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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37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.*
DISSENTING MEMORANDUM BY BOWES, J.: FILED: December 22, 2023
I agree with the learned majority that the patrolmen in this case were
permitted to seize the firearm from Appellee. However, since I cannot agree
that our case law requires law enforcement officers who are investigating
illegal activity to return firearms without checking the owner’s licensure status
in a manner that does not prolong a valid traffic stop, I respectfully dissent.
I begin with an overview of the relevant precedent. In Rodriguez v.
United States, 575 U.S. 348, 350 (2015), the Supreme Court of the United
States was presented with “the question [of] whether the Fourth Amendment
tolerates a dog sniff conducted after completion of a traffic stop.” In
considering this question, the Court outlined the parameters of police
authority during traffic stops:
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* Retired Senior Judge assigned to the Superior Court.
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A seizure for a traffic violation justifies a police investigation of
that violation. A relatively brief encounter, a routine traffic stop
is more analogous to a so-called Terry v. Ohio, 392 U.S. 1
(1968), stop than to a formal arrest. Like a Terry stop, 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.
....
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 354-55 (cleaned up).
The Rodriguez Court distinguished these mission-related purposes with
the dog sniff at issue in that case, which it classified as “a measure aimed at
detecting evidence of ordinary criminal wrongdoing” and therefore “not fairly
characterized as part of the officer’s mission” during a traffic stop. Id. at 355-
56 (cleaned up). It also distinguished the dog sniff from the “[h]ighway and
officer safety” concerns “stem[ming] from the mission of the stop itself” that
may require an officer “to take certain negligibly burdensome precautions in
order to complete his mission safely.” Id. at 356-57 (cleaned up). Ultimately,
the Court reasoned that the dog sniff could not be justified on the same basis
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as an order to exit the car, even if the levels of intrusion were identical. Id.
Rather, the Court determined that “[t]he critical question, then, is not whether
the dog sniff occurs before or after the officer issues a ticket, . . . but whether
conducting the sniff prolongs—i.e., adds time to—the stop.” Id. at 357
(cleaned up). Thus, the Court held as follows:
[A] police stop exceeding the time needed to handle the matter
for which the stop was made violates the Constitution’s shield
against unreasonable seizures. A seizure justified only by a
police-observed traffic violation, therefore, becomes unlawful if it
is prolonged beyond the time reasonably required to complete the
mission of issuing a ticket for the violation.
Id. at 350-51 (cleaned up).
Thereafter, in Commonwealth v. Hicks, 208 A.3d 916 (Pa. 2019), our
Supreme Court overturned a longstanding rule, first announced by this Court
in Commonwealth v. Robinson, 600 A.2d 957, 959 (Pa.Super. 1991), 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 in order to
investigate whether the person is properly licensed.’” Hicks, supra at 921
(quoting Robinson, supra at 959). In that case, Hicks was not engaged in
any illegal activity, but was merely viewed with a firearm. 1 The High Court
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1 Respectfully, I disagree with the majority’s conclusion that Appellee “stood
in the same position” as Hicks “[i]n all material respects.” Majority at 22. The
police engaged with Hicks solely on the basis that he was seen with a firearm
and there was a presumption, at that time, that possession was illegal until
proven otherwise. Here, however, the police engaged with Appellee because
she was a passenger in a vehicle that was properly stopped in a high crime
(Footnote Continued Next Page)
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noted that “an individual licensed to carry a firearm may do so in public, openly
or concealed, within a vehicle or without, throughout every municipality in
Pennsylvania.” Id. at 926. It also expressly rejected the Commonwealth’s
position that police officers were “duty bound to seize and investigate the
licensing status of every individual who carries a concealed firearm in
Pennsylvania.” Id. at 932 (cleaned up). The Court explained that it was
overruling Robinson because that “holding facially contravene[d] established
law . . ., demand[ed] no suspicion of criminal activity—let alone individualized
suspicion—and countenance[d] a sweeping and unjustified expansion of the
authority of law enforcement to seize persons upon the basis of conduct that,
standing alone, an officer cannot reasonably suspect to be criminal.” Hicks,
supra at 947.
