Com. v. Rivera, A.

J-S27022-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
ANGEL RIVERA : No. 218 EDA 2022

Appeal from the Order Entered December 10, 2021
In the Court of Common Pleas of Delaware County Criminal Division at
No(s): CP-23-CR-0001363-2021

BEFORE: STABILE, J., NICHOLS, J., and SULLIVAN, J.

MEMORANDUM BY NICHOLS, J.: FILED NOVEMBER 28, 2022

The Commonwealth appeals from the order granting Appellee Angel

Rivera’s motion to suppress statements Appellee made and evidence seized

following a traffic stop.1 The Commonwealth contends that the trial court

abused its discretion or committed an error of law in granting Appellee’s

suppression motion. After careful review, we reverse and remand for further

proceedings.

The record reflects that on September 12, 2020, at 1:41 p.m., Trooper

Henry Kim of the Pennsylvania State Police was on patrol on Interstate 95 in
____________________________________________

1 In its notice of appeal, the Commonwealth certified that the trial court’s
suppression order would terminate or substantially handicap the prosecution
of its case. See Pa.R.A.P. 311(d) (stating that “in a criminal case, under the
circumstances provided by law, the Commonwealth may take an appeal as of
right from an order that does not end the entire case where the
Commonwealth certifies in the notice of appeal that the order will terminate
or substantially handicap the prosecution”). Notice of Appeal, 1/6/22; see
also Commonwealth’s Brief at 1.
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Delaware County. N.T., 10/22/21, at 11. Trooper Kim testified that he

observed a tan sedan travelling faster than surrounding vehicles and following

too closely behind the vehicle ahead of it. The trooper followed the tan vehicle

and witnessed it cross the center line of the highway. Trooper Kim activated

his emergency lights and sirens and directed the driver of the tan vehicle to

pull over. When the vehicle pulled to the side of the highway, Trooper Kim

noted that the two occupants of the car were acting suspiciously and moving

back and forth in their seats, and he saw the driver extended his arm toward

the passenger. Id. at 11-15. The trooper exited his patrol car and approached

the tan vehicle. Id. at 17-19. The trooper asked the driver for his license,

insurance, and registration. Id. at 50. The driver indicated that the vehicle

belonged to his wife. Id. at 23. When the trooper reached the vehicle he

testified that the driver’s eyes looked “pinpoint,” and his experience led him

to conclude that this was an indication of drug intoxication, possibly opioids.

Id. at 19-20. The trooper testified that at this point, the motor vehicle stop

shifted to a possible instance of driving under the influence. Id. at 20.

Trooper Kim stated that the driver’s behavior appeared nervous, shaky, and

erratic, and therefore, the trooper asked the driver to exit the vehicle. Id. at

21-22. The trooper informed the driver that for his safety he was going to

conduct a pat-down. Id. 28. The driver turned his pockets inside-out

revealing that he had nothing in his pockets, and Trooper Kim testified that

this alleviated his concern that the driver may have possessed a weapon or

hypodermic needle. Id. at 28-29. The trooper asked the driver where he was

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coming from, and the driver said that he had driven to Philadelphia to drop off

a job application, and he and the passenger, later identified as Appellee, were

returning to Delaware. Id. at 22. The trooper asked the driver how long he

had known Appellee, and the driver indicated that he had known Appellee for

approximately one year. Id. at 23. Trooper Kim asked the driver for consent

to search the vehicle, and the driver consented. Id. at 24. At this point, the

trooper asked Appellee questions similar to those he asked the driver. The

trooper asked where they were coming from, and how long Appellee had

known the driver. Like the driver, Appellee responded that they had driven to

Philadelphia to drop off a job application and were returning to Delaware. Id.

at 28-29. However, when asked how long he had known the driver, Appellee

told the trooper three to four years or several years, and this conflicted with

the driver’s answer of one year. Id. at 29.

The trooper testified that the driver and Appellee’s movements and

behavior, and their possible deceit, led him to become more suspicious that a

crime was occurring. The trooper informed Appellee that the driver had given

consent to search and told Appellee that he was not under arrest but asked

him to exit the car. Id. at 32. The trooper reiterated to Appellee that he was

not under arrest, but the trooper was going to conduct a pat down for the

trooper’s safety. Id. at 35. Appellee raised his hands and said that he did

not want a pat-down and reached toward his left pants pocket. Id. at 35-36.

