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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
TRAI'VONE TYRIEK FERGUSON :
:
Appellee : No. 459 MDA 2021
Appeal from the Order Dated March 11, 2021
In the Court of Common Pleas of Berks County
Criminal Division at No(s): CP-06-CR-0001326-2020
BEFORE: LAZARUS, J., NICHOLS, J., and KING, J.
MEMORANDUM BY KING, J.: FILED: APRIL 12, 2022
Appellant, the Commonwealth of Pennsylvania, appeals from the order
entered in the Berks County Court of Common Pleas, granting in part the
suppression motion of Appellee, Trai’vone Tyriek Ferguson. We affirm.
The suppression court provided the following findings of fact:
1. On February 26, 2020, Pennsylvania State Trooper
Ralph Vance … and Trooper [Eric] Dreisbach were on
Interstate 78 West in Bethel Township, Berks County,
Pennsylvania. They were both in full uniform operating a
marked patrol vehicle.
2. Interstate 78 is a known drug corridor.
3. While on patrol, the troopers observed a grey
Nissan Sentra (“Sentra”) being operated without
Pennsylvania inspection or emission stickers.
4. Trooper Dreisbach ran the vehicle’s registration
and discovered that the Sentra was a rental vehicle and
owned by Avis. Trooper Dreisbach found it unusual that the
Sentra did not have its stickers displayed because rental
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companies prefer to keep their vehicles up to date.
5. Trooper Dreisbach activated his lights and siren to
initiate a traffic stop. The Sentra pulled off to the side of
the road.
6. Trooper Dreisbach approached the Sentra on its
passenger side and came into contact with Richard Lloyd
Jones, III (“Jones”), and [Appellee]. Jones was the operator
of the Sentra. [Appellee] was in the front passenger seat.
7. Trooper Dreisbach identified himself to Jones and
[Appellee]. He asked Jones for his license, registration and
proof of insurance.
8. Jones informed Trooper Dreisbach that the Sentra
was a rental vehicle and provided him with his driver’s
license and rental paperwork.
9. While outside of the Sentra, Trooper Dreisbach
observed ashes and an open energy drink in the center
console. In Trooper Dreisbach’s experience, drug traffickers
use energy drinks to stay alert during their travels. Also,
the presence of ash was concerning because people often
do not smoke in rental vehicles.
10. There were several air fresheners present in the
Sentra. In Trooper Dreisbach’s experience, people will often
use air fresheners to hide the odor of narcotics. He found it
unusual that someone would put air fresheners into a rental
vehicle since the vehicle would have to be returned at the
conclusion of the rental period.
11. Neither Jones’ nor [Appellee’s] name was on the
rental paperwork. Jones stated that his aunt rented the
vehicle. The vehicle was rented in Charlottesville, Virginia.
12. Trooper Dreisbach asked Jones to step out of the
vehicle to clear up the issues surrounding the rental
agreement. In Trooper Dreisbach’s experience, drug
traffickers will operate vehicles rented to a third party to
distance themselves from the vehicle in the event they are
caught.
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13. In Trooper Dreisbach’s opinion, Jones was not free
to leave as he was outside of the Sentra speaking with
Trooper Dreisbach.
14. As Trooper Dreisbach was talking with Jones at the
rear of the Sentra, he instructed Trooper Vance to talk to
[Appellee] who was still seated in the vehicle.
15. Jones informed Trooper Dreisbach that he was
coming from Wilmington, New Jersey. Trooper Dreisbach
asked him if he meant Wilmington, Delaware. Jones said
that he was going to see a friend and [Appellee] came along
with him on his trip. They left from Charlottesville, Virginia,
and then traveled to New Jersey before making their return
trip to Charlottesville again all in one day. Trooper
Dreisbach testified that this was an indicator of criminal
activity.
16. Jones appeared to be nervous during the
conversation with Trooper Dreisbach.
17. Trooper Dreisbach talked to Trooper Vance about
the conversation he had with [Appellee]. The information
provided by [Appellee] about his trip was inconsistent with
the information provided by Jones. [Appellee] informed
Trooper Vance that he was in Manhattan in New York City
visiting a female friend for a week. He got into an argument
with her and was staying with his brother and their friends.
[Appellee] then contacted Jones to pick him up to return to
Virginia.
18. New York City is a source city for narcotics
trafficking.
19. [Appellee] appeared nervous during his
conversation with Trooper Vance. He appeared to be
distracted by his phone and broke eye contact with Trooper
Vance.
