Commonwealth of Pennsylvania vs. Christina McFarland No. CP-38-CR-0001088-2016

Criminal Action-Law-Drug Violations-Omnibus Pretrial Motion-Suppression of the Evidence-Vehicle Stop-Search of Vehicle-Reasonable Suspicion-Activation of High Beams-Expectation of Privacy-Probable Cause-Voluntariness of Consent to Search-Custodial Interrogation

Defendant was charged with violations of the Controlled Substance, Drug, Device and Cosmetic Act, 35 P.S. § 780-101 et seq., as a result of a traffic stop wherein a Pennsylvania State Police officer stopped the vehicle that she owned and in which she was riding as a front seat passenger when the vehicle was driven past the officer’s vehicle while the high beams of the vehicle were activated and marijuana was found in a Crown Royal bag at the driver’s feet, who appeared to be under the influence and consented to a search of the Crown Royal bag. A pipe was found on the driver’s person after he was placed under arrest for suspicion of Driving Under the Influence. After Defendant had been placed in front of the police vehicle, she permitted the police officer to “take a quick check” of the vehicle, wherein pills were located in the front console of the vehicle and paraphernalia was found in Defendant’s purse. Defendant filed an Omnibus Pretrial Motion challenging the legality of the stop of her vehicle and the search of her vehicle.

1. Title 75 Pa.C.S. § 6308(b) provides that whenever a police officer has reasonable suspicion that a violation of the Vehicle Code has occurred, he or she may stop the vehicle for the purpose of securing such other information as the officer reasonably may believe is necessary to enforce the provisions of the Vehicle Code.

2. A vehicle stop based solely upon offenses that are investigable cannot be justified by mere reasonable suspicion. Rather, an officer must have probable cause to make a vehicle stop for such offenses. To establish probable cause for a non-investigable stop, the officer must articulate specific facts possessed by the officer at the time of the questioned stop that would provide probable cause to believe that the vehicle or its driver was in violation of the Vehicle Code.

3. The record does not support Defendant’s contention that the police officer stopped her vehicle because he recognized her vehicle and wanted to gain additional information to assist him in investigation of another matter in which she was involved where the officer testified that he stopped the vehicle solely due to the activation of the high beams of the vehicle in violation of 75 Pa.C.S. § 4306, he was not aware that the vehicle belonged to Defendant and he recognized Defendant only when he approached the vehicle after the stop.

4. An individual is afforded protection against warrantless searches and seizures under Article I, Section 8 of the United States Constitution when that individual possesses a subjective expectation of privacy that is recognized by society to be reasonable. The “federal automobile exception” to the warrant requirement allows a police officer to search a motor vehicle when there is probable cause, meaning the facts and circumstances within the officer’s knowledge are sufficient to warrant a person of reasonable caution to believe that an offense has been or is being committed, and it does not require any exigency beyond the inherent mobility of a motor vehicle.

5. The officer had reason to believe that criminal activity was afoot such that the search of the vehicle was lawful when the search of the vehicle occurred after a substance was located in the Crown Royal bag, paraphernalia was located on the driver’s person and the driver had admitted to the use of controlled substances.

6. The Commonwealth has the burden of proving that consent given to a search is the product of an essentially free and unconstrained choice under the totality of the circumstances.

7. Defendant’s consent to the search of her vehicle was voluntary, as the record establishes that only the officer and his partner were on the scene at the time when she consented to the search, there was no physical contact with Defendant or coercive behavior on the part of the officers and Defendant’s behavior did not suggest that her maturity level, sophistication or mental or emotional state was compromised such that she was unable to make a reasoned decision.

8. A person in custody must, prior to interrogation, be informed of the procedural safeguards enunciated in Miranda v. Arizona, 384 U.S. 436 (1966), including the right to remain silent and the right to counsel. The warnings required by Miranda only are necessary when a defendant is subject to custodial interrogation. Custodial interrogation generally is defined as questioning initiated by an officer after a person has been taken into custody or otherwise deprived of his or her freedom or action in any specific way.

