J-A21028-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
BARBARA DISANTIS
Appellant No. 3608 EDA 2014
Appeal from the Judgment of Sentence November 17, 2014
In the Court of Common Pleas of Bucks County
Criminal Division at No(s): CP-09-CR-0005464-2014
BEFORE: ALLEN, J., MUNDY, J., and FITZGERALD, J.*
MEMORANDUM BY MUNDY, J.: FILED AUGUST 24, 2015
Appellant, Barbara DiSantis, appeals from the November 17, 2014
judgment of sentence of 12 months’ probation imposed following her
convictions for possession of a controlled substance and possession of drug
paraphernalia.1 After careful review, we vacate Appellant’s judgment of
sentence, reverse and remand.
The trial court summarized the relevant factual background of this
case in the following manner.
On May 18, 2014, Trooper Lee Nolan of the
Pennsylvania State Police, while in full uniform with a
marked patrol vehicle, initiated a traffic stop on a
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*
Former Justice specially assigned to the Superior Court.
1
35 Pa.C.S. §§ 780-113(a)(16) and (a)(32), respectively.
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black Pontiac sedan for a traffic violation in Bristol
Township, Bucks County. Trooper Nolan observed
an extinguished brake light on a black Pontiac sedan
while it was traveling on I-95 northbound. In order
to conduct the stop at a safe location, Trooper Nolan
stopped the vehicle 700 yards down off 413 in Bristol
Township. Trooper Nolan then approached the
vehicle and observed five (5) occupants in the
vehicle. As Trooper Nolan approached the vehicle[,]
he observed [Appellant] seated behind the driver of
the vehicle. Trooper Nolan observed that [Appellant]
had puffy hands that appeared to have track marks
on them, which from his experience is consistent
with drug use.
Trooper Nolan requested that the driver step
outside the vehicle, and she complied. As the driver
stepped outside, Trooper Nolan observed an
extremely small black rubber band, which is
consistent with putting heroin packets together,
located in plain view on the floor of the vehicle by
the driver. Trooper Nolan then showed the driver
her brake light was out and explained the reason for
the stop. The driver gave Trooper Nolan her license,
registration and insurance card.
After running the vehicle registration, Trooper
Nolan approached the passengers of the vehicle on
the passenger’s side and began to speak with them.
The passengers appeared to be extremely nervous
while speaking with Trooper Nolan. Trooper Nolan
then requested the identifications from the vehicle
occupants, who complied with his request[, and the
driver returned to her vehicle]. Trooper Nolan ran
the driver and vehicle occupants through
CLEAN/NCIC, to obtain their driver’s record. When
Trooper Nolan ran [Appellant’s] identification, it
showed that she had warrants from Florida for
probation violations in reference to drugs.
Additionally, Trooper Nolan ran the criminal history
of the driver and all the occupants of the vehicle.
Trooper Nolan prepared a written warning to
the driver for the extinguished br[ake] light. Trooper
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Nolan then approached the driver’s side of the
vehicle and spoke with the driver and requested that
she step outside the vehicle. After the driver exited
the vehicle, Trooper Nolan explained to the driver
that he was issuing her a warning for the brake light
and handed her the warning, her registration, her
license and her insurance card. After returning all
the driver’s documentation to her, Trooper Nolan
instructed the driver that she was free to leave.
After instructing the driver that she was free to
leave, the driver turned around, and walked towards
her vehicle, while Trooper Nolan took several steps
towards his vehicle. After taking several steps,
Trooper Nolan turned around and asked the driver if
she had a few minutes. After acknowledging that
she had a few minutes, the driver turned around and
walked towards Trooper Nolan.
Trooper Nolan then asked the driver if there
was anything in the vehicle, and explained to her the
items that he saw inside the vehicle that led him to
be suspicious that there might be something inside
the vehicle, such as the rubber band and the marks
on [Appellant’s] hands. The driver stated that there
was nothing in the vehicle. The driver then gave
Trooper Nolan verbal and written consent to search
the vehicle. After the driver signed the written
consent form allowing the search, Trooper Nolan
approached the vehicle, and so he was going to
perform a search.