Subsequently, this Court decided Commonwealth v. Malloy, 257 A.3d
142 (Pa.Super. 2021). In Malloy, an officer stopped a vehicle based upon
the improper placement of a license plate. Malloy was a passenger in the
vehicle. When asked for identification, Malloy produced a lanyard, which the
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area in the middle of the night. Accordingly, I do not find the facts in
Commonwealth v. Hicks, 208 A.3d 916 (Pa. 2019), analogous to this case.
The majority also likens the instant matter to Commonwealth v. Kemp, 961
A.2d 1247 (Pa.Super. 2008). See Majority at 23. Our discussion in Kemp
involved whether “facts gathered during a valid traffic stop can. . . be utilized
to justify an investigatory detention occurring after a police officer has
indicated that a defendant is free to leave.” Kemp, supra at 1260 (cleaned
up). Accordingly, I find Kemp distinguishable as the present case did not
involve escalating phases of interaction. Instead, all of the police conduct at
issue occurred during the initial, valid, traffic stop.
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officer associated with an individual working as an armed security guard, and
therefore the officer asked whether he had a firearm. Malloy responded
affirmatively that the firearm was located on his hip. For safety, the officer
asked him to exit the vehicle so he could secure the firearm, and then asked
him for his firearms credentials. During the ensuing fifteen to twenty minutes,
the officer conducted various checks with local detectives and the
Pennsylvania State Police to determine whether Malloy had a valid license to
carry. He was arrested after they determined that he did not. Id. at 145-46.
In denying suppression in Malloy, the trial court first concluded that,
pursuant to Rodriguez, the checks run by the officer during the traffic stop
were permissible. This Court rejected that conclusion:
[N]either the trial court nor the Commonwealth cite legal authority
which equates an investigation of a passenger’s documented
authority to carry a firearm to the incidental inquiries permitted
during a lawful traffic stop under Rodriguez and which promote
safe and financially responsible operation of motor vehicles. More
tellingly, neither the trial court nor the Commonwealth offer any
explanation as to how or why a passenger’s firearms licensure
status relates to these incidental inquiries or, more broadly, to the
safe and financially responsible operation of a motor vehicle in
general. We are convinced 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. As such, we reject the trial court’s
conclusion that [the officer’s] request for [Malloy’s] documented
firearms authorization could be pursued as incidental to the traffic
stop herein.
We also reject the suggestion that [the officer’s] request fell within
the limited class of minimally intrusive and permitted demands
police officers may make, out of concern for officer safety and
without independent justification, during the course of a lawful
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traffic stop. [Malloy] forwards no claim that [the officer] lacked
authority to ask for identification, to inquire about the presence of
weapons, to request that Appellant exit the vehicle, or to demand
that [he] surrender his firearm for the duration of the stop.
Moreover, our reading of the transcript reveals that [the officer]
secured [the] firearm without incident before requesting that
[Malloy] produce documentation that the firearm was lawfully in
his possession. [The] seizure of the firearm essentially eliminated
any immediate risk the weapon posed to law enforcement
personnel, bystanders, and occupants of the vehicle for the
duration of the stop and transformed the officer’s pursuit of
[Malloy’s] firearms credentials into an inquiry exclusively aimed at
collecting evidence of collateral wrongdoing. See Rodriguez,
575 U.S. at 355. Put differently, 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 lawful traffic stop based
solely on concerns for safety and security and without
independent justification or cause.
Malloy, supra at 152-53 (cleaned up).
Finally, I find guidance from this Court’s recent decision in
Commonwealth v. Ross, 297 A.3d 787, 792 (Pa.Super. 2023). Ross was
pulled over for driving with an inoperable brake light. In running his license
and registration, the officer learned that, while there were no problems with
either of those, his license to carry a firearm had been revoked. Before
returning his license, the officer asked Ross whether he had a firearm, to which
he replied in the affirmative. The officers secured the firearm and arrested
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Ross. The entire stop lasted approximately ten minutes. Id. at 790. The trial
court ultimately granted Ross’s motion to suppress, concluding that the
questioning exceeded the scope of the traffic stop and extended the
reasonable time needed to issue a traffic citation. Id. at 794-95.
