Com. v. Froehlich, J.

J-S42021-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT OP 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
JESSICA AMBER FROEHLICH : No. 606 WDA 2022

Appeal from the Suppression Order Entered April 22, 2022
In the Court of Common Pleas of Erie County Criminal Division at No(s):
CP-25-CR-0002135-2021

BEFORE: BOWES, J., OLSON, J., and COLINS, J.*

MEMORANDUM BY OLSON, J.: FILED: December 21, 2023

The Commonwealth of Pennsylvania appeals from an order entered April

22, 2022, which granted a motion to suppress filed by Appellee, Jessica Amber

Froehlich. The Commonwealth contends that the suppression court abused

its discretion or committed an error of law in granting Appellee’s motion. We

affirm, in part, vacate, in part, and remand for proceedings consistent with

this memorandum.

The following facts were revealed at the December 14, 2021 suppression

hearing. On August 13, 2021, Officer Michael Attalla and Officer Michael

Cacchione of the Erie Police Department were on duty near East 6th Street

and Perry Street in Erie, Pennsylvania. N.T. Suppression Hearing, 12/14/21,

at 4-5. At approximately 2:04 a.m., the two officers were in a marked patrol
____________________________________________

* Retired Senior Judge assigned to the Superior Court.
J-S42021-22

vehicle “traveling eastbound on East 6th Street” directly behind a black Ford

Escape SUV. Id. at 5. At that time, the officers ran the Ford Escape’s

registration and discovered it had expired. Id. The officers initiated a traffic

stop of the Ford Escape by activating the patrol vehicle’s “overhead emergency

lights, and sirens.” Id. Officers Cacchione and Attalla then approached the

Ford Escape simultaneously, with “Officer Cacchione approaching the driver

side and Officer Attalla approaching the passenger side.” Suppression Court

Opinion, 4/22/22, at 5. “Upon [their] initial approach, [the officers] utilized

[their] flashlights and illuminated the interior of the [Ford Escape]. At which

time, [the officers] observed three females inside the vehicle,” one in the

driver’s seat, one in the passenger’s seat, and one, Appellee, “in the back seat

alone.” N.T. Suppression Hearing, 12/14/21, at 6.

The suppression court summarized the officers’ subsequent interaction

with the occupants of the Ford Escape, including Appellee, as follows:

Immediately upon reaching the vehicle, Officer Attalla is heard
ask[ing:] “Do you have any [identification] on you[?]” It is not
entirely clear from the footage, but that inquiry appears to be
directed to the occupant of the front passenger seat. At
approximately the same time, Officer Cacchione can be heard
telling the driver that he stopped her because her [registration]
was expired. Officer Attalla then proceeded to ask [Appellee,]
who was seated in the rear seat on the driver’s side, “What [is]
up with your friend up here?” [Appellee] responded to Officer’s
question laughing and saying, “Sorry, what?” At that point,
Officer Attalla noticed a gun in the seat pocket of the passenger
seat and is heard to say[, “Hey, Officer Cacchione,] we got a
26[fn*3] here. Everyone[,] just keep your hands up. Do [not]
move.” Immediately thereafter, Officer [Cacchione] asked
“Whose gun is that?” [Appellee] responded, “That [is] me. That
[is] my gun.” Officer [Cacchione] then proceeded to ask

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[Appellee] if she had a gun permit. [Appellee] responded that
she did, and Officer [Cacchione] asked to see it. While Officer
[Cacchione] was asking for [Appellee’s] gun permit, Officer
Attalla opened the rear passenger door and removed the gun
from the vehicle. After Officer Attalla [] removed the gun,
[Appellee] could be heard to say that she did not think she had
her permit with her. While [Appellee] looked for her permit in
her purse, the driver inquired about what was going on. Officer
Cacchione told the driver, “If [Appellee is] gonna [sic] have a
gun in the car she needs a permit to carry the gun.” Officer
Cacchione then asked “just” for [Appellee’s] driver’s license. He
also obtained the driver’s license from the driver of the vehicle
and then called in two radio checks – a firearms permit check
for [Appellee] and a driver’s license check for the driver._____

[fn*3] At the suppression hearing, Officer Cacchione testified
that the code “26” was a reference to a firearm.

Suppression Court Opinion, 4/22/22, at 5-6 (some footnotes omitted).1 The

results of the license and firearm checks revealed that Appellee’s concealed

carry permit had recently been revoked. N.T. Suppression Hearing, 12/14/21,

at 12. As such, the officers asked Appellee to exit the vehicle, placed Appellee

____________________________________________

1 During the suppression hearing, the Commonwealth admitted Officer
Attalla’s and Officer Cacchione’s body camera footage as exhibits. See N.T.
Suppression Hearing, 12/14/21, at 14 and 26. The Commonwealth, however,
failed to include either exhibit in the certified record. Moreover, the
Commonwealth failed to file either exhibit with the clerk of courts in Erie
County. “It is black letter law in this jurisdiction that an appellate court cannot
consider anything which is not part of the record in [the] case.” Eichman v.
McKeon, 824 A.2d 305, 316 (Pa. Super. 2003) (citation omitted). Indeed, it
is equally settled that it “is the responsibility of the appellant to provide a
complete record to the appellate court on appeal” and that any “document
which is not part of the official certified record is considered to be
non-existent.” Id. (citation omitted). Due to the Commonwealth’s failure, we
are precluded from reviewing the body camera footage ourselves and are
bound by the suppression court’s description of the sequence of events in this
matter.

