2015, Trooper Long and Trooper Gerkin were on patrol in an unmarked vehicle on northbound Interstate 81 monitoring highways for criminal interdiction. 2.At approximately 4:30 p.m. on that day, Defendant Kennedy Richards, in a rented 2014 Nissan Sentra with a New Jersey plate, drove by the Troopers’ position around mile marker 40. 3.At the time that he drove by, the Defendant was in the left-hand lane of the highway. 4.The Troopers pulled out and began to follow the Defendant; by the time that they had pulled him over, they had traveled for five miles. 5.The video recording from the patrol car shows approximately one mile of travel totaling about a minute and a half prior to the vehicle coming to a stop; during this time, Defendant remained in the left lane with several vehicles in front of him, all of which appeared to be passing vehicles, most notably a tractor-trailer truck, in the right-hand lane. 6.The Troopers activated their lights and after waiting for an available spot in the right-hand lane, the Defendant used his turn signal, pulled into the right lane, and then pulled over onto the berm of the road around mile marker 45. Upon request, the Defendant provided a valid Florida driver’s license as well as the rental agreement for the vehicle. 7.When questioned by the Troopers, the Defendant was extremely nervous, and was inconsistent and evasive as to his travel plans and his criminal history, which included arrests for firearms and narcotics. 8.The Troopers requested to search the Defendant’s vehicle, but the Defendant refused to give consent. A K9 unit was summoned to search the vehicle, and ultimately, approximately 13 pounds of marijuana was discovered in the vehicle. The Troopers did not issue a citation to Defendant for driving in the left lane without passing, instead issuing a warning. 9.Defendant has been charged with Unlawful Possession with Intent to Deliver a Schedule I Controlled substance (Marijuana). He has filed a motion to suppress the discovery of the marijuana, arguing that the Troopers lacked probable cause to either conduct a traffic stop or conduct a search of his vehicle. Analysis Section 3313(d) of the Motor Vehicle Code states in relevant part: \[U\]pon all limited access highways having two or more lanes for traffic moving in the same direction, all vehicles shall be driven in the right-hand lanes when available for traffic except when any of the following conditions exist: (i) When overtaking and passing another vehicle proceeding in the same direction. (ii) When traveling at a speed greater than the traffic flow. … 75 Pa. C.S. § 3313(d). Furthermore, Section 6308(b) of the Motor Vehicle Code states: 2 \[w\]henever a police officer … has a reasonable suspicion that a violation of \[the Motor Vehicle Code\] is occurring or has occurred, he may stop a vehicle, upon request or signal, for the purpose of checking the vehicle’s registration, proof of financial responsibility, vehicle identification number or engine number or the driver’s license, or to secure such other information as the officer may reasonably believe to be necessary to enforce the provisions of this title. 75 Pa. C.S. § 6308(b). While Section 6308(b) provides for a standard of reasonable suspicion in some circumstances, a police officer must have probable cause to support a vehicle stop when the officer’s investigation following the stop serves “no investigatory purpose relevant to the suspected \[Motor Vehicle Code\] violation.” Commonwealth v. Feczko, 10 A.3d 1285, 1291 (Pa. Super. 2010). The reasonable suspicion standard is applicable only when the officer must conduct an additional investigation and the officer has a legitimate expectation of investigatory results, such as for a DUI. Commonwealth v. Chase, 960 A.2d 108, 115-16 (Pa. 2008). Consequently, an officer stopping a driver for an alleged violation of Section 6313(d) must already know whether a violation has occurred and therefore the decision to pull the driver over must be supported by probable cause. Commonwealth v. Robinson, 2015 Pa. Super. Unpub. 1 LEXIS 2538 (Pa. Super, No. 1846 EDA 2014, filed August 4, 2015). In the present case, after hearing the testimony and watching the video of the stop, we conclude that the Troopers lacked probable cause to pull the Defendant over for illegally driving in the left-hand lane. While we credit Trooper Long’s testimony that he observed the Defendant’s vehicle in the left-hand lane for over five miles, we do not find that Defendant was acting in violation of Section 3313(d) of the Motor Vehicle Code. Trooper Long testified that 1 While Robinson is an unpublished opinion of the Superior Court and is not binding precedent, we accept the reasoning of that Court as highly persuasive because Robinson is one of the few cases that cite Section 6313(d). 