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HomeMy WebLinkAboutCP-21-JV-0002149-2016 COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : : CP-21-CR-2149-2016 v. : : FAIZAL SABAR : AFFIANT: PTL. MICHAEL MCGEEHAN OTN: X 032847-3 : IN RE: MOTION TO SUPPRESS OPINION AND ORDER OF COURT BREWBAKER, J., December 20, 2016 Findings of Fact On July 2, 2016, Patrolman Michael McGeehan was on patrol in Middlesex Township, Cumberland County, Pennsylvania. Patrolman McGeehan testified that he was parked across the street from the Pike Motel observing traffic and individuals entering and exiting the motel. Patrolman McGeehan stated that the Pike Motel was a known drug trafficking location, particularly for heroin. Patrolman McGeehan noticed a dark Mercedes Benz coupe activate its four-way flasher lights, and testified that he could tell from his position that the vehicle’s rear windshield was so heavily tinted that he could not see inside the vehicle. Patrolman McGeehan also testified that he knew that the tint on the windows on the vehicle was not factory installed because no sedan or coupe is permitted to ship from the manufacturer with such heavily tinted windows. Two individuals were seen exiting one room and then entering and exiting another room at the motel, after which they entered the Mercedes Benz. Patrolman McGeehan followed the vehicle for a short distance and saw the vehicle swerve within its own lane of travel. At that point, Patrolman McGeehan testified that he intended to conduct a traffic stop. However, he waited until the vehicle made a left turn off the Harrisburg Pike in order to avoid creating traffic issues. When the vehicle made its turn, Patrolman McGeehan testified that he observed the vehicles’ other windows were tinted so heavily he could not see inside. Patrolman McGeehan activated his emergency lights and the vehicle turned into a parking lot and stopped. As he approached the vehicle, Patrolman McGeehan shouted for the driver to roll down all the windows because he could not see inside. Patrolman McGeehan testified he made this request due to concerns over officer safety. After approximately thirty seconds the driver complied and rolled down the windows. Patrolman McGeehan identified himself and obtained information from the driver and passenger. The driver was Faizal Sabar (Defendant). Upon approaching the passenger side, Patrolman McGeehan stated that he could smell the odor of marijuana. Patrolman McGeehan then requested permission to search the vehicle. Defendant denied consent to search, but then offered to “search the vehicle himself.” Defendant’s search of the vehicle revealed nothing of concern, so Patrolman McGeehan conducted his own search of the interior of the vehicle. Inside, a purple bag reading “Crown Royal” was found, with marijuana inside. Defendant and the passenger were arrested, and Patrolman McGeehan continued his search of the vehicle. Ten bags of Suboxone were discovered on the floor of the rear seat, along with a pair of brass knuckles. Six bags of heroin were located in the center console of the vehicle marked “Wall Street.” Patrolman McGeehan then opened the trunk of the vehicle and testified that he smelled the odor of marijuana. The trunk was filled with clothing, shoes, hats, and numerous bags. Inside one bag Patrolman McGeehan located two scales, an iPhone box containing thirty bags of heroin stamped “Wall Street,” and a large quantity of paper 2 products similar to how the heroin was packaged. Additional doses of Suboxone were also discovered. No marijuana was discovered in the trunk. Defendant filed a Motion for Suppression of Evidence on October 26, 2016. A hearing was held on December 9, 2016. In his motion, Defendant argues that: 1) Patrolman McGeehan lacked reasonable suspicion to justify the stop; 2) Patrolman McGeehan lacked probable cause to search the vehicle; and 3) Patrolman McGeehan lacked probable cause to search the trunk of the vehicle and the backpack located therein. Analysis An analysis of the legality of the interaction between the Officer and Defendant must begin with the consideration of whether Patrolman McGeehan had reasonable suspicion to conduct a traffic stop of the vehicle driven by Defendant. To initiate a traffic stop, a police officer must have reasonable suspicion that a violation of the Motor Vehicle Code has occurred. 75 Pa. C.S. § 6308. The reasonable suspicion standard is less stringent than probable cause, and depends upon the information possessed by the officer. Commonwealth v. Brown, 996 A.2d 473, 477 (Pa. 2010). Specifically, the officer must be able to point to “specific and articulable facts” leading him to believe a crime is afoot. Id. An actual violation need not be established if the officer has a reasonable basis for the stop. Commonwealth v. Benton, 655 A.2d 1030, 1033 (Pa. Super. 1995). Section 4524(e) of the Motor Vehicle Code provides: (e) Sun screening and other materials prohibited. (1) No person shall drive any motor vehicle with any sun screening device or other material which does not permit a person to see or view the inside of the vehicle through the windshield, side wing or side window of the vehicle. (2) This subsection does not apply to: 3 (i) A vehicle which is equipped with tinted windows of the type and specification that were installed by the manufacturer of the vehicle or to any hearse, ambulance, government vehicle or any other vehicle for which a currently valid certificate of exemption has been issued in accordance with regulations adopted by the department. (ii) A vehicle which is equipped with tinted windows, sun screening devices or other materials which comply with all applicable Federal regulations and for which a currently valid certificate of exemption for medical reasons has been issued in accordance with regulations adopted by the department. *** (4) A certificate of exemption issued under this subsection shall be carried in the vehicle and displayed on request of a police officer. 