J-A24031-16
2016 PA Super 235
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
SHAUN BERKLEY FREEMAN
Appellant No. 3740 EDA 2015
Appeal from the Judgment of Sentence dated September 28, 2015
In the Court of Common Pleas of Monroe County
Criminal Division at No(s): CP-45-CR-0000488-2014
BEFORE: BOWES, J., OTT, J., and SOLANO, J.
OPINION BY SOLANO, J.: FILED OCTOBER 31, 2016
Appellant, Shaun Berkley Freeman, appeals from the judgment of
sentence imposed after the trial court convicted him of possession with
intent to deliver (marijuana), possession of a controlled substance
(marijuana), and possession of drug paraphernalia.1 Appellant claims the
trial court erred in denying his motion to suppress evidence obtained as a
result of a vehicle stop. After careful review, we affirm.
The trial court recounted the factual background as follows:
On February 25, 2014, [Appellant] was stopped by
Pennsylvania State Police Trooper Jonathan Gerken (“Trooper
Gerken”) on Interstate Route 80 (“I80”). Trooper Gerken was in
full uniform on roving patrol in an unmarked vehicle. He
observed a white Chevrolet Malibu traveling westbound on I80 in
the right lane following a FedEx truck. Trooper Gerken stated
____________________________________________
1
35 P.S. §§ 780-113(a)(30), (16), and (32).
J-A24031-16
that the Malibu was traveling too closely . . . and then the Malibu
made several unsafe lane changes. He then initiated a traffic
stop of [Appellant’s] vehicle on Interstate Route 380 (“I380”).
Upon approaching the vehicle, Trooper Gerken noticed an
overwhelming odor of air fresheners coming from the vehicle.
Trooper Gerken then questioned [Appellant] on his travels and
he noticed that [Appellant] was acting nervous and somewhat
short in his responses.
After running a CLEAN/NCIC check,[2] Trooper Gerken
determined that [Appellant] had a valid license. However, a
criminal background check indicated that [Appellant] had a 2005
arrest for a weapon out of New York. Trooper Gerken obtained a
copy of the rental car agreement (“agreement”) which was a
one-day rental from Hertz, New Rochelle, New York. The
agreement required the vehicle to be returned to the same
location on February 26, 2014 at 8 a.m. Trooper Gerken
questioned [Appellant] further about his travel plans and
[Appellant] changed his statement. Trooper Gerken then
contacted his dispatcher for backup. Trooper Lindsay was
dispatched and he arrived on scene a few minutes later. After
[Appellant] denied a request to search the vehicle, Trooper
Gerken requested a K9 unit to perform an exterior search of the
vehicle due to suspicion of criminal activity. Trooper Doblovasky
and his K9, Micho, performed a perimeter search, at which time
Micho indicated on the vehicle. [Appellant] was then transported
back [to] the police barracks and an application for search
warrant was made. After the search warrant was issued,
[Appellant’s] vehicle was searched and 80 pounds of marijuana
was discovered along with other paraphernalia. [Appellant] was
charged with [the three aforesaid drug offenses]. On April 21,
2014, [Appellant] filed [an] Omnibus Pretrial Motion [seeking
suppression]. On January 12, 2015, [the trial court] held a
hearing[.]
Trial Court Opinion, 4/2/15, at 1-2.
____________________________________________
2
CLEAN is the Commonwealth Law Enforcement Assistance Network. NCIC
is the FBI’s National Crime Information Center.
-2-
J-A24031-16
On April 1, 2015, the trial court denied Appellant’s suppression motion.
The case proceeded to trial on August 4, 2015, at the conclusion of which
the trial court rendered its guilty verdicts. On September 28, 2015, the trial
court sentenced Appellant to 12 months less a day to 24 months less a day,
with three years of probation, for possession with intent to deliver. The
possession charge merged with the charge for possession with intent to
deliver, such that no sentence was imposed for that conviction. With respect
to possession of drug paraphernalia, the court imposed a sentence of one
year of probation, to run concurrently with the three years of probation
imposed for possession with intent to deliver.
Appellant filed a post-sentence motion October 6, 2015, which the trial
court denied on November 23, 2015. Appellant filed this timely appeal on
December 7, 2015.3
On appeal, Appellant presents two issues for our review.
1. Has the Commonwealth carried its burden of proof at a
suppression hearing where a defendant alleges that the
vehicle stop was unlawfully made in violation of his rights
under the Fourth Amendment and Article I Section 8 of the
Pennsylvania Constitution, and the trooper offers conclusory
testimony that a defendant’s vehicle was following too closely
for conditions and made unsafe lane changes?
2. Should a canine sniff of a vehicle be suppressed when a
defendant and his vehicle are forced to await the arrival of
____________________________________________
3
Appellant’s appeal is timely because it was filed within 30 days of the trial
court’s denial of his timely post-sentence motion. Pa.R.Crim.P.