The trooper asked why Appellee was worried, and Appellee said that he was

going to a shooting range. Id. at 37. This led the trooper to conclude that

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Appellee had a firearm, and Appellee then told the trooper the gun was in

Appellee’s right pants cargo pocket. Id. at 38, 64. The trooper told Appellee

to stop reaching for the gun, and the trooper seized the firearm. Id. at 39.

Appellee had a magazine for the gun in his left pocket and volunteered that

he had a pack of cigarettes in his pocket that contained narcotics. Id. at 39,

64. When the trooper asked Appellee if he had a permit, Appellee responded

that he did not. Id. 38-39. Trooper Kim testified that his partner, Trooper

Solis, arrived to provide assistance. Id. at 40. Trooper Kim testified that the

first time that he had physical contact with Appellee was when the trooper

seized the firearm. Id. at 41.2 After securing the gun, the trooper searched

the vehicle and found what appeared to him to be an empty packet of heroin,

and he testified that he then administered field sobriety tests to the driver.3

Id. at 49. The trooper testified that despite the warning, he never patted

down either driver or Appellee. Id. at 47.4

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2 The Commonwealth played the video, which was recorded by the camera in
the police vehicle. This video showed the trooper’s pursuit of the vehicle and
interaction with Appellee. N.T., 10/22/21, at 41-42. The video was marked
as Commonwealth Exhibit CS-1 and admitted into evidence without objection.
Id. at 41, 45.

3 The driver, David Rodriguez-Ramos, was charged with driving under the
influence of a controlled substance and was accepted into ARD at trial court
docket CP-23-CR-1364-2021.

4 “So, ironically, I actually never ended up patting down anybody.” N.T.,
10/22/21, at 47.

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The Commonwealth charged Appellee with possession of a controlled

substance (PWID), possession of drug paraphernalia, firearms not to be

carried without a license, and possession of a firearm by a prohibited person.5

Appellee filed a motion to suppress claiming that Appellee was subjected to a

rigorous pat down, numerous inquiries, and a prolonged search. Appellee

alleged that although he told the trooper he did not want a pat-down, the

trooper said it was for officer safety. Appellant averred the search went

beyond what was necessary for the traffic stop, the police lacked reasonable

suspicion to support the conclusion that Appellee was engaged in criminal

activity or that he or that he was armed and dangerous. Suppression Mot.,

7/6/21, at 1-2.

On October 26, 2021, the trial court granted Appellee’s motion to

suppress. The Commonwealth filed a motion for reconsideration, and the trial

court held a hearing on the Commonwealth’s motion.

The trial court concluded that the traffic stop was justified because the

vehicle was traveling at a speed in excess of the posted limit. Am. Trial Ct.

Op. 1/21/22, at 1. However, the court determined that the prolonged

detention that followed the traffic stop was not justified under the

circumstances because the trooper had uncovered all information necessary

to determine whether to issue a warning or a citation to the driver. Id. The

trial court found that the trooper had completed the necessary investigation
____________________________________________

5 35 P.S. § 780-113(a)(16) and (32), and 18 Pa.C.S. §§ 6106(a)(2) and
6105(a)(1).

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prior to speaking to Appellee. Id. at 2-3. Therefore, the trial court reaffirmed

its prior order granting Appellee’s motion to suppress. Id. at 3-6.

The Commonwealth filed this timely appeal. Both the Commonwealth

and the trial court complied with Pa.R.A.P. 1925.

On appeal, the Commonwealth raises the follow issues:

1. Did the trial court err by suppressing the statement made by
Appellee where Appellee was not in custody, but merely
detained as a result of a vehicle stop?

2. Did the trial court err by suppressing evidence of a loaded gun,
ammunition, illegal drugs and drug paraphernalia recovered by
the police from Appellee’s person after the State Trooper made
a lawful car stop in which Appellee was the passenger, and the
trooper had reasonable suspicion to frisk [Appellee] as a result
of Appellee’s statement regarding possessing an unlicensed
gun in his pocket?

Commonwealth’s Brief at 5 (formatting altered).6 Because the

Commonwealth’s issues are interrelated, we address them together.

