J-S19009-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
v. :
:
TRE JAMAL PIPER :
:
Appellant : No. 1189 MDA 2016
Appeal from the Judgment of Sentence July 8, 2016
In the Court of Common Pleas of Dauphin County
Criminal Division at No(s): CP-22-CR-0004732-2015
BEFORE: GANTMAN, P.J., BENDER, P.J.E., and STEVENS, P.J.E.*
MEMORANDUM BY GANTMAN, P.J.: FILED APRIL 12, 2017
Appellant, Tre Jamal Piper, appeals from the judgment of sentence
entered in the Dauphin County Court of Common Pleas, following his
stipulated bench trial conviction for possession of a small amount of
marijuana for personal use.1 We affirm.
In its opinion, the trial court set forth the relevant facts of this case as
follows:
On the night of July 7, 2015, Officer Tyler Zehring (“Officer
Zehring”) was patrolling the 500 block of Canal Street
when he noticed a vehicle riding the solid double yellow
lines and [with] illegal tinted rear taillights. Officer
Zehring turned on his lights and attempted to pull over the
vehicle in a safe location. The vehicle proceeded for
another three (3) blocks and pulled over next to a
guardrail. As Officer Zehring was pulling over the suspect
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1
35 P.S. § 780-113(a)(31)(i).
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*Former Justice specially assigned to the Superior Court.
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vehicle, he noticed a lot of sudden movement. The driver
of the vehicle was Appellant…and a passenger in the
vehicle was Mr. Pough.[2] [Appellant] had no outstanding
warrants and was asked to step outside of the vehicle to
speak with the officer. Officer Zehring explained to
[Appellant] the reason why he was asked to exit the
vehicle (due to signs of impairment). Officer Zehring
proceeded to give [Appellant] a portable breath test and
the results came back zero.
At this point, Officer Zehring gives [Appellant] back his
identification, gives him a warning, and tells him that he
was free to leave. Officer Zehring, while standing with the
door to his patrol vehicle open, decided to ask [Appellant]
one more question.[3] [Appellant] responded, “[S]ure.”
Officer Zehring asked if there was anything in the vehicle
that he should be made aware of. [Appellant] replied that
there was a scale left by a female [who] had been a
passenger in his vehicle. Officer Zehring proceeded to ask
for consent to search the vehicle and [Appellant]
consented to [the] search. The search of the vehicle
produced a scale, [loose] marijuana, and a marijuana
“roach.”
During the traffic stop, Officer Zehring’s vehicle never
blocked [Appellant’s] vehicle in that [Appellant] was
unable to leave the scene. Officer Zehring also testified
that he spoke in a non-threatening tone, he never
displayed his weapon, never made any threats, and never
demanded anything from [Appellant]. Officer Zehring’s
demeanor was calm and relaxed and he never restricted
[Appellant’s] movements throughout the stop.
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2
Appellant and Mr. Pough were co-defendants at trial. Mr. Pough filed an
appeal at docket No. 1191 MDA 2016.
3
Officer Zehring asked Appellant if he could ask him one more question, to
which Appellant responded, “Sure.” At this point, a back-up patrol vehicle
arrived on the scene with two officers. The back-up patrol vehicle was
parked behind Officer Zehring’s vehicle, which was parked behind Appellant’s
vehicle. The back-up officers remained at their patrol vehicle when Officer
Zehring posed this question to Appellant.
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(Trial Court Opinion, filed September 30, 2016, at 2-3) (internal footnotes
omitted).
Procedurally, the Commonwealth charged Appellant with possession of
a small amount of marijuana and possession of drug paraphernalia.4
Appellant filed a suppression motion on December 24, 2015. The court held
a suppression hearing on February 19, 2016. On March 28, 2016, the court
denied the motion to suppress. The court decided the totality of the
circumstances demonstrated that Officer Zehring’s second interaction with
Appellant following the initial traffic stop (when Officer Zehring asked if he
could ask Appellant one more question) was a “mere encounter”; and
Appellant’s consent to search the vehicle was voluntary. Appellant
proceeded to a stipulated bench trial on July 8, 2016, after which the court
convicted him of possession of a small amount of marijuana for personal
use. The court sentenced Appellant that day to 30 days’ probation plus fines
and costs. Appellant timely filed a notice of appeal on July 19, 2016. The
next day, the court ordered Appellant to file a concise statement of errors
complained of on appeal pursuant to Pa.R.A.P. 1925(b); Appellant timely
complied on August 3, 2016.