3 2 when the Defendant passed the Troopers, “he was actually in the line of traffic.” (Notes of Transcript of Suppression Hearing, dated April 20, 2016 (hereafter N.T.) at 33). He also confirmed that when he passed the Troopers, the Defendant was “somewhere in the line of cars.” (N.T. 37). Furthermore, the Trooper confirmed that while he was following the vehicle for five miles, the Defendant “continued to pass other vehicles that were in the right lane.” (N.T. 39). On cross-examination, the specific testimony went as follows: Q: …\[The Defendant\]’s vehicle was in the line of traffic at the time he passed your location, is that correct? A: Correct. Q: So he was in the left lane? A: Correct. Q: At mile marker forty? A: Yes. Q: There were cars in front of him, correct? A: Correct. Q: He was somewhere in the line of cars, correct? A: Correct. *** Q: Did you immediately pull out after you saw this? A: Whenever I had the opportunity to safely pull out, yes. Q: And then you testified that you followed this vehicle for five miles? A: Correct. Q: And other cars in that left lane moved over to the right lane, I assume? A: Correct. Q: And \[the Defendant\]’s vehicle continued to pass other vehicles that were in the right lane, is that fair? A: Yes. Q: In fact, in the video we saw it. There was a truck and a car that was in the right lane and \[the Defendant\] went past those vehicles, is that correct? A: Yes. Q: At some point around the five mile mark you decided to activate your lights, is that correct? A: Correct. 2 The Trooper testified that “when \[Defendant\] passed my location he was actually in the line of traffic and then you saw when the \[video recording\] actually went back thirty seconds, he was the only – he was the vehicle left in front of me at that time.” After watching the video multiple times, it is very clear that the Defendant was the vehicle immediately in front of the police car during the entire time that the police car was following him. However, also during that time, there were multiple vehicles in front of the Defendant, also in the left lane, and that entire line of vehicles was passing traffic in the right lane, ending with their passing the tractor-trailer truck right before the Defendant pulled over on the side of the road for the police lights. 4 Q: At that point \[the Defendant\] puts on a turn signal and goes into the right lane of traffic, is that right? A: Correct. (N.T. 37-39). Finally, when asked whether “You \[Trooper Long\] pulled \[Defendant’s\] car over because he was in the line of cars in the passing lane?” Trooper Long responded “Yes.” (NT. 59). Though the video of the stop only shows approximately one mile prior to Trooper Long activating the emergency lights, we note that the portion of the video prior to the activation of the lights shows the Defendant’s car in a line of cars in the left-hand lane in the process of passing a truck on the right. Furthermore, throughout the rest of the video during the stop (and prior to the search, which was the only portion of the video admitted at the hearing), a substantial number of cars are seen on the road passing by the Troopers’ and Defendant’s vehicles regularly and continuously. Additionally, when asked about this very issue multiple times, Trooper Long repeatedly confirmed that the Defendant was travelling in the left lane in a line of cars, passing vehicles on the right. Although the Commonwealth’s position is that the Defendant had the opportunity to get into the right lane at several points, the statute does not mandate that he do so. Rather, the statute specifically allows for travel in the left lane “when overtaking and passing another vehicle proceeding in the same direction, or when traveling at a speed greater than the traffic flow.” As all of the evidence indicates that the Defendant was doing exactly that, we are constrained to find that there was not sufficient justification for stopping the Defendant, and will suppress the 3 seizure of the marijuana as the fruits of an illegal search. Commonwealth v. Brown, 700 A.2d 1310, 1318 (Pa. Super. 1997) (citing Wong Sun v. United States, 371 U.S. 471 (1963) (holding 3 While we noted in the Findings of Fact that the Defendant was only issued a warning for travelling in the left lane, rather than a citation, we do not find that fact to be of significance to the decision in this case. 5 that statements made as part of an illegal arrest should be suppressed as “fruit of the poisonous 4 tree”). ORDER AND NOW, this _____ day of May, 2016, upon consideration ofDefendant’s Motion to GRANTED Suppress Physical Evidence, the Motion is hereby . BY THE COURT, __________________________ Jessica E. Brewbaker, J. Jaime Keating, Esquire First Assistant District Attorney Douglas Dolfman, Esquire 1617 JFK Blvd. #1660 Philadelphia, PA 17103 For the Defendant :rlm 4 Assuming arguendo that the troopers had probable cause to initiate a traffic stop, we find that they did possess sufficient probable cause to conduct a K9 search of the vehicle. The Defendant appeared nervous throughout the entire stop, provided inconsistent statements, had taken several trips to Patterson, New Jersey (a known drug area), and lied about previous arrests and citations. Together, the totality of the circumstances supported the subsequent search, if the Troopers had possessed sufficient cause to stop Defendant in the first place. 6 COMMONWEALTH OF : IN THE COURT OF COMMON PLEAS OF PENNSYLVANIA : CUMBERLAND COUNTY, PENNSYLVANIA : : v. : CP-21-CR-0002147-2015 : KENNEDY ANTHONY RICHARDS : : : IN RE: MOTION TO SUPPRESS PHYSICAL EVIDENCE ORDER OF COURT th AND NOW, this 16 day of May, 2016, upon consideration ofDefendant’s Motion to GRANTED Suppress Physical Evidence, the Motion is hereby . BY THE COURT, __________________________ Jessica E. Brewbaker, J. Jaime Keating, Esquire First Assistant District Attorney Douglas Dolfman, Esquire 1617 JFK Blvd. #1660 Philadelphia, PA 17103 For the Defendant rlm