At the time Trooper Nolan requested to search
the driver’s vehicle, his patrol car was parked behind
the driver’s vehicle, with his lights on. Trooper
Nolan was parked on an angle, so the driver could
have driven away without moving his vehicle. He did
not yell at the driver or the vehicle occupants or
brandish his gun. There were two additional officers
on scene, located several yards away from Trooper
Nolan, behind his patrol vehicle, who were not
speaking with the driver or any of the vehicle
occupants at this time.
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After receiving verbal and written consent to
search the vehicle, Trooper Nolan had the
passengers exit the two[-]door vehicle one by one.
Trooper Nolan asked if there was anything[,]
weapons of contraband[,] on anyone’s person. As
the occupants exited the vehicle, Trooper Nolan
patted the occupants down for weapons. While
[Appellant] was exiting the backseat of the vehicle[,]
she handed her cigarette pack to Trooper Nolan.
Trooper Nolan opened the cigarette pack, to make
sure there were no weapons in the package, because
he was planning on handing her cigarettes back to
her while he searched the vehicle. Trooper Nolan
observed that the cigarette packet contained three
packets of suspected heroin, later confirmed as
heroin. After Trooper Nolan secured the heroin in his
patrol vehicle[,] he continued to search the vehicle
and recovered contraband from where [Appellant]
had been sitting.
Trial Court Opinion, 3/20/15, at 1-4 (citations and footnotes omitted).
The Commonwealth, by criminal information, charged Appellant with
the aforementioned offenses on October 9, 2014. On October 30, 2014,
Appellant filed a motion to suppress seeking suppression of all evidence,
averring she was subject to an unlawful investigative detention and
challenging the consent to search. Appellant’s Omnibus Pre-Trial Motion,
10/30/14, at ¶¶ 9-12. The trial court held a suppression hearing on
November 17, 2014. At the conclusion of the hearing, the trial court denied
Appellant’s motion, and Appellant proceeded immediately to a stipulated
bench trial N.T., 11/17/14, at 71-72. The trial court found Appellant guilty
of possession of a controlled substance and possession of drug paraphernalia
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and sentenced Appellant to 12 months’ probation. Id. 79, 85.2 On
December 15, 2014, Appellant filed a timely notice of appeal.3
On appeal, Appellant raises the following issues for our consideration.
A. Whether the trial court erred in failing to
suppress evidence seized from a vehicle where
Appellant was a passenger because the consent to
search the vehicle was tainted by an illegal
detention?
B. Whether the trial court erred in failing to
suppress evidence located in Appellant’s cigarette
package when the state trooper conducted a
warrantless search of the cigarette package without
Appellant’s consent?
C. Whether the trial court erred in finding
Appellant did not have a privacy interest in the
vehicle and the cigarette package that was located
on Appellant’s person?
Appellant’s Brief at 4.
We begin by noting our well-established standard of review over
challenges to the denial of suppression motions.
We may consider only the Commonwealth’s evidence
and so much of the evidence for the defense as
remains uncontradicted when read in the context of
the record as a whole. Where the record supports
the factual findings of the trial court, we are bound
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2
Specifically, the trial court imposed the 12-month probationary sentence
for Appellant’s conviction of possession of a controlled substance and
imposed no further penalty on her conviction for possession of drug
paraphernalia. N.T., 11/17/14, at 85.
3
Appellant and the trial court have complied with Pennsylvania Rule of
Appellate Procedure 1925.
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by those facts and may reverse only if the legal
conclusions drawn therefrom are in error. An
appellate court, of course, is not bound by the
suppression court’s conclusions of law.
Commonwealth v. Gary, 91 A.3d 102, 106 (Pa. 2014) (citation omitted).