The Commonwealth contends that Trooper Kim had probable cause to

stop the vehicle for violating the Motor Vehicle Code. Commonwealth’s Brief
____________________________________________

6 We note that Appellee asserts that the Commonwealth waived its issues on
appeal for failing to present them in its Rule 1925(b) statement. Appellee’s
Brief at 10. We note that the Rule requires that the statement must “concisely
identify each error that the appellant intends to assert with sufficient detail to
identify the issue to be raised for the judge.” Pa.R.A.P. 1925(b)(4)(ii). We
conclude that the Commonwealth’s Rule 1925(b) statement sufficiently
identified errors concerning the validity of the traffic stop, the suppression of
Appellees’ statements to police, and the legality of the subsequent search.
Accordingly, we decline to find waiver. See, e.g., Commonwealth v.
McKown, 79 A.3d 678, 685 n.5 (Pa. Super. 2013) (declining to find waiver
where an issue on appeal is fairly included within an issue presented in the
Rule 1925(b) statement).

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at 19. Further, during this traffic stop, Trooper Kim was permitted to direct

the occupants of the vehicle to exit the car. Id. at 20. Upon approaching the

vehicle, Trooper Kim noticed that driver was nervous and possibly intoxicated.

Id. at 20-21. The Commonwealth argues that the trial court failed to

recognize that Trooper Kim’s inquiries into the suspected Motor Vehicle Code

violations were not at an end after he spoke to the driver, because Trooper

Kim suspected the driver was driving while under the influence which required

additional investigation. Id. at 25. After the occupants were lawfully directed

to exit the car, the Commonwealth notes that Trooper Kim was permitted to

conduct a search of the occupants, even absent reasonable suspicion, for

officer safety. Id. at 20-21. When Trooper Kim informed Appellee that he

was going to search him for weapons for his own safety, Appellee volunteered

that he possessed a firearm, and no Miranda7 warnings were required

because Appellee was not subject to a custodial interrogation. Id. at 28. The

evidence seized following the search was incident to a lawful arrest. Id. at

29-30.

When reviewing a challenge to a suppression ruling, our standard of

review 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
[defense] prevailed before the suppression court, we may
consider only the evidence of the [defense] and so much of the
evidence for the [Commonwealth] as remains uncontradicted
____________________________________________

7 Miranda v. Arizona, 384 U.S. 436 (U.S. 1966).

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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) (citation

omitted and formatting altered).

The Fourth Amendment to the United States Constitution and
Article I, Section 8 of the Pennsylvania Constitution protect
citizens from unreasonable searches and seizures. A search
conducted without a warrant is deemed to be unreasonable and
therefore constitutionally impermissible, unless an established
exception applies.

Commonwealth v. Simonson, 148 A.3d 792, 797 (Pa. Super. 2016)

(citations omitted and formatting altered).

In Commonwealth v. Malloy, 257 A.3d 142 (Pa. Super. 2021), this

Court explained:

In light of the Pennsylvania Supreme Court’s interpretation of the
current language of [75 Pa.C.S. §] 6308(b), we are compelled to
conclude that the standards concerning the quantum of cause
necessary for an officer to stop a vehicle in this Commonwealth
are settled. Traffic stops based on a reasonable suspicion: either
of criminal activity or a violation of the Motor Vehicle Code under
the authority of Section 6308(b) must serve a stated investigatory
purpose. See Commonwealth v. Chase, 960 A.2d 108, 116 (Pa.
2008). In effect, the language of Section 6308(b)—“to secure
such other information as the officer may reasonably believe to be
necessary to enforce the provisions of this title”—is conceptually
equivalent with the underlying purpose of a stop conducted

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pursuant to Terry v. Ohio, 392 U.S. 1 (1968). See Chase, 960
A.2d at 116 (quoting 75 Pa.C.S. § 6308(b)).

Mere reasonable suspicion will not justify a vehicle stop when the
driver’s detention cannot serve an investigatory purpose relevant
to the suspected violation. In such an instance, “it is incumbent
upon the officer to articulate specific facts possessed by him, at
the time of the questioned stop, which would provide probable
cause to believe that the vehicle or the driver was in violation of
some provision of the Motor Vehicle Code.” Commonwealth v.
Gleason, 785 A.2d 983, 989 (Pa. 2001) (superseded by statute)
(citation omitted); see also Chase, 960 A.2d at 116 (reaffirming
Gleason’s probable cause standard for non-investigative
detentions of suspected Vehicle Code violations.

