The Herald, Sharon, Pa.

Local News

November 3, 2009

UPDATE: DA appeals ‘air freshener’ ruling

By Joe Pinchot

HERMITAGE — Mercer County District Attorney’s Office has appealed a judge’s decision that a Southwest Mercer County Regional policeman did not have authority to search a car in which he found drugs.

Devin I. Smith, 23, of 4002 Hermitage Hills Blvd., Hermitage, was arrested May 2 on charges of possession of crack cocaine and marijuana, possession with intent to deliver, possession of drug paraphernalia and conspiracy.

Southwest patrolman Erick Gatewood stopped the car Smith was driving on Wallis Avenue, Farrell, because a pine tree air freshener was dangling from the car’s rear view mirror.

Gatewood said he feared the freshener could block Smith’s view, but also was looking for a reason to stop the car because it had come from the 700 block of Idaho Street, which he called a “high drug area.”

Mercer County Common Pleas Court Judge Christopher J. St. John said the stop was legal, but not the warrantless search that turned up drugs and a scale.

The DA’s office had argued that Gatewood could have searched the car for any or no reason because Smith’s name was not listed as an authorized driver on the contract for the rental car.

St. John disagreed. He said there is no evidence that Smith knew he was not authorized to drive the car. The judge said people loan their cars to others all the time, and it is unlikely that the borrower will ask whether a document prohibits his or her use of the car.

Smith said he had taken his boss to a hospital, and the boss said he could drive the car, police said.

Gatewood said the search was justified because of his knowledge of a passenger’s history with firearms, and he was concerned there might be a gun in it.

St. John called the information “stale” and said there were no exigent circumstances present that would allow police to conduct a search without a warrant.

Gatewood had no facts to indicate Smith or his passenger might be dangerous, St. John said. They gave no indication that they were involved in criminal activity, a pat down of them produced no weapons, and they were sitting on a curb and did not try to flee when the car was searched, St. John said.

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