720(A)(2)(a).
-3-
J-A24031-16
the canine unit while standing alongside an Interstate for over
an hour in the February cold without a jacket and without
reasonable suspicion or probable cause to suspect a crime
had been committed, all in violation of a defendant’s rights
under the Fourth Amendment and Article I Section 8 of the
Pennsylvania Constitution?
Appellant's Brief at 6.
Preliminarily, we reference our standard of review:
Our standard of review in addressing a challenge to the denial of
a suppression motion is limited to determining whether the
suppression court’s factual findings are supported by the record
and whether the legal conclusions drawn from those facts are
correct. Because the Commonwealth prevailed before the
suppression court, we may consider only the evidence of the
Commonwealth 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 suppression court’s factual findings are
supported by the record, we are bound by these findings and
may reverse only if the court’s legal conclusions are erroneous.
The suppression court’s legal conclusions are not binding on an
appellate court, whose duty it is to determine if the suppression
court properly applied the law to the facts. Thus, the
conclusions of law of the courts below are subject to our plenary
review.
Moreover, appellate courts are limited to reviewing only the
evidence presented at the suppression hearing when examining
a ruling on a pre-trial motion to suppress.
Commonwealth v. Ranson, 103 A.3d 73, 76 (Pa. Super. 2014) (internal
citations and quotations omitted).
We further note:
It is well-established that there are three categories of
interaction between citizens and police officers. As our Supreme
Court has clearly articulated:
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 to
-4-
J-A24031-16
respond. The second, an “investigative 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.
Ranson, 103 A.3d at 76–77.
The Vehicle Stop
In his first issue, Appellant argues that the initial stop of his vehicle
was unlawful. Appellant asserts that Trooper Gerken lacked “probable cause
or reasonable suspicion” to initiate the traffic stop and assails Trooper
Gerken’s testimony. Appellant’s Brief at 15, 19-20. In doing so, Appellant
claims Trooper Gerken “testified in a conclusory manner about his
observations” and without “specific articulable facts.” Id. at 15.
Trooper Gerken had to have probable cause to initiate the traffic stop.
We have explained:
Mere reasonable suspicion will not justify a vehicle stop when the
driver’s detention cannot serve an investigatory purpose relevant
to the suspected violation. In such an instance, “it is encumbent
[sic] upon the officer to articulate specific facts possessed by
him, at the time of the questioned stop, which would provide
probable cause to believe that the vehicle or the driver was in
violation of some provision of the Code.” [Commonwealth v.]
Gleason, 785 A.2d [983,] 989 [Pa. 2001] (citation omitted).
See also [Commonwealth v.] Chase, 960 A.2d [108,] 116
[Pa. 2008] (reaffirming Gleason's probable cause standard for
non-investigative detentions of suspected Vehicle Code
violations).
Commonwealth v. Feczko, 10 A.3d 1285, 1291 (Pa. Super. 2010) (en
banc) (emphasis in original).
-5-
J-A24031-16
Here, Trooper Gerken testified that he was on patrol on February 25,
2014, when he observed Appellant, who was driving a Chevrolet Malibu in
“moderate to heavy traffic,” violate the Motor Vehicle Code when he made
“several unsafe lane changes, [and] cut across the lanes of traffic.” N.T.,
1/12/15, at 9-10. Trooper Gerken continued, “[t]he vehicle began following
another vehicle entirely too close, due to the weather conditions. I believe it
began to follow a tractor-trailer at a distance too close as well, made a
change to pass the tractor-trailer, and then cut across the lanes to exit onto
380 northbound.” Id. at 12. Based on these observations, Trooper Gerken
effectuated the traffic stop. Id. at 13.
The suppression court credited Trooper Gerken’s testimony and
explained:
Trooper Gerken testified that he stopped [Appellant’s] vehicle for
following too closely and unsafe lane changes. 75 Pa.C.S. §
3310 states that the “driver of a motor vehicle shall not follow
another vehicle more closely than is reasonable and prudent,
having due regard for the speed of the vehicles and the traffic
upon and the condition of the highway.” Upon observing
[Appellant’s] vehicle follow the FedEx truck too closely, Trooper
Gerken also observed [Appellant’s] vehicle make several unsafe
lane changes. Based upon this testimony, we find that Trooper
Gerken articulated specific probable cause to stop [Appellant’s]
vehicle.
Trial Court Opinion, 4/2/15, at 3 (citations to notes of testimony omitted).
We have reviewed the notes of testimony, as well as the motor vehicle
recording (MVR) that was made from a video camera in Officer Gerken’s
vehicle and was entered into evidence by the Commonwealth as Exhibit 1.