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under arrest, and then searched her person, as well as the purse she was

carrying, and discovered a plastic bag containing a small amount of marijuana

therein. Id. at 11, 18, and 31; see also Appellee’s Omnibus Motion to

Suppress, 11/5/21, at 5.

The Commonwealth charged Appellee with firearms not to be carried

without a license; obstructing administration of law or other governmental

function; possession of marijuana; and possession of drug paraphernalia.2 On

November 11, 2021, Appellee filed an omnibus motion to suppress. In

Appellee’s motion, she argued the officers subjected her to an unconstitutional

detention when they asked her for documentation supporting her authority to

carry a firearm, because, at that time, “the only information in the [o]fficers’

possession was that [Appellee] possessed a firearm.” Appellee’s Omnibus

Motion to Suppress, 11/5/21, at 5. Appellee claimed that, based upon our

Supreme Court’s decision Commonwealth v. Hicks, 208 A.3d 916 (Pa.

2019) and this Court’s decision in Commonwealth v. Malloy, 257 A.3d 142

(Pa. Super. 2021), “that information ‘was insufficient as a matter of law to

establish reasonable suspicion.’” Id., quoting Malloy, 257 A.3d at 155. As

such, Appellee asked the court to suppress all evidence obtained from the

unconstitutional detention, as well as the subsequent search of Appellee’s

person and effects. Appellee’s Omnibus Motion to Suppress, 11/5/21, at 5.

____________________________________________

2 18 Pa.C.S.A. §§ 6106(a), 5101 and 35 P.S. §§ 780-113(a)(16) and (a)(32),

respectively.

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A suppression hearing was held on December 14, 2021, during which

Officers Cacchione and Attalla testified. See N.T. Suppression Hearing,

12/14/21, at 1-38. On February 10, 2022, the suppression court granted

Appellee’s motion. Suppression Court Opinion, 2/10/22, at 1-4. In particular,

the suppression court held that, while the initial traffic stop was valid, the

“continued detention and questioning [of Appellee] after the gun was

secured[] ‘transformed the officers’ pursuit of [Appellee’s] firearm credentials

into an ‘inquiry exclusively aimed at collecting evidence of collateral

wrongdoing.’” Id. at 4, quoting Malloy, 257 A.3d at 153. Because the officers

lacked the “requisite reasonable suspicion of criminal activity to support that

continued detention,” the suppression court held that Appellee was subjected

to an unconstitutional search and seizure. Id. Accordingly, the suppression

court granted Appellee’s suppression motion, holding that the “evidence

obtained as a result of that detention [must be] suppressed.” Id.3

Thereafter, on February 28, 2022, the Commonwealth filed a motion for

clarification, asking the court to explain which, if any, of the following evidence

could be admitted in light of the suppression court’s ruling on Appellee’s

suppression motion:

a. The initial observation of the firearm in question by [Officer]
Attalla;

b. The actual seizure of the firearm itself;
____________________________________________

3 We read the court’s February 10, 2022 order to include the small plastic bag

containing marijuana which supported Appellee’s possession of marijuana and
possession of drug paraphernalia charges.

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J-S42021-22

c. The identity of [Appellee]; and

d. [Appellee’s] statements made prior to the initiation of the
inquiry.

Commonwealth’s Motion for Clarification, 2/28/22, at *2 (unpaginated). 4 On

March 2, 2022, the suppression court scheduled a hearing on the

Commonwealth’s motion and, on March 9, 2022, the court conducted an

in-chambers hearing.5 The court issued a supplemental opinion on April 22,

____________________________________________

4 The Commonwealth did not seek clarification regarding the court’s
suppression of the small plastic bag of marijuana.

5 Under Pennsylvania law, “a court upon notice to the parties may modify or

rescind any order within 30 days after its entry . . . if no appeal from such an
order has been taken or allowed.” 42 Pa.C.S.A. § 5505. This Court previously
explained:

“Under [S]ection 5505, the trial court has broad discretion to
modify or rescind an order, and this power may be exercised
sua sponte or invoked pursuant to a party's motion for
reconsideration.” “[T]he trial court may consider a motion for
reconsideration only if the motion for reconsideration is filed
within thirty days of the entry of the disputed order.” “The mere
filing of a motion for reconsideration, however, is insufficient to
toll the [reconsideration] period.” “If the trial court fails to grant
reconsideration expressly within the prescribed 30 days, it loses
the power to act upon both the [motion] and the original order.”