20. Trooper Dreisbach asked Jones if there was
anything illegal in the Sentra and for consent to search.
Jones refused consent.
21. Trooper Dreisbach instructed Trooper Vance to
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contact a canine unit.
22. Trooper Dreisbach approached the Sentra and
talked to [Appellee]. [Appellee] appeared nervous and
looked as if he was about to cry.
23. Trooper Dreisbach asked [Appellee] if there was
anything illegal in the Sentra. [Appellee] told Trooper
Dreisbach that there was a marijuana joint in the center
console. Based on his training and experience, Trooper
Dreisbach testified that people will offer something small in
order to distract from other parts of a vehicle. He also
believed that Jones and [Appellee] were too nervous for just
a marijuana joint.
24. Trooper Dreisbach seized the marijuana joint and
asked [Appellee] to exit the Sentra. He was in possession
of [Appellee’s] driver’s license at that time.
25. After [Appellee] exited the Sentra, Trooper
Dreisbach informed both Jones and [Appellee] that he had
probable cause to search the vehicle and canceled the
canine unit.
26. Trooper Dreisbach proceeded to search the Sentra.
Trooper Dreisbach looked inside of the Sentra’s trunk. He
observed a backpack and asked both Jones and [Appellee]
if it belonged to them. They both denied ownership of the
backpack.
27. Trooper Dreisbach opened the backpack and
discovered a vacuum-sealed kilogram of an unknown
substance. He told both Jones and [Appellee] to put their
hands behind their backs. [Appellee] ran away.
28. Trooper Dreisbach pursued and apprehended
[Appellee]. He was placed under arrest and searched. No
contraband was discovered on [Appellee]. Additionally, the
keys to the Sentra were not located on him. Jones was also
searched incident to arrest with negative results.
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29. Miranda[1] warnings were read to Jones and
[Appellee]. They both agreed to speak to the troopers.
Jones admitted that they had traveled to New Jersey, picked
up the backpack and were taking it to Virginia where they
were going to get paid in product. Jones indicated that he
didn’t believe [Appellee] knew the purpose of the trip but
guessed that he probably could have figured it out.
However, upon additional questioning, Jones then said that
he and [Appellee] both knew the purpose of their trip to
obtain cocaine and get paid in product upon delivery.
[Appellee] provided a different story and said that he
traveled to New York with his girlfriend where Jones picked
him up and they were traveling to Virginia. [Appellee]
denied knowledge of the backpack in the trunk.
30. Cellular phones were recovered from Jones and
[Appellee]. [Appellee] provided written consent to search
his phone. Another state trooper, Trooper Fluck, went
through [Appellee’s] cellular phone and confronted
[Appellee] with the messages. The text messages
referenced [Appellee] being a “middle man” in other drug
sales. [Appellee] said he dabbled in marijuana and cocaine.
31. A search warrant was obtained for the cell phones.
Trooper Dreisbach was provided with the extracted data
from the cell phones and observed all of the text messages.
The text messages show that there was a conversation
between Jones and an unknown individual about drugs.
[Appellee] was not mentioned in that conversation. There
was another text conversation between Jones and
[Appellee] about the trip from Virginia to the New York/New
Jersey area with nothing specific about picking up drugs.
32. The substance in the vacuum-sealed package
located within the backpack tested positive for cocaine.
33. The backpack also contained a pair of size 38
pants. These pants would have been too big for [Appellee]
who was listed as standing 5’6” and weighing 160 pounds.
34. If Trooper Dreisbach had not searched the Sentra,
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1 Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
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he would have towed the vehicle. An inventory search
would have been conducted prior to towing.
35. The sole reason that the Sentra would have been
towed was because neither Jones nor [Appellee] were listed
on the rental agreement for the vehicle.
36. Trooper Dreisbach did not attempt to contact the
individual named in the rental agreement or the Avis rental
company to learn more about the Sentra.
37. There were no exigent circumstances present on
February 26, 2020, during Trooper Dreisbach’s interaction
with [Appellee].
(Findings of Fact and Conclusions of Law, filed 3/11/21, at 2-6).
On June 24, 2020, the Commonwealth filed a criminal information
charging Appellee with possession of a controlled substance, possession of a
controlled substance with intent to deliver, possession of a small amount of
marijuana, possession of drug paraphernalia, conspiracy, and resisting
arrest.2 Appellee filed an omnibus pretrial motion on August 7, 2020. The
motion included a request to suppress all physical evidence found inside the
trunk of the Sentra “because the Troopers conducted a warrantless search of
the trunk … without probable cause and under no valid exception to the
warrant requirement.” (Suppression Motion, filed 8/7/20, at ¶3). Appellee
further argued that the court needed to suppress the evidence obtained from
his cell phone as “fruit of an illegal arrest and seizure.” (Id. at ¶4).