-6-
J-A24031-16
We note that Appellant claims that “on the MVR . . . it is impossible to have
observed the distance at which [Appellant’s] vehicle was following any other
vehicle.” Appellant’s Brief at 19.4 However, our review of the MVR confirms
Trooper Gerken’s testimony that Appellant made several unsafe lane
changes.5 In particular, the MVR shows Appellant driving close to a tractor
trailer to change lanes while passing a Vision tanker truck. This conduct was
sufficient to support a finding that Trooper Gerken had probable cause to
initiate the traffic stop. Commonwealth v. Cook, 865 A.2d 869 (Pa.
Super. 2004) (whether a law enforcement officer possesses probable cause
to stop a vehicle for violating the statute governing driving on roadways
laned for traffic depends largely upon on whether a driver’s movement from
his lane is done safely).
Based on the foregoing, our review supports the trial court’s
determination that Trooper Gerken possessed probable cause to initiate the
____________________________________________
4
Appellant also claims that “Trooper Gerken’s testimony regarding weather
conditions and snowy roadways is in conflict with the condition of the roads
shown on the MVR.” Appellant’s Brief at 19. In fact, the MVR clearly shows
snow on the shoulder of the road, although not on the surface, and it shows
that a light snow was falling.
5
75 Pa.C.S. § 3309(1) provides that “[a] vehicle shall be driven as nearly as
practicable entirely within a single lane and shall not be moved from the lane
until the driver has first ascertained that the movement can be made with
safety.”
-7-
J-A24031-16
vehicle stop based upon Appellant’s violation of the Motor Vehicle Code.
Accordingly, we find no merit to Appellant’s first issue.
The Investigatory Detention
In his next issue, Appellant argues that, “after the vehicle stop,” he
was subject to an unlawful search and seizure “when he and his vehicle were
held on the side of the Interstate for over an hour in the February cold.”
Appellant’s Brief at 15, 21; see id. at 22-27. In reviewing Appellant’s claim
that he was unlawfully detained, we scrutinize the record, mindful of the
Supreme Court’s directive when presented with a defendant who has been
seized by a police officer pursuant to a valid traffic stop:
A police officer may detain an individual in order to conduct an
investigation if that officer reasonably suspects that the
individual is engaging in criminal conduct. Commonwealth v.
Cook, 558 Pa. 50, 735 A.2d 673, 676 (1999). “This standard,
less stringent than probable cause, is commonly known as
reasonable suspicion.” Id. In order to determine whether the
police officer had reasonable suspicion, the totality of the
circumstances must be considered. In re D.M., 566 Pa. 445,
781 A.2d 1161, 1163 (2001). In making this determination, we
must give “due weight ... to the specific reasonable inferences
[the police officer] is entitled to draw from the facts in light of
his experience.” Cook, 735 A.2d at 676 (quoting Terry v. Ohio,
392 U.S. 1, 27, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)). Also,
the totality of the circumstances test does not limit our inquiry to
an examination of only those facts that clearly indicate criminal
conduct. Rather, “[e]ven a combination of innocent facts, when
taken together, may warrant further investigation by the police
officer.” Cook, 735 A.2d at 676.
Commonwealth v. Rogers, 849 A.2d 1185, 1189 (Pa. 2004).
-8-
J-A24031-16
Trooper Gerken testified that when he initiated the traffic stop and first
approached Appellant, he “advised him to pull the vehicle further up the
road because of the location we had stopped wasn’t a safe location with the
snow-covered roads.” N.T., 1/12/15, at 13-14. Trooper Gerken also
advised Appellant “of the violation,” and Appellant responded that he “was
messing with his vehicle.” Id. at 14. Trooper Gerken testified that when he
approached Appellant again after Appellant moved his vehicle, Trooper
Gerken “smelled the overwhelming odor of air fresheners coming from the
vehicle.” Id. at 14-15. On direct examination, the Commonwealth asked
the trooper whether he smelled the air fresheners “on the first approach or
the second approach.” Id. at 15. Trooper Gerken stated “I smelled it on
both approaches to the vehicle.” Id.
Trooper Gerken testified that he determined Appellant was driving a
rental car and asked Appellant where he was going, and Appellant, who “was
somewhat short and nervous in his responses,” said he was going to
Binghamton, New York. N.T., 1/12/15, at 15. Trooper Gerken then
returned to his patrol vehicle, ran a check on Appellant, and determined that
he had a valid license, although he also “had a 2005 arrest for a weapon out
of New York.” Id. at 16. Trooper Gerken obtained a copy of Appellant’s car
rental agreement and noted that it was “a one-day rental . . . February 25 it
was rented out of New Rochelle, and it was due back at the same location on
the 26th at 8 a.m.” Id. at 17-18. Trooper Gerken testified that when he
-9-
J-A24031-16
returned to Appellant’s vehicle, he “spoke to [Appellant] about the purpose
of his trip.” Id. at 18. Appellant told Trooper Gerken that he was going to
visit his cousin in Binghamton. Id. Appellant also stated he was on vacation
and was returning that night. Id. at 19. Trooper Gerken testified that
Appellant “changed his statement saying that he – he originally stated that
he had to come back for work, and then that changed further on. . . . It
changed that he may stay over in Binghamton.” Id. at 19, 46.6
Based on the foregoing, Trooper Gerken explained that he “believed
that criminal activity was occurring at that point, so [he] requested [a
backup officer].” N.T., 1/12/15, at 20. The trooper stated that his belief
was “based on the totality of the circumstances,” and he asked for backup
“several minutes into the stop, after speaking with [Appellant].” Id.