In Appellant’s first issue on appeal, she argues that the trial court
erred in denying her motion to suppress because the consent to search the
vehicle was preceded by an illegal investigative detention of the occupants of
the vehicle. Appellant’s Brief at 10. Therefore, she argues, because the
consent was obtained as a result of the unlawful detention, the evidence
should have been suppressed. Id. Importantly, Appellant does not dispute
the validity of the initial vehicle stop. See Appellant’s Brief at 6 (noting
Trooper Nolan conducted a vehicle stop because the vehicle’s taillight was
broken); See also N.T., 11/17/14, at 7 (Appellant’s counsel informing the
trial court, “[w]e are not disputing the initial traffic stop”). Rather, Appellant
claims the illegal detention occurred when Trooper Nolan “reengaged the
driver seconds after telling her she was free to leave.” Appellant’s Brief at
13-14 (citation omitted). The Commonwealth counters by arguing that the
driver was engaged in a mere encounter with Trooper Nolan because “there
was a clear separation between the initial detention of the valid traffic stop
and the second encounter where consent was given.” Commonwealth Brief
at 16. In the alternative, the Commonwealth argues that the facts and
circumstances, as they appeared to Trooper Nolan following the initial traffic
stop, gave rise to reasonable suspicion of criminal activity. Id. at 21-23.
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Accordingly, we begin our analysis by determining the nature of the second
encounter between Trooper Nolan and the driver.4
The Fourth Amendment of the United States Constitution guarantees
that, “[t]he right of the people to be secure in their persons, houses, papers,
and effects, against unreasonable searches and seizures, shall not be
violated….” U.S. Const. amend IV. Similarly, the Pennsylvania Constitution
assures citizens of our Commonwealth that “[t]he people shall be secure in
their persons, houses, papers and possessions from unreasonable searches
and seizures….” Pa. Const. art. I, § 8. The protection afforded by the
Fourth Amendment against unreasonable searches and seizures extends to
those encounters entailing only a brief detention. Commonwealth v.
Strickler, 757 A.2d 884, 888 (Pa. 2000). In analyzing the constitutionality
of an interaction between citizens and law enforcement, we first assess into
which of three categories of interaction the challenged encounter falls.
The first of these is a “mere encounter” (or request
for information) which need not be supported by any
level of suspicion, but carries no official compulsion
to stop or respond. The second, an “investigative
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4
Appellant was not the driver of the vehicle; however, “[a] traffic stop for a
suspected violation of law is a ‘seizure’ of the occupants of the vehicle and
therefore must be conducted in accordance with the Fourth Amendment.”
Heien v. North Carolina, 135 S. Ct. 530, 536 (2014) (citation omitted). In
the instant case, the second encounter between Trooper Nolan and the
driver occurred prior to her returning to her vehicle and immediately
following the initial traffic stop. Accordingly, it is necessary to determine the
constitutionality of this encounter, as the occupants’ Fourth Amendment
rights are implicated.
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detention” must be supported by a reasonable
suspicion; it subjects a suspect to a stop and a
period of detention, but does not involve such
coercive conditions as to constitute the functional
equivalent of an arrest. Finally, an arrest or
“custodial detention” must be supported by probable
cause.
Commonwealth v. Fleet, 114 A.3d 840, 844 (Pa. Super. 2015) (citation
omitted).
As noted, Appellant argues she was subjected to an investigative
detention without the requisite reasonable suspicion based on Trooper
Nolan’s “reengaging” the driver of the vehicle in which she was an occupant,
while the Commonwealth contends such interaction with the driver was a
mere encounter or an otherwise constitutional investigative detention. See
Appellant’s Brief at 10; Commonwealth Brief at 21-23. When analyzing
whether an interaction escalates from a mere encounter to an investigative
detention, we employ the following standard.