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2 35 P.S.§ 780-113(a)(16), (30), (31), (32), 18 Pa.C.S.A. §§ 903 and 5104
respectively.
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The court conducted multiple hearings to receive evidence on the claims
in Appellee’s omnibus pretrial motion.3 On January 13, 2021, the
Commonwealth filed a motion to supplement the pretrial hearing record.
Specifically, the Commonwealth acknowledged our Supreme Court’s recent
decision in Commonwealth v. Alexander, ___ Pa. ___, 243 A.3d 177
(2020), which eliminated the automobile exception to the warrant
requirement in Pennsylvania. Due to this substantive change in the law, the
Commonwealth requested the opportunity to introduce additional evidence in
opposition to Appellee’s suppression claims. After considering the
Commonwealth’s motion, the court conducted another hearing on February
12, 2021.
On March 11, 2021, the court issued findings of fact and conclusions of
law. Initially, the court determined that the troopers possessed reasonable
suspicion of criminal activity, which justified an extension of the original traffic
stop. (See Findings of Fact and Conclusions of Law at 10). Appellee’s
subsequent admission regarding the presence of a marijuana joint in the
Sentra’s center console did not require suppression, because it was not the
product of a custodial interrogation. (Id. at 12). According to the suppression
court, Trooper Dreisbach subsequently conducted a warrantless search of the
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3 At a hearing conducted on November 10, 2020, Appellee entered the
preliminary hearing transcripts into evidence. The parties agreed that the
transcripts would be part of the record for purposes of Appellee’s suppression
claims. (See N.T. Pretrial Hearing, 11/10/20, at 4).
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trunk based solely on his belief that probable cause supported the search.
(Id. at 15). Pursuant to Alexander, the court concluded that both probable
cause and exigent circumstances needed to be present for Trooper Dreisbach
to search without obtaining a warrant. (Id.) The record did not reveal any
exigent circumstances to support the warrantless search. (Id.)
To the extent the Commonwealth sought to rely on the inevitable
discovery doctrine, the court found that “Trooper Dreisbach was not
authorized by the Vehicle Code to tow the Sentra[,] … an inventory search
would not have been performed and the drugs would not have been inevitably
discovered.” (Id. at 21). The court also found that the evidence obtained
from Appellee’s cell phone and the statements made following the illegal
search were inadmissible as “fruit of the poisonous tree.” (Id. at 22).
Consequently, the court granted Appellee’s suppression motion as to the drugs
discovered in the trunk of the Sentra, the cell phone data, and any statements
made following the search of the Sentra. The court denied the motion as to
the marijuana joint and any statements made prior to the search of the
Sentra.
The Commonwealth timely filed a notice of appeal on Monday, April 12,
2021, under Pa.R.A.P. 311(d).4 On April 16, 2021, the court ordered the
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4 See Pa.R.A.P. 311(d) (stating that in criminal case, Commonwealth may
take appeal as of right from order that does not end entire case where
Commonwealth certifies in notice of appeal that order will terminate or
substantially handicap prosecution).
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Commonwealth to file a Pa.R.A.P. 1925(b) concise statement of errors
complained of on appeal. The Commonwealth timely filed its Rule 1925(b)
statement on April 30, 2021.
The Commonwealth now raises two issues for this Court’s review:
Did the trial court err in suppressing evidence obtained as a
result of a warrantless search of [Appellee’s] vehicle based
upon probable cause?
Consequently, did the trial court err in suppressing cell
phone evidence and statements made after the search as
fruit of the poisonous tree?
(Commonwealth’s Brief at 4).
The Commonwealth’s claims are related, and we address them together.
The Commonwealth acknowledges our Supreme Court’s decision in
Alexander, which held that the Pennsylvania Constitution requires both a
showing of probable cause and exigent circumstances to justify the
warrantless search of an automobile. Nevertheless, the Commonwealth
insists that an exception to the warrant requirement is present under the
circumstances of this case. Relying on 75 Pa.C.S.A. §§ 3352(c)(4) and
3353(a)(2)(vii), the Commonwealth posits that the trooper had the authority
to order the towing of the Sentra because it was parked on a “limited access
highway.” (Id. at 16). The Commonwealth maintains that an inventory
search would have occurred prior to towing, and the trooper’s discovery of the
contraband was inevitable.
