J-A13009-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
DANIEL STILLWELL :
:
Appellant : No. 565 EDA 2019
Appeal from the Judgment of Sentence Entered February 4, 2019
In the Court of Common Pleas of Montgomery County Criminal Division
at No(s): CP-46-CR-0001960-2018
BEFORE: BENDER, P.J.E., LAZARUS, J., and STRASSBURGER, J.*
MEMORANDUM BY BENDER, P.J.E.: FILED AUGUST 05, 2020
Appellant, Daniel Stillwell, appeals from his aggregate judgment of
sentence of 6½ to 13 years’ incarceration, followed by 5 years’ probation,
imposed after he was convicted of carrying a firearm without a license, 18
Pa.C.S. § 6106(a)(1), and possession of a firearm by a person prohibited, 18
Pa.C.S. § 6105(a)(1). Appellant challenges the trial court’s denial of his
pretrial motion to suppress. After careful review, we affirm.
Briefly, Appellant was arrested and charged with the above-stated
offenses, as well as several others, after a vehicle he was driving was stopped
by police and searched pursuant to a warrant, revealing a gun and a small
amount of marijuana. Prior to trial, Appellant filed a motion to suppress the
gun and drugs, contending that the search warrant for his vehicle was not
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* Retired Senior Judge assigned to the Superior Court.
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supported by probable cause. Appellant also sought to suppress statements
he made to police during the traffic stop, claiming that the officers
interrogated him without providing Miranda1 warnings. On June 6, 2018, the
court conducted a suppression hearing and ultimately denied Appellant’s
motion to suppress.
Appellant’s case proceeded to a bifurcated jury/non-jury trial, at the
close of which the jury convicted him of carrying a firearm without a license,
and the court found him guilty of possession of a firearm by a person
prohibited. The court also convicted Appellant of driving the wrong way down
a one-way street and possession of a small amount of marijuana. On February
4, 2019, Appellant was sentenced to the aggregate term stated supra. He
filed a timely notice of appeal, and he also complied with the trial court’s order
to file a Pa.R.A.P. 1925(b) concise statement of errors complained of on
appeal. Herein, Appellant states two issues for our review:
A. Did the [trial c]ourt err in denying Appellant’s motion to
suppress physical evidence, in determining there was probable
cause to detain Appellant [and] seize his car[,] and that the four
corners of the search warrant established probable cause?
B. Did the [trial c]ourt err in denying Appellant’s motion to
suppress statements, in determining Appellant was no[t] subject
to custodial interrogation, where Appellant was not free to leave,
and police were asking questions for the purpose of investigating
potential crimes?
Appellant’s Brief at 4.
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1 Miranda v. Arizona, 384 U.S. 436 (1966).
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Initially, we note that:
An appellate court’s 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, the appellate court is bound
by those findings and may reverse only if the court’s legal
conclusions are erroneous. Where the appeal of the determination
of the suppression court turns on allegations of legal error, 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 plenary review.
Commonwealth v. Smith, 164 A.3d 1255, 1257 (Pa. Super. 2017) (cleaned
up).
In this case, we begin by setting forth the facts established at the
suppression hearing, which Appellant does not dispute:
[O]n March 31, 2017, Officer [Daniel] Prior[, of the Abington
Township Police Department,] observed [Appellant’s] vehicle
traveling in the wrong direction on a one-way street and initiated
a traffic stop. (N.T. [Suppression Hearing], 6/6/18, at 30). When
Officer Prior made contact with [Appellant] at the driver’s side
window of the vehicle, he smelled the odor of marijuana
emanating from the car. (Id. at 34). The officer indicated this
was the odor of burnt marijuana. (Id. at 45). Officer Prior did
not display his weapon or demonstrate any use of force[,] and he
was the only officer present at the scene during this initial
encounter. (Id. at 35).
The officer inquired as to whether [Appellant] owned this
vehicle and [Appellant] responded that it was a rental vehicle.