9. During a traffic stop, an officer has the power reasonably to control the situation for safety purposes and may instruct a passenger of a lawfully stopped vehicle to remain in the vehicle or to alight from the vehicle without violating the rights of that passenger.

10. Defendant was not in custody such that the requirements of Miranda were implicated at the time when she was questioned in light of the record indicating that she was placed in the police vehicle to keep watch over her while the officer dealt with the driver of the vehicle, she was permitted to exit the police vehicle after a short time and the officer questioned Defendant about potential drug use because she was exhibiting signs of being under the influence and he did not want her to leave the scene in that state.

L.C.C.C.P. No. CP-38-CR-0001088-2016, Opinion by John C. Tylwalk, President Judge, January 11, 2017.

 

IN THE COURT OF COMMON PLEAS OF LEBANON COUNTY

 

PENNSYLVANIA

CRIMINAL DIVISION NO. CP-38-CR-1088-2016

COMMONWEALTH OF PENNSYLVANIA

v.

CHRISTINA MCFARLAND

APPEARANCES:

JARED HINSEY, ESQUIRE FOR THE COMMONWEALTH

ASSISTANT DISTRICT ATTORNEY

ELIZABETH JUDD, ESQUIRE FOR CHRISTINA MCFARLAND

ASSISTANT PUBLIC DEFENDER

ORDER OF COURT

AND NOW, this 11^th day of January, 2017, upon consideration of Defendant’s Omnibus Pretrial Motion, the evidence adduced at the hearing conducted on October 19, 2016, and the Briefs submitted by the parties, it is hereby Ordered that said Motion is DENIED. Defendant is directed to appear at the Call of the List scheduled for January 24, 2017 at 8:30 a.m. in the designated Courtroom and the Term of Criminal Jury Trials to commence on February 6, 2017.

BY THE COURT:

JOHN C. TYLWALK, P.J.

OPINION, TYLWALK, P.J., JANUARY 11, 2017.

Defendant is charged with two violations of the Controlled Substance, Drug, Device & Cosmetic Act, (Possession of Controlled Substance and Possession of Paraphernalia), as the result of a traffic stop that occurred on January 9, 2016 on Route 22 at Legionnaire Drive in Bethel Township. She has filed an Omnibus Pretrial Motion seeking suppression of evidence seized by police during the incident and dismissal of the charges. We conducted a hearing on the Motion on October 19, 2016, both parties have filed Briefs, and the matter is before us for resolution.

At the hearing, Trooper Travis Kauffman, of the Pennsylvania State Police, testified that at 1:30 a.m. on January 9, 2016, he was on patrol traveling eastbound on Route 22 when a Chevrolet Cruze heading westward on Route 22 passed him with the high beams activated on a stretch of road where there was no barrier between lanes. After he turned and followed the vehicle for a short distance, he conducted a traffic stop. The driver was identified as Ray Kreiser and Defendant was the front-seat passenger. Trooper Kauffman noted that Kreiser seemed nervous and was shaking. His eyes were also bloodshot and his pupils were dilated. Trooper Kauffman believed that Kreiser was under the influence of an intoxicating substance and directed him to get out of the vehicle.

When Kreiser exited the vehicle, Trooper Kauffman noticed a Crown Royal bag at his feet. When Trooper Kauffman asked about the bag, Kreiser explained that his cellphone was probably inside it. After Kreiser granted permission, Trooper Kauffman opened the bag and found that it contained what appeared to be marijuana. Kreiser was directed to the front of the police cruiser. Field sobriety tests indicated Kreiser to be under the influence of an intoxicating substance. Kreiser admitted to recent use of “spice” and meth. He was placed under arrest for suspicion of DUI. A search of Kreiser’s person yielded a metal pipe with burnt residue and synthetic marijuana in a metal container. Trooper Kauffman commented to Kreiser that neither he nor Defendant could drive.