To guide the crucial inquiry as to whether or not a
seizure has been effected, the United States
Supreme Court has devised an objective test
entailing a determination of whether, in view of all
surrounding circumstances, a reasonable person
would have believed that he was free to leave. In
evaluating the circumstances, the focus is directed
toward whether, by means of physical force or show
of authority, the citizen-subject’s movement has in
some way been restrained. In making this
determination, courts must apply the totality-of-the-
circumstances approach, with no single factor
dictating the ultimate conclusion as to whether a
seizure has occurred.
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Commonwealth v. McAdoo, 46 A.3d 781, 784 (Pa. Super. 2012) (citation
omitted), appeal denied, 65 A.3d 413 (Pa. 2013). In the specific context of
a police-citizen interaction following the conclusion of a valid traffic stop,
several considerations inform our analysis, including the following.
A non-exclusive list of factors to be used in assessing
whether police conducted a mere encounter after
completion of a traffic stop includes: 1) the presence
or absence of police excesses; 2) whether there was
physical contact; 3) whether police directed the
citizen’s movements; 4) police demeanor and
manner of expression; 5) the location of the
interdiction; 6) the content of the questions and
statements; 7) the existence and character of the
initial investigative detention, including its degree of
coerciveness; 8) the degree to which the transition
between the traffic stop/investigative detention and
the subsequent encounter can be viewed as
seamless, … thus suggesting to a citizen that his
movements may remain subject to police restraint;
9) the presence of an express admonition to the
effect that the citizen-subject is free to depart is a
potent, objective factor; and 10) whether the citizen
has been informed that he is not required to consent
to the search.
Commonwealth v. Moyer, 954 A.2d 659, 665 (Pa. Super. 2008) (en banc)
(internal quotation marks and citations omitted), appeal denied, 966 A.2d
571 (Pa. 2009). The trial court explained its consideration of the totality of
the circumstances and its conclusion that the subsequent interaction
between the driver and Trooper Nolan was a mere encounter as follows.
The following facts were considered in
determining whether a reasonable person in the
driver’s position would have believed she was free to
leave. This [c]ourt looked to the fact that there were
two other officers on scene in addition to Trooper
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Nolan (the “Trooper”), however they were located
several yards away from the Trooper, behind his
patrol vehicle. The other officers on scene were not
speaking with the driver or any of the vehicle
occupants while the Trooper was obtaining consent
for the search. There is no evidence than any of the
officers had any physical contact with the driver or
the occupants of the vehicle before the [T]rooper
requested to search the vehicle. The Trooper’s
patrol car was parked on an angle behind the driver’s
vehicle, with his lights on. The driver could have
driven away without the Trooper moving his vehicle.
The Trooper did not yell at the driver or the vehicle
occupants or brandish his gun. Lastly, the Trooper
expressly told the driver that she was “free to leave.”
The facts here do not suggest that the Trooper
acted in a coercive manner or spoke forcefully to the
driver or any of the vehicle occupants. Given the
totality-of-the-circumstances, the subsequent round
of questioning by the Trooper after the initial valid
traffic stop, once the Trooper returned all the driver’s
documentation and instructed the driver that she
was free to leave, was [a] mere encounter and
therefore the consent to search was not tainted by
an illegal detention.
Trial Court Opinion, 3/20/15, at 6-7. For the following reasons, we disagree
with the legal conclusion drawn by the trial court that the driver was
engaged in a mere encounter with Trooper Nolan prior to giving her consent.
See Gary, supra.
At the suppression hearing, the only evidence presented by the
Commonwealth was the testimony of Trooper Nolan, and the defense
presented no evidence. The testimony of Trooper Nolan established the
events unfolded according to the following timeline. Trooper Nolan initiated
the traffic stop for an extinguished brake light, and the vehicles pulled into a
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“small parking lot.” Id. at 11, 23. He was in full uniform in a marked patrol
vehicle, with the lights activated. Id. at 20. He parked his vehicle behind
the driver’s vehicle on an angle, which would permit the driver to pull out of
the parking lot without Trooper Nolan moving his car. Id. at 21. On scene,
two other officers were present behind Trooper Nolan’s patrol car, in full
uniform. Id. at 22, 42. Trooper Nolan testified that he recalled at least one
of the two other police vehicles present was a marked police car; he could
not recall the other, specifically. Id. at 43. As he approached the vehicle,
he noticed there were five occupants therein. Id. at 12. He further
observed at this time that Appellant, seated in the backseat, had “track
marks” located on her hands, and her hands appeared to be swollen. Id. at
13. Trooper Nolan testified that, in his experience, the appearance of her
hands indicated she was a drug user. Id. Trooper Nolan approached the
driver, who appeared nervous, and asked her to step out of her vehicle. Id.