Appellant raises one issue for our review:
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4
Prior to trial, the Commonwealth withdrew the possession of drug
paraphernalia charge.
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WHETHER THE TRIAL COURT ERRED IN FAILING TO
SUPPRESS EVIDENCE OBTAINED AS THE RESULT OF AN
ILLEGAL DETENTION UNSUPPORTED BY PROBABLE CAUSE,
REASONABLE SUSPICION, OR ANY ARTICULABLE BASIS IN
VIOLATION OF THE FOURTH AMENDMENT OF THE UNITED
STATES CONSTITUTION, AND ARTICLE 1, SECTION 8 OF
THE PENNSYLVANIA CONSTITUTION?
(Appellant’s Brief at 5).5
“Our standard of review in addressing a challenge to a trial court’s
denial of a suppression motion is limited to determining whether the factual
findings are supported by the record and whether the legal conclusions
drawn from those facts are correct.” Commonwealth v. Williams, 941
A.2d 14, 26 (Pa.Super. 2008) (en banc) (quoting Commonwealth v.
Jones, 874 A.2d 108, 115 (Pa.Super. 2005)).
[W]e may consider only the evidence of the prosecution
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 findings of the
suppression court, we are bound by those facts and may
reverse only if the court erred in reaching its legal
conclusions based upon the facts.
Williams, supra at 27 (quoting Jones, supra).
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5
The Commonwealth claims Appellant waived his issue on appeal due to
vagueness in Appellant’s Rule 1925(b) statement. Appellant’s grounds for
challenging the search of his vehicle at the suppression hearing were clear.
The court had no doubt about what Appellant sought to challenge on appeal
and adequately addressed Appellant’s issue in its opinion. Thus, we decline
to find waiver. See Commonwealth v. Laboy, 594 Pa. 411, 936 A.2d
1058 (2007) (holding appellate court should conduct merits review of claim
on appeal notwithstanding vagueness in Rule 1925(b) statement, where
case was relatively straightforward and trial court readily understood and
addressed claim in substantial detail in its opinion).
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Appellant argues Officer Zehring’s “second round” of questioning
constituted an investigative detention or the functional equivalent of an
arrest, because no reasonable person would have believed he was free to
leave the scene. Appellant asserts Officer Zehring lacked any reasonable
articulable basis to conclude illegal activity had occurred or was occurring at
the time he re-engaged Appellant. Appellant maintains Officer Zehring did
not smell alcohol on Appellant or see any illegal drugs or paraphernalia in his
vehicle. Appellant highlights that he did not give strange or incoherent
statements or act overly nervous. Appellant does not dispute the validity of
the initial traffic stop, due to violations of the Motor Vehicle Code. Appellant
suggests the officer’s suspicions that Appellant might have been impaired
were dispelled once the portable breath test confirmed Appellant’s blood
alcohol level was zero. Given these circumstances, Appellant insists Officer
Zehring lacked reasonable suspicion for a second investigative detention.
Appellant submits his consent to search the vehicle was involuntary, because
it was tainted by the second and illegal investigative detention. Appellant
claims he consented to the search only moments after the officer had re-
initiated questioning and there were no intervening circumstances to
diminish the coercive atmosphere of situation. Appellant posits insufficient
attenuation between the illegal detention and his consent to purge the taint
of the officer’s unlawful conduct. Appellant concludes the trial court erred in
denying his motion to suppress, and this Court must reverse. We disagree.
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“The Fourth Amendment to the United States Constitution and Article
I, Section 8 of the Pennsylvania Constitution protect individuals against
unreasonable searches and seizures.” Commonwealth v. Hudson, 92
A.3d 1235, 1241 (Pa.Super. 2014), appeal denied, 630 Pa. 734, 106 A.3d
724 (2014). “To secure the right of citizens to be free from such intrusions,
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. By, 812
A.2d 1250, 1255 (Pa.Super. 2002), appeal denied, 576 Pa. 710, 839 A.2d
350 (2003). Contacts between the police and citizenry fall within three
general classifications:
The first level of interaction 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 detention”
must be supported by reasonable suspicion; it subjects a
suspect to a stop and period of detention, but does not
involve such coercive conditions as to constitute the
functional equivalent of arrest. Finally, an arrest or
“custodial detention” must be supported by probable
cause.
Commonwealth v. Bryant, 866 A.2d 1143, 1146 (Pa.Super. 2005), appeal
denied, 583 Pa. 668, 876 A.2d 392 (2005) (quoting Commonwealth v.
