COMMON PLEAS COURT OF PHILADELPHIA COUNTY, M.C. 87-11
July 13, 1988
COMMONWEALTH OF PENNSYLVANIA
Michael Kershaw, Assistant District Attorney, for the Commonwealth
Vincent Ziccardi, Esquire, for the Defendant
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During a suppression hearing held on May 24, 1988 in the above-captioned matter, this Court entertained a defense motion which sought to suppress physical evidence obtained by police during an alleged illegal search.
The Commonwealth, in opposition to this motion, presented the following evidence:
Philadelphia Police Officer Joseph Waring, the only Commonwealth witness, testified on direct examination that on Sunday, November 22, 1987, at approximately 1:05 a.m., he was on patrol, traveling eastbound in the vicinity of the 1800 block of Wallace
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Street, Philadelphia, when he observed the defendant "duck down" in the front seat of a parked vehicle (N.T. 5/24/88, pp. 4-5). After this observation, Officer Waring testified that he then drove around the block, exited his vehicle and approached the automobile occupied by the defendant (N.T. 5/24/88, p. 5). As the Officer approached the vehicle in question, he ascertained that the motor was not running and he noted that there were no keys in the ignition (N.T. 5/24/88, p. 5). The Officer indicated that he subsequently requested that the defendant step out of the automobile in question (N.T. 5/24/88, p. 5). According to Waring, when he then asked the defendant for identification and for the vehicle's registration, he failed to produce either (N.T. 5/24/88, p. 5). In light of the Officer's observations, Officer Waring asserted that it was his belief at that time that the defendant was possibly attempting to steal the vehicle (N.T. 5/24/88, p. 5).
As a result of this conclusion, Officer Waring testified that the defendant was subsequently transported by police van to the local district police station for the purpose of determining ownership of the automobile in question as well as for determining the status of the defendant in relation thereto (N.T. 5/24/88, p. 6).
Upon arriving at the station house, a custodial search was performed on the defendant in the cell block in order to determine whether or not be possessed any weapons (N.T. 5/24/88, pp. 6-7). According to Officer Waring's testimony, during the course of the custodial search, the defendant removed a black vial with a gray lid from his right sock (N.T. 5/24/88, p. 6). The vial in question was in fact a 35 millimeter film case (N.T. 5/24/88, p. 6). When the lid to the vial was removed, twelve clear plastic packages containing an unknown white powder were discovered (N.T. 5/24/88, p. 6). Believing that the twelve packages contained cocaine, Officer Waring confiscated the
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alleged narcotics, along with $128.00, from the defendant (N.T. 5/24/88, p. 6). The confiscated items were then placed on property receipts (N.T. 5/24/88, p. 6).
During cross-examination, the Officer indicated that at no time prior to the discovery of the twelve clear plastic packages was the defendant under arrest (N.T. 5/24/88, p. 7). However, according to Waring, although the defendant was not "under arrest", the defendant had no choice but to go with him to the police station (N.T. 5/24/88, p. 7).
Also, during cross-examination, it was established through testimony that the defendant had stated to Officer Waring that the vehicle in question was owned by his brother (N.T. 5/24/88, p. 8).
Finally, the Officer testified that no other searches were performed on the defendant prior to the custodial search in question (N.T. 5/24/88).
Following the conclusion of the cross-examination of Officer Waring, the Commonwealth rested. Defense counsel did not present any evidence on the motion. Thereafter, the Court entertained oral argument from both parties on the motion.
In essence, defense counsel argued that since the defendant was not free to go, in reality he was under arrest (N.T. 5/24/88, pp. 9-10). According to defense counsel, Officer Waring lacked sufficient probable cause to, in effect, "arrest" the defendant simply for the purpose of the investigation in question; mere suspicion was not enough (N.T. 5/24/88, pp. 9-10). Defense counsel further contended that given the fact that the defendant was unlawfully placed into custody, the subsequent search similarly was unlawful (N.T. 5/24/88, pp. 9-10). It was noted by defense counsel that a search for weapons at the scene may have been justified; however, waiting until the defendant was present at the police station to search the defendant was "an altogether different situation." (N.T. 5/24/88,
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p. 9) Based on the foregoing, defense counsel asserted that all physical evidence obtained during the custodial search in question should, therefore, be suppressed.
