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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
v. :
:
:
YAMILE RUIZ, :
:
Appellee : No. 933 EDA 2016
Appeal from the Order February 17, 2016
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0000829-2015
BEFORE: BENDER, P.J.E., DUBOW, J., and SOLANO, J.
MEMORANDUM BY DUBOW, J.: FILED MARCH 29, 2017
The Commonwealth appeals from the February 17, 2016 Order
entered in the Philadelphia County Court of Common Pleas granting the
Motion to Suppress filed by Appellee, Yamile Ruiz. After careful review, we
conclude that an officer’s testimony that he ran a motorist’s tags and
“believe[s]” that the results came back “inconclusive” does not provide
reasonable suspicion to believe that the motorist has committed a violation
of the Motor Vehicle Code so as to support the seizure of evidence
subsequently obtained. We, therefore, affirm.
On January 7, 2015, Appellee was arrested and charged with
Possession With Intent to Distribute and other related offenses after police
officers discovered marijuana in her vehicle following a traffic stop. Appellee
filed a Motion to Suppress, arguing that officers lacked reasonable suspicion
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or probable cause to effectuate a car stop. On February 17, 2016, the trial
court heard testimony on the Motion to Suppress. In its Pa.R.A.P. 1925(a)
Opinion, the trial court summarized the testimony adduced at the hearing as
follows:
According to the testimony of Police Officers Timothy Bogan and
Jose Candelaria, on January 7, 2015, at approximately 12:10
p.m., Officers Bogan, Candelaria, and Devo[,] who were
assigned to the Narcotics Bureau[,] were in an unmarked police
vehicle in plain clothes on the 500 block of Allengrove Street in
the City and County of Philadelphia in an [sic] narcotics
surveillance unrelated to [Appellee]. While Officers Bogan,
Candelaria, and Devo were conducting their unrelated narcotics
surveillance they observed an unknown black male on his cell
phone counting an unknown amount of United States Currency
[(“USC”)]. According to police officers[,] this unknown black
male was also looking into vehicles as they passed and
approximately three (3) minutes later he entered a Toyota
Camry driven by [Appellee]. Merely due to the aforementioned
observations, Officers Bogan, Candelaria, and Devo decided to
follow [Appellee] driving her Toyota Camry with this unknown
black male passenger. According to the officers’ testimony,
[Appellee] stopped at the end of the block after picking up her
passenger and the unknown black male exited the vehicle. The
unknown black male was never stopped by any police officer.
Thereafter, Officers Bogan, Candelaria, and Devo continued
following [Appellee] for several blocks as she made multiple
turns on unknown side streets. While the officers were following
[Appellee], Officer Bogan attempted to have [Appellee] stopped
by utilizing police radio [and] requesting a marked vehicle to
stop the Toyota Camry; however, there were no marked vehicles
in the area. Thus, police continued to follow [Appellee,] who
drove through a mall parking lot and exited on to another street.
At this point, Officer Bogan again requested a marked police
vehicle over radio to stop the Toyota Camry; however, once
again there were no marked vehicles available. The officers
continued following [Appellee,] who drove to a mall on Cottman
Avenue where she parked her car in front of a Macy’s and went
inside. [The officers followed Appellee into the Macy’s.] Once
inside, Officers Bogan, Candelaria, and Devo continued to follow
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her and observed her pick out items from the Polo section and
proceed[] to the checkout counter where she paid for the
selected items. At some point (before reaching Macy’s but after
police officer’s [sic] initial request for an unmarked [patrol car]
to stop [Appellee]), Officer Bogan [testified that he believes he]
ran the tag of the Toyota Camry and “the tag came back
inconclusive;” the computer inquiry yielded no recorded owner3
for the tag.
3
Police officers never testified nor were any explanations
given as to how the computer could yield such a result as
all tags should reasonably be issued to some entity.
As [Appellee] was inside Macy’s with Officers Candelaria and
Devo surveilling, Officer Bogan stepped outside to check on the
status of the requested marked vehicle in the area and learned
that in fact one was available. Thereafter, [Appellee] exited
Macy’s, entered her vehicle, and as she approached the parking
lot exit[,] the requested marked police vehicle stopped
[Appellee]. Officers Bogan, Candelaria, and Devo immediately
approach[ed] [Appellee’s] vehicle. According to Officers Bogan
and Candelaria, as they approached [Appellee’s] vehicle they
“smelled a strong odor of marijuana” emanating from inside the
vehicle. Officer Bogan directed [Appellee] to step out of her car
and noticed that the headliner4 had a bulge. Officer Bogan ran
his hand along the headliner and felt a plastic baggie which he
pulled out and found seven (7) grams of marijuana. Thereafter,
[Appellee] was arrested and recovered incident to the arrest was
a cell phone, $385 USC, additional bags of marijuana, and a
scale.