Phinn, 761 A.2d 176, 181 (Pa.Super. 2000), appeal denied, 567 Pa. 712,
785 A.2d 89 (2001)).
Significantly:
Where the purpose of an initial, valid traffic stop has ended
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and a reasonable person would have believed that he was
free to leave, the law characterizes a subsequent round of
questioning by the officer as a mere encounter. Since the
citizen is free to leave, he is not detained, and the police
are free to ask questions appropriate to a mere encounter,
including a request for permission to search the vehicle.
However, where the purpose of an initial traffic stop has
ended and a reasonable person would not have believed he
was free to leave, the law characterizes a subsequent
round of questioning by the police as an investigative
detention or arrest. In the absence of either reasonable
suspicion to support the investigative detention or
probable cause to support the arrest, the citizen is
considered unlawfully detained. Where a consensual
search has been preceded by an unlawful detention, the
exclusionary rule requires suppression of the evidence
obtained absent a demonstration by the [C]ommonwealth
both of a sufficient break in the causal chain between the
illegality and the seizure of evidence. This assures of the
search’s voluntariness and that the search is not an
exploitation of the prior unlawful detention.
By, supra at 1255-56 (internal citations omitted). Thus, “Fourth
Amendment inquiries in consent cases entail a two-prong assessment: first,
the constitutional validity of the citizen/police encounter giving rise to the
consent and, second, the voluntariness of said consent.” Id. at 1254.
In determining the constitutional validity of the citizen/police
encounter and evaluating whether a reasonable person would have believed
he was free to leave, we perform an objective totality-of-the-circumstances
test. Commonwealth v. Strickler, 563 Pa. 47, 58-59, 757 A.2d 884, 889-
90 (2000). Some relevant factors include, but are not limited to, the
presence or absence of police excesses, physical contact or police direction
of a citizen’s movements, “the demeanor of the police officer, the location of
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the confrontation, the manner of expression used by the officer in
addressing the citizen, and the content of the interrogatories or statements.”
Id. at 73, 757 A.2d at 898 (internal citation omitted). “Additionally, in the
context of a police/citizen interaction that follows a lawful detention, …the
existence and character of the initial investigative detention merits separate
consideration as a relevant factor.” Id. Further, although “the admonition
to a motorist that he is free to leave is not a constitutional imperative, the
presence or absence of such a clear, identified endpoint to the lawful seizure
remains a significant, salient factor in the totality assessment.” Id. at 74,
757 A.2d at 899. Importantly, “[t]he presence of an express admonition to
the effect that the citizen-subject is free to depart is a potent, objective
factor that favors such conclusion.” Id. at 75, 757 A.2d at 899.
“Where the underlying encounter is found to be lawful, voluntariness
[of the consent] becomes the exclusive focus.” By, supra at 1254.
In connection with such an inquiry, the Commonwealth
bears the burden of establishing that a consent is the
product of an essentially free and unconstrained choice—
not the result of duress or coercion, express or implied, or
a will overborne—under the totality of the circumstances.
While knowledge of the right to refuse to consent to the
search is a factor to be taken into account, the
Commonwealth is not required to demonstrate such
knowledge as a prerequisite to establishing a voluntary
consent. Additionally, although the inquiry is an objective
one, the maturity, sophistication and mental or emotional
state of the defendant are to be taken into account. …
Since both the tests for a seizure and voluntariness of
consent entail an examination of the objective
circumstances surrounding the citizen/police encounter,
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there is a substantial, necessary overlap in the analyses.
Id. at 1258 (internal citations omitted). See also Strickler, supra
(reversing trial court’s suppression of evidence where, following initial lawful
traffic stop, officer asked if defendant had anything illegal in his vehicle, and
defendant subsequently gave consent to search vehicle which revealed drug
paraphernalia; circumstances of initial traffic stop showed no evidence that
officer displayed weapons, unusual commands, aggressive behavior or any
use of language or tone that was not commensurate with circumstances;
second officer was present for part of encounter, but evidence suggests he
was not active participant; although officer did not expressly advise
defendant and his companion that they were free to leave following initial
stop, officer’s actions suggested as much in that he returned defendant’s
identification/documentation, thanked him for his cooperation, and turned
away prior to reinitiating interaction and ultimately requesting consent to
search; officer also told defendant he did not have to consent to search
which counterweighed officer’s failure to expressly advise defendant he was
free to leave; notably, officer did not touch defendant or direct his
movements, there was no evidence of any use of coercive language or tone
by officer; officer’s re-engaging of defendant following initial traffic stop was
mere encounter and did not constitute second or subsequent seizure;
turning to voluntariness assessment, reasons supporting conclusion that
defendant was not seized at time he gave consent to search vehicle also
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militate strongly in favor of finding his consent was voluntary;
Commonwealth’s unrebutted evidence was sufficient to show that defendant
was not subject to seizure for purposes of Fourth Amendment when police
sought and he gave his consent; Appellant’s consent was voluntary).