Trooper Gerken explained his suspicion of Appellant’s criminal activity as
follows:
Typically, in my training and experience, the overwhelming
smell of air fresheners in a rental vehicle is consistent with trying
to mask the odor of controlled substances. . . . As a trooper, [I
have been involved in drug stops with air fresheners,] probably
100 or so. I would have – over the 12 years that I’ve been a
____________________________________________
6
In advancing his argument that he was improperly detained, Appellant
explains his account of whether he would spend the night in Binghamton as
speculative and prospective, claiming that he did intend to return home that
day but adding that he might change his mind and spend the night if he
decided to drink and it became unsafe for him to drive. N.T., 1/12/15, at
43; see also Appellant’s Brief at 12, citing the MVR. Neither Trooper
Gerken nor the trial court were required to credit this explanation, however.
- 10 -
J-A24031-16
police officer, several hundred traffic stops involving controlled
substances.
[Other indicators were the] prior conviction for the
weapons offense out of 2005, out of New York; his nervous
behavior while I was speaking to him; he was coming from a
source area, New York is a source area for controlled
substances, as well as Binghamton being a destination area for
the delivery of controlled substances. . . . Based on my training
and experience, I know in prior arrests that I’ve had, as well as
other troopers, other police officers, that New York City is a hub
for controlled substances.
***
[Also, t]he short turn-around trip. The vehicle was due
back the next morning. The conflicting statements as to the
purpose of his trip, that he was staying, that he wasn’t. He
stated that he was on vacation. He stated that he had to work
the next day. . . . He was somewhat shaky when he was
presenting his documents to me. There’s a difference between
the normal police interaction where somebody is nervous
because they’re stopped by the police and they’re afraid to get a
ticket.
Id. at 22-24.
Trooper Gerken testified that he called a K9 Unit to respond to the
scene for a canine search of the car. N.T., 1/12/15, at 25. In referencing
his written incident report, Trooper Gerken noted that he initiated the stop of
Appellant at 11:26 a.m. and contacted the K9 Unit at 11:52 a.m., so that 26
minutes had elapsed from when Trooper Gerken first stopped Appellant for a
Vehicle Code violation to when he called for the K9 Unit. Id. at 26. Trooper
Gerken testified that by 11:52 a.m., he had “already issued [Appellant] a
written warning [for improper lane movement and careless driving] at that
- 11 -
J-A24031-16
point.” Id. Trooper Gerken issued the written warning to Appellant before
calling for the K9 Unit. Id.
Trooper Gerken stated that after he issued the written warning to
Appellant, he “stated that [he] wanted to speak to him further. [Appellant]
attempted to walk away, at that point and return to the vehicle.” N.T.,
1/12/15, at 27. Trooper Gerken did not dispute that Appellant “was not free
to go at that point.” Id. at 38, 39. The trooper “asked him what he had
been arrested for before, he said DUI; he made no statement as to the
weapons offense out of 2005.” Id. Trooper Gerken testified:
He started becoming agitated. I asked him if he was
coming back or he was going to stay there. He changed again
and said he might stay overnight. And I advised him that I’d be
contacting, based on all the indicators present, and the
reasonable suspicion that existed, I advised him that I’d be
contacting a K9.
Id. at 27.
Trooper Gerken clarified that he called for the K9 Unit because he had
asked Appellant for permission to search the vehicle, and Appellant denied
permission. N.T., 1/12/15, at 29. He stated that he calls for a K9 when
“there’s a stop similar to this where there’s refusal to search and reasonable
suspicion has been developed.” Id. at 30. Trooper Gerken stated that when
the K9 arrived and was “deployed,” the dog “alerted and/or indicated on the
vehicle.” Id. at 31. Trooper Gerken testified, “at that point, [Appellant] was
detained and an application was made for a search warrant. . . . [Appellant]
was transported to [police] barracks and [the vehicle] was towed [to the
- 12 -
J-A24031-16
barracks] pending the application for the search warrant.” Id. at 31-32.
Trooper Gerken stated that “around an hour, hour and fifteen” elapsed from
the time he initiated the traffic stop of Appellant until he detained Appellant
in his patrol car and transported him to police barracks. Id. at 36-37. After
the search warrant was approved, Trooper Gerken searched Appellant’s
vehicle. Id. at 32. Based on the search, Appellant was charged with the
aforementioned drug offenses. Id. at 36.