75 Pa. C.S. § 4524(e). Defendant argues that simply having tinted windows does not violate the statute, and even if an officer is unable to see inside the vehicle in violation of the statute, there are exceptions for factory-installed tinted windows or validly issued certificates of exemption. We disagree that Patrolman McGeehan lacked reasonable suspicion to pull over Defendant’s vehicle. As indicated above, Patrolman McGeehan testified at the suppression hearing that he noticed that he could not see inside the vehicle due to the tint upon his initial observation at the Pike Motel. In fact, Patrolman McGeehan testified that the windows were so dark that they were “blacked out,” and noticed the other windows were equally dark as the vehicle turned off the Harrisburg Pike before Patrolman McGeehan activated his emergency lights. Furthermore, Patrolman McGeehan testified that no sedan has manufacturer installed tinted windows as dark as Defendant’s vehicle. While Defendant may have possessed a certificate of exemption permitting the tinted windows, Section 4524(4) of the Motor Vehicle Code makes clear that a certificate of exemption must be presented to a police officer upon request. Consequently, even if Defendant possessed such a certificate, Patrolman McGeehan had 4 reasonable suspicion to believe that Defendant’s vehicle was in violation of the Motor Vehicle 1 Code and therefore could initiate a traffic stop. Next, we consider whether Patrolman McGeehan had probable cause to search the vehicle after the stop was initiated. As a general rule, a police officer must obtain a warrant, supported by probable cause, prior to conducting a search, subject to a few exceptions. Commonwealth v. Gary, 91 A.3d 102, 107 (Pa. 2014). The smell of marijuana may provide sufficient grounds to conduct a search without a warrant. Commonwealth v. Stoner, 344 A.2d 633 (Pa. Super. 1973) (analogizing “plain smell” doctrine to “plain view” doctrine and upholding search based on smell when officer had justification for presence). Similarly, both the United States and Pennsylvania Supreme Courts have stated that if an officer has probable cause to believe a vehicle contains contraband, the officer may conduct a search without a warrant. Pennsylvania v. Labron, 518 U.S. 938, 940 (1996) (per curiam) (“If a car is readily mobile and probable cause exists to believe it contains contraband, the Fourth Amendment \[ \] permits police to search the vehicle without more.”); Gary, 91 A.3d at 111-12, 138. The officer may search every part of the vehicle and its contents that may conceal the object of the search. United States v. Ross, 456 U.S. 798, 825, (1982); United States v. Schecter, 717 F.2d 864, 869 (3d Cir. 1983) (troopers may search all parts of vehicle, including passenger compartment and trunk, if they had probable cause to believe that the vehicle contained contraband). “The police have probable cause where the facts and circumstances within the officer's knowledge are sufficient to warrant a person of reasonable caution in the belief that an offense has been or is being committed.” Commonwealth v. Rogers, 849 A.2d 1185, 1192 (Pa. 2004). The court examines the totality of 1 Because we conclude that Patrolman McGeehan had reasonable suspicion to pull Defendant over for excessive window tint, we will not address whether reasonable suspicion also existed based on Defendant’s swerving. 5 the circumstances to determine if the officer possessed probable cause. Commonwealth v. Luv, 735 A.2d 87, 90 (Pa. 1999). Defendant argues that it is not objectively reasonable that Patrolman McGeehan was able to smell unburnt marijuana because the marijuana was a small amount located within a plastic bag. The Court disagrees. Patrolman McGeehan credibly testified that he has experience and training in detecting the smell of marijuana and that he could smell the odor once he approached the passenger side window of the vehicle. Because Patrolman McGeehan had lawfully stopped Defendant and could smell the marijuana after he requested the windows be rolled down for officer safety, the Court concludes Patrolman McGeehan had probable cause to search the vehicle upon detecting the smell of marijuana emanating from the vehicle. That search lawfully included the search of the plastic bag that ultimately contained marijuana. Finally, we address Patrolman McGeehan’s search of the trunk and bag. Defendant argues that assuming arguendo that the smell of marijuana emanating from the vehicle gave Patrolman McGeehan probable cause to search the passenger compartment, he lacked probable cause to extend that search to the trunk. Defendant is incorrect. Patrolman McGeehan testified that in searching the interior passenger compartment of the vehicle, he uncovered marijuana, heroin, and Suboxone, as well as a pair of brass knuckles. These items of contraband gave Patrolman McGeehan the requisite probable cause to search the rest of the vehicle to determine if there were additional narcotics in the vehicle, including the trunk and any bags located inside the trunk. The fact that ultimately no marijuana was discovered in the trunk does not render the search invalid. Consequently, the Court concludes that Patrolman McGeehan’s search of Defendant’s vehicle was constitutional and the evidence seized should not be suppressed. 6 For the above stated reasons, Defendant’s Motion to Suppress will be denied. ORDER th AND NOW, this 20 day of December, 2016, upon consideration ofDefendant’s Motion DENIED to Suppress, the Motion is hereby . BY THE COURT, __________________________ Jessica E. Brewbaker, J. Jaime Keating, Esquire First Assistant District Attorney Lee S. Cohen, Esquire Kelly, Parker & Cohen, LLP 5425 Jonestown Road, Suite 103 Harrisburg, PA 17112 For the Defendant :rlm 7 COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : : CP-21-CR-2149-2016 v. : : FAIZAL SABAR : AFFIANT: PTL. MICHAEL MCGEEHAN OTN: X 032847-3 : : IN RE: MOTION TO SUPPRESS ORDER OF COURT th AND NOW, this 20 day of December, 2016, upon consideration ofDefendant’s Motion DENIED to Suppress, the Motion is hereby . BY THE COURT, __________________________ Jessica E. Brewbaker, J. Jaime Keating, Esquire First Assistant District Attorney Lee S. Cohen, Esquire Kelly, Parker & Cohen, LLP 5425 Jonestown Road, Suite 103 Harrisburg, PA 17112 For the Defendant :rlm 8