4
Officer Bogan described the “headliner” to be the place
where the interior car roof meets the interior portion of
the windshield.
Trial Court Opinion, filed 5/3/16, at 1-3 (unpaginated) (references to the
record omitted).
At the close of the hearing, the trial court granted Appellee’s Motion to
Suppress, stating that the reason for the stop testified to by the officer “is
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not equal to reasonable suspicion and/or probable cause.” N.T., 2/17/16, at
27.
The Commonwealth filed a timely Notice of Appeal. Both the
Commonwealth and the trial court complied with Pa.R.A.P. 1925.1
The Commonwealth raises the following issue for our review:
Did the lower court err in suppressing the eleven packets of
drugs, scale, and other evidence recovered from the car driven
by [Appellee], where officers had reasonable suspicion to stop
the vehicle after a police computer inquiry revealed that it had
no registered owner, and where the totality of the
circumstances—above all, the strong odor of marijuana detected
by the officers upon approaching the vehicle—created probable
cause to search the car and arrest [Appellee]?
Commonwealth’s Brief at 4.
We begin by noting that the trial court found that police officers lacked
reasonable suspicion to stop Appellee for two reasons: (i) because the police
officers’ subjective reason for pulling Appellee over was unrelated to the
“inconclusive” results of the tag search;2 and (ii) because the “inconclusive”
1
On January 13, 2017, the Commonwealth filed a second Application to File
Reply Brief Out of Time as well as an untimely Reply Brief. As the Reply
Brief was submitted contemporaneously with the Application, and this Court
received and reviewed the Reply Brief, we deny the Commonwealth’s
Application as moot.
2
At the hearing, Officers Bogan and Candelaria both testified that their
subjective reason for stopping Appellee was based on seeing the black male
counting money before briefly entering and then exiting Appellee’s vehicle.
On appeal, the Commonwealth does not argue that these observations
support a finding of reasonable suspicion; instead, the Commonwealth relies
solely on the possible “inconclusive” results to justify the initial stop of
Appellee.
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results of the tag search were insufficient to provide reasonable suspicion to
stop Appellee. Trial Court Opinion at 8 (unpaginated). As the
Commonwealth correctly points out, the trial court erred in considering the
officers’ subjective intent, rather than applying an objective standard to the
facts. See Commonwealth v. Zhahir, 751 A.2d 1153, 1156 (Pa. 2000)
(“The fundamental inquiry is an objective one, namely, whether the facts
available to the officer at the moment of the intrusion warrant a man or
reasonable caution in the belief that the action taken was appropriate.”
(citation and quotations omitted)). Nonetheless, we agree with the trial
court that a police officer’s testimony that he ran a search of Appellee’s tags
that possibly came back “inconclusive” is insufficient to support a finding of
reasonable suspicion to stop a vehicle.
Our standard of review applicable to suppression determinations is
well-settled.
When the Commonwealth appeals from a suppression order, we
follow a clearly defined standard of review and consider only the
evidence from the defendant's witnesses together with the
evidence of the prosecution that, when read in the context of the
entire record, remains uncontradicted. The suppression court's
findings of fact bind an appellate court if the record supports
those findings. The suppression court's conclusions of law,
however, are not binding on an appellate court, whose duty it is
to determine if the suppression court properly applied the law to
the facts.
Commonwealth v. Nester, 709 A.2d 879, 880-81 (Pa. 1998).
The Fourth Amendment of the United States Constitution and Article 1,
Section 8 of our state Constitution protect citizens from unreasonable
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searches and seizures. In re D.M., 781 A.2d 1161, 1163 (Pa. 2001). “To
secure the right of citizens to be free from . . . [unreasonable searches and
seizures], courts in Pennsylvania require law enforcement officers to
demonstrate ascending levels of suspicion to justify their interactions with
citizens as those interactions become more intrusive.” Commonwealth v.