PNC Bank, N.A. v. Unknown Heirs, 929 A.2d 219, 226 (Pa. Super. 2007)
(internal citations omitted). In this instance, the court scheduled a hearing
on the Commonwealth’s motion for clarification on March 2, 2022. Then,
during the in-chambers hearing on March 9, 2022, the court expressly agreed
that clarification “was appropriate,” permitted further argument, and
explained it would issue a subsequent ruling clarifying and finalizing its
February 10, 2022 order. N.T. Hearing, 3/9/22, at 3-4 and 28-29.
Accordingly, we conclude the court expressly and timely indicated its intent to
modify the February 10, 2022 within 30 days.

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2022, clarifying and finalizing its previous order. In particular, the suppression

court stated it “believe[d] that Malloy require[d suppression of] all evidence

that was obtained after the officers began an investigative detention into

[Appellee’s] firearm credentials.” Suppression Court Opinion, 4/22/22, at 4.

The suppression court held that the investigative detention began after Officer

Cacchione asked: “Whose gun is that?” Id. at 8. As such, the court clarified

that its suppression order included Appellee’s identification, Appellee’s

admission that the firearm was hers, the firearm, and the results of the firearm

license check. Id. at 8-9 (emphasis omitted). The court, however, explained

the following evidence was not subject to suppression:

a. [T]he initial observation of the firearm in question by
[Officer] Attalla[;]

b. [T]he observation of and the seizure of the firearm in
question[;]

c. [T]he observations of the officers about the appearance
of [Appellee; and]

d. [Appellee’s] statements made [prior] to Officer
Cacchione’s question “Whose gun is that[?”]

Id. at 9 (emphasis omitted).

On May 20, 2022, the Commonwealth timely filed a notice of appeal

from the suppression court's April 22, 2022 order and, within it, the

Commonwealth properly certified that the order “terminate[d] or substantially

handicap[ped] the prosecution.” Commonwealth's Notice of Appeal, 5/20/22,

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at 1; see also Pa.R.A.P. 311(d).6 The Commonwealth raises the following

issue on appeal:

Whether the [suppression] court erred as a matter of law or
abused its discretion by finding that the Commonwealth
violated [Appellee’s] rights under the Pennsylvania and United
States[’] Constitutions when, after [Appellee’s] firearm was
seized during a vehicle stop, the Commonwealth continued to
question [Appellee] as to [her] identity and made [an] inquiry
into the status of [Appellee’s] firearm licensing?

Commonwealth’s Brief at 3.

Herein, the Commonwealth argues that, upon conducting a valid traffic

stop and subsequently discovering the firearm in plain view, the officers were

permitted to investigate Appellee’s license status. Commonwealth’s Brief at

8. In support of this claim, the Commonwealth cites the policy favoring officer

safety, alleging that the vehicle stop in question took place in a “high-crime,

shots fired area.” Id. at 10. In addition, the Commonwealth argues that, for

purposes of public policy, if a police officer discovers a firearm in plain view,

they must always be allowed to check an individual’s license status otherwise
____________________________________________

6 “Certification of pretrial appeals by the Commonwealth [under Pennsylvania

Rule of Appellate Procedure 311(d)] is an exception to the requirement that
appeals may be taken only from final orders.” Commonwealth v. Cosnek,
836 A.2d 871, 873 (Pa. 2003). As our Supreme Court has explained, “[w]hen
a pretrial motion removes evidence from the Commonwealth's case, only the
prosecutor can judge whether that evidence substantially handicaps his ability
to prove every essential element of his case. Additionally, only the prosecutor
can judge whether he can meet his constitutional burden of proving his case
without that evidence.” Id. at 875 (citations omitted). In following, the
Supreme Court has held that the Commonwealth may utilize Rule 311(d) to
immediately appeal “a pretrial ruling [that] results in the suppression,
preclusion or exclusion of Commonwealth evidence.” Id. at 877.

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they will be required to “hand back a firearm to a person in a vehicle without

knowing their permit status” which will impact not only officer safety, but the

safety of the community at large. Id. at 12. Based upon the foregoing, the

Commonwealth asks this Court to reverse the order granting Appellee’s

motion to suppress.

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
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 [trial court’s legal conclusions] 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 guarantee the right of the people

to be secure in their persons, houses, papers, and possessions from

unreasonable searches and seizures.” Commonwealth v. Luczki, 212 A.3d

530, 542 (Pa. Super. 2019) (citation omitted). “To secure the right of citizens

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to be free from unreasonable search and seizure, courts in Pennsylvania

require law enforcement officers to demonstrate ascending levels of suspicion

to justify their interactions with citizens to the extent those interactions

compromise individual liberty.” Id. (citation omitted).

In general, “a motor vehicle stop is an investigative detention.”

Commonwealth v. Ross, 297 A.3d 787, 792 (Pa. Super. 2023), citing

Commonwealth v. Spence, 290 A.3d 301, 314 (Pa. Super. 2023). If a lawful

vehicle stop transitions into a collateral investigation of a secondary,

non-traffic offense, the police must have independent justification to support

the newly-undertaken investigation; they may not simply expand the initial

traffic stop. See Rodriguez v. United States, 575 U.S. 348 (2015) (original

brackets omitted).

This Court previously described the scope and permissible duration of a

motor vehicle stop as follows:

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 [vehicular] 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
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.