Id. at 148 (quoting Commonwealth v. Feczko, 10 A.3d 1285, 1290-91 (Pa.

Super. 2010) (en banc)) (formatting altered).

Out of concern for officer safety, Pennsylvania search and seizure
jurisprudence also permits certain limited intrusions upon the
liberty of passengers in lawfully detained vehicles. Hence, officers
may order passengers to remain in a car for the duration of a
lawful stop. Law enforcement officials may also inquire about the
presence of weapons. Lastly, police officials may compel
passengers to exit a lawfully stopped vehicle. The authority to
carry out these actions do not, in and of themselves, expand the
grounds for detaining or investigating passengers who are merely
present in a lawfully stopped vehicle.

Id. at 150 (citations omitted and formatting altered).

The tolerable duration of police inquiries in the traffic-stop context
is determined by the seizure’s mission—to address the traffic
violation that warranted the stop, and attend to related safety
concerns. Because addressing the infraction is the purpose of the
stop, it may last no longer than is necessary to effectuate that
purpose. Authority for the seizure thus ends when tasks tied to
the traffic infraction are—or reasonably should have been—
completed.

A traffic stop can become unlawful if it is prolonged beyond the
time reasonably required to complete the mission of issuing a
warning ticket. . . . An officer, in other words, may conduct certain

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unrelated checks during an otherwise lawful traffic stop. But . . .
he may not do so in a way that prolongs the stop, absent the
reasonable suspicion ordinarily demanded to justify detaining an
individual.

Beyond determining whether to issue a traffic ticket, an officer’s
mission includes ordinary inquiries incident to the traffic stop.
Typically, such inquiries involve checking the driver’s license,
determining whether there are outstanding warrants against the
driver, and inspecting the automobile’s registration and proof of
insurance. These checks serve the same objective as enforcement
of the traffic code: ensuring that vehicles on the road are operated
safely and responsibly.

Id. at 149-50 (quoting Rodriguez v. United States, 575 U.S. 348, 354

(2015)) (citations omitted and some formatting altered). Accordingly, “within

the context of a lawful traffic stop, Rodriguez permits ‘mission related’

inquiries addressed to the traffic violations which originally prompted the

detention, as well as incidental inquiries aimed at ensuring the safe and

responsible operation of vehicles on the highway.” Id. at 150. Additionally,

we note that “furtive movements, when witnessed within the scope of a lawful

traffic stop, [may] provide . . . a reasonable basis for a protective frisk.”

Commonwealth v. Simmons, 17 A.3d 399, 403-04 (Pa. Super. 2011).

In its opinion, the trial court concluded that the traffic stop was justified

because the vehicle was traveling at a speed in excess of the posted limit.

Am. Trial Ct. Op. 1/21/22, at 1. However, the trial court concluded that

Trooper Kim initiated the traffic stop only because the vehicle was exceeding

the posted speed limit. Id. at 2. The court found that the prolonged detention

that followed the traffic stop was not justified under the circumstances

because the trooper had uncovered all information necessary to determine

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whether to issue a warning or a citation to the driver. Id. The trial court

concluded that Trooper Kim initiated a traffic stop and addressed the driver,

and “the driver, once addressed, provided the requisite information to the

police. This offered a reasonable opportunity for the police to issue a traffic

citation and allow the vehicle occupants to continue on their way.” Id. The

trial court found that the credible evidence including the police vehicle’s dash-

cam recording reflects that the troopers offered a pretext for an exploratory

search: “[T]he Trooper’s testimony concerning what occurred after the initial

purpose for the stop was accomplished seemed less certain and candid when

compared with his demeanor when testifying concerning his interaction with

the driver.” Id. at 3. The trial court concluded that “the insecurity” of the

trooper’s testimony combined with the lack of credible facts “suggest nothing

untoward to support the efforts of the police in continuing the investigation

after the original purpose of the traffic stop was completed.” Id. The trial

court acknowledged that although the police were permitted to ask the

occupants to exit the vehicle, the police did not offer credible evidence of an

independent cause to support the need for further investigation. Id.