State Trooper Paul Lindsay testified next for the Commonwealth.
Trooper Lindsay stated that he responded to Trooper Gerken’s request for
assistance. N.T., 1/12/15, at 57. Trooper Lindsay also noticed Appellant’s
rental vehicle because “it was the wintertime, and rental vehicles jump out
at you real quick, especially in the wintertime because rental vehicles are
very clean. They don’t send out dirty cars, where in the wintertime you see
a lot of people have a lot of dirt on them and whatnot. This particular
vehicle was very shiny. It was very clean.” Id. at 59-60. Trooper Lindsay
stated that he was there “after the K9 was deployed.” Id. at 60. He
admitted to telling Appellant: “that vehicle’s loaded with marijuana.” Id. at
61. Trooper Lindsay testified about the basis for his statement as follows:
It was mainly based on training and experience. I worked
Interstate 81 in the Gibson area, and I was very familiar with the
Upstate traffic headed to Binghamton, Elmira, Johnson City,
Syracuse, Rochester. Knowing rental vehicles are commonly
used by drug traffickers to transport illegal narcotics and the
amount of time in which the vehicle was rented and where it was
headed to and after a K9 alert, based on my training and
experience, I came right out and said, “I believe that vehicle is
loaded with marijuana.”
- 13 -
J-A24031-16
Id.
Corporal Anthony Doblovasky testified to being the K9 handler who
responded to the call for a canine during the stop of Appellant. N.T.,
1/12/15, at 64. Corporal Doblovasky explained his role as a K9 handler:
That day for me to respond there I need to agree with [Trooper
Gerken] that he has reasonable suspicion or I’m not going to
respond.
If I’m on duty, I might come to the stop and talk to [the
trooper] at the stop and see what he has. I’ve had instances in
the past where I didn’t agree and I wouldn’t run the dog. This
case I did agree with the trooper and I did.
Id. at 68. Corporal Doblovasky repeated, “my own opinion was there was
reasonable suspicion present. . . .” Id. at 73.
The Commonwealth’s final witness, Corporal Nicholas Cortes, was
presented and qualified as an expert in drug identification, interdiction, and
trafficking. N.T., 1/12/15, at 84-87. Corporal Cortes testified that rental
vehicles are “really common within criminal interdiction and people who are
moving, drug traffickers” because they are not subject to forfeiture; rented
vehicles are “really reliable” and will not break down; and, because the
rental vehicles do not belong to the occupants, the occupants have the
excuse that “I didn’t know it was there. It’s not mine. It’s not my car.” Id.
at 88-89. Corporal Cortes also noted that erratic driving was often exhibited
by drug traffickers because “someone is either unfamiliar with the route
[they are driving] or they’re focused on the police officer that’s behind them.
So a lot of times you’ll see them looking in their rearview mirror, and
- 14 -
J-A24031-16
because they looked in their rearview mirror, they just drove off the road.”
Id. at 90. Corporal Cortes additionally addressed the use of air fresheners
as “masking agents” to cover the smell of drugs, observing that “it’s not
common that we find air fresheners within rental vehicles.” Id. at 91. In
addition, Corporal Cortes opined that New York to Binghamton is “a very
common route” where he “personally ha[s] had numerous seizures traveling
from New York to Binghamton, two alone in the top 10 seizures.” Id.
Corporal Cortes summarized:
My role in this investigation is very limited. I was not
on the stop. I did not assist in the investigation at all.
Outside of – I’m Trooper Gerken’s supervisor, so I do see
his reports come through the office that I have to take into
account as an administrator, so that would be my only role in
this investigation is whenever he has to update his report with
whatever – I mean, wherever the case is at, the status of the
case.
***
[But with regard to reasonable suspicion,] any indicator in
and of itself may not be anything. But you take the totality of
the circumstances. You put all these indicators together. It’s
like pieces of a puzzle. You take all the pieces of a puzzle. You
put it together. You draw a conclusion from the totality of the
circumstances. So you have all these indicators that are piled up
together, and that’s where you’re drawing your conclusion.
You’re not just basing it on one thing.
N.T., 1/12/15, at 94, 102.
The trial court credited the testimony of the Commonwealth’s
witnesses and distilled their testimony as follows:
- 15 -
J-A24031-16
Instantly, Trooper Gerken observed several indicators of drug-
related activity during the course of the traffic stop. First, he
smelled the overwhelming odor of air freshener coming from
inside of the vehicle. After running a check on [Appellant’s]
license, Trooper Gerken discovered that [Appellant] had a
conviction[7] for [a] weapons offense in New York. [Appellant]
indicated that he was traveling from New York to Binghamton,
which in Trooper Gerken’s training and experience indicates a
source area and a destination for delivery of controlled
substances. The rental car agreement was for 24 hours. In
addition, [Appellant] was “somewhat shaky” in his demeanor.