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Beyond determining whether to issue a traffic ticket, an officer's
mission includes “ordinary inquiries incident to [the] stop.”
Typically, such inquiries involve checking [identification and]
determining whether there are outstanding warrants[.] These
checks serve the same objective as enforcement of the traffic
code: ensuring [roadway safety. See Rodriguez at 354 (original
brackets omitted).]

In sum, 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. See id. This latter category
includes such things as “checking the driver's license, determining
whether there are outstanding warrants against the driver, and
inspecting the automobile's registration and proof of insurance.”
Id.

Malloy, 257 A.3d at 149–150.

Our prior cases have also identified examples of certain steps law

enforcement personnel may take, without independent justification, to ensure

their safety during a traffic stop. We emphasized that these actions do not

impermissibly extend the length of such a detention.

[O]ut of concern for officer safety, Pennsylvania search and
seizure jurisprudence [] 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. See Commonwealth v. Pratt, 930
A.2d 561, 567 (Pa. Super. 2007) (“police officer may lawfully
order a passenger who has exited and/or attempted to walk
away from a lawfully stopped vehicle to re-enter and remain in
the vehicle until the traffic stop is completed[] without offending
the passenger's rights under the Fourth Amendment”), appeal
denied, 946 A.2d 686 (Pa. 2008). Law enforcement officials
may also inquire about the presence of weapons. See
Commonwealth v. Clinton, 905 A.2d 1026, 1031 (Pa. Super.
2006) (officer's inquiry regarding presence of weapons during
lawful traffic stop reasonably furthered interest in officer safety
and constituted tolerable, minimal intrusion), appeal denied,

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934 A.2d 71 (Pa. 2007). Lastly, police officials may compel
passengers to exit a lawfully stopped vehicle. See
Commonwealth v. Rodriguez, 695 A.2d 864, 868-869 (Pa.
Super. 1997) (Fourth Amendment permits police to ask both
drivers and passengers to alight from lawfully stopped vehicles
without reasonable suspicion that criminal activity is afoot).
The [justifications for carrying] 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. See Maryland v. Wilson, 519 U.S. 408
(1997) (reasoning that officer's authority to order passengers
out of lawfully stopped vehicle stems from potential safety risks
to officers and not from independent grounds to detain
passengers).

Id. at 150.

Search and seizure jurisprudence has been careful, however, to

separate legitimate, mission-related inquiries and measures undertaken to

ensure officer safety from more intrusive and constitutionally unjustified

extensions of lawfully-initiated traffic detentions. Hence,

not all inquiries during a traffic stop qualify as ordinarily incident
to the stop's mission, as measures aimed at finding evidence of
other crimes or safety precautions taken to facilitate detours
from the mission do not pass constitutional muster. See
Rodriguez, 575 U.S. at 355-56; see also Knowles v. Iowa,
525 U.S. 113 (1998) (stating that “while the concern for officer
safety in this context may justify the ‘minimal’ additional
intrusion of ordering a driver and passengers out of the car, it
does not by itself justify the often considerably greater intrusion
attending a full field-type search.”).

Recently, this Court applied the reasoning in Rodriguez
regarding the “mission-related” questions during a traffic stop
in [Malloy]. There, a police officer stopped a vehicle due to a
missing license plate. See id. at 145. The vehicle had several
occupants including Malloy, who was seated in the rear behind
the driver. See id. The officer asked Malloy for identification,
who in response, pulled out a lanyard from his hooded
sweatshirt. See id.

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Upon observing the lanyard, the officer immediately asked
Malloy whether he had a firearm. See id. The officer explained
that “in his experience, it was common for people who worked
in armed security positions at local bars to keep their
identification badges in lanyards.” Id.

Malloy replied that he possessed a firearm and worked as a
security guard at a bar where he and the other occupants of the
vehicle had just finished working. See id. The officer then
secured the firearm for his safety and the safety of the other
occupants of the vehicle. See id. Subsequently, the officer
questioned Malloy regarding his firearm licensure status, and
Malloy gave the officer an “Act 235” card. See id. at 146. The
officer noticed the card had expired and thereafter confirmed
that Malloy did not have a valid license to carry. See id. at 146.
The officer then arrested Malloy but did not issue a citation to
the driver of the vehicle. See id. Malloy filed a motion to
suppress the firearm, which the trial court denied. See id. at
146-[1]47.

On appeal, this Court concluded that the trial court erred in
failing to grant Malloy's suppression motion. See id. at 156.
Initially, this Court found that the officer's stop of the vehicle
was valid. See id. at 149. Further, this Court observed that
the officer had the authority to ask Malloy about the presence
of weapons or surrender the gun to the police. See id. at
152-[1]53. However, applying Rodriguez, the Court
concluded that the officer's questions to Malloy regarding his
authorization to possess the firearm were not “mission related”
inquiries relating to the traffic violation. See id. at 150-53. We
explained:

once [the officer] secured the firearm, [Malloy's] legal
authority to own or possess a gun clearly bore no
discernible relationship to individual safety or security
within the context of the traffic stop. Under these
circumstances, where seizure of a firearm has substantially
diminished the risk to officers and others who may be
present during a lawful vehicle detention, we see no reason
why the Fourth Amendment, in the absence of independent
justification, suspicion, or cause, should tolerate even a
10- to 15-minute extension of a routine traffic stop for the
investigation of a secondary criminal matter. Hence, the
request challenged in this case does not fall within the
category of actions the police may undertake during a

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lawful traffic stop based solely on concerns for safety and
security and without independent justification or cause.

