Com. v. Parker

• Decision Date: 04 January 1993
• Parties: COMMONWEALTH of Pennsylvania v. Nathanial PARKER, Appellant.
• Court: Pennsylvania Superior Court

Page 735

619 A.2d 735

422 Pa.Super. 393

COMMONWEALTH of Pennsylvania v. Nathanial PARKER, Appellant.

Superior Court of Pennsylvania.

Argued Aug. 27, 1992.

Filed Jan. 4, 1993.

Samuel C. Stretton, West Chester, for appellant.

Stuart Suss, Asst. Dist. Attorney, West Chester, for Com., appellee.

Before BECK, JOHNSON and HOFFMAN, JJ.

JOHNSON, Judge:

In this case, we are asked to determine whether the trial court erred in failing to suppress a tape seized by police from the automobile of Nathanial Parker. We conclude that the search and seizure violated Parker's rights under Article 1, Section 8 of the Pennsylvania Constitution as well as under the Fourth Amendment of the United States Constitution. We, therefore, reverse the judgment of sentence and remand for a new trial at which the Commonwealth will not be permitted to introduce the illegally seized evidence.

In the present case, Officer Milligan and his partner stopped Parker as he drove his car out of a gas station, across a street, and into a parking lot. Milligan suspected that Parker did not have a valid driver's license. N.T., April 30, 1991, at 13. Milligan testified that, after stopping Parker and verifying that Parker was operating his vehicle without a license, he asked Parker if he could search the vehicle for "drugs or other contraband" (N.T., April 30, 1991, at 15) or for "drugs and other violations of law" (N.T., April 30, 1991, at 32). Milligan's reason for requesting a search was that he had assisted in arresting Parker for a drug offense at some time in the past. N.T., April 30, 1991, at 22-23. While Milligan testified that Parker consented to having his vehicle searched, no consent form was executed prior to the search of the automobile. Shortly after Parker was stopped by Milligan, State Trooper Kern and another state trooper arrived at the scene. There were a total of four armed police officers at the scene when Parker allegedly consented to the search of his automobile.

Kern conducted the search of the automobile, which revealed no drugs. During the search, Kern found a cassette tape recorder, containing a tape, under the driver's seat of the car. Kern confiscated the tape, but left the tape recorder in Parker's car. Kern testified that he was unaware that possession of a tape recorder could be considered illegal. N.T., May 1, 1991, at 100.

Parker was charged with violating 18 Pa.C.S. § 5703, Pennsylvania's Wiretapping and Electronic Surveillance Act. A jury trial was held, following the denial of Parker's motion to suppress, at which Parker was found guilty. Post-trial motions were denied, and Parker was sentenced to a 16 to 30 month term of imprisonment. This timely appeal follows.

Parker alleges that the trial court erred in failing to suppress the tape because his consent to search his vehicle was not voluntarily made. Parker further contends that even if this Court finds his consent to be valid, the police seizure of the tape was beyond the scope of the requested consent, and, beyond the parameters of the plain view doctrine. Additionally, Parker maintains that the playing of the tape was a separate search which, regardless of the legality of the seizure of the tape, required the police to obtain a search warrant prior to playing the tape. Parker also raises issues of error allegedly committed by the court during trial. However, as we find that a new trial is required, based on the trial court's failure to suppress the tape, we need not address the other issues Parker presents on appeal.

In reviewing a trial court's denial of a motion to suppress, we must determine whether the record supports the factual findings of the suppression court, as well as determine the reasonableness of the inferences and legal conclusions drawn therefrom. Commonwealth v. Lemanski, 365 Pa.Super. 332, 529 A.2d 1085 (1987). We will consider the evidence of the prosecution and so much of the evidence of the defense as, read in the context of the record as a whole, remains uncontradicted. Commonwealth v. Kean, 382 Pa.Super. 587, 556 A.2d 374 (1989) appeal denied, 525 Pa. 596, 575 A.2d 563 (1990). It is in light of this standard that we review this case.

The application of the exclusionary rule, which is the subject of this appeal, can be based on either Article 1, Section 8 of the Pennsylvania Constitution or on the Fourth Amendment of the United States Constitution. Both provisions have been interpreted as protecting those zones where one has a reasonable expectation of privacy. Kean, supra, 382 Pa.Super. at 595, 556 A.2d at 378. Article 1, Section 8 of the Pennsylvania Constitution provides:

Section 8. The people shall be secure in their persons, house, papers and possessions from unreasonable searches and seizures, and no warrant to search any place or to seize any person or things shall issue without describing them as nearly as may be, nor without probable cause, supported by oath or affirmation subscribed to by the affiant.

