In re Cox
This сase is before us on juvenile’s omnibus motion for pretrial relief which consists of a motion to suppress evidence.
The facts may be summarized as follows:
On March 3, 1993, juvenile was a pаssenger in a vehicle which was stopped for two . moving violations by Officer Howard Jackson Jr. of the Somerset Borough Police Department. Jackson spoke with the driver, smelled an odor of intoxicant from the driver’s mouth and observed that the driver had bloodshot eyes. Jackson radioed for backup and Officer David Deist arrived.
Upon Deist’s arrival, Jackson informed him as to why the stop wás made. Jackson requested that Deist identify the juvenile. Deist used a flashlight to observe the juvenile. Deist detected an odor of what he believed to be burnt marijuana coming from the car. He also observed that the juvenile’s eyes were bloodshot. Deist took the juvenile to his cruiser. He smelled intoxicants from the juvenile’s mouth.
Deist conducted a pat-down on the juvenile, removing nothing from the juvenile’s pockets. Deist did, however, ask the juvenile to remove the contents from his pockets and found a photo identification, cigarettes, a lighter,
At the hearing on the motion before us, the Commonwealth introduced testimony regarding the Somerset Borough Police Department policy on the transportation of persons in custody. A copy of the policy was admitted into evidence as thе Commonwealth’s exhibit A. Pursuant to the borough’s policy, all persons in custody will be searched prior to being placed in a police vehicle. The purpose of the policy is to establish guidelines for the transporting of persons in custody with primary importance placed on the sаfety and well-being of the officer and prisoner.
Both Officers Jackson and Deist testified at the hearing. On cross-examination, Jackson testified that thеre was nothing about the juvenile that led Jackson to believe that criminal activity was afoot. Jackson further admitted on cross-examination thаt he did not observe anything to cause him to believe that the juvenile was armed and dangerous. Deist testified that he conducted the pat-down pursuant to the policy and for his own safety. However, he also stated that he originally did not intend to transport the-juvenile. On cross-examination, Deist admittеd that he had no reason to believe that the odor of burning marijuana was coming from the juvenile. Deist stated that he had no suspicion or probаble cause to believe that the juvenile had violated any drug laws. Deist further admitted on cross-examination that there was nothing about the juvenile’s conduct that led Deist to conclude that the juvenile was
In his testimony, Deist explained that a pat-down search is for weapons. He admitted that the search of the juvenile was not a search incident to arrest. In fact, the juvenile was told that he was not under arrest prior to being placed in the cruiser. Deist stated that the pat-down was not in accordanсe with the department’s procedure. Finally, Deist admitted there was no probable cause to arrest the juvenile prior to the pat-down аnd that there was no probable cause to conduct a full blown search of the juvenile prior to the pat-down.
DISCUSSION
As a fundamental principle of American law, a search warrant must be obtained in order for a police officer to lawfully search a person or his propеrty. Commonwealth v. Stapleton, 51 Somerset Leg. J. 276, 279 (1993) (citing Commonwealth v. Bentley,
We turn first to the issue of whether the search was conducted incident to a lawful arrest. As we have previously noted, a warrant is not necessary for a search inсident to a lawful arrest. See id. Officer Deist testified at the hearing that he had no reason to believe that the odor of burning marijuana was attributable to the juvenile. Thus, there was no probable cause to arrest the juvenile for violating any drug law, another fact to which Deist testified.
Our inquiry will not end at this point, because a warrantless search may also be permissible under the stop and frisk exception.
In Terry v. Ohio,
“[WJhere a police officer observes unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be аfoot and that the persons with whom he is dealing may be armed and presently dangerous, where in the course of his investigating this behavior he identifies himself as a policeman and makes reasonable inquiries, and where nothing in the initial stages of the encounter serves to dispel his reasonable fear for his own or others’ safety, he is entitled for the protection of himself and others in the area to conduct a carefully limited search оf the outer clothing of such persons in an attempt to discover weapons which might be used to assault him.” Id. at 30,
The Pennsylvania Supreme Court adopted the Terry standard in Commonwealth v. Hicks,
Applying the standard as established by Hicks to the instant case, it is patently clear to us that the requirements for a constitutionally permissible stop and frisk search have not been met. At the hearing, Officers Jackson and Deist testified that they did not suspect criminal activity to be afoot and that they did not have reason to believe that the juvenile was armed and dangerous. We need not analyze this issue any further. Consequently, the stop and frisk exception will not save this illegal search.
Because the warrantless search does not fall within the search incident to arrest exception or the stop and frisk exception, we will grant the juvenile motion to suppress.
ORDER
And now, November 22, 1993, consistent with the foregoing memorandum, the juvenile’s motion to suppress is granted, and the evidenсe obtained by the search of the juvenile’s pockets is suppressed.
Notes
. We find it unnecessary to determine whether the search was justified pursuant to the borough policy regarding the transportation of persons in custody. According to Deist’s testimony, at the time the pat-down was conducted, Deist was not intending to transport the juvenile. Thus, we conclude that the pat-down was not conducted pursuant to the borough policy.