(Id. at 36). Officer Prior asked how long [Appellant] was in
possession of the vehicle and [Appellant] indicated it had been
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approximately thirty (30) days. (Id. at 32). The officer
subsequently asked [Appellant] if anyone else had driven the
vehicle during this time[-]period[,] and [Appellant] indicated he
was the only driver. (Id.)[] No other officers were at the scene
during this encounter and Officer Prior asked these questions in a
“conversational” tone. (Id. at 33). [Appellant] was also
cooperative at this time and answered all the officer’s questions.
(Id.)[] [Appellant] was unable to produce a driver’s license but
did provide his name and date of birth. (Id. at 36). [Appellant]
also provided the rental agreement for the vehicle. (Id. at 57).
Officer Prior returned to his patrol car at this time and ran
[Appellant’s] information through his computer system. (Id. at
36-37). A second officer arrived at the scene during this time[-]
period. (Id. at 37). Officer Prior again approached [Appellant’s]
vehicle after running his information through the computer.
(Id.)[] The officer returned to [Appellant’s] vehicle to return
[Appellant’s] rental agreement and to notify him of the disposition
of the traffic infraction. (Id. at 57).
The officer also stated[,] “I’m just going to be honest with
you. I smell marijuana inside the car.” (Id. at 37). [Appellant]
responded[,] “no, you don’t[.” Appellant]’s demeanor changed at
this time. (Id. at 38). A third officer also arrived on the scene
during this time[-]period. (Id. at 35). Officer Prior subsequently
asked [Appellant] if he would consent to a search of the vehicle
and [Appellant] refused to provide consent. (Id. at 37). The
officer advised [Appellant] that he was free to leave and [that] the
vehicle was going to be impounded pending the officer’s
application for a search warrant. (Id. at 37). [Appellant] left the
vehicle, provided Officer Prior with a key … to the vehicle[,] and
subsequently walked away. (Id. at 35, 38). At no time did
authorities place [Appellant] in the back of a police car or handcuff
him. (Id. at 38).
***
[O]fficer [Prior] obtained a search warrant and[,] during a
search of the vehicle[,] authorities located a semiautomatic hand
gun under the driver’s seat, a clear plastic bag containing
marijuana in the glove compartment, a silver “butterfly” style
knife in the center console[,] and a silver kitchen knife with a black
handle on the floor in the rear passenger compartment of the
vehicle.
Trial Court Opinion (TCO), 7/16/19, at 8-9.
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On appeal, Appellant first contends that Officer Prior’s smelling burnt
marijuana was insufficient to establish probable cause to seize Appellant’s
vehicle and obtain a warrant to search it. He claims that this case is “easily
distinguishable” from Commonwealth v. Scott, 210 A.3d 359 (Pa. Super.
2019), and Commonwealth v. Copeland, 955 A.2d 396 (Pa. Super. 2008).
Appellant’s Brief at 8. In those cases, this Court found that officers had
probable cause to conduct warrantless vehicle searches based on factors in
addition to a smell of burnt marijuana, such as smoke emanating from the
vehicle, furtive movements by the defendants, and/or contraband in plain
view. See Scott, 210 A.3d at 361, 364; Copeland, 955 A.2d at 402-03.
Appellant avers that this case is not like Scott or Copeland, explaining:
Officer Prior testified that he smelled burnt marijuana. He
did not testify as to any furtive movements made by Appellant.
He did not suspect Appellant to be under the influence and he was
not investigating a DUI. Furthermore, although he did say the
marijuana had to be smoked recently, he could not say if it was
hours or days ago.
Given Officer Prior’s testimony that the marijuana could
have been smoked days ago, and no indication of it being smoked
at the time of the traffic stop, there was insufficient probable
cause to seize Appellant’s vehicle, and insufficient probable cause
to issue a warrant to search that vehicle.
Appellant’s Brief at 8-9.
Notably, Appellant’s entire argument in support of his first issue consists
of just eight sentences. See id. At no point in his argument does Appellant
discuss the search warrant in any depth. For instance, he does not state what
facts were set forth in the affidavit of probable cause, present any argument
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that those facts were insufficient to issue the warrant, or cite any legal
authority in support of this claim. Accordingly, Appellant has waived any
challenge to the probable cause underlying the search warrant for lack of
meaningful development. See Commonwealth v. Hardy, 918 A.2d 766,
771 (Pa. Super. 2007) (“When briefing the various issues that have been
preserved, it is an appellant’s duty to present arguments that are sufficiently
developed for our review. The brief must support the claims with pertinent
discussion, with references to the record and with citations to legal authorities.