Accordingly, the court found that the trooper had completed the necessary

investigation prior to initiating an interaction with Appellee. Id. at 2-3. The

trial court asserts that although the Trooper was permitted to legally ask the

occupants of the car to exit, the Trooper did not provide credible evidence of

an independent reason for further investigation “particularly related to the

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presence of [Appellant’s] legal (or even any) possession of a firearm.” Id. at

2-3. The trial court cites Malloy as support for its conclusion. Id. at 3.

After review, we are constrained to disagree with the trial court’s

findings and conclusions as they are not supported by the record. See Smith,

164 A.3d at 1257. In Malloy, police initiated a traffic stop because the vehicle

in question did not have a license plate properly displayed, which constituted

a violation of the Motor Vehicle Code. Malloy, 257 A.3d at 145 (citing 75

Pa.C.S. § 1332 (display of registration plate)). However, when the officer

approached the driver, he saw “a license tag” in the rear windshield. The

officer also observed several occupants inside the car, including the appellant,

who was seated in the rear behind the driver. The officer told the driver that

that the car did not have a license plate on the back, and the driver informed

the officer that he had recently obtained the car and needed to get screws to

secure the license plate. The officer then continued his investigation and

asked the appellant to roll down his window. The officer asked the appellant

for identification, and the appellant removed a lanyard from inside his hooded

sweatshirt. The officer believed that some individuals who work as armed

security guards at local bars wear lanyards holding their identification, and the

officer asked if Appellant was carrying a firearm. The appellant responded

that he did have a firearm, and the officer asked where this firearm was

located. The appellant responded that the firearm was on his right hip. It

was at this point that the officer asked the appellant to exit the vehicle so that

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he could secure the firearm before continuing his investigation. See id. at

145.

Once outside the vehicle, the officer secured the firearm and asked the

appellant for his identification and documentation permitting him to possess

the firearm. See id. at 146. The appellant handed the officer this information,

and the officer observed that the appellant’s “Act 235” card, which authorized

the appellant to carry the firearm, had expired. The appellant told the officer

that he had another Act 235 card at home, and the officer proceeded to spend

the next fifteen to twenty minutes contacting local detectives and the

Pennsylvania State Police to determine whether the appellant was authorized

to carry the firearm. The officer learned that the appellant’s Act 235

certification had expired, and the officer arrested the appellant on charges

related to the unlawful possession of a firearm. However, because the driver

provided documentation supporting his statement that he had recently

purchased the car, the officer did not issue a citation to the driver. See id. at

146.

The appellant filed a motion to suppress, and the trial court held a

hearing. At the conclusion of the hearing, the trial court denied the appellant’s

suppression motion, and the matter proceeded to a bench trial on stipulated

facts. The trial court found the appellant guilty of possessing a firearm without

a license and carrying a firearm in public in Philadelphia. See id. (citing 18

Pa.C.S. §§ 6106 and 6108).

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However, on appeal, this Court reversed holding that although the traffic

stop was justified due to the suspected violation of the Motor Vehicle Code

violation, the police officer was not permitted to initiate a separate

investigation into the appellant and whether he possessed documentation

permitting his to carry a firearm. The Malloy Court explained that once the

police stopped the vehicle due to the missing license plate, no further

investigation was required to support that finding. The officer’s additional

questions of the appellant, who was a backseat passenger were not “mission

related,” and because the officer lacked reasonable suspicion to detain the

appellant and investigate his legal authority to carry a firearm, the appellant’s

detention violated his Fourth Amendment rights. Malloy, 257 A.3d at 156.

We conclude that Malloy is distinguishable. In the instant case, the

record reflects that Trooper Kim suspected not only a violation of the Motor

Vehicle Code for speeding, but when he spoke to the driver he also suspected

DUI. Unlike a missing license plate or exceeding the speed limit, suspicion of

DUI requires further investigation, and the traffic stop serves a further

investigatory purpose. See Commonwealth v. Walls, 206 A.3d 537, 541

(Pa. Super. 2019); see also Chase, 960 A.2d at 116. As noted, authority for

the seizure ends when the tasks tied to the traffic infraction are, or reasonably

should have been, completed. Malloy, 257 A.3d at 149. However, new

information obtained during the natural course of the stop may provide a

lawful basis upon which to extend the stop to investigate the new suspicions.