In opposition, the Commonwealth argued that the defendant was in fact detained by police, not arrested (N.T. 5/24/88, p. 10). Accordingly, the appropriate standard to be applied was not whether probable cause existed but rather whether Officer Waring had a reasonable suspicion that criminal activity may have been afoot, justifying the initial investigatory stop (N.T. 5/24/88, p. 10). The Commonwealth, in support of its position that Officer Waring's initial investigatory stop of the defendant was justified, cited the fact that the defendant was observed by the Officer "ducking down" in a car in the early morning hours as the Officer's patrol car approached (N.T. 5/24/88, p. 10). The Commonwealth further contended that the subsequent detention of the defendant by Officer Waring was justified given the initial suspicious behavior, along with the fact that further investigation by the Officer determined that the car was not running, no keys were found in the ignition, the defendant had no identification and no owner's card was produced by the defendant (N.T. 5/24/88, p. 10). According to the Commonwealth, since the Officer had lawful authority to detain the defendant, the subsequent custodial search was similarly lawful; therefore, the physical evidence obtained from that custodial search should not be suppressed (N.T. 5/24/88, pp. 10-11).
Although the primary issue before this Court is whether, under the facts of this case, the physical evidence obtained by police from the defendant during the course of custodial search should be suppressed, this Court, in reality, must consider three underlying issues in order to make such a determination:
(1) Whether the initial investigatory stop of the defendant was justified, i.e., whether
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there was a sufficient basis for the Officer's reasonable suspicion that criminal activity may be afoot?
(2) Assuming the initial investigatory stop was justified, whether the duration of the subsequent detention of the defendant was legally warranted?
(3) And, finally, assuming the defendant was lawfully detained, whether, during the course of such an investigation, police may perform a custodial search of a defendant, who is in a cell block and not under arrest, for the purpose of locating weapons?
If, at any time during the course of considering these three underlying issues, this Court determines that the police conduct at a particular stage is legally unjustifiable, the physical evidence in question must be suppressed.
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The law within this Commonwealth is clear as to permissible investigatory stops: "A stop for investigatory purposes . . . is justified only if the 'police officer observes unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot . . .'" Commonwealth v. Jones, 474 Pa. 364, 378 A.2d 835, 840 (1977), quoting Terry v. Ohio, 392 U.S. 1, 30, 88 S. Ct. 1868, 1884, 20 L.Ed.2d 889, 911 (1968). Thus, it can be said that, in appropriate circumstances, i.e., where reasonable suspicion exists, a police officer is free to approach a citizen and address questions to him/her. Commonwealth v. Williams, 298 Pa. Super. 466, 444 A.2d 1278 (1982), citing Commonwealth v. Berrios, 437 Pa. 338, 263 A.2d 342 (1970). In order to do so, however, a police officer must be able to point to specific and articulable facts, which taken together with rational inferences from those facts, reasonably warrant the intrusion. Terry v. Ohio, supra; Commonwealth v. Williams, supra; Page 552} Commonwealth v. Moore, 300 Pa. Super. 488, 446 A.2d 960 (1982); Commonwealth v. Mayo, 344 Pa. Super. 336, 496 A.2d 824 (1985).
In the case at bar, Officer Waring, while on routine patrol in his police vehicle, in the early morning hours (1:05 a.m.), observed the defendant "duck down" in the front seat of an automobile in order to avoid detection. In Commonwealth v. Glessner, 337 Pa. Super. 140, 486 A.2d 521 (1985), the Pennsylvania Superior Court held that a police officer, who observed the defendant under the dashboard of a parked car at night, could properly inquire as to the reason for the defendant's presence in the car. As was the case in Glessner, this Court, given the suspicious behavior of the defendant and the late hour, similarly is satisfied that Officer Waring was legally justified in approaching the defendant and questioning him concerning his presence in the car, and, therefore, the intrusion was warranted. It is this Court's opinion that a contrary determination would significantly and unjustifiably limit the investigative powers of the Philadelphia Police Department.
In light of this Court's conclusion that the initial investigatory stop of the defendant by Officer Waring was legally justified, this Court's next line of inquiry is whether the duration of detention of the defendant that followed was similarly justified.
In the case at bar, after observing the defendant's suspicious behavior of "ducking down" in the front seat of an automobile to avoid detection by the Officer as he passed in his police vehicle, Officer Waring approached the defendant for the purpose of questioning him. While approaching the defendant, the Officer ascertained that the vehicle's engine was not running and that there were no keys in the ignition. Further inquiry by the Officer established that the defendant had no identification on his person and no owner's
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card for the vehicle in which he was found. Based on the foregoing, the Officer concluded that the defendant was possibly attempting to steal the automobile. Other than stating that the automobile was owned by his brother, the defendant failed to provide the Officer with any proof whatsoever to contradict the Officer's belief. As a result, the Officer deemed it necessary to take the defendant to the local district police station to resolve the matter.
In Commonwealth v. Mayo, 344 Pa. Super. 336, 496 A.2d 824, 826 (1985), the Pennsylvania Superior Court held that the standard to be applied in determining whether the length of a detention is warranted is that which was articulated by the U.S. Supreme Court in United States v. Sharpe, 470 U.S. 675, 105 S.Ct. 1568, 1575, 84 L.Ed.2d 605, 615 (1985):
In assessing whether a detention is too long in duration to be justified as an investigative stop, we consider it appropriate to examine whether the police diligently pursued a means of investigation that was likely to confirm or dispel their suspicions quickly, during which time it was necessary to detain the defendant. A court making this assessment should take care to consider whether the police are acting in a swiftly developing situation, and in such cases the court should not indulge in unrealistic second-guessing. (Emphasis added.)