The driver complied and walked toward Trooper Nolan’s vehicle. Id. As the
driver exited, Trooper Nolan observed a small, black rubber band “consistent
with putting heroin packets together” in plain view “on the floor, next to the
[driver’s] seat.” Id. at 13-14. Next, Trooper Nolan spoke with the driver,
showed her which of her brake lights was out, and secured the driver’s
license, registration, and insurance documents. Id. at 14-15. Trooper
Nolan then ran the driver’s registration information, approached the driver’s
vehicle, and began speaking with the front seat passenger; Appellant was
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seated behind the driver’s seat along with two other passengers in the back
seat. Id. at 16-17. Trooper Nolan testified that he had received “conflicting
stories” from the driver and the occupants regarding where they were
coming from, and the occupants appeared nervous. Id. at 16-17. During
his conversation with the occupants, Trooper Nolan requested their
identifications, and they complied. Id. He then went back to his patrol
vehicle, and the driver returned to her vehicle. Id. At his patrol vehicle,
Trooper Nolan ran the driving records and criminal histories of all occupants,
which yielded Appellant’s out-of-state violations related to drug offenses.
Id. at 18. He then typed up a warning for the brake light and filled out a
written request for consent to search the vehicle. Id. at 18-19. Trooper
Nolan returned to the driver’s side of the vehicle and again requested the
driver step out. Id. at 19. He specifically testified as follows regarding
issuing the warning and his encounter with the driver thereafter.
[The Commonwealth]:
Q. What did you do [after the driver stepped
out of her vehicle]?
[Trooper Nolan]:
A. I explained to the operator of the vehicle
that I’d be issuing her a warning for the brake light.
At that time[,] I gave [the driver] her warning back,
her registration, her license and her insurance card.
Q. At this -- I’m sorry, go ahead.
A. I gave her that back, and at that time I told
her she was free to leave.
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Q. Now, at this point in time did you have any
documents that belonged to her?
A. I did not, no.
Q. Did you have any of her possessions?
A. No.
Q. And specifically what words did you say to her
after you gave the documents back?
A. I said to her she was free to leave.
Q. What did you do after you said that?
A. After I said she was free to leave, she
turned around, walked towards her vehicle. I
turned, took several steps towards my vehicle.
After several steps, I turn[ed] around and
asked the operator if she had a few minutes. At that
time she acknowledged that she did. She turned
around and walked towards me.
…
Q. … What specifically did you say to her after
you had both walked away.
A. After I’ve already said she was free to
leave?
Q. Yes.
A. I called her by her first name, which I don’t
remember what it was, and I asked if she had a
minute or can I have a minute of your time or
something to that effect.
Q. Did you command her to return?
A. No.
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Q. Did you make any orders?
A. No.
Q. Now, you said you’re free to go and then
you asked another question. Between that space of
time how much time had elapsed?
A. I don’t know time. I mean, you’re talking, I
turned towards my vehicle, walked towards mine,
and … she was in front of my vehicle and she had
turned around. She took several steps. She was
almost by the door of her driver’s side door, to give
her that leeway.
…
Q. I’m assuming, then, that you met at some
point. Did you have a discussion then?
A. Yes.
Q. What was the discussion about?
A. Just -- I don’t remember specifically. I had
asked if there’s anything in the vehicle. I explained
to her the stuff that I had seen inside the vehicle
which led to me being suspicious that there may be
something inside the vehicle. She related that there
was not.