Id. at 153; see also id. at 152 (noting “that a passenger's legal
authority to own or possess a firearm is simply unrelated to a
driver's authority to operate a motor vehicle, the existence of
outstanding warrants against the driver, and whether a lawfully
detained vehicle is properly registered or insured.”).

Moreover, this Court found that the antecedent investigative
detention of Malloy, which commenced when the officer
restrained his liberty to ask about Malloy's authority to possess
a firearm, was not supported by reasonable suspicion. See id.
at 154-[1]55[, citing Hicks, 208 A.3d at 936] (holding that
mere possession of a firearm did not establish reasonable
suspicion to allow an officer to approach and detain an
individual in order to investigate whether he or she was properly
licensed to carry a firearm in public)[.] Therefore, this Court
concluded that the evidence and any statements made by
Malloy must be suppressed. See id. at 156.

Ross, 297 A.3d at 793-794 (parallel citations omitted).

A review of the certified record herein reveals that, after Officers

Cacchione and Attalla initiated a traffic stop of the Ford Escape because of an

expired registration, they approached the vehicle simultaneously. See

Suppression Court Opinion, 4/22/22, at 5. “Officer Cacchione approached the

driver’s side and Officer Attalla approached the passenger side.” Id. Officer

Attalla asked the passenger of the vehicle for her identification and “then

proceeded to ask [Appellee,] who was seated in the rear seat on the driver’s

side, ‘What’s up with your friend up here?’” Id. Appellee responded with a

laugh. Id. As Officer Attalla was talking to Appellee, he noticed a firearm in

the “seat pocket of the passenger seat,” informed Officer Cacchione of the

weapon, and ordered all individuals in the Ford Escape to “keep [their] hands

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up” and not to move. Id. Immediately thereafter, Officer Cacchione asked

whose firearm was in the backseat, to which Appellee responded: “That [is]

me. That [is] my gun.” Id. Officer Cacchione then asked Appellee whether

she had a gun permit while Officer Attalla simultaneously opened the rear

passenger door and secured the firearm. Id. Appellee responded that she

had a permit, but it was not with her. Id. As such, Officer Cacchione “asked

‘just’ for [Appellee’s] driver’s license.” Id. at 6. Appellee obliged and Officer

Cacchione requested a firearm permit check for Appellee, which revealed that

her license was revoked. Id. Based upon the foregoing, the officers

demanded Appellee exit the vehicle and arrested her. N.T. Suppression

Hearing, 12/14/21, at 11 and 31. The officers then conducted a search

incident to arrest and discovered a plastic bag containing a small amount of

marijuana in Appellee’s purse. Id. at 18.

Herein, the suppression court initially held that “the officers [] were

justified in stopping the vehicle in which [Appellee] was a passenger” because

the officers discovered that the Ford Escape’s registration was expired prior to

initiating the stop. Suppression Court Opinion, 4/22/22, at 7-8; see also N.T.

Suppression Hearing, 12/14/21, at 5. In addition, the trial court determined

that, during the valid traffic stop, the officers observed the subject firearm in

plain view and were permitted to secure the firearm for safety purposes.

Suppression Court Opinion, 4/22/22, at 7-8. The court, however, explained

that, pursuant to Malloy, the officers “needed an independent basis – beyond

the reason for the traffic stop – to [establish reasonable grounds to] inquire

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into [Appellee’s] lawful ability to carry a firearm” after discovering that she

was in possession of a firearm, which they secured. Id. at 8, citing Malloy,

257 A.3d at 152-153. The suppression court therefore looked to whether the

officers offered an independent basis to show whether Appellee was engaged

in criminal activity and, hence, properly subjected to a detention allowing an

inquiry into her legal authority to carry a firearm. As in Malloy, the

suppression court determined that “the only fact the officers set forth to justify

the investigative detention of [Appellee]” was her possession of the firearm

itself. Id. Accordingly, the court suppressed “all evidence seized” once Officer

Cacchione “asked the occupants whose gun was in the backseat.” Id. Hence,

the court suppressed the following: Appellee’s admission, i.e., Appellee’s

statements, “That [is] me,” and “That [is] my gun,” made in response to

Officer Cacchione’s inquiry; Appellee’s identification; the results of the firearm

license check; the firearm; and the plastic bag containing a small amount of

marijuana found in Appellee’s purse. Id.; see also Suppression Court

Opinion, 2/10/22, at 4. Although we agree that Malloy compels suppression

of the firearm, the results of the firearm license check, and the plastic bag of

marijuana, we do not agree that Appellee’s admission or her identity should

have been suppressed.