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The Commonwealth urges that “the doctrine of inevitable discovery
permits the admission of the evidence obtained as a result of the warrantless
search of the vehicle[.]” (Id. at 22). The Commonwealth recognizes that the
exclusionary rule “generally excludes physical or testimonial evidence
obtained as a direct and proximate result of unconstitutional conduct by
police,” but it contends that the inevitable discovery doctrine serves as an
exception to the exclusionary rule. (Id.) The Commonwealth further argues
that “[a]t the federal level, an exception to the exclusionary rule exists when
police unknowingly violate the constitution while acting in ‘good faith.’” (Id.
at 26). The Commonwealth notes that “[o]ther states have incorporated this
[good faith exception] into their jurisprudence,” and this Court should adopt
such an exception here, where “Trooper Dreisbach acted reasonably within
the boundaries of the law [as it existed] at the time of the search[.]” (Id. at
31, 37). Based upon the foregoing, the Commonwealth concludes that we
must remand this case for trial on all charges with all evidence.5 We disagree.
“At a suppression hearing, ‘the Commonwealth has the burden of
establishing by a preponderance of the evidence that the evidence was
properly obtained.’” Commonwealth v. Heidelberg, 267 A.3d 492, 499
(Pa.Super. 2021) (en banc) (quoting Commonwealth v. Galendez, 27 A.3d
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5Because the Commonwealth opines that the warrantless search of the vehicle
was lawful, it also believes that the court erred in suppressing Appellee’s post-
search statements and cell phone evidence as fruit of the poisonous tree.
(See Commonwealth’s Brief at 37-38).
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1042, 1046 (Pa.Super. 2011) (en banc)). When the Commonwealth appeals
from a suppression order, the relevant scope and standard of review are well-
settled:
[We] 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 is to determine if
the suppression court properly applied the law to the facts.
Our standard of review is restricted to establishing whether
the record supports the suppression court’s factual findings;
however, we maintain de novo review over the suppression
court’s legal conclusions.
Commonwealth v. Korn, 139 A.3d 249, 252-53 (Pa.Super. 2016), appeal
denied, 639 Pa. 157, 159 A.3d 933 (2016) (internal citations and quotation
marks omitted). “It is within the suppression court’s sole province as
factfinder to pass on the credibility of witnesses and the weight to be given to
their testimony. The suppression court is free to believe all, some or none of
the evidence presented at the suppression hearing.” Commonwealth v.
Elmobdy, 823 A.2d 180, 183 (Pa.Super. 2003), appeal denied, 577 Pa. 701,
847 A.2d 58 (2004) (internal citations omitted).
“Both the Fourth Amendment of the United States Constitution and
Article I, Section 8 of the Pennsylvania Constitution guarantee individuals
freedom from unreasonable searches and seizures.” Heidelberg, supra at
502 (quoting Commonwealth v. Newsome, 170 A.3d 1151, 1154
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(Pa.Super. 2017)). “As a general rule, ‘a warrant stating probable cause is
required before a police officer may search for or seize evidence.’” Id.
(quoting Commonwealth v. Anderson, 40 A.3d 1245, 1248 (Pa.Super.
2012)). Regarding automobiles, “Article I, Section 8 affords greater protection
to our citizens than the Fourth Amendment, and … the Pennsylvania
Constitution requires both a showing of probable cause and exigent
circumstances to justify a warrantless search of an automobile.” Alexander,
supra at ___, 243 A.3d at 181.
“Absent the application of one of a few clearly delineated exceptions, a
warrantless search or seizure is presumptively unreasonable.” Heidelberg,
supra at 502 (quoting Commonwealth v. Whitlock, 69 A.3d 635, 637
(Pa.Super. 2013)). One of these exceptions to the warrant requirement is the
inevitable discovery doctrine, which provides:
[E]vidence which would have been discovered was
sufficiently purged of the original illegality to allow
admission of the evidence…. [I]mplicit in this doctrine is the
fact that the evidence would have been discovered despite
the initial illegality.
If the prosecution can establish by a preponderance of the
evidence that the illegally obtained evidence ultimately or
inevitably would have been discovered by lawful means, the
evidence is admissible. The purpose of the inevitable
discovery rule is to block setting aside convictions that
would have been obtained without police misconduct.
Commonwealth v. King, 259 A.3d 511, 522 (Pa.Super. 2021) (quoting
Commonwealth v. Bailey, 986 A.2d 860, 862 (Pa.Super. 2009), appeal
denied, 606 Pa. 660, 995 A.2d 350 (2010)).