Upon review, this Court disagreed with the trial court. We observed that
“the constitutionality of mission-specific questions, including those related to
the safety of the officer, during a traffic stop, and the determination of . . .
when tasks tied to the traffic stop are completed or reasonably should have
been completed, is fact specific.” Id. at 798. In Ross, that fact-specific
analysis resulted in a conclusion that “the valid traffic stop was ongoing at the
time [the officer] asked whether Ross possessed a firearm because he had not
concluded the stop with a warning or citation or indicated that Ross could
leave.” Id. at 795 (cleaned up). Additionally, we held that the officer “in no
way unnecessarily prolonged the stop, as he completed his routine check of
the various databases and asked the question after he walked back to Ross’s
vehicle while holding Ross’s license.” Id. (cleaned up). Since the stop was
still ongoing, the officer was permitted to inquire about the presence of
firearms. Id.
As to the officer’s safety concerns, we observed that “the interest in the
safety of law enforcement officers outweighs the de minimus intrusion to the
individual who is asked to step outside a lawfully stopped motor vehicle[, and]
the asking of an additional question or two about a firearm was less intrusive
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than the order to exit the vehicle[.]” Id. at 796-97 (cleaned up). Indeed,
this Court elaborated on officer safety concerns during traffic stops:
It bears emphasizing that balancing the constitutional rights of
motorists, the public protection objectives, and police officer
safety is difficult, especially in the context of rapidly evolving
traffic stops. One particular concern for officers during a traffic
stop is the proliferation of guns, including the substantial increase
in the number of people possessing firearms, the rise in mass
shootings, and the ability to carry a concealed weapon in vehicles
in Pennsylvania. Clearly, neither the United States Constitution
nor the Pennsylvania Constitution require officers to gamble with
their personal safety during traffic stops. Therefore, in the context
of traffic stops, police officers may take reasonable precautions
when the circumstances give rise to legitimate safety concerns.
Id. at 797–98.
The Ross Court distinguished Ross’s scenario from that in Malloy,
focusing on the fact that the officer’s safety in Malloy was secured by the
seizure of the firearm, and therefore the subsequent inquiry into Malloy’s
licensure status was improper. Ross, supra at 797.
In light of the foregoing precedent, I find it appropriate to apply a fact-
specific test to determine whether the permit check ran afoul of Appellee’s
constitutional rights. In this case, the traffic stop occurred at approximately
2:30 a.m. in a high crime area known for “shots fired.” See N.T. Hearing,
12/14/21, at 6, 12-13, 31. In addition, the vehicle was known to the police
for being involved in prior incidents. Id. at 36. On that night, the vehicle was
stopped by two patrolmen because the vehicle’s license plate was expired.
Id. at 5. There were three individuals in the vehicle, a female driver, a female
front-seat passenger, and Appellee, seated in the rear. Id. at 6. As the
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patrolmen spoke to the three occupants, one of them observed a firearm in
the back pocket of the front passenger’s seat, directly in front of Appellee. Id.
at 9. Upon inquiry, Appellee acknowledged that the firearm was hers. Id. at
10. One patrolman seized the firearm and rendered it safe for the remainder
of the traffic stop, while the other asked Appellee whether she had a firearm
permit. Id. at 10, 26-27. Appellee stated that she did, but not with her. Id.
at 27-28. Therefore, the patrolmen ran through dispatch the driver’s licenses
of both the driver and Appellee and checked the status of the firearm. Id. at
28-29. As a result, the patrolmen determined that Appellee’s conceal-carry
permit had been revoked. Id. at 12. The entire traffic stop lasted less than
eleven minutes. Id. at 13-14, 31.
Unlike in Malloy, the firearm at issue was immediately visible to the
police officers and the traffic stop here was not prolonged by the ensuing
permit check. Rather, as in Ross, my review of the certified record confirms
that the traffic stop remained ongoing at the time the patrolmen checked the
permit status. During the eleven-minute stop, the patrolmen ran multiple
checks simultaneously to ascertain the status of: (1) the driver of the vehicle’s
driver’s license; (2) Appellee’s concealed-carry permit; and (3) whether the
firearm was stolen. See N.T. Hearing, 12/14/21, at 28, 37.
Our case law clearly permits police to check the status of a driver’s
license and ask passengers for identification. See Rodriguez, supra at 355;
Commonwealth v. Campbell, 862 A.2d 659, 665 (Pa.Super. 2004).
