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Commonwealth v. Mulholland

Order granting defendant's motion to suppress physical evidence seized during a search affirmed; evidence supported court's conclusion that defendant's interaction with police was, from its inception, an investigative detention unsupported by a reasonable, articulable belief that defendant was engaged in criminal activity.

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OPINION

�1 Appellant Commonwealth appeals the June 4, 2001, order granting Appellee John Mulholland’s motion to suppress physical evidence seized from appellee by the arresting officer *fn1 . We affirm.

�2 The record reveals that on January 23, 2000, Officer Richard Lamb of the Collier Township Police Department was on routine patrol. Collier Township is a rural community with little crime, and the officer had no recent reports of suspicious activity. At roughly 6:30 in the evening, Officer Lamb observed an unmoving conversion van in the parking lot of the abandoned Roadway Tavern. The lot was partially lit by streetlights, and the van’s running lights were activated. To his knowledge, the van had not violated any portion of the Motor Vehicle Code. Upon noticing the van, Officer Lamb decided to “… [check] to see if everything was all right.” The officer pulled his cruiser into the lot and parked in front of the van, with the purpose of blocking its means of egress. He later testified that “if [the van] would have pulled out, I would have simply performed a traffic stop and stopped him…” Officer Lamb turned on his cruiser’s alley lights and approached the van. The officer testified that the driver of the van at no time made any sudden or furtive movements. Officer Lamb asked the driver if he was okay, and the driver explained that he was waiting for someone. Officer Lamb then recognized the driver as Mulholland, a township resident. While speaking to Mulholland, the officer detected the odor of burnt marijuana. There was no sign of recent use, such as smoke, and Mulholland was not visibly impaired. Mulholland admitted he had previously smoked a “joint,” or marijuana cigarette. Officer Lamb requested Mulholland’s consent to search the van for contraband. Mulholland, instead of answering directly, held up his dashboard ashtray for the officer to view and stated he was searching for a “roach,” or cigarette stub. No marijuana was found in the ashtray.

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