One for probable cause and five against equals suppression

This was a direct appeal out of Montgomery County.  The issue on appeal pertained to the search of Davis’s car and whether that search was constitutional.  The uncontradicted facts taken from the suppression hearing were these.

At approximately 1:25 a.m., police officers responded to a scene of a reported car accident in a residential neighborhood.  The officers were Officer Bryne and his partner; they were second to arrive behind Philadelphia police officers who were already on scene but quickly left.  Once on scene, it was apparent that the report of a car accident was mistaken.  What was observed was Davis’s car parked on the sidewalk.  Davis’s car was not parked on anyone’s property or obstructing the roadway, and there was no evidence of damage to property or personal injuries.  There was simply Davis himself, in the driver’s seat with the door ajar, who “looked like he was passed out.”

Officers attempted to wake Davis, and he gradually regained his senses and informed the officers that he had driven there from a nearby friend’s house.  EMS arrived, they examined Davis for five to ten minutes, but after Davis declined treatment they too left the scene without indicating anything was amiss with Davis.

Notwithstanding the lack of action by the Philadelphia police and the EMS team, Officer Bryne was undeterred in his investigation.  He instructed Davis to step outside the vehicle, place his hands on the vehicle, and he frisked him.  The results of the search were negative.  Still, Officer Bryne handcuffed Davis and placed him in the back of the police car.  The officer, however, did not have Davis perform a sobriety test because he “wasn’t going the route of DUI.” There were no typical signs of impairment: no bloodshot, glassy eyes, nor a smell of alcohol or drugs coming from Davis himself.  Officer Bryne was investigating for drugs.

Consistent with that investigation, Officer Bryne began searching Davis’s vehicle.  In it he saw a closed cigarette box in the compartment of the driver-side door that raised his suspicion. Officer Bryne testified that in his 14 years of experience he knew that “people tend to hide drugs, paraphernalia or other contraband inside empty cigarette packs,” since he’s confirmed as much approximately 20 to 25 times in the course of his career.  Accordingly, he placed the cigarette container on the roof of the car and continued his search elsewhere in Davis’s vehicle.  Ultimately in the course of that search he uncovered a small plastic bag of marijuana in the opened sunglass holder above the rearview mirror.  Once finding that he opened up the cigarette box and discovered two small baggies of rocklike substances.  As a consequence, Davis was charged with drug-related crimes and, of course, he later sought to suppress the evidence discovered.  Obviously, the trial court denied suppression, finding that Officer Bryne had probable cause to search Davis’s vehicle; however, the Superior Court disagreed.  It said this:

Probable cause arises when “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.  The evidence required to establish probable cause must be more than a mere suspicion or a good faith belief on the part of the police officer.”  The suppression court omitted the critical, second sentence of that quote.  Thus, the trial court failed to consider if Officer Byrne had “mere suspicion,” rather than the level of “knowledge sufficient to warrant a person of reasonable caution in the belief that an offense” occurred.

The Court went on:

[O]fficer Bryne was the only person, out of the six at the scene, who believed that Davis “was under the influence of something.”  The suppression court overlooked this telling fact altogether.  Two police officers from Philadelphia, two paramedics, and the officer’s own partner were all present.  Nothing indicates that any of them believed that Davis was under the influence of an illegal substance or that he was incapable of safe driving.  Indeed, Philadelphia’s police drove off without either mentioning to Officer Bryne that they thought a crime had occurred or conducing a full-scale investigation.

Considering this, the Superior Court said that it found “insufficient facts of record to giving rise to probable cause, when weighed against those that negate it.”  For that reason it believed the trial court should have suppressed the drugs found in Davis’s car.

*** Personal note: Interestingly, the Superior Court suppressed the contents of the cigarette box along the same lines—i.e. “for want of probable cause”—but its reasoning was different. Here, suppression was warranted because the cigarette box was “fruits from a ‘poisonous tree.’”  This rationale and other things about this case were odd to me.  For instance, there is a line in the Superior Court’s opinion where it says that Officer Bryne had reasonable suspicion to frisk Davis.  The Court then goes on to quote a snipet from a case justifying that conclusion.  The snipet is this: “Reasonable suspicion is ‘simply . . . a particularized and objective basis’ for suspecting that person stopped of criminal activity.”  The Court goes on: “There was sufficient facts present to satisfy that two-part test and give Officer Bryne reasonable suspicion that Davis was under the influence of ‘something.’”  Based on this the Superior Court said that Officer Bryne was justified in searching Davis.  But this is an incorrect pronouncement of the law.  Police may stop a person if they have reasonable suspicion that criminal activity is afoot, but they may not search (or frisk) a person unless they have reasonable suspicion to believe that the person is armed or dangerous.  In this case, there was nothing in the record to suggest that Davis was armed and dangerous or posed a threat such that police were justified in frisking him.  It is troubling that the Superior Court stated this incorrect principle of law in a published opinion.  It can only breed further confusion for the bench and the bar.  That said, I have my sneaking suspicion that this case may go up on appeal to the Supreme Court and be overturned.  I’m not sure the Superior Court got this one right.