Commonwealth v. Bell

DISSENTING OPINION BY

TODD, J.:

¶ 1 Because I conclude that Appellant’s consent to search his vehicle was neither voluntary, nor the product of his free choice, I respectfully dissent.

¶2 This Court has recognized that in order “[t]o establish a voluntary consensual search, the Commonwealth must prove ‘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.’ ” Commonwealth v. Acosta, 815 A.2d 1078, 1083 (Pa.Super.2003) (citations omitted).

¶ 3 As noted by the Majority, our Supreme Court in Commonwealth v. Strickler set forth a number of factors to be considered when determining the legality of a consensual search, including:

1. the existence of a prior, lawful detention;
2. the presence or absence of police excesses, i.e., use of sirens and flashers, commands to halt, the display of weapons, and the operation of the police car in an aggressive manner;
3. any physical contact or police direction of the subject’s movements;
4. the demeanor of the police officer;
*2765. the location of the confrontation;
6. the manner of expression used by the officer in addressing the citizen;
7. the content of the interrogatories or statements;
8. the existence and character of the initial investigative detention;
9. the seamlessness of the transition between the traffic stop and the subsequent encounter.

Commonwealth v. Strickler, 563 Pa. 47, 72-74, 757 A.2d 884, 897-99 (2000).

¶ 4 The Majority, in deferring to the credibility determinations of Judge Cronin and in finding that there was sufficient evidence for his ruling, states:

While Appellant’s unrebutted testimony paints an image of drawn guns, raised voices, cuss words, and police manhandling, Judge Cronin did not include any elements of Appellant’s testimony in his findings of fact. To the contrary, Judge Cronin specifically found Detective Frey’s version credible and unrebutted. Trial Court Opinion, 6/26/03, at 7. We conclude, therefore, that Judge Cronin determined Appellant’s unrebutted version of events to be incredible.

(Majority Opinion, at 274.)

¶ 5 However, I conclude that Detective Frey’s testimony supports Appellant’s argument that his consent was coerced. It is undisputed by either party that the initial stop was a valid investigative detention. With regard to the absence or presence of police excesses, Detective Frey testified that, in addition to himself, there were ten additional plainclothes officers present when Appellant’s vehicle was stopped. (N.T. Hearing, 11/19/02, ai; 13.) Appellant’s vehicle then was boxed in by three unmarked police cars. (Id. at 15.) As Detective Frey approached Appellant’s car with other officers, he yelled “let’s see your hands,” (id. at 14), and although Detective Frey testified that he did not believe he had removed his gun from his holster at this time, he did have his hand on his weapon. (Id. at 15.) The officers then removed Appellant and his wife from their vehicle, instructed them to put their hands behind their backs, and handcuffed them. (Id. at 15-16.) All of these factors, testified to by Detective Frey, clearly evidence not only the existence of police excesses, but police direction of Appellant’s movements, and an initial hostile demean- or and manner of expression by Detective Frey, all of which may be considered aspects of coercion as set forth in Strickler, supra.

■¶ 6 In addition, once Appellant and his wife were handcuffed, Detective Frey advised them that they were not under arrest, but proceeded to read them their Miranda rights. Detective Frey also testified that he advised Appellant that he knew he was delivering cocaine, and asked him who it was for and how much was being delivered. The content of the interrogatories or statements by an officer may also contribute to a coercive atmosphere, see Strickler, 563 Pa. at 73, 757 A.2d at 898, and, in my view, did so in the instant case. I believe there is further support for such a conclusion based on the fact that Detective Frey testified that after Appellant answered Detective Frey’s questions, the officer requested and received Appellant’s consent to search the vehicle, because “[Appellant] knew he was caught, I guess you could say.” (N.T. Hearing, 11/19/02, at 20.)

¶-7 Finally, according to the record, the elapsed time between the stop of Appellant’s vehicle and Appellant’s signing of the consent form to search his vehicle was approximately three to five minutes. There is no evidence, however, to suggest that there was ever an endpoint to Appellant’s initial detention, or that Appellant *277was advised at any time that he had a right to withhold his consent to a search of his vehicle. As the Court in Strickler noted, “while ... 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.” 563 Pa. at 74, 757 A.2d at 899. The Court reiterated that “in evaluating a consensual encounter that follows a traffic or similar stop, a central consideration will be whether the objective circumstances would demonstrate to a reasonable citizen that he is no longer subject to domination by police.” Id. at 75, 757 A.2d at 899. Due to the fact that the entire interaction, from the officers’ approach of Appellant’s vehicle to the time Detective Frey obtained Appellant’s consent for the search, occurred within three to five minutes, as well as the fact that Appellant had already been placed in handcuffs when he , signed the consent form for the search of his vehicle,21 do not believe the objective circumstances would have suggested to Appellant that he was no longer subject to domination by the police at the time he signed the consent form.

¶ 8 Thus, while recognizing that this Court may not disturb the credibility determinations made by the trial court which are supported by the record, I believe the record itself, including the testimony of Detective Frey, demonstrates that Appellant’s consent was neither voluntary nor the product of free choice. Accordingly, I would vacate Appellant’s judgment of sentence on the basis that the trial court erred in refusing to suppress the evidence seized as a result of the officer’s search of Appellant’s vehicle, and remand for a new trial.3 For these reasons, I am compelled to dissent.

¶ 9 DEL SOLE, P.J., joins in this Dissenting Opinion by TODD, J.

. It is unclear from the record whether Appellant’s handcuffs were removed prior to his signing the consent form.

. The Majority notes that, in light of its conclusion that Appellant voluntarily gave consent to search his vehicle, it is unnecessary to address the issue of whether the warrantless search of Appellant's vehicle was justified under the potential for loss of contraband exception. As I do not believe Appellant's consent was voluntary, however, I further note that I conclude that there were no such exigent circumstances to justify a warrantless search of the vehicle, since Appellant and his wife were handcuffed and outside of the vehicle, and the vehicle was boxed in by three police cars.