Based upon these observations, we find that Trooper Gerken had
reasonable suspicion to suspect illegal activity to justify the
investigative detention and canine sniff. Moreover, the search
warrant was based upon the canine search of the exterior of the
vehicle where [the canine] indicat[ed] on the vehicle’s trunk.
Marijuana was later discovered in the vehicle’s trunk as a result
of the search warrant issued. As such, we find that the search
was lawful . . ..
Trial Court Opinion, 4/2/15, at 5 (citations to notes of testimony omitted).
After careful consideration, we agree with the trial court’s decision.
We recognize that, when viewed in isolation, many of the facts on
which the troopers relied appear innocuous. We would hesitate to hold that
a vehicle may be detained for more than an hour and subjected to a canine
search merely because it had been rented for a one-way trip from New York
to Binghamton, a purported drug destination, or because the driver, when
stopped, appeared agitated. But we are required to review the
circumstances in their totality, and, upon doing so, we conclude that the
____________________________________________
7
Appellant correctly points out that this statement in the trial court’s opinion
is erroneous. Appellant’s Brief at 26. Appellant’s criminal history indicated
an arrest for a firearms offense, not a conviction. See N.T., 1/12/15, at
16.
- 16 -
J-A24031-16
evidence was sufficient to support the trial court’s determination that the
troopers’ detention of Appellant was supported by reasonable suspicion.
Pennsylvania case precedents addressing similar facts support our
conclusion.
In Commonwealth v. Kemp, 961 A.2d 1247 (Pa. Super. 2008) (en
banc), a state trooper monitoring traffic along the Pennsylvania Turnpike
observed a vehicle with tinted windows in violation of 75 Pa.C.S. §
4524(e)(1), which gave him probable cause to initiate a valid vehicle stop.
961 A.2d at 1250-1251. During the stop, the trooper suspected illegal drug
activity, based on his extensive training and experience in drug trafficking
interdictions, his observation of a large number of air fresheners in the
vehicle, the extreme nervousness of the appellant’s companion, the fact that
the appellant and the companion were operating a third-party vehicle
(“another marker of a drug courier”), the appellant’s failure to provide the
name of the vehicle’s real owner, and the odor of raw marijuana. Id. at
1254. The appellant challenged the trial court’s denial of his suppression
motion and claimed on appeal that, “even though the initial traffic stop in
this case may have been proper, the prolonged seizure after the Sergeant
had achieved the purpose of the vehicle stop required reasonable suspicion
to support the continuation of the stop and questioning of Appellant,” and
such a reasonable suspicion was lacking. Id. at 1252.
We concluded that “the facts adduced by [the state trooper] during the
course of the valid traffic stop clearly and unequivocally gave him reason to
- 17 -
J-A24031-16
suspect that [a]ppellant and [his companion] were in possession of a
controlled substance, and thus, there were sufficient facts to justify the
investigatory detention.” Kemp, 961 A.2d at 1254. In doing so, we
emphasized:
“When discussing how reviewing courts should make reasonable-
suspicion determinations, we have said repeatedly that they
must look at the ‘totality of the circumstances’ of each case to
see whether the detaining officer has a ‘particularized and
objective basis’ for suspecting legal wrongdoing.” United
States v. Arvizu, 534 U.S. 266, 273, 122 S.Ct. 744, 151
L.Ed.2d 740 (2002); accord Rogers, supra; [Commonwealth
v.] Freeman, [757 A.2d 903, 908 (Pa. 2000)]. A totality-of-
the-circumstances approach allows the court to consider all facts
at the officer’s disposal and does not require the court to
disregard those adduced during a valid interdiction, which is, in
the present case, the traffic stop. Indeed, routine constitutional
analysis requires courts to utilize facts gathered during each
escalating phase of a police investigation in determining whether
police acted properly as the interaction between police and
citizen proceeded towards an arrest.
Id. at 1258-59.
In a later decision dealing with a vehicle stop, this Court extrapolated
from Rogers and Kemp as follows:
Based upon Rogers and Kemp, we conclude that Trooper Jones
adduced sufficient facts to establish reasonable suspicion that
criminal activity was afoot in this case. The car was owned by a
third party not present in the vehicle, [the driver] acted
nervously, the answers provided by [the driver] and [the
appellant] to basic questions regarding their destination were
inconsistent, and various masking agents, including air
fresheners, canisters of perfume, and a bottle of Fabreze, were
present in the vehicle. When considering the totality of the
circumstances, we need not limit our inquiry to only those facts
that clearly and unmistakably indicate criminal conduct.