At this time[,] I requested written consent.
The operator gave me a verbal and written consent
to search the vehicle.
N.T., 11/17/14 at 19-20; 24, 26. On cross-examination, Trooper Nolan
clarified that at the time he reengaged the driver, he no longer had any of
her items or the passengers’ items.
[Counsel for Appellant]:
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Q. And you gave [the driver] her documents
back [after requesting driver to exit her vehicle in
order to give her the warning]?
A. Well, I explained to her that I was issuing
her a warning, issued that to her, gave her license
back, her registration and also her insurance card.
Gave all her documentations back.
Q. When did you give the passengers back
their ID’s?
A. I might have given them to the driver. I
didn’t have them still. I believe I might have given
them to the driver.
Id. 47-48. He further testified regarding his training as follows.
[Counsel for Appellant]:
Q. Have you been trained to tell people you’re
free to go and then follow up with [“]can I ask you
some questions[?”]?
A. Yes, because she is free to go.
Id. at 49.
In Commonwealth v. Nguyen, 116 A.3d 657 (Pa. Super. 2015), this
Court recently analyzed the constitutionality of a police encounter following
an initial, valid traffic stop. In Nguyen, a police trooper initiated a valid
traffic stop for speeding. Nguyen, supra at 660, 666-667. The trooper and
his partner approached the driver’s side, and the trooper explained the
nature of the stop to the driver. Id. at 660. The trooper asked for and
received the driver’s license and registration and then asked the driver to
exit the vehicle, and the driver complied. Id. The trooper’s partner then
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approached the passenger side of the vehicle, but he did not engage the
passenger. Id. at 661. Next, the trooper approached the passenger in the
vehicle, the appellant, and asked for his license. Id. The appellant did not
make eye contact and refused to answer the trooper’s question, which, in
the trooper’s experience, was behavior consistent with narcotics activity.
Id. The appellant eventually gave his information to the trooper. Id. The
trooper ran the driver and the appellant’s information and found that the
appellant had prior drug convictions. Id. The trooper then returned the
paperwork to the driver and the appellant, issued a written warning for the
traffic violation, and told the driver he was “free to go.” Id. The trooper
and his partner walked toward their vehicle while the driver walked toward
his. Id. As the trooper approached the door of his vehicle, he turned around
and asked the driver if he could ask him some more questions. Id. The
driver had reached the side of his door at this point and agreed to answer
the trooper’s questions. Id. The trooper proceeded to ask the driver some
questions about the driver’s nervousness and his relationship with the
appellant and requested consent to search the vehicle and “all of its
contents.” Id. Following receipt of consent by the driver to search the
vehicle, the trooper asked the appellant to step out of the vehicle, and
ultimately, as a result of the interaction, the appellant was convicted of
several drug offenses. Id. at 661-662.
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This Court concluded, “given the facts surrounding the subsequent
interaction … the driver and [a]ppellant were subject to a second seizure.”
Id. at 667. Specifically, this Court observed the following.
[T]he driver and [the a]ppellant were stopped for a
lawful detention resulting from the motor vehicle
code violations. Because the trooper had
accomplished the purpose of the stop, as indicated
by the issuance of a warning and stating that the
driver and [the a]ppellant were free to go, the driver
would have been in his rights to drive away at that
point. Nevertheless, the trooper’s subsequent
actions were inconsistent with his statement that
they were free to leave. After walking toward his
cruiser, the trooper turned around and returned to
the driver’s vehicle, approached the driver, and
began to ask the driver additional questions.
Moreover, when the trooper re-engaged the driver,
the driver was still standing outside of his vehicle.
Id. at 667-668. This Court further concluded that the stop required
reasonable suspicion. Id. at 668. However, because the trooper “possessed
the information regarding [the a]ppellant’s criminal history prior to ending
the initial stop based on the traffic information[,] … such information could
not serve as the basis of reasonable suspicion for the subsequent interaction
after the initial stop ended.” Id.