See Chase, 960 A.2d at 115, n.5. Here, that additional information was that

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the driver’s eyes were “pinpoint,” coupled with the fact that the vehicle was

weaving. See N.T., 10/22/21, at 13, 19.

During this lawful stop, while Trooper Kim was investigating the driver

for possible DUI, the trooper was permitted to ask Appellee to exit the car and

inquire about weapons for officer safety. Malloy, 257 A.3d at 150. Moreover,

under the circumstances presented here, we do not conclude that Appellee

was yet under arrest or subject to the functional equivalent of an arrest, and

Trooper Kim was not required to provide Miranda warnings before asking

Appellee questions related to the trooper’s safety. See Berkemer v.

McCarty, 468 U.S. 420, 439-40 (U.S. 1984) (explaining that “the usual traffic

stop is more analogous to a so-called ‘Terry stop’ . . . than to a formal arrest,”

and the questions posed are investigative rather than custodial, which does

not trigger Miranda protections); Malloy, 257 A.3d at 150; Chase, 960 A.2d

at 117. After being asked about weapons and informed that he would be

subject to a pat down for officer safety, Appellee told the trooper that he

possessed a firearm and did not have a permit to carry it.

As stated above, the record reveals that Trooper Kim pursued the

vehicle because he initially suspected the driver was violating the Motor

Vehicle Code by speeding and following another vehicle too closely. Once the

trooper began to follow the subject vehicle, he noticed it was weaving within

its lane of travel, and Trooper Kim testified that upon speaking to the driver,

he thought the driver may be under the influence. See N.T., 10/22/21, at 13,

19, 20. This permitted Trooper Kim to lawfully conduct a traffic stop and

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further investigate the driver for DUI. See Malloy, 257 A.3d at 148; see

also Chase, 960 A.2d at 115, n.5. The circumstances presented here are

distinct from the situation in Malloy where the officer was investigating the

display of a license plate and after speaking to the driver, no further “mission

related” questions were required and no further investigation warranted. See

Malloy, 257 A.3d at 150.

Additionally, in the instant case, because the trooper saw the occupants

moving about the vehicle, for safety purposes, the trooper was permitted to

have the occupants exit the car and ask about the possession of weapons.

See id. During a lawful traffic stop, where the officer observes the suspect

make furtive movements and reasonably concludes that the suspect may be

armed and dangerous, the officer may frisk the suspect for weapons. See

Simmons, 17 A.3d at 403-04. However, the record does not support the trial

court’s conclusion that there was a “Terry” frisk. Rather, Trooper Kim asked

Appellee to exit the car and informed him that he was going to pat him down.

Appellee said he did not want a pat down, and he told the trooper that he

possessed a firearm and did not have a permit.

It was at this point that Trooper Kim had probable cause to conclude

that Appellant, by possessing a concealed firearm without a permit, was

committing a crime. This probable cause led to the seizure of the gun and

Appellee’s lawful arrest, which in turn permitted a search incident to that

arrest. The search incident to the arrest led to the discovery of the loaded

ammunition magazine and cigarette pack containing narcotics, and the search

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of the vehicle revealed drug paraphernalia. The record supports the

conclusion that Trooper Kim’s questions were mission related. Moreover, the

record does not reveal a prolonged detention or coerciveness, and contrary to

the trial court’s conclusion, the record does not support the finding that pat

down or Terry frisk occurred.

After review, we are constrained to conclude that the trial court erred in

granting Appellee’s motion to suppress. Appellee was a passenger in a vehicle

that was lawfully stopped by Trooper Kim. During Trooper Kim’s investigation

of the driver for possible DUI, he asked the occupants to exit the vehicle. Prior

to any custodial detention, Appellee voluntarily informed the trooper that he

possessed a gun. After the lawful arrest resulting from Appellee’s illegal

possession of a firearm, the search incident to arrest by Trooper Kim

recovered the ammunition magazine, a controlled substance, and

paraphernalia. For these reasons, we reverse the trial court’s order granting

Appellee’s suppression motion, and we remand for further proceedings.

Order reversed. Case remanded for further proceedings. Jurisdiction

relinquished.

Judge Stabile joins the memorandum.

Judge Sullivan concurs in the result.

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Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 11/28/2022

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