In re J.H.

45 Pa. D. & C.4th 558, 1999 Pa. Dist. & Cnty. Dec. LEXIS 42
CourtPennsylvania Court of Common Pleas, Lawrence County
DecidedDecember 21, 1999
Docketno. 20274 of 1999
StatusPublished

This text of 45 Pa. D. & C.4th 558 (In re J.H.) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Lawrence County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re J.H., 45 Pa. D. & C.4th 558, 1999 Pa. Dist. & Cnty. Dec. LEXIS 42 (Pa. Super. Ct. 1999).

Opinion

MOTTO,

This case is before the court on the juvenile’s motion to suppress evidence. The defendant-juvenile, J.H., is charged with possession of a controlled substance, 35 P.S. §780(a)(16), and intent to deliver a controlled substance, 35 P.S. §780(a)(30).

On June 14,1999, Sergeant Thomas Macri of the New Castle Police Department was on duty when he received a call from the manager of the Eat ’n Park restaurant located in New Castle, Lawrence County, Pennsylvania. The manager informed Sergeant Macri that there was a continuous flow of unwanted vehicular traffic through the Eat ’n Park parking lot, causing congestion in the lot. The manager requested that Sergeant Macri go to the parking lot and correct the situation.

Sergeant Macri arrived at the parking lot and began directing the flow of traffic while on foot. He stopped each car which entered the lot, but failed to park and patronize the restaurant. Sergeant Macri informed each driver that he/she was not permitted to simply drive through the parking lot.

After Sergeant Macri had stopped between three and five cars, he stopped a vehicle that was occupied by a driver, the juvenile, and two other passengers. When the driver of the vehicle opened his window, Sergeant Macri detected a strong odor of burnt marijuana emanating from inside the vehicle. Sergeant Macri recognized the driver and the other two occupants in the vehicle and had knowledge that they had been involved with illegal drugs in the past.

Sergeant Macri ordered all four individuals to exit the vehicle. Sergeant Macri then searched the exterior of the juvenile’s clothing. While conducting a pat-down search of the junveile, Sergent Macri felt two small bags, the [560]*560weight and texture of which he thought felt to be marijuana. The juvenile was then searched more thoroughly, and Sergeant Macri found 14.5 grams of marijuana and a small package of cocaine in the juvenile’s pockets. A subsequent second search of the juvenile conducted at the police station lockup area revealed one oxycodone pill.

The juvenile argues that the initial stop of the vehicle and the pat-down of the juvenile were unlawful. Therefore, the juvenile contends that the evidence found on his person should be suppressed as fruit of the poisonous tree. The court disagrees.

In Commonwealth v. Stainbrook, 324 Pa. Super. 410, 471 A.2d 1223 (1984), two police officers were on patrol. As part of the routine patrol, the officers drove their cruiser into the parking lot of a bowling alley to make certain that there was no one loitering in the lot. A truck was parked at one end of the lot. The officers approached the truck and detected the odor of burning marijuana emanating from inside the vehicle. The appellant sat in the truck and was observed to bend over abruptly as if to stuff something underneath his seat. One of the officers asked appellant to lift up his j acket which lay on the floor of the truck. A plastic bag containing marijuana was exposed, and the officers placed appellant under arrest.

In deciding that the marijuana was lawfully gathered as evidence, the court noted that the police officers’ presence in the parking lot was undisputedly justified as part of their routine patrol. The police had been requested by the owner of the lot to watch for loitering, and the police were justified in approaching the truck.

In the case sub judice, Sergeant Macri lawfully stopped the vehicle in which the juvenile was seated as a passenger. Sergeant Macri’s police duties include regulating the [561]*561flow of traffic. The Eat ’n Park manager requested the presence of Sergeant Macri in the lot for the purpose of preventing unwanted drivers from using the lot as a regular roadway or a “cruising” area. Therefore, Sergeant Macri was justified in stopping the vehicle and to warn the driver to not congest the parking lot. See id.

