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COMMONWEALTH PENNSYLVANIA v. CHRISTOPHER A. HAUPT (04/17/89)

submitted: April 17, 1989.

COMMONWEALTH OF PENNSYLVANIA, APPELLANT,
v.
CHRISTOPHER A. HAUPT



Appeal from the Suppression Order entered February 2, 1988, in the Court of Common Pleas of Centre County, Criminal, No. 1987-1110.

COUNSEL

W. Jeffrey Yates, Bellefonte, for appellant.

Joseph P. Green, Bellefonte, for appellee.

Tamilia, Popovich and Melinson, JJ.

Author: Melinson

[ 389 Pa. Super. Page 616]

This is a Commonwealth appeal from the order of the Court of Common Pleas of Centre County granting Christopher A. Haupt's motion to suppress. The suppression court found that statements Haupt made in response to a state trooper's questions were obtained during a custodial interrogation without Haupt having the benefit of having his Miranda*fn1 rights read to him. Thus, the court suppressed his statements. The court also suppressed the information the trooper obtained from the serial number on a revolver found in Haupt's car as "fruit of the poisonous tree." The Commonwealth has certified in good faith that the granting of this motion substantially handicaps and effectively terminates its prosecution of Haupt on the charge of carrying a firearm without a license. 18 Pa.C.S.A. § 6106(a). We reverse.

In reviewing the findings of a suppression court where the Commonwealth is appealing, we must consider only the evidence of the defendant's witnesses and so much of the evidence for the prosecution, as read in the context of the record as a whole, that remains uncontradicted. Commonwealth v. Lagana, 517 Pa. 371, 375-376, 537 A.2d 1351,

[ 389 Pa. Super. Page 6171353]

(1988). While we are bound by the court's findings of facts if supported by the record, we are not bound by the court's legal conclusions which are drawn from the case. Id.

A suppression hearing was held before the Honorable Charles C. Brown, Jr., President Judge of the Court of Common Pleas of Centre County, on January 19, 1988. The only testimony presented was from Pennsylvania State Trooper David Toohey. Trooper Toohey's testimony, as recounted by the suppression court, was as follows:

On August 6, 1987, Trooper David Toohey of the Pennsylvania State Police initiated a traffic stop because of a faulty exhaust system on Defendant's vehicle. When the trooper approached Defendant's vehicle, he noticed on the seat next to Defendant was a revolver in its holster. [sic] Upon seeing the revolver, Trooper Toohey ordered Defendant out of the car and up against the front of the vehicle. Defendant was ordered to remain in that position while the trooper inspected the gun and obtained its serial number.

During this time, the trooper also asked Defendant questions concerning his reasons for having the gun in the car, as well as whether Defendant had the proper permits for the gun.

Defendant was not placed under arrest at this time, nor was he read his Miranda rights.

Upon review of the transcript of the suppression hearing we are compelled to note several important omissions from the suppression court's summary of the salient facts. First, it is uncontested that Trooper Toohey stopped Haupt because he reasonably believed that a provision of the Motor Vehicle Code was being violated. Such a stop is clearly permissible. 75 Pa.C.S.A. § 6308; Commonwealth v. Elliott, 376 Pa. Super. 536, 546 A.2d 654 (1988). Trooper Toohey also testified that he ordered Haupt out of his automobile in order to separate Haupt from the revolver. Then Trooper Toohey asked Haupt if he had a license to carry a firearm. Haupt responded that he had hunting and

[ 389 Pa. Super. Page 618]

    fishing licenses*fn2 but did not have a license to carry a firearm in a vehicle or concealed on or about his body.*fn3 After removing the weapon from the vehicle, Trooper Toohey checked to see if it was loaded. He also radioed the police station in order to check the firearm's serial number to determine if it was stolen. After verifying that the weapon was not stolen, the officer issued a written warning for the motor vehicle violation and returned the firearm to Haupt. Haupt was not arrested.

Subsequent investigation revealed that the firearm was registered to Dawn Summers, Haupt's sister. Toohey verified Haupt's representation that he held valid hunting and fishing permits and that he was not licensed to carry a firearm pursuant to 18 Pa.C.S.A. § 6109. Thereafter, the instant complaint was initiated.

The suppression court rejected the Commonwealth's assertion that Miranda warnings were not necessary because this was a Terry stop. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). Instead, the court found Trooper Toohey "was not justified in ordering Defendant out of, and up against, the car for a frisk without such belief [that criminal activity was underway] based upon 'specific and articulable facts indicating that the person frisked is armed and dangerous.'" See Commonwealth v. Espada, 364 Pa. Super. 604, 528 A.2d 968 (1987).

A similar issue was recently addressed by this court in Commonwealth v. Elliott, 376 Pa. Super. 536, 546 A.2d 654 (1988). In Elliott, a Pennsylvania State Trooper stopped Elliott's automobile for a violation of the Motor Vehicle Code. The Trooper approached Elliott and asked for his operator's license and registration card. Then the Trooper observed a bag of ice with beer in it located behind the passenger's seat where a second individual, Ray, was seated. Suspecting that Ray was underage, the Trooper asked him for identification. Ray had no identification, but informed the officer that he was nineteen (19) years old. The

[ 389 Pa. Super. Page 619]

Trooper then asked Ray to step outside the vehicle. The trial court found that while the initial stop of the vehicle for a suspected Motor Vehicle Code violation was reasonable, the officer's ordering Ray, a passenger, out of the vehicle constituted an unreasonable intrusion on his personal security. As a result, the trial court suppressed all evidence obtained after Ray was ordered from the vehicle as "fruit of the poisonous tree."

In reversing the trial court, this court reviewed the United States Supreme Court's holding in Pennsylvania v. Mimms, 434 U.S. 106, 98 S.Ct. 330, 54 L.Ed.2d 331 (1977) (per curiam). The Mimms court held that out of a concern for the safety of the police, officers may, consistent with the Fourth Amendment, exercise their discretion to require a driver who commits a traffic violation to exit the vehicle even though they lack any particularized reason for believing the driver possesses a weapon. The Elliott court stated:

The fact that Trooper Heckman admittedly did not think that Ray was armed and dangerous is of no consequence to our finding that the order to get out of the car was reasonable. The Mimms case makes clear that the officer need not articulate any reason for ordering the driver from the vehicle when the vehicle is lawfully detained for a traffic violation. Indeed, the officer in Mimms could articulate no reason for ordering Mimms out of his vehicle. It was merely his practice to order the occupants out of the vehicle as a matter of course during a traffic stop. The suppression court's confusion results from a failure to differentiate between the order to exit and the subsequent frisk of the defendant . . . . Mimms clearly holds that 'officers may, consistent with the Fourth Amendment, exercise their discretion to require a driver who commits a traffic violation to exit the vehicle even though they lack any particularized reason for believing the driver possesses a weapon.' [Citations omitted.]*fn4

[ 389 Pa. Super. Page 620]

Reviewing the facts of the instant case in light of Elliott and Mimms, we find that, because Trooper Toohey had effectuated a valid traffic stop, his request that Haupt exit the ...


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