Although the guarantees of security against unreasonable searches and seizures in the Pennsylvania Constitution predate those contained in the United States Constitution, the guarantees under the Fourth Amendment of the United States Constitution are similar. Commonwealth v. Edmunds, 526 Pa. 374, 586 A.2d 887 (1991). The Fourth Amendment to the United States Constitution states:

The right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures shall not be violated, and no warrant shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

The protections of individual privacy against unreasonable government searches and seizures under Article 1, Section 8 of the Pennsylvania Constitution are more expansive than those afforded under the Fourth Amendment of the United States Constitution. See e.g. Edmunds, supra; Commonwealth v. Melilli, 521 Pa. 405, 555 A.2d 1254 (1989); Commonwealth v. Sell, 504 Pa. 46, 470 A.2d 457 (1983). The United States Supreme Court's interpretations of Fourth Amendment guarantees do not bind this Court in reaching conclusions regarding the protections provided under Article 1, Section 8 of the Pennsylvania Constitution. Commonwealth v. Beauford, 327 Pa.Super. 253, 475 A.2d 783 (1984), appeal denied, 508 Pa. 319, 496 A.2d 1143 (1985). However, we conclude that under both state and federal constitutional provisions, the search and seizure in this case was unconstitutional.

It is uncontested that Milligan had reasonable and articulable grounds for stopping Parker, as he suspected that Parker was driving while his license was suspended. See e.g. Commonwealth v. Whitmyer, 415 Pa.Super. 393, 609 A.2d 809 (1992). However, in order to justify detaining Parker for further questioning, Milligan must have been able to point to specific and articulable facts that, taken together with the reasonable inferences from those facts, reasonably indicate that criminal activity might have been afoot. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). The stopping of an automobile or even the arrest of the driver of a motor vehicle for an ordinary traffic offense does not, without more, permit a warrantless search of the vehicle. Commonwealth v. Trunzo, 404 Pa.Super. 15, 589 A.2d 1147 (1991)citing Commonwealth v. Dussell, 439 Pa. 392, 266 A.2d 659 (1970).

Milligan stated that his sole reason for requesting a search of Parker's vehicle was that he knew Parker had been previously arrested for a drug violation. Milligan did not articulate any facts which suggested that Parker had committed any offense at the time of the search, other than operating his vehicle without a license. Without articulable grounds to suspect the presence of drugs or other contraband, Milligan's authority was limited, by both the Pennsylvania and the United States Constitutions, to issuing a citation to Parker. Commonwealth v. Lopez, 415 Pa.Super. 252, 609 A.2d 177 (1992). Despite the fact that there were no objective circumstances to support a suspicion that "drugs or other contraband" were hidden in the vehicle, Milligan detained Parker, requesting permission to search his vehicle. Any continued detention of Parker, after Milligan explained and issued the traffic citation, constituted an unreasonable seizure in violation of the Fourth Amendment, tainting all evidence resulting therefrom. Id. at 262, 609 A.2d at 182.

The Commonwealth contends Lopez does not apply, in the present case, because Parker was unable to drive away from the scene of the police stop due to his suspended license. This argument is specious. In Lopez, we held that the police may only detain a driver and request a search if there are reasonable and articulable grounds to suspect criminal activity or contraband. We did not hold there, and we refuse to hold here, that if the driver may not drive away from the scene, detention and search then become permissible.

In this case, while the initial police stop was proper, the continued detention of Parker was a seizure under the Fourth Amendment. Commonwealth v. Brown, 388 Pa.Super. 187, 565 A.2d 177 (1989). Thus, the resulting search was the product of that seizure. The police detention of Parker, after the issuance of a citation for a traffic violation, was improper. Therefore, the products of the improper detention and search should have been suppressed.

However, even if we were to conclude that Parker voluntarily consented to a search of his automobile for "drugs and other contraband" or "drugs and other violations of law", we are unable to conclude, as did the trial court, that a tape recorder or a cassette tape are within the scope of such consent to search. The scope of a search is generally defined by its expressed object. Florida v. Jimeno, 500 U.S. 248, 111 S.Ct. 1801, 114 L.Ed.2d 297 (1991); Walter v. United States, 447 U.S....