We review the totality of circumstances in determining whether the

officers had reasonable suspicion to investigate Appellee’s legal authority to

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possess a firearm in a concealed manner.7 See Commonwealth v. Raglin,

178 A.3d 868, 872 (Pa. Super. 2018) (internal citations omitted), quoting

Commonwealth v. Rogers, 849 A.2d 1185, 1189 (Pa. 2004). Applying this

standard, the suppression court correctly held, consistent with Hicks and

Malloy, that the firearm, the results of the firearm license check, together

with the plastic bag of marijuana found in Appellee’s purse, were subject to

suppression. Indeed, as indicated above, the officers secured the firearm and

then inquired into Appellee’s license status. See Suppression Court Opinion,

4/22/22, at 5. Once the officers secured the firearm, they “essentially

eliminated any immediate risk the weapon posed.” Malloy, 257 A.3d at 153.

Moreover, the officers immediately requested that Appellee produce a

concealed carry permit once they confirmed that she possessed a firearm in a

vehicle. At this moment, the officers were aware only that Appellee was in

possession of a firearm and they could not “infer criminal activity merely from

[Appellee’s] possession of a concealed firearm in public.” Hicks, 208 A.3d at

936. Hence, absent independent justification, suspicion, or cause, the police

were not permitted to extend a valid traffic stop to undertake the investigation

of a secondary criminal matter. See Malloy, 257 A.3d at 153.

Importantly, no evidence or circumstances presented at the suppression

hearing reasonably supported the inference that Appellee’s mere possession

____________________________________________

7 Since Appellee possessed the firearm in a vehicle, a concealed carry permit

was required. See 18 Pa.C.S.A. § 6106(a) (requiring a valid license to carry
a firearm in a vehicle).

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of a firearm constituted a violation of criminal law. Indeed, there was no

evidence that, prior to requesting Appellee’s concealed carry license, the

officers knew of Appellee’s firearm’s disability or that her license was revoked.

See Hicks, 208 A.3d at 937 (“Unless a police officer has prior knowledge that

a specific individual is not permitted to carry a concealed firearm, and absent

articulable facts supporting reasonable suspicion that a firearm is being used

or intended to be used in a criminal manner, there simply is no justification

for the conclusion that the mere possession of a firearm, where it lawfully may

be carried, is alone suggestive of criminal activity.”); see also Ross, 297 A.3d

at 797 (noting that the police officer learned that the appellant’s concealed

carry license was revoked while checking his license and registration and

without “further questioning”); (Commonwealth v. Walton, 2022 WL

4100765, at *6 (Pa. Super. 2022) unpublished memorandum) (upon

discovery of a firearm during a protective frisk, Walton immediately and

spontaneously admitted that he had a felony conviction which disqualified him

from possessing a firearm, giving the police articulable facts which supported

a reasonable suspicion that Walton’s possession of the firearm was unlawful

and that continued detention was justified). In addition, there was no

evidence or testimony indicating that, upon observing the firearm in the

vehicle, its incriminating nature was immediately apparent because of defaced

serial numbers or the like. See Commonwealth v. Smith, 285 A.3d 328,

334 (Pa. Super. 2022) (holding that, because the officer testified that he

observed features of the firearm indicating that it was a “ghost gun,” its

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“incriminating nature . . . was immediately apparent”). Moreover, the officers

specifically testified that, upon approaching the vehicle, no one made furtive

movements or otherwise acted aggressively toward them. See N.T.

Suppression Hearing, 12/14/21, at 17-19 and 35-36; compare

Commonwealth v. Townsend, 2021 WL 1761041 *1, *5 and *10 (Pa.

Super. 2021) (unpublished memorandum) (explaining that the appellant

“kick[ed] the firearm under the driver’s seat” and provided the officer with

reasonable suspicion that he was engaging in criminal activity, thereby

justifying the investigative detention). While there was testimony that the

traffic stop occurred in a high crime area, the officers admitted that they

stopped the Ford Escape based solely upon the motor vehicle violation and

not in response to an ongoing criminal investigation. See N.T. Suppression

Hearing, 12/14/21, at 17 and 35-36; see also Commonwealth v.

Anderson, 276 A.3d 282, 295 (Pa. Super. 2022) (explaining that a

defendant’s presence “in a high crime area” is a “factor that may be considered

in determining whether a police officer possess reasonable suspicion” but is

only a “single factor” and not dispositive).

It is therefore evident that Appellee’s possession of the firearm in

question, alone, served as the sole basis for the officer’s decision to inquire

into her license status. This fact is revealed, first, by Officer Cacchione’s

comment to the driver during the traffic stop, in which he stated: “If [Appellee

is] gonna [sic] have a gun in the car she needs a permit to carry the gun.”

Suppression Court Opinion, 4/22/22 at 6. Second, and even more telling,

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Officer Attalla admitted during the suppression hearing that the only reason

the police checked Appellee’s license status was because she “possess[ed] the

firearm in the vehicle.” N.T. Suppression Hearing, 12/14/21, at 19.