In applying this standard to the case at bar, this Court, for reasons which will follow, is satisfied that Officer Waring "diligently pursued a means of investigation that was likely to confirm or dispel [his] suspicions quickly" and, therefore, the duration of the detention was warranted.
Officer Waring had a reasonable suspicion that criminal activity was afoot, so he approached the defendant
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and questioned him. The defendant could have easily dispelled the Officer's suspicion if he had provided the Officer with proof to substantiate his claim that the vehicle in question was owned by his brother, and that he had a right to be in it. Lacking personal identification, as well as an owner's card for the vehicle, however, the defendant could not support his claim. Officer Waring, therefore, was obligated to detain the defendant pending verification of his story. Since the police officer lacked sufficient resources in the field to proceed further with the investigation, the Officer immediately elected to transport the defendant to the local district police station in order to facilitate his investigation.
It is this Court's position that the Officer's decision to detain the defendant and transport him to the police station was proper notwithstanding the fact that in all likelihood the owner of the vehicle in question and the status of said vehicle (e.g., whether it was reported stolen or not) could have been determined through police radio communications. That is, present ownership of the vehicle, along with the current status of the vehicle, in and of themselves would neither dispel nor confirm the Officer's suspicion. Learning that John Doe, for example, owns the vehicle is not significant until you also know the identity of the defendant. Similarly, learning that the auto was not reported stolen does not establish that the defendant was not attempting to steal the car when he was observed by the Officer. The Officer's decision to transport the defendant to the station house was, therefore, appropriate under the circumstances. It should be noted that the key to the investigation was the defendant's identification, not the owner of the vehicle. Determining the defendant's identity, however, was not possible while in the field. The Officer, therefore, had no choice but to detain the defendant and to transport him to the police station.
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Remember, it was the defendant, not the Officer, who created the situation. The defendant lacked proper identification. Accordingly, it can be said that it was the defendant who in fact was directly responsible for the length of the detention. Where a defendant is the primary reason for the extension of the period of detention, the subsequent increase in the duration of the detention is lawfully justified. See e.g., Commonwealth v. Mayo, supra.
Thus, given that the means chosen by Officer Waring represented the most expeditious method to confirm or dispel his suspicion that the defendant was attempting to steal an automobile, this Court must conclude that the length of the defendant's detention was warranted and, therefore, legally justified.
Given this Court's conclusion that the defendant was lawfully detained, the remaining issue to be considered by this Court is whether police can perform a custodial search for weapons upon an individual, who, although not under arrest, is in fact being lawfully detained in police custody.
According to Officer Waring's testimony, he did not pat down the defendant before transporting him to the police station. However, upon his arrival there, the defendant was subject to a custodial search in the cell block to determine whether he possessed any weapons. The Officer testified that a search of this nature was common for individuals placed inside a cell (N.T. 5/24/88, p. 7).
As noted, during the course of the custodial search, a 35 millimeter film case was removed from the defendant's right sock. Upon removing the lid to this vial, twelve clear plastic packets, which contained a white powder, believed to be cocaine, were found inside. Police also subsequently confiscated $128.00 from the defendant's person.
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Defendant now seeks to suppress this physical evidence on the basis that the custodial search was in fact an illegal search, in violation of his constitutional rights.
Since this Court has previously determined, contrary to defense counsel's argument, that the defendant was, at no time prior to the custodial search, under arrest, either directly or "in effect", the precise issue which remains to be decided by this Court is whether an individual, who is suspected of criminal activity but has yet to be charged, can be subjected to a custodial search for weapons. Initially, it should be noted that this Court's review of the decisions of other courts within this Commonwealth has failed to locate any case law which would be dispositive of this issue.
The one element which distinguishes the case at bar from prior recorded decisions is that the defendant, at the time of the custodial search, was not under arrest. If the defendant had been under arrest, prior case law clearly indicates that such a search would have been permissible as incident to the arrest (assuming there was a lawful arrest). See e.g., Commonwealth v. Norris, 498 Pa. 308, 446 A.2d 246, 249 citing Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969) and Commonwealth v. Bess, 476 Pa. 364, 382 A.2d 1212 (1978). In this case, however, at the time of the search, the defendant, at best, was a suspect, not an accused criminal. It is the scope of a suspect's rights, in situations involving custodial searches, like the case at bar, which has yet to be considered by an appellate court within this Commonwealth.
Notwithstanding this, there are some Pennsylvania court decisions which indicate that at the time of the initial investigatory stop a police officer may justifiably frisk or pat down an individual in search of weapons. See e.g., Commonwealth v. Espada, 364 Pa. Super.