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Additionally, the Motor Vehicle Code permits police officers to order the
towing of an automobile under the following circumstances:
§ 3352. Removal of vehicle by or at direction of police
* * *
(c) Removal to garage or place of safety.—Any
police officer may remove or cause to be removed to the
place of business of the operator of a wrecker or to a nearby
garage or other place of safety any vehicle found upon a
highway under any of the following circumstances:
* * *
(4) The vehicle is in violation of section 3353
(relating to prohibitions in specified places) except for
overtime parking.
75 Pa.C.S.A. § 3352(c)(4). Section 3353 prohibits a vehicle from parking or
standing “[o]n a limited access highway unless authorized by official traffic-
control devices.” 75 Pa.C.S.A. § 3353(a)(2)(vii).
Instantly, the suppression court analyzed Alexander and applied its
holding to the facts of Appellee’s case. The court determined that Appellee’s
statement regarding the presence of a marijuana joint provided Trooper
Dreisbach with probable cause to search the Sentra. (See Findings of Fact
and Conclusions of Law at 15). “However, there was no testimony regarding
the exigent circumstances that would have prevented Trooper Dreisbach from
obtaining a search warrant.” (Id.)
Regarding the Commonwealth’s argument about the applicability of the
inevitable discovery doctrine, the court noted that Trooper Dreisbach would
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have had the Sentra towed if he had not performed a search while the vehicle
was stopped on the side of the road. (See id. at 19). The court emphasized
Trooper Dreisbach’s statement “that the sole reason for towing the vehicle
would have been because neither Jones nor [Appellee] were listed on the
rental agreement.” (Id.) Specifically, Trooper Dreisbach testified on this
matter as follows:
[DEFENSE COUNSEL]: You stated on direct examination
that you would have towed the vehicle?
[TROOPER]: Correct. Yes.
[DEFENSE COUNSEL]: Are you saying you would have
towed it because the driver was not on the rental
agreement?
[TROOPER]: Yes. So I would have towed it.
Neither occupant was on the rental agreement, they’re out
of the state where it was rented from. I mean, like I
explained during my testimony before, it’s a liability for the
rental company to have random people driving rental cars
around.
(N.T. Suppression Hearing, 2/12/21, at 18). Although the trooper briefly
mentioned that the Sentra was parked on the side of the interstate, he did not
expressly testify that location of the vehicle provided him with a basis for
towing it away from the scene. (Id. at 15, 18-20).
The court evaluated this testimony and the relevant portions of the
Motor Vehicle Code concluding that “the operation of a rental vehicle by an
individual not listed on a rental agreement is not a legal justification to tow a
vehicle pursuant to … the Vehicle Code.” (Findings of Fact and Conclusions of
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Law at 21). Based upon the applicable standard of review, the suppression
court properly applied the law to the facts. See Korn, supra. Although the
Commonwealth correctly observes that police are authorized to remove
vehicles that are parked on limited access highways pursuant to Section
3353(a)(2)(vii), the record does not demonstrate that this aspect of the Motor
Vehicle Code would have served as a catalyst for Trooper Dreisbach.
At the various suppression hearings, the Commonwealth failed to
develop the record regarding alternative bases for the towing of the Sentra.
The trooper’s only stated basis for a tow—the lack of Appellee or Mr. Jones’
name on the rental agreement—is not one of the statutorily enumerated
circumstances that will justify law enforcement’s removal of a vehicle. See
75 Pa.C.S.A. §§ 3352, 3353. Absent more, the Commonwealth did not
establish that the illegally obtained evidence in the trunk of the Sentra
ultimately or inevitably would have been discovered by lawful means. See
King, supra.
The Commonwealth now asks this Court to recognize an exception to
the exclusionary rule, but “Article I, Section 8 of the Pennsylvania Constitution
does not incorporate a ‘good faith’ exception to the exclusionary rule.”
Commonwealth v. Edmunds, 526 Pa. 374, 411, 586 A.2d 887, 905-06
(1991). See also Commonwealth v. Johnson, 624 Pa. 325, 86 A.3d 182
(2014) (declining to adopt good faith exception to exclusionary rule for
purpose of admitting physical evidence seized by police incident to arrest
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based solely on expired arrest warrant, even if arresting officer believed
warrant was valid). Accordingly, we affirm the order granting in part
Appellee’s motion for suppression of the evidence obtained as a result of the
illegal vehicle search.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/12/2022
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