Accordingly, we conclude that the officers impermissibly prolonged the initial

investigative detention to obtain information “exclusively aimed at collecting

evidence of collateral wrongdoing” without the requisite reasonable suspicion

required under Hicks. Malloy, 257 A.3d at 153. Such action was a violation

of Appellee’s constitutional rights and, therefore, the firearm and the results

of the firearm license check were correctly suppressed.8 See Hicks, supra.

The suppression court, however, erroneously determined that Malloy

compelled the suppression of Appellee’s admission, i.e., her statement

indicating that the firearm was hers, as well as her identification. To the

contrary, Malloy specifically held that, while executing a lawful traffic stop, a

police officer is permitted to engage in “mission related” inquiries to ensure

not only “safe and responsible operation of vehicles on the highway” but also

“[o]ut of concern for officer safety.” Id. at 150. This, taken together,

suggests strongly that police may ask for a passenger’s identification and,

upon discovering the presence of a firearm, may request the owner to identify

himself or herself as a function of preserving on-scene officer safety without
____________________________________________

8 We also conclude that the court correctly suppressed the marijuana found in

Appellee’s purse pursuant to the fruit of the poisonous tree doctrine. See
Commonwealth v. Shabezz, 166 A.3d 278, 290 (Pa. 2017) (“Evidence
constitutes fruit of the poisonous tree, and must be suppressed, if it was
obtained by ‘exploitation’ of the illegality[.]”), citing Wong Sun v. United
States, 371 U.S. 471 (1963).

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independent constitutional justification. Id.; see also Commonwealth v.

Durr, 32 A.3d 781, 784 (Pa. Super. 2011) (“We agreed and held that the

police could inquire of a passenger's identity in a lawfully stopped vehicle

without triggering any constitutional protection.”). Thus, we conclude that the

court erroneously suppressed Appellee’s identification, as well as her

admission indicating that she owned the firearm.

Before we conclude, however, we briefly address certain matters raised

by the learned Dissent. In summary, the Dissent concludes that suppression

is not warranted, finding this matter is factually distinct from both Hicks and

Malloy. In addition, the Dissent, along with the Commonwealth on appeal,

attempts to avoid suppression by raising claims of police policy. We will

address each of these issues in turn.

Initially, our learned colleague notes that, in Hicks, our Supreme Court

“overturned a longstanding rule, first announced by this Court in

Commonwealth v. Robinson, 600 A.2d 957, 959 (Pa. Super. 1991) (the

“Robinson rule”), that ‘possession of a concealed firearm by an individual in

public is sufficient to create a reasonable suspicion that the individual may be

dangerous, such that an officer can approach the individual and briefly detain

him [or her] in order to investigate whether the person is properly licensed.”

Dissenting Memorandum at 3 (citations omitted). The Dissent, however,

briefly remarks that, unlike the Appellee herein, “Hicks was not engaged in

any illegal activity, but was merely viewed with a firearm.” Id. Importantly,

this statement seemingly overlooks the fact that, when the police initially

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detained Hicks, they were unaware that “Hicks was licensed to carry a

concealed firearm.” Hicks, 208 A.3d at 363. Indeed, it was only “[u]pon

further investigation,” after the police stopped Hicks’s vehicle, drew their

weapons, restrained him, and conducted a license check, that the officers

confirmed Hicks’s licensure status. Id. Because the officer’s engaged in such

conduct based solely upon Hicks’s possession of a firearm, without any

reasonable suspicion that he possessed a gun unlawfully, our Supreme Court

held that the officers violated Hick’s Fourth Amendment rights. In all material

respects relating to her possession of a firearm, Appellee here stood in the

same position as both Hicks and Malloy: her mere possession of a firearm in

public was the sole factor that led law enforcement to investigate the status

of her gun permit.

We now turn to the Dissent’s attempt to distinguish this matter from

that of Malloy. In particular, our learned colleague believes that, unlike

Malloy, the officers herein did not “unreasonabl[y] exten[d] the valid traffic

stop.” Dissenting Memorandum at 10. The Dissent points to the following

facts to support this conclusion: Appellee’s firearm was “immediately visible

to the police officers,” the investigation into Appellee’s firearm status was

conducted simultaneously with the driver’s license check, and the stop itself

only took approximately 11 minutes. Id. at 9. For this reason, the Dissent

believes “this matter [is] factually [distinct] from Malloy and would reverse

[suppression] on [this] basis.” Id. at 11.

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This attempt to distinguish this case fails for two reasons. First, it

overlooks the fact that the officers herein engaged in two separate detentions:

the first when they engaged in a valid traffic stop which is undisputed, the

second when they commenced their investigation into Appellee’s firearm

status. The Dissent, without any citation to relevant authority, seemingly

concludes that, as long at the traffic stop is brief, looking into a passenger’s

firearm status is a “mission related” inquiry that requires no independent

justification. Respectfully, this position is unsupported by our caselaw. See

Commonwealth v. Kemp, 961 A.2d 1247, 1258-1259 (Pa. Super. 2008)

(“[R]outine constitutional analysis requires courts to utilize facts gathered

during each escalating phase of a police investigation in determining whether

police acted properly as the interaction between police and citizen proceeded

towards an arrest.”) (Bowes, J.). Indeed, Hicks instructs that, in order to

detain Appellee and check her firearm status, the officers were required to

have “individualized justification,” apart from Appellee’s mere possession of

the firearm, to detain her, “otherwise, [the] search or seizure was

constitutionally unreasonable.” Hicks, 208 A.3d at 388. As discussed

throughout, the officers herein lacked reasonable suspicion that Appellee,

herself, was engaged in criminal activity or possessed a firearm unlawfully

and, as such, their inquiry into Appellee’s license status was unreasonable.