When Trooper Kauffman had first approached the vehicle, he recognized Defendant from a previous interaction. He asked her whether she was still “doing meth” and “when was the last time you did it.” Defendant replied that she had not done any in two months. Defendant remained in the vehicle at first, but then got out and stood with Trooper Kauffman’s partner on the passenger side of the vehicle.

It was determined that Defendant was the owner of the vehicle. She was directed to the front of the police cruiser. Trooper Kauffman advised her that Kreiser was being arrested because he had been driving with controlled substances in his system, but that it was not a crime for her to have drugs in her system. She told him that she had not taken any drugs. Trooper Kauffman asked her whether there was anything else in the car to which she replied “no, not that I know of.” Trooper Kauffman asked Defendant if he could “take a quick check” and Defendant told him to “go ahead.” Only Trooper Kauffman and his partner were present at that point.

Trooper Kauffman confirmed that, at first, Defendant had not been permitted to get out of the car. He explained that during a traffic stop, no one is permitted out of the car unless they are instructed to do so by the troopers because the troopers cannot know the individual’s intentions. He further explained that once she was directed to get out of the car, she was not free to leave as he believed that she was under the influence of a controlled substance.

While Trooper Kauffman was searching Defendant’s vehicle, Troopers Templin and Hunanic arrived at the scene. Trooper Kauffman explained that he had contacted them to let them know that Defendant was present because Trooper Templin was conducting another investigation involving her.

Trooper Kauffman found some pills in a blue container in the console and a straw with white residue and a metal container with pills in a purse where Defendant had been sitting. He asked Defendant about the pills, but did not give her Miranda warnings before he did so. Defendant identified the pills and said that she had found the ones in the console while she was cleaning her vehicle and that she had placed them there so that she could get rid of them. At the hearing, Trooper Kauffman explained that Defendant was free to leave his investigation at that point and that these charges were not filed until the lab results were returned to him. He further explained that the charges were unrelated to any of the questions he asked Defendant about her drug use at the scene. Trooper Kauffman testified that he would have arranged a ride for Defendant at that point; however, he informed her that Trooper Templin was going to speak with her about his investigation.

At the conclusion of the hearing, the Commonwealth provided us with a DVD of this incident, including the entirety of the search of Defendant’s vehicle. We have reviewed the footage and taken it into consideration in our disposition of the issues raised by Defendant in this Pretrial Motion.

Defendant first challenges the legality of the traffic stop. She contends that Trooper Kauffman recognized her vehicle when he passed it on Route 22 and claims that the vehicle was actually stopped as a means of assisting Trooper Templin in his investigation of the other matter in which she was involved.

Defendant’s suspicions are not supported by the record. Trooper Kauffman explained that Defendant’s vehicle was stopped solely due to Kreiser’s act of approaching the police cruiser with the high beams activated. He testified that he was not aware that the vehicle belonged to Defendant and that he only recognized her after the vehicle was stopped and he had approached to speak to Kreiser.

The Vehicle Code gives police statutory authority to initiate stops for such traffic violations:

 

Whenever a police officer … has reasonable suspicion that a violation of this title is occurring or has occurred, he may stop a vehicle, upon a request or signal, for the purpose of … secure such other information as the officer may reasonably believe to be necessary to enforce the provisions of this title.

 

75 Pa.C.S.A. 6308(b). A vehicle stop based solely on offenses not investigable cannot be justified by a mere reasonable suspicion, because the purposes of a Terry stop do not exist – maintaining the status quo while investigating – is inapplicable where there is nothing further to investigate – an officer must have probable cause to make a constitutional vehicle stop for such offenses. Commonwealth v. Feczko, 10 A.3d 1285, 1290 (Pa. Super. 2010). Probable cause does not require certainty, but rather exists when criminality is one reasonable inference, not necessarily even the most likely inference. See, Commonwealth v. Salter, 121 a.3d 987 (Pa. Super. 2015). The probable cause necessary to support an arrest … cannot demand the same strictness of proof as the accused’s guilt upon a trial. Id. The officer must articulate specific facts possessed by him, at the time of the questioned stop, which would provide probable cause to believe that the vehicle or the driver was in violation of some provision of the Vehicle Code. Id. at 1291.