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Moreover, our Court has discerned no violation where a police officer ran a
passenger’s identification through the system to check for outstanding
warrants. See Commonwealth v. Galloway, 265 A.3d 810, 816-17
(Pa.Super. 2021) (observing, without concern, that the officer had taken the
passenger’s identification information and ran it for warrants during the traffic
stop, and the results of that check formed, in part, the basis for an extension
of the stop to ask the passenger additional questions). Finally, we have held:
It would be incongruous to permit an officer to order the driver
out of his vehicle pursuant to a lawful stop in order to diminish the
likelihood that the officer will be attacked with a concealed
weapon, but not permit the officer to order the passengers out of
a lawfully stopped vehicle, when those passengers present the
same risk of attack and have the same access to concealed
weapons.
Commonwealth v. Brown, 654 A.2d 1096, 1102-03 (Pa.Super. 1995)
(cleaned up).
In all, Appellee was advised that her permit was invalid ten minutes and
thirty seconds into the traffic stop, before the reason for the stop had expired.
Id. at 11, 31. Based on the foregoing authority, and finding that there was
no unreasonable extension of the valid traffic stop in this case, I would
conclude that the patrolmen’s actions did not run afoul of our case law and do
not warrant suppression. See Ross, supra at 798 (“Because we conclude
that the concerns for the safety of the officers justified the proportional
intrusion on Ross, the motion to suppress should have been denied.”);
Rodriguez, supra at 350-51 (“[A] police stop exceeding the time needed to
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handle the matter for which the stop was made violates the Constitution’s
shield against unreasonable seizures. A seizure justified only by a police-
observed traffic violation, therefore, becomes unlawful if it is prolonged
beyond the time reasonably required to complete the mission of issuing a
ticket for the violation.” (cleaned up)).
While I find this matter factually distinguishable from Malloy and would
reverse on that basis, I must admit to being troubled by the holding in Malloy.
While it concedes that the safety risks of a traffic stop are secured by the
seizure of a firearm, it then demands that the firearm must, at some point, be
returned by the officers before the safety concerns can be fully addressed.
Respectfully, I believe such a rule to be untenable. Practically speaking, to
suggest that an officer cannot explore the legality of the possession of a
firearm seized during a valid traffic stop for safety begs the question: are
they just supposed to give it back to the individual when the stop is concluded
without ascertaining whether the owner is entitled to possess it? Surely if
officer safety permits the intrusive action of seizing the firearm, the same
safety concerns must allow 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.
Contrary to the Majority’s characterization, I am not “avoid[ing]
suppression by raising claims of police policy.” Majority at 21. I believe it
prudent to consider the practical applications of our holdings and, accordingly,
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deem it our duty to consider what police officers can and cannot do in
situations like the one presently before us. To that end, I observe that an
inquiry into the legality of a firearm seized during a valid traffic stop can
readily be completed in a timely manner that does not prolong the stop. If it
does prolong the stop unreasonably, then it runs afoul of Rodriguez and
suppression may be warranted.2 Where it does not, however, Rodriguez
instructs that “negligibly burdensome precautions” must be permitted.
Rodriguez, supra at 356. Otherwise, we are left with caselaw that permits
officers to inquire about firearms during traffic stops and to seize any firearms
temporarily for officer safety but prohibits them from determining whether the
owner of the firearm may lawfully possess it before returning it at the
conclusion of the stop.
Thus, pursuant to Malloy, an officer conducting a traffic stop where a
firearm is present is faced with a no-win scenario. If she decides to run a
firearm permit check during a valid traffic stop without prolonging the
interaction, she nonetheless risks the possibility of suppression of any
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2 To be clear, I do not agree with the Commonwealth’s position that police are
duty-bound to investigate the licensure status of every individual encountered
who happens to be in possession of a firearm. See Majority at 25 (ascribing
to me the “radical position” that the Commonwealth contended, requiring
police “to seize and investigate the licensing status of every individual who
carries a concealed firearm in Pennsylvania” (cleaned up)). As I already
explained, our Supreme Court expressly rejected that position in Hicks,
supra at 932, and I have taken that holding into consideration in applying the
relevant precedent to the facts presently before this Court in this case.
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contraband discovered thereafter. On the other hand, if the officer decides
not to run a check, she risks her safety by potentially returning a firearm to
an individual who may have had their license to carry revoked for wrongdoing
and who has every incentive to avoid being arrested for the firearm violation.
I find this non sequitur troubling as it is an overextension of the holdings in
Rodriguez and Hicks, and incompatible with the fact-specific nature of these
cases.
As I would reverse the order and remand for further proceedings for
these reasons, I must respectfully lodge this dissent.
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