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, 528 A.2d 968 (1987); Commonwealth v. Glessner, 337 Pa. Super. 140, 486 A.2d 521 (1985). At that stage, the determinative factor is whether, given the circumstances (i.e., where there exists reasonable suspicion that criminal activity may be afoot), a reasonably prudent man in similar circumstances would be warranted in believing that his/her safety or that of others was in danger. Commonwealth v. Espada, supra.
In the case at bar, Officer Waring did not frisk the defendant at the time of the initial investigatory stop. As a result, up until the time of the custodial search, it had not been determined whether the defendant was in fact possessing any weapons.
In determining whether a search at this latter stage of an investigation can similarly be justified, this Court has found case law within this Commonwealth to be silent. Likewise, this Court's review of federal court decisions in this area similarly failed to uncover a holding which would be dispositive. Some insight was provided, however, by the U.S. Supreme Court's holding in Bell v. Wolfish, 441 U.S. 520, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979). In that case, the Court considered the legality of visual body cavity search of federal pretrial detainees which were made by correctional officers after every contact visit a detainee had with a person from outside the correctional facility. In evaluating the reasonableness of these searches, the Court in Wolfish employed the following balancing test:
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The test of reasonableness under the Fourth Amendment is not capable of precise definition or mechanical application. In each case it requires a balancing of the need for the particular search against the invasion of personal rights that the search entails. Courts must consider the scope of the particular intrusion, the manner in which it is conducted, the justification Page 558} for initiating it, and the place in which it is conducted. (Emphasis added.)
Id. at 559, 99 S.Ct. at 1885, 60 L.Ed.2d at 481. Citing the fact that a detention facility is a "unique place fraught with serious security dangers", along with the fact that such a policy might act as an effective deterent to the smuggling of weapons and/or contraband into a correctional facility, the Supreme Court concluded that searches, under these circumstances, could be conducted on less than probable cause, notwithstanding the significant privacy interests of the inmates.
Although the Court's decision in Wolfish considered the legality of post-arrest searches, incident to incarceration, this Court, nevertheless, is satisfied that the general standard put forth in that decision is equally applicable to the case at bar.
The facts of this case establish that a custodial search for weapons was performed upon the defendant at the time that he was in the cell block at the district police station. Defense counsel presented no evidence to dispute this. Similarly, no questions were raised as to the extent of this search, e.g., pat down versus strip search. This Court, accordingly, based on this evidence, must find that the search in question was in fact limited to a search for weapons, in the nature of a frisk or pat down.
By its very nature, a search for weapons is made strictly for safety reasons. Generally speaking, such a search is initially performed to insure the safety of the officer involved. In the context of a confined area, however, the purpose for such a search is not limited to the safety of the officer performing the search but it also extends to those who are or who will be in close proximity to the defendant, during the duration of his detention such as other officers, fellow detainees, attorneys, etc. Moreover, this policy not only benefits
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those around the defendant, but it also tends to insure the safety of the defendant as well during the period of detention. Based on the foregoing, this Court is satisfied with the underlying justification for the need to search detainees for weapons in confinement areas.
Given that this Court is satisfied with the underlying justification for the custodial search for weapons that was performed upon the defendant prior to being placed into the lock-up, and the given that this Court has no evidence to find otherwise that the scope and manner in which the search was performed were not excessively intrusive, this Court must conclude that the search in question was legally justifiable, notwithstanding the privacy interests of the defendant. Accordingly, the 35 millimeter film case and the $128.00 were legally obtained pursuant to a lawful search.
With respect to the opening of the film case itself upon being removed from the defendant's stock, the police, having initially satisfied the requisite constitutional mandates to obtain the container in the first place, did not need separate and independent Fourth-Fourteenth Amendment justification to subsequently inspect the contents of the container. See e.g., United States v. Robinson, 414 U.S. 218, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973); Gustafson v. Florida, 414 U.S. 260, 94 S.Ct. 488, 38 L.Ed.2d 456 (1973). The safety justification did not dissipate once the vial was uncovered. To the contrary, the vial described by Officer Waring in his testimony indicates that the container in question was opaque and made of a hard plastic. Although the exact dimensions were not given, a 35 millimeter film case generally is of a sufficient size to contain potentially harmful objects. Police, therefore, had the right to determine whether in fact the film case in question contained any such potentially dangerous items, e.g., razor blades, hypodermic needles, etc. As a result, when the subsequent inspection of the vial resulted in
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the discovery of a potentially illegal substance, the police were equally justified in confiscating said physical evidence.
It follows then that since the physical evidence in question was obtained by police pursuant to a lawful custodial search of the defendant for weapons, this Court must conclude that such evidence is admissible for the purposes of trial; therefore, the defendant's motion to suppress is denied.
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