March 15, 2011
Commonwealth v. Shawn Smith
Docket No 10-P-914.
Memorandum and Order Pursuant to Rule 1:28
Facts
The motion judge found that police Officers Bassi and Silver were on patrol when they aw two cars speeding at sixty-seven miles per hour in a forty-mile per hour zone. With the cruiser's lights on, they followed the vehicles to an intersection where the second car stopped. The first car, driven by the defendant, proceeded at a high speed, so the officers pursued his car while passing the second car at the intersection. Eventually, the officers pulled over the defendant as he entered a parking lot. When the officers approached the defendant's vehicle, Officer Silver saw a 'water bong' on the floor behind the passenger's seat and an open box of plastic sandwich bags on the rear seat. The defendant was ordered to exit the car and was pat frisked. The patfrisk revealed nothing dangerous. The defendant then was asked if there was marijuana in the car, to which he said, 'No.' He next was asked if he had marijuana on his person, to which he responded affirmatively, pulling a bag from his pocket. The defendant was arrested and, because his car had to be towed, police did an inventory search that revealed more marijuana, a digital scale, and an unloaded handgun.
Issue 1: Should the evidence have been suppressed by the police after the traffic stop?
The court first considered the Commonwealth's interlocutory appeal from an order allowing the defendant's motion to suppress evidence seized by police after a traffic stop. In his decision, the trial judge determined that the Commonwealth conceded that the defendant was in custody when he was questioned after the patfrisk and that the defendant was entitled to receive Miranda warnings. Whether there was an concession, it is plain that the Commonwealth did not dispute the defendant's contention that he was in custody for Miranda purposes. Accordingly, the motion judge had no reason to analyze the issue independently.
The court considered the question of custody to have been waived and declined to allow the Commonwealth to adopt a new position on appeal. Then the court determined whether the questions asked were interrogation. Asking the defendant whether he had marijuana was express questioning and thus was 'a request for a testimonial communication that entitled the defendant to the Fifth Amendment's protections, including the right to refuse to answer.' Because the officers neglected to advise the defendant of his rights, his incriminating response and its fruits properly were suppressed.
There is no merit to the Commonwealth's argument that the police had probable cause to search the vehicle for reasons independent of the defendant's inculpatory response to their questions. The observation of two lawful items -- the bong and the box of sandwich bags -- did not supply probable cause.
The court was not persuaded that without the inculpatory results of the improper interrogation, a search of the vehicle properly could have been conducted.
Order allowing motion to suppress affirmed.
Order allowing motion to suppress affirmed.
–Prepared by JWK.