Beasley, 761 A.2d 621, 624 (Pa. Super. 2000). Our Supreme Court has
defined three levels of interaction between citizens and police officers: (1)
mere encounter, (2) investigative detention, and (3) custodial detention.
See Commonwealth v. Fuller, 940 A.2d 476, 478 (Pa. Super. 2007).
“[W]hen the police stop a vehicle in this Commonwealth for
investigatory purposes, the vehicle, and its occupants are considered ‘seized’
and this seizure is subject to constitutional constraints.” Commonwealth
v. Swartz, 787 A.2d 1021, 1024 (Pa. Super. 2001). A traffic stop is
justified when police can point to objective facts creating a reasonable
suspicion either that there has been a violation of the Motor Vehicle Code or
that a crime has been or is being committed by its occupants. See
Commonwealth v. Hendricks, 927 A.2d 289, 290 (Pa. Super. 2007).
Importantly, “[o]nce a [M]otion to [S]uppress [E]vidence has been
filed, it is the Commonwealth’s burden to prove, by a preponderance of the
evidence, that the challenged evidence was not obtained in violation of the
defendant’s rights.” Commonwealth v. Wallace, 42 A.3d 1040, 1047-
1048 (Pa. Super. 2012) (en banc); see also Pa.R.Crim.P. 581(H). “At the
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suppression hearing, the Commonwealth has the primary burden of both
production under 581(H) and persuasion (as the official comment instructs)
to convince the court that the evidence was legally obtained.”
Commonwealth v. Enimpah, 62 A.3d 1028, 1031 (Pa. Super. 2013).
In the instant case, the Commonwealth relied solely upon the
testimony of Officer Candelaria and Officer Bogan to oppose Appellee’s
Motion to Suppress. Officer Candelaria made no mention of running a
search of Appellee’s tags. The entirety of Officer Bogan’s brief testimony
about the tag search was as follows:
[Commonwealth]: Now, Officer, when you initially were
following the car on the side street where there was a lot of
turns on the side street. What investigation did you do into the
vehicle you were following?
[Officer Bogan]: We did run the tag for an owner, and I
believe the tag came back inconclusive.
[Commonwealth]: Now, when you say inconclusive, what
does that mean?
[Officer Bogan]: There was no record of an owner of that tag.
N.T., 2/17/16, at 18 (emphasis added).
We must consider whether a police officer’s testimony, that he
believes he ran a driver’s tags and that the results came back “inconclusive,”
is sufficient to provide reasonable suspicion to stop a vehicle. We conclude
that it does not.
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First, Officer Bogan did not testify with any certainty about the results
of the tag search.3 The Commonwealth had the burdens of production and
persuasion, and Officer Bogan’s statement that he believes the results were
inconclusive falls short of meeting those burdens. Second, as the trial court
points out, Officer Bogan gave the court almost no context or information
about those search results, including how they are possible, or where they
came from.4 Finally, as the trial court notes, “[t]here is a significant
difference between having an inconclusive result on a tag versus having a
registration that has lapsed[,] or any indication of a stolen car[,] or even an
indication that the car did not match the tag.” Trial Court Opinion at 8
(unpaginated) (footnote omitted).
Under these circumstances, we conclude that the Commonwealth did
not satisfy its “burden [of] prov[ing], by a preponderance of the evidence,
that the challenged evidence was not obtained in violation of the defendant’s
3
In its Pa.R.A.P. 1925(a) Opinion, the trial court expressed its skepticism of
the testimony of Officer Bogan. Id. at 3, n.5. (“Police officers never testified
nor were any explanations given as to how the computer could yield such a
result as all tags should reasonably be issued to some entity.”). The trial
court stops short, however, of providing an explicit finding of the credibility
of Officer Bogan’s testimony. Nonetheless, the trial court’s determination of
credibility is not crucial to the disposition of the issue before us because, as
discussed infra, even if credible, his limited testimony was insufficient to
meet the Commonwealth's burden of establishing that there was reasonable
suspicion to stop Appellee's vehicle.
4
Although the Commonwealth’s Brief makes multiples references to a
“NCIC” search, Officer Bogan did not clarify where he ran a search of
Appellee’s tags.
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rights.” Wallace, 42 A.3d at 1047-48. The trial court, therefore, did not err
when it granted Appellee’s Motion to Suppress.
Order affirmed. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/29/2017
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