… [W]hen defects in a brief impede our ability to conduct meaningful appellate
review, we may dismiss the appeal entirely or find certain issues to be
waived.”).
Additionally, Appellant has also waived his claim that Officer Prior lacked
probable cause to seize his car while the officer obtained the search warrant.
As the Commonwealth stresses, in Appellant’s motion to suppress the physical
evidence recovered from his vehicle, he solely argued that the affidavit of
probable cause contained a misstatement that he “had been arrested by the
Abington Police Department more than 4 times since 2011 for possession of
marijuana and related offenses.” Omnibus Pretrial Motion for Relief, 6/4/18,
at 3. Appellant claimed that this information was false and, without it, the
affidavit failed to set forth sufficient facts to establish probable cause for the
warrant. Id. at 3-4. At the suppression hearing, the Commonwealth
conceded that the language, “since 2011,” was incorrect. N.T. Suppression
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Hearing at 5.2 Thus, Appellant indicated that the singular issue before the
court regarding the suppression of the physical evidence was “whether [the
court should] … exclude simply ‘since 2011,’ or [whether] [it should] exclude
that sentence in its entirety[,]” in deciding whether the warrant was supported
by probable cause. Id. at 5. Appellant argued that the court must exclude
the entire sentence from its probable cause determination. Id. At the
conclusion of the hearing, the court ruled that it could consider the entire
sentence because the error in the affidavit of probable cause was not material,
and the mistake was not made in bad faith. Id. at 67. Ultimately, the court
found that the search warrant was supported by probable cause. Id.
It is apparent from this record that Appellant only sought the
suppression of the physical evidence on the basis that the affidavit of probable
cause contained an erroneous fact which, if omitted, resulted in a lack of
probable cause to issue the warrant. This is not the claim Appellant now
presents on appeal, wherein he solely contends that Officer Prior’s smelling
burnt marijuana was insufficient to provide the officer with probable cause to
seize his vehicle while obtaining the search warrant. The suppression court
never ruled on this issue below. Consequently, we agree with the
Commonwealth that it is waived. See Pa.R.A.P. 302(a) (“Issues not raised in
the lower court are waived and cannot be raised for the first time on appeal.”).
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2 Officer Prior testified that the affidavit should have read: “Since 2010,
[Appellant] was arrested by the Abington Police Department four times for
marijuana and related offenses, and he was also arrested for dealing
marijuana two times.” Id. at 23-24.
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In Appellant’s second issue, he contends that the trial court erred by
denying his motion to suppress statements he made to Officer Prior because
he was not provided with Miranda warnings prior to making those remarks.
Appellant begins his three-paragraph argument with boilerplate case law
pertaining to investigative detentions. See Appellant’s Brief at 9. He then
states:
In the present case, at the time Officer Prior questioned
Appellant, Appellant was not free to leave. The encounter had
just begun. At that moment in time, Officer Prior had witnessed
a traffic violation and smelled the odor of burnt marijuana. His
questions however were not designed to investigate the traffic
violation. His questions[,] which he said were department
policy[,] were designed to explore “other possible crimes that may
be occurring.” (N.T. [Hearing at] … 30-31.) Other officers were
on the way to the traffic stop, and Officer Prior’s radio was on and
the volume turned up so he could be in contact with those officers.
([Id. at] 41). It wasn’t until some time thereafter, when Appellant
refused consent to [a] search[,] that he was free to leave.
It is clear from the record that Officer Prior’s questions were
intended to explore other crimes, and asked at a time when
Appellant was not free to leave. As such the [t]rial [c]ourt erred
in denying Appellant’s motion to suppress these statements.
Id. at 10.
Appellant’s argument is unconvincing.
In Miranda, the United States Supreme Court held that a
confession given during custodial interrogation is presumptively
involuntary, unless the accused is first advised of his right against
self-incrimination. … [Miranda,] 384 U.S. 436…. Miranda
warnings are not required where the interrogation is not custodial.