Section 4306 of the Vehicle Code provides, in part:

§ 4306. Use of multiple-beam road lighting equipment

 

(a) Approaching an oncoming vehicle.–Whenever the driver of a vehicle approaches an oncoming vehicle within 500 feet, the driver shall use the low beam of light.

 

75 Pa.C.S.A. §4306(a).

Trooper Kauffman testified that Defendant’s vehicle approached him with the high beams activated at a point where there was no barrier between the oncoming lanes of traffic. Defendant complains that Trooper Kauffman did not offer any further details. However, Trooper Kauffman articulated sufficient facts in support of his belief that Kreiser committed a violation of Section 4306, and these facts were sufficient to justify the traffic stop based upon probable cause that there was a violation of this statutory provision.

Defendant next challenges the legality of the search of her vehicle. An individual is afforded protection against warrantless searches and seizures under Article 1 § 8 of the United States Constitution when he possesses a subjective expectation of privacy which is recognized by society to be reasonable. Commonwealth v. Lowery, 451 A.2d 245 (Pa. Super. 1982). In Commonwealth v. Gary, 91 A.3d 102 (Pa. 2014), the Supreme Court of Pennsylvania noted its adoption of the “federal automobile exception to the warrant requirement, which allows police officers to search a motor vehicle when there is probable cause to do so and does not require any exigency beyond the inherent mobility of a motor vehicle.” Id. at 104. “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. Hernandez, 935 A.2d 1275, 1284 (Pa. Super. 2007).

Here, the search of Defendant’s vehicle occurred after a substance believed to be marijuana was found in the Crown Royal bag, a pipe and synthetic marijuana had been found on Kreiser’s person, Kreiser had been found to be driving under the influence, and Kreiser had admitted to recent use of two different controlled substances. We believe that at that point, Trooper Kauffman had reason to believe that criminal activity, such as a violation of the Controlled Substance statute, was afoot and that he therefore had probable cause to proceed with the search.

Trooper Kauffman also obtained Defendant’s consent to the search. However, Defendant argues that her consent was not voluntary. We have viewed the footage of this incident and have found nothing to support Defendant’s contention that her consent was anything other than voluntary in nature. Only Trooper Kauffman and his partner were on the scene when Defendant agreed to the search. There was no physical contact with Defendant or coercive behavior on the part of the troopers. During the exchange between Trooper Kauffman and Defendant, she was specifically informed that it was not a crime for her to have drugs in her system. Defendant’s behavior did not in any way suggest that her maturity level, sophistication with regard to the criminal justice system, or mental or emotional state was compromised such that she could not make a reasoned decision. This was a typical traffic stop situation and we find nothing involved which would call Defendant’s ability to voluntarily consent into question.

Defendant also argues that her statements to Trooper Kauffman should be suppressed and that these charges should be dismissed because she was not apprised of her Miranda rights prior his questioning. The Commonwealth concedes that Defendant was not given Miranda warnings prior to Trooper Kauffman questioning her about her drug use, but counters that his questioning was not directed to this investigation and was therefore irrelevant.

 

It is well-settled that a person in custody must, prior to interrogation, be informed of the procedural safeguards enunciated in Miranda, including the right to remain silent and the right to counsel. …

 

The United State Supreme Court stated in Miranda that “the prosecution may not use statements, whether inculpatory or exculpatory, stemming from a custodial interrogation of a defendant unless it demonstrates the use of procedural safeguards, [i.e. that Miranda warnings were read and that a defendant was apprised of his rights], effective to secure the privilege against self-incrimination [and the right to counsel].” … Absent these warnings, any statements made are subject to suppression. However, the warnings required by Miranda are only necessary when the defendant is subject to custodial interrogation.