In the instant case, the evidence at the suppression hearing
established Trooper Nolan initiated a valid traffic stop based on the driver’s
broken brake light. N.T. 11/17/14, at 11. During the course of the initial
stop, he noticed nervous behavior of the driver; a single, small black rubber
band near the driver’s side on the floor; and Appellant’s hands, which were
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swollen and, in his opinion, had an appearance consistent with drug use.
Id. at 12-14. There were two other officers present, in full uniform, and
each parked their respective patrol vehicle behind Trooper Nolan’s in what
Trooper Nolan described as a “small parking lot.” Id. at 21-23. Further,
Trooper Nolan twice requested that the driver leave her vehicle. Id. at 13,
19. Specifically, Trooper Nolan requested the driver to step out of her
vehicle when he first approached the driver to show her the broken brake
light and request her documentation. Id. at 13-15. The driver then
returned to her vehicle, and Trooper Nolan returned to his vehicle to type up
the written warning. Id. at 17. Before issuing the warning to the driver or
returning the documentation, Trooper Nolan again requested the driver to
step out of her vehicle. Id. at 19. After issuing the warning, Trooper Nolan
informed the driver she was free to go and, after she walked toward her car,
asked her if he could have a few more minutes of time, which resulted in the
consent to search her vehicle. Id. at 19-20. Under the totality of the
circumstances, we conclude the driver and Appellant were subject to a
second seizure. See McAdoo, supra; see See also Moyer, supra at 667
(observing that a coercive environment was demonstrated by, inter alia, the
police directing the appellee out of the vehicle ”even though the existence of
a hole in [the appellee’s] taillight could readily have been addressed while
[the a]ppellee remained in his vehicle” and noting “the reintroduction of
questioning occurred within seconds after the admonition that [a]ppellee
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could leave the scene, rendering the interdiction virtually seamless”);
Nguyen, supra at 668 (noting when a person is located outside, rather
than inside, his or her vehicle, that person is less likely to believe he or she
can leave the area by entering the vehicle and driving away). Further,
identical to the subsequent encounter initiated by the trooper in Nguyen,
Trooper Nolan’s articulated reasons for suspicion, i.e., the appearance of
Appellant’s hands, the nervous behavior, and the single, black rubber band,
were possessed prior to his termination of the first, valid detention.
Therefore, there was no new information on which he could base a
reasonable suspicion of criminal activity, and we conclude the subsequent
detention was unconstitutional. See Nguyen, supra at 668.
Accordingly, because the driver’s consent was the product of the illegal
detention, the trial court erred in denying Appellant’s motion to suppress.
See Commonwealth v. Freeman, 757 A.2d 903, 906, 909 (Pa. 2000)
(noting, “where [] an illegal seizure precedes the consent search, the
Commonwealth must also establish a break in the causal connection
between the illegality and the evidence thereby obtained” and concluding
that “the trooper’s initiation of a second seizure and receipt of [the
appellant’s] consent were integrally connected” requiring suppression of the
fruits of the search).
Based on the foregoing discussion, we reject the Commonwealth’s
argument that the driver was engaged in a mere encounter following the
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conclusion of the initial traffic stop, and we conclude Appellant was subject
to a second investigative detention without reasonable suspicion. We further
conclude that the consent to search was tainted by the illegal detention.
Therefore, the trial court erred in denying Appellant’s motion to suppress. 5
Accordingly, we vacate Appellant’s judgment of sentence, reverse the order
denying suppression, and remand for proceedings consistent with this
memorandum.
Judgment of sentence vacated and order denying Appellant’s
suppression motion reversed. Case remanded. Jurisdiction relinquished.
Justice Fitzgerald joins the memorandum.
Judge Allen concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/24/2015
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5
Based on our resolution of Appellant’s first issue, we need not address her
remaining issues.
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