Once Sergeant Macri stopped the car, he lawfully requested that the juvenile exit the vehicle. Concern over the safety of our police officers mandates that a police officer maintain the authority to order a driver out of a vehicle. Pennsylvania v. Mimms, 434 U.S. 106, 98 S.Ct. 330, 54 L.Ed.2d 331 (1977). In Commonwealth v. Elliott, 376 Pa. Super. 536, 546 A.2d 654 (1988), alloc. denied, 521 Pa. 617, 557 A.2d 721 (1989), the Pennsylvania Superior Court determined that the same rationale applies to passengers in a lawfully-stopped vehicle when the officer has an articulable basis to believe that criminal activity is afoot. Today, a police officer may request both drivers and their passengers to alight from lawfully-stopped vehicles regardless of whether the police officer has a reasonable suspicion that criminal activity is afoot. Commonwealth v. Brown, 439 Pa. Super. 516, 528, 654 A.2d 1096, 1102 (1995), alloc. denied, 544 Pa. 642, 664 A.2d 972 (1995).

In the instant case, in accordance with Brown, supra, once the car was lawfully stopped, Sergeant Macri had the authority to order the occupants out of the car. The court additionally finds that since Sergeant Macri detected a strong smell of burnt marijuana emanating from within the car, his observation of marijuana smoke created an articulable suspicion that contraband was present and that criminal activity was afoot.1

[562]*562A search without a warrant is generally unreasonable. Commonwealth v. Bosurgi, 411 Pa. 56, 190 A.2d 304 (1963), cert. denied, 375 U.S. 910, 84 S.Ct. 204, 11 L.Ed.2d 149 (1963). There are, however, exceptions to the warrant requirement. One of those exceptions was articulated in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), where the Supreme Court held that a police officer can “stop and frisk” an individual for weapons on an articulable suspicion that wrongdoing may be afoot and that the subject may be armed. The Terry rationale is based upon the legitimate interest in allowing an officer to protect himself or herself. Commonwealth v. Morris, 422 Pa. Super. 343, 619 A.2d 709 (1992), alloc. denied, 534 Pa. 654, 627 A.2d 731 (1993).

The matter at issue here, in terms of constitutional analysis, is not a “search,” but, rather, a “frisk,” a distinction with its roots in Terry, supra. The standard for a “reasonable articulable suspicion” to believe that a subject may be armed and dangerous, thereby allowing a Terry frisk, is a suspicion that is less than probable cause but more than a hunch. The determination is based on the totality of the circumstances, as seen by the trained police officer. Commonwealth v. Johnson, 444 Pa. Super. 289, 293, 663 A.2d 787, 789 (1995), citing Commonwealth v. Epps, 415 Pa. Super. 231, 608 A.2d 1095 (1992).

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Related

Terry v. Ohio
392 U.S. 1 (Supreme Court, 1968)
Pennsylvania v. Mimms
434 U.S. 106 (Supreme Court, 1977)
Maryland v. Wilson
519 U.S. 408 (Supreme Court, 1997)
Commonwealth v. Epps
608 A.2d 1095 (Superior Court of Pennsylvania, 1992)
Commonwealth v. Bosurgi
190 A.2d 304 (Supreme Court of Pennsylvania, 1963)
Commonwealth v. Brown
654 A.2d 1096 (Superior Court of Pennsylvania, 1995)
Commonwealth v. Morris
619 A.2d 709 (Superior Court of Pennsylvania, 1992)
Commonwealth v. Stainbrook
471 A.2d 1223 (Supreme Court of Pennsylvania, 1984)
Commonwealth v. Elliott
546 A.2d 654 (Supreme Court of Pennsylvania, 1988)
Commonwealth v. Johnson
663 A.2d 787 (Superior Court of Pennsylvania, 1995)
Commonwealth v. Shelly
703 A.2d 499 (Superior Court of Pennsylvania, 1997)
Commonwealth v. Stoner
344 A.2d 633 (Superior Court of Pennsylvania, 1975)

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Bluebook (online)
45 Pa. D. & C.4th 558, 1999 Pa. Dist. & Cnty. Dec. LEXIS 42, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-jh-pactcompllawren-1999.