Commonwealth v. Nester, … 709 A.2d 879, 882 n.4 ([Pa.]
1998) (citations omitted). “A person is in custody for the purposes
of a custodial interrogation when he is physically deprived of his
freedom in any significant way or is placed in a situation in which
he reasonably believes that his freedom of action or movement is
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restricted by the interrogation.” Id. (citation omitted). Police
detentions become custodial when under the totality of the
circumstances the conditions and/or duration of the detention
become so coercive as to become the functional equivalent of
arrest. Commonwealth v. Busch, 713 A.2d 97, 100 (Pa. Super.
1998) (citing Commonwealth v. Ellis, … 549 A.2d 1323 ([Pa.
Super.] 1988)).
Among the factors the court utilizes in determining, under
the totality of the circumstances, whether the detention
became so coercive as to constitute the functional
equivalent of arrest are: the basis for the detention; the
location; whether the suspect was transported against his
will; how far, and why; whether restraints were used; the
show, threat or use of force; and the methods of
investigation used to confirm or dispel suspicions.
Busch, 713 A.2d at 101 (quoting Commonwealth v. Peters, …
642 A.2d 1126, 1130 ([Pa. Super.] 1994) (en banc)).
Commonwealth v. DiStefano, 782 A.2d 574, 579-80 (Pa. Super. 2001).
Additionally, as the trial court aptly summarized:
“The usual traffic stop constitutes an investigative rather than a
custodial detention, unless, under the totality of the
circumstances, the conditions and duration of the detention
become the functional equivalent of an arrest.” Commonwealth
v. Mannion, 725 A.2d 196, 202 (Pa. Super. 1999) (citing
Commonwealth v. Haupt, 567 A.2d 1074, 1078 (Pa. Super.
1989)). During these traffic stops, officers are permitted to ask
basic investigative questions. Pennsylvania v. Bruder, 488 U.S.
9, 10 … (1988).
“Since an ordinary traffic stop is typically brief in duration
and occurs in public view, such a stop is not custodial for Miranda
purposes.” Mannion, [725 A.2d] at 202. “If a motorist who has
been detained pursuant to a traffic stop thereafter is subjected to
treatment that renders him ‘in custody’ for practical purposes, he
will be entitled to the full panoply of protections prescribed by
Miranda.” Berkemer v. McCarty, 468 U.S. 420, 440 … (1984).
“An ordinary traffic stop becomes ‘custodial’ when the stop
involves coercive conditions, including, but not limited to, the
suspect being forced into a patrol car and transported from the
scene or being physically restrained. Such coercive conditions
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constitute ‘restraints comparable to arrest’ so as to transform the
investigative nature of an ordinary traffic stop into custodial
interrogation.[”] Mannion, [725 A.2d] at 202.
TCO at 6-7.
Applying this law to the present facts, the trial court concluded that no
Miranda warnings were required. It reasoned:
There is no indication that Officer Prior’s interaction with
[Appellant] was anything more than an ordinary traffic stop in
which the officer asked [Appellant] basic investigative questions,
including questions about his use of the vehicle. Authorities did
not subject [Appellant] to any coercive conditions[,] such as
placing him into a patrol car or physically restraining him. Officer
Prior questioned [Appellant] in plain view of passing motorists and
no show of force was ever demonstrated by this officer or the
other officers on the scene. [Appellant] was free to leave and, in
fact, did walk away from the scene after Officer Prior stated the
car would be impounded. The totality of the circumstances
demonstrates [Appellant’s] traffic stop was not a custodial
detention or the functional equivalent of an arrest[,] and the
questions asked were merely basic investigative questions which
did not constitute an interrogation. Therefore, authorities were
not required to administer Miranda warnings to [Appellant] and
his statements regarding the exclusive use of his rental car were
admissible at trial.
Id. at 9-10 (citations omitted).
We discern no legal error in the court’s analysis. The totality of the
circumstances discussed by the court demonstrate that the traffic stop was
not so coercive as to amount to the functional equivalent of an arrest.
Therefore, no Miranda warnings were required, and the court properly denied
Appellant’s motion to suppress.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/5/2020
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