[Kemp.] Instead, “even a combination of innocent facts, when
- 18 -
J-A24031-16
taken together, may warrant further investigation by the police
officer.” Id. (quoting [Commonwealth v. Cook, 735 A.2d at
676]).
Commonwealth v. Caban, 60 A.3d 120, 129 (Pa. Super. 2012).
Most recently, we addressed facts very similar to those in this case in
Commonwealth v. Valdivia, --- A.3d ----, 2016 WL 4413224, (Pa. Super.,
Aug. 19, 2016). The state troopers in Valdivia were patrolling Interstate 80
when they observed a vehicle violate the Vehicle Code by quickly changing
lanes without using a turn signal. 2016 WL 4413224 at *2. They initiated a
traffic stop based on probable cause. Id. We related the ensuing encounter
as follows:
As Trooper Hoy approached the vehicle, he noticed two
large boxes wrapped in Christmas paper and a suitcase in
the cargo area of the vehicle. Trooper Hoy testified that
drug smugglers often wrap drugs in Christmas paper
around the holidays in an effort to blend in with innocent
motorists.
Trooper Hoy asked the driver (Valdivia) for his license,
registration, and proof of insurance. Valdivia gave Trooper
Hoy a license and rental agreement and stated that the
vehicle was a rental. As Valdivia produced the documents,
the trooper noticed that Valdivia’s hands were shaking,
and that he seemed nervous. Valdivia stated that he
needed to pull off and get gas. Trooper Hoy found this
strange because gas had been available at two exits that
Valdivia had just passed.
Trooper Hoy asked Valdivia about his travel plans. Valdivia
responded that he was flying from Fort Lauderdale, Florida
to New Jersey, but his flight had been re-routed to Detroit,
Michigan, and he had to rent a vehicle because he had
missed his connecting flight to New Jersey. Trooper Hoy
found it strange that the packages in the cargo area were
unblemished, even though they presumably had been part
of Valdivia's belongings on his flight from Florida. Trooper
- 19 -
J-A24031-16
Hoy noticed from the vehicle information that Valdivia
rented the car in Ann Arbor, Michigan, not Detroit,
Michigan as he had stated, and that the rental was for a
one-way trip. Trooper Hoy knew from his training and
experience that the route Valdivia was traveling, Michigan
to New Jersey, is a common drug trafficking route.
Trooper Hoy then went back to his patrol cruiser and ran a
records check, as is his custom, while completing the
warning paperwork for the illegal lane change. Trooper
Hoy also contacted a State Police K-9 Unit to respond to
the scene. The record check revealed that Valdivia had
been previously charged in Florida with possession with
intent to deliver.
Trooper Hoy returned to Valdivia’s vehicle, asked him to
exit the vehicle, explained the warning, and returned
Valdivia’s identification documents. Trooper Hoy then
inquired if he could ask some follow-up questions about
Valdivia’s travel plans. Valdivia changed his story when
answering these additional questions. He now stated that
he had flown to Detroit to visit a friend and had left early
the next morning. He also said that when he arrived at
the Detroit airport, all of the rental companies were closed,
which was why he rented the vehicle in Ann Arbor.
Trooper Hoy felt that Valdivia’s responses were unusual,
because one does not normally visit a friend for such a
short time, most of which would be spent sleeping.
Trooper Hoy also found it difficult to believe that all rental
companies would have been closed at a large airport such
as Detroit.
Id. at **2-3 (citations to notes of testimony and footnote omitted). After
considering the above facts in conjunction with applicable case law, we
stated that “Trooper Hoy observed a variety of suspicious details during the
traffic stop.” Id. at *4. We then concluded that this “combination of factors
provided reasonable suspicion to detain Valdivia and continue an
investigation into possible criminal wrongdoing.” Id. Valdivia illustrates
how individual facts that may not be suspicious when viewed alone, or by a
- 20 -
J-A24031-16
layperson unfamiliar with drug trafficking, may coalesce to form reasonable
suspicion.
Guided by the above precedents, we conclude that the trial court did
not err in determining that all of the circumstances in this case — in their
totality — supported Trooper Gerken’s “suspicion of criminal conduct that is
reasonable based upon the facts of the matter.” Trial Court Opinion, 4/2/15,
at 5 (emphasis in original). While this may appear to be a close case, we
discern no basis to disturb the trial court’s denial of Appellant’s suppression
motion.
Finally, we are not persuaded by Appellant’s argument that the
duration of the detention and the weather during the detention should
change our conclusion. It is uncontroverted that Appellant was detained for
a significant period of time — more than one hour. See Appellant’s Brief at
28; N.T., 1/12/15, at 36-37. Trooper Gerken testified that the “length of the
entire traffic stop, from the point upon which [he] pulled [Appellant] over,
until the point upon which [he] detained him in the car to transport him to
the barracks” was “somewhere around an hour, hour and fifteen [minutes].”