Second, the Dissent’s position ignores the fact that Hicks squarely

rejected the notion that, because a firearm permit check constitutes a “simple

request” which, in turn, takes only a limited amount of time, it is

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constitutionally permissible without independent constitutional justification.

Id. at 393. In fact, the High Court stated:

[T]he Robinson rule cannot be salvaged by any attempt to
minimize the authority contemplated by characterizing the
seizure as merely a “simple request” to check a license. A
seizure is a seizure. That the purported basis for the seizure is
simply to “check” whether the suspect is committing a crime
does not diminish the constitutional significance of the
encounter. It does not render it any less of a seizure; it simply
renders it a seizure in the absence of a particularized basis for
a finding of reasonable, articulable suspicion of criminal activity.

Id. Thus, the mere fact that the officers only took approximately 11 minutes

to check Appellee’s firearm status is of no consequence: “a seizure is a

seizure” and must comport with constitutional requirements. Id.

Finally, we address the Dissent’s claim that Malloy’s “rule” prohibits an

officer from “explor[ing] the legality of the possession of a firearm seized

during a valid traffic stop” and, in turn, compels police officer’s to “give [the

firearm] back to the individual when the stop is concluded without ascertaining

whether the owner is entitled to possess it[.]” Dissenting Memorandum at 11.

The Dissent claims that, to ensure officer safety, law enforcement must be

granted the right to engage in the “unintrusive act of extending the valid stop

for a minimal amount of time to ensure the officers are not re-arming someone

barred from carrying a firearm while the officers remain vulnerable.” Id.

Notably, on appeal, the Commonwealth raises a similar argument, claiming

that Hicks and Malloy require police officers to “hand [a confiscated] firearm

back to a person having no idea whether or not they are permitted to have

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the firearm concealed in a vehicle in which they are traveling” and that such

a result is detrimental not only to officer safety, but also the community at

large. Commonwealth’s Brief at 12.

The Dissent and the Commonwealth, however, essentially contend that

“police officers are not only entitled, but ‘duty bound’ to seize and investigate

the licensing status of every individual who carries a concealed firearm in

Pennsylvania.” Hicks, 208 A.3d at 379. This “radical position” was squarely

rejected by our Supreme Court in Hicks. Id. In rejecting this proposition,

the High Court astutely recognized:

Crime and violence are ever-present threats in society, and it
can be tempting to look to the government to provide protection
from “dangerous” people with constant vigilance. However, the
protections of the Fourth Amendment remain an essential
bulwark against the overreaches and abuses of governmental
authority over all individuals. Notwithstanding the dangers
posed by the few, we must remain wary of the diminution of
the core liberties that define our republic, even when the
curtailment of individual liberty appears to serve an interest as
paramount as public safety.

Id. at 403 (emphasis in original). Moreover, it must be noted that, contrary

to the claims forwarded by the Dissent and the Commonwealth, Hicks and

Malloy do not require officers to return a seized firearm to a potentially

unlicensed individual, as neither decision embraces issues relating to police

policy during citizen encounters. Instead, Hicks and Malloy address, solely,

the issue of suppression, i.e., the determination of whether a defendant may

“escape the inculpatory thrust of evidence in hand . . . as a sanction to compel

enforcement officers to respect the constitutional security of all of us under[,

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inter alia,] the Fourth Amendment.” McCray v. Illinois, 386 U.S. 300, 307

(1967); see also United States v. Calandra, 414 U.S. 338, 348-350 (1974)

(explaining that a motion to suppress is a procedural vehicle utilized to enforce

the exclusionary rule by “suppress[ing] [] the use of illegal seized evidence

against the search victim.”). Since a suppression proceeding simply

determines whether seized evidence may be introduced against a defendant

in a subsequent criminal trial, and not who retains a greater possessory

interest in contraband seized during police encounters, the claims raised by

the Dissent and the Commonwealth lie beyond the scope of the instant

proceedings.

We therefore hold that the court correctly suppressed the firearm, the

results of the firearm license check and the plastic bag of marijuana found in

Appellee’s purse. As such, we affirm the suppression court’s April 22, 2022

order on this basis. We further hold, however, that the court erred in

suppressing Appellee’s identification and Appellee’s statement: “That [is] me.

That [is] my gun.” We therefore vacate this aspect of suppression court’s

April 22, 2022 order and remand for proceeding consistent with this

memorandum.

Affirmed, in part. Vacated and remanded, in part. Jurisdiction

relinquished.

Judge Colins files a Concurring Statement.

Judge Bowes files a Dissenting Memorandum.

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12/21/2023

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