Instantly, the Commonwealth presented, inter alia, the following
evidence at the suppression hearing: (1) on the night of July 7, 2015, Officer
Zehring was patrolling the 500 block of Canal Street when he noticed a
vehicle riding the solid double yellow lines and that had illegally tinted rear
taillights; (2) Officer Zehring turned on his lights and attempted to pull over
the vehicle in a safe location; (3) the vehicle proceeded for another three
blocks and pulled over next to a guardrail; (4) as Officer Zehring was pulling
over the suspect vehicle, he noticed a lot of sudden movement; (5) Officer
Zehring asked Appellant to step outside of the vehicle to speak with the
officer due to signs of Appellant’s impairment in operating the vehicle; (6)
Officer Zehring proceeded to give Appellant a portable breath test and the
results came back zero; (7) Officer Zehring subsequently gave Appellant
back his identification and told him he was free to leave; (8) Officer
Zehring walked back to his patrol vehicle and while standing with the door to
his vehicle open, Officer Zehring asked Appellant if he could ask him one
more question, to which Appellant responded, “Sure”; (9) at this point, a
back-up patrol vehicle arrived on the scene with two officers; (10) the back-
up patrol vehicle was parked behind Officer Zehring’s vehicle, which was
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parked behind Appellant’s vehicle; (11) the back-up officers remained at
their patrol vehicle when Officer Zehring posed this question to Appellant;
(12) Officer Zehring then asked Appellant if there was anything in his vehicle
that Officer Zehring should know about; (13) Appellant admitted there was a
digital scale in his car left by a female who had been a passenger in his
vehicle; (14) Officer Zehring proceeded to ask for consent to search the
vehicle, which Appellant provided; and (15) the search of the vehicle
produced a digital scale, loose marijuana, and a marijuana “roach.”
Additionally, the record shows that Officer Zehring’s vehicle did not
block Appellant’s vehicle during the stop or prevent Appellant from leaving
the scene. Officer Zehring also testified that he spoke to Appellant in a non-
threatening tone and maintained a relaxed and calm demeanor throughout
their interaction. Officer Zehring said he did not display his weapon or make
any demands of Appellant. Although a back-up patrol vehicle arrived on
scene, Officer Zehring stated the back-up officers remained near their
vehicle while Officer Zehring re-engaged Appellant, suggesting they were
inactive participants at that point. Most importantly, following the initial
stop, Officer Zehring expressly told Appellant that he was free to leave.
Under the totality of the circumstances, a reasonable person would think he
was free to leave. Thus, when Officer Zehring re-engaged Appellant, the
interaction was a mere encounter that required no level of reasonable
suspicion or probable cause. See Strickler, supra; Bryant, supra; By,
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supra.
In evaluating whether Appellant’s consent to search was voluntary, the
trial court explained:
A single police officer initially pulled over Appellant and
asked him to exit the vehicle. At no time during the stop
or subsequent discussion did the police officer ever touch
Appellant. The police officer never displayed his weapon,
never made any sort of threats, and never demanded
anything from Appellant. The police officer had a calm and
relaxed demeanor throughout the stop. The police officer
also never restricted Appellant’s movements in any way.
There is no evidence of any use of coercive language or
tone by the officer. After the police officer gave Appellant
a warning and handed back his ID, the police officer told
Appellant he was free to leave. Both the police officer and
Appellant had their doors open ready to leave when the
police officer asked Appellant if there was anything else
that he should know about. Here, Appellant told him that
a friend had left a scale in the car. When asked if he
would consent to a search of his vehicle, Appellant freely
gave such consent. There was no indication that said
consent was coerced or forced. … As such, Appellant’s
consent was voluntary and this [c]ourt properly denied
Appellant’s motion to suppress.
(Trial Court Opinion at 5-6) (internal citations and footnote omitted). The
record supports the suppression court’s decision that Appellant’s consent to
search was voluntary. See Williams, supra. See also Strickler, supra;
By, supra. Accordingly, we affirm.
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Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/12/2017
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