Id. Trooper Gerken initiated the stop at 11:26 a.m., and he “contacted
Trooper Conrad, originally, to respond to the scene” at 11:52 a.m. Id. at
25-26. However, Trooper Conrad advised Trooper Gerken that he was
unavailable, and Trooper Doblovasky “would be the one responding.” Id. at
26. Trooper Gerken stated that “it was a little bit of time for [Trooper
- 21 -
J-A24031-16
Doblovasky] to respond to that — the location.” Id. at 37. Trooper
Doblovasky testified that when he arrived at the scene, “once I got the dog
to the vehicle and we started our search, it was less than a minute and we
were done, seconds. It’s that quick.” Id. at 77.
The United States Supreme Court has explained:
In assessing whether a detention is too long in duration to be
justified as an investigative stop, we consider it appropriate to
examine whether the police diligently pursued a means of
investigation that was likely to confirm or dispel their suspicions
quickly, during which time it was necessary to detain the
defendant. See Michigan v. Summers, [452 U.S. 692, 701
n.14 (1981)] (quoting 3 W. LaFave, Search and Seizure § 9.2, p.
40 (1978)); see also [U.S. v. Place, 462 U.S. 696, 709
(1983)]; [Florida v. Royer, 460 U.S. 491, 500 (1983)]. A court
making this assessment should take care to consider whether
the police are acting in a swiftly developing situation, and in such
cases the court should not indulge in unrealistic second-
guessing. . . . . A creative judge engaged in post hoc evaluation
of police conduct can almost always imagine some alternative
means by which the objectives of the police might have been
accomplished. But “[t]he fact that the protection of the public
might, in the abstract, have been accomplished by ‘less
intrusive’ means does not, itself, render the search
unreasonable.” Cady v. Dombrowski, 413 U.S. 433, 447, 93
S.Ct. 2523, 2531, 37 L.Ed.2d 706 (1973); see also United
States v. Martinez-Fuerte, 428 U.S. 543, 557, n. 12, 96 S.Ct.
3074, 3082, n. 12, 49 L.Ed.2d 1116 (1976). The question is not
simply whether some other alternative was available, but
whether the police acted unreasonably in failing to recognize or
to pursue it.
United States v. Sharpe, 470 U.S. 675, 686-687 (1985).
The Pennsylvania Supreme Court, relying on Sharpe, held that an
officer’s detention of an appellant was “no more than an investigative
detention supported by reasonable suspicion [where the a]ppellant was
- 22 -
J-A24031-16
detained for approximately ten to fifteen minutes in order to allow [another
officer] to view the crime scene and transport the witness[.]” The Court
stated, “These actions were reasonable attempts to confirm or dispel the
officer’s suspicions and were diligently pursued.” Commonwealth v. Ellis,
662 A.2d 1043, 1049 (Pa. 1995).
The detention at issue here certainly was much longer than that before
the Court in Ellis. Nevertheless, the record before us shows that, under the
circumstances, the troopers acted reasonably and diligently in pursuing their
suspicions during the one-hour-plus time frame. The vehicle was stopped in
a rural area of the Commonwealth. In the first half hour after the stop,
Trooper Gerken had Appellant move his car to a safer location and then
questioned Appellant and notified him of the traffic violation. Trooper
Gerken then called for backup and a canine unit. Once the dog arrived, the
search was conducted quickly. There is no evidence that the detention was
delayed for any improper reason. It stands to reason that dispatching a
canine unit to a rural location will likely take longer than doing so in an
urban area. We therefore hold that the duration of the detention was not
unreasonable.
With regard to the weather, we note that Appellant repeatedly
references the winter cold and that he waited outside “without a jacket.”
Appellant’s Brief at 15, 21, 28, 30, 32. He asserts that his “seizure . . . on
the side of the Interstate in the February cold without a jacket for over an
- 23 -
J-A24031-16
hour was unreasonable . . . and should be considered a de facto arrest;
therefore probable cause should have been required.” Id. at 28. Trooper
Gerken testified, however, that he did not “believe it was below freezing”
when he detained Appellant, and he offered uncontroverted testimony that
repeated offers were made to provide Appellant with his jacket and to permit
him to sit in the back of the heated patrol vehicle — offers that Appellant
declined. N.T., 1/12/15, at 40. Trooper Gerken also testified that he
honored Appellant’s request to retrieve his scarf for him from the vehicle.
Id. at 45-46. Our review of the MVR confirms this testimony. Accordingly,
we do not believe the cold weather is germane to our analysis of the
propriety of Appellant’s detention.
In sum, given our extensive review of the record, we conclude that the
trial court did not err in determining that the initial vehicle stop was justified
by probable cause and was followed by an investigative detention that was
supported by reasonable suspicion. Accordingly, we affirm the judgment of
sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/31/2016
- 24 -
Commonwealth v. Freeman
Combined Opinion