A person is considered to be in custody for the purposes of Miranda when, by physical force or show of authority, an officer detains that person and the officer’s conduct would relate to a reasonable person that “the person was not free to decline the officer’s request or otherwise terminate the encounter.” … The test is whether a criminal defendant “is physically deprived of his freedom of action in any significant way or is placed in a situation in which he reasonably believes that his freedom of movement is restricted by such interrogation.” ….

…

Custodial interrogation is generally defined as questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way. … More specifically, “interrogation” is defined as “police conduct ‘calculated to, expected to, or likely to evoke [an] admission.’ ” … It is commonly held that this definition “focuses primarily upon the perceptions of the suspect, rather than the intent of the police.”

Commonwealth v. Jones, 2006 WL 5430206 (C.C.P. Monroe Cnty. 2006) (citations omitted).

During a traffic stop, a police officer has the power to reasonably control the situation for safety purposes and may instruct a passenger of a lawfully-stopped vehicle to remain in the vehicle without violating the rights of that individual. Commonwealth v. Pratt, 930 A.2d 561 (Pa. Super. 2007), appeal denied 946 A.2d 686 (Pa. 2008). Likewise, when an officer detains a vehicle for violation of a traffic law, it is inherently reasonable that he or she be concerned with safety and, as a result, may also order the occupants of the vehicle to alight from the car. Commonwealth v. Grosso, 672 A.2d 792 (Pa. Super. 1996).

Defendant argues that she was in custody at the time she was questioned and that suppression of her statements is warranted due to the absence of Miranda warnings. We disagree. Although Defendant was directed to remain in the car while Trooper Kauffman dealt with Kreiser, she was permitted to exit the car after a short time. Trooper Kreiser explained that the troopers must keep watch over passengers during a traffic stop because they cannot be sure of the passenger’s intended actions.

Moreover, Trooper Kauffman explained that he questioned Defendant about her drug use due to his recollection of a previous encounter when she had she was doing drugs and had told him she was pregnant. He was concerned that she was exhibiting the same signs of being under the influence and did not want her to leave the scene in that state. Although he was trying to determine whether she was using drugs at the time of this incident, he specifically told her that it was not illegal for her to have drugs in her system. After Trooper Kauffman had completed the search, he explained to Defendant that he was done with her with regard to the pills and paraphernalia found in her car. He would have arranged a ride for her at that point, but instead directed her to Trooper Templin who was waiting to speak with her about a separate matter. Defendant was not placed into custody as she was never placed under arrest or deprived of her freedom in any significant way. Thus, we will deny her Pretrial Motion.

1) Counts 1 and 2, 35 P.S. §780-113(a)(16) and 35 P.S. §780-113(a)(32), respectively.

2) “Spice” is a generic term for synthetic marijuana. See en.wikipedia.org/wiki/Synthetic_cannabinoids.

3) Terry v. Ohio, 392 U.S. 1 (1968).

4) The Commonwealth has the burden to prove the consent given is the product of an essentially free and unconstrained choice – not the result of duress or coercion, express or implied, or a will overborne – under the totality of the circumstances. Commonwealth v. Kemp, 961 A.2d 1247, 1260 (Pa. Super. 2008) (en banc). Some factors to be included in such a determination of the voluntariness of consent include

 1) the presence or absence of police excesses; 2) whether there was physical contact; 3) whether police directed the citizen’s movements; 4) police demeanor and manner of expression; 5) the location of the interdiction; 6) the content of the questions and statements; 7) the existence and character of the initial investigative detention, including its degree of coerciveness; 8) whether the person has been told that he is free to leave; and 9) whether the citizen has been informed that he is not required to consent to the search.

 

Id. at 1261. The Commonwealth is not required to prove the defendant knew she had the power to withhold consent. Id. Additionally, although the inquiry is objective, the maturity, sophistication and mental or emotional state of the defendant (including age, intelligence and capacity to exercise free will) are to be taken into account. Id.

5) Miranda v. Arizona, 384 U.S. 436 (1966).