J-A29015-23
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
REGINALD TIMOTHY WARD, JR. :
:
Appellant : No. 37 WDA 2023
Appeal from the Judgment of Sentence Entered December 5, 2022
In the Court of Common Pleas of Allegheny County Criminal Division at
No(s): CP-02-CR-0003942-2022
BEFORE: BOWES, J., KUNSELMAN, J., and MURRAY, J.
MEMORANDUM BY BOWES, J.: FILED: February 15, 2024
Reginald Timothy Ward, Jr. appeals from the judgment of sentence of
one year of probation following his conviction for carrying a firearm without a
license. We affirm.
The trial court summarized the pertinent facts as follows:
On April 2, 2022, . . . Sergeant John O’Leary of the Jefferson Hills
Police Department observed a red Pontiac tailgating another
vehicle. Sergeant O’Leary initiated a traffic stop of the vehicle.
He approached the vehicle and requested [Appellant’s] driver’s
license and as [Appellant] was sifting through his wallet, he
noticed a permit to carry a concealed weapon. [Appellant] did not
have his driver’s license with him but provided an identification
card. Sergeant O’Leary, at that point knowing that [Appellant]
may have a concealed weapon, inquired, and [Appellant]
responded in the affirmative. At that point, Sergeant O’Leary
went to his vehicle to verify whether [Appellant] had a valid
driver’s license given that [he] did not have the actual physical
license with him.
As was testified at the suppression hearing, Sergeant O’Leary
utilized a database and ascertained that [Appellant] did not have
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a valid driver’s license. He also testified that there are various
other data items that they check simultaneously, such as
protection from abuse orders, outstanding warrants and
concealed carry permits issued by the counties. Sergeant O’Leary
became aware at this point that the conceal permit of [Appellant]
was expired. Based upon these facts, [Appellant] was charged
with carrying a firearm without a license, in addition to the motor
vehicle violations.
Trial Court Opinion, 4/18/23, at 1-2 (cleaned up).
Appellant filed a motion to suppress the evidence concerning the status
of his firearm permit due to what he claimed was an unlawful seizure. The
trial court held a hearing, wherein it denied Appellant’s motion. The case
proceeded to a bench trial on the evidence adduced at the suppression
hearing. Appellant was convicted of carrying a firearm without a license, as
well as the two summary offenses of driving without a license and following
too closely. This timely appeal followed. The trial court ordered Appellant to
file a concise statement of matters complained of on appeal pursuant to
Pa.R.A.P. 1925(b), and Appellant complied. The trial court thereafter issued
a Rule 1925(a) opinion.
Appellant proffers the following question for our review: “Did the trial
court err by denying [Appellant]’s motion to suppress the evidence when the
police officer wrongfully extended a traffic stop to conduct an investigation
regarding whether [Appellant] possessed a firearm and valid permit?”
Appellant’s brief at 6.
We begin with a review of the relevant legal principles. Preliminarily,
we set forth our standard of review for the denial of a suppression motion:
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An appellate court’s standard of reviewing the denial of a
suppression motion 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. Thus, our review of questions of law is de novo. Our
scope of review is to consider [the evidence offered by the
Commonwealth] only and the evidence for the defense as remains
uncontradicted when read in the context of the suppression record
as a whole.
Commonwealth v. Shaffer, 209 A.3d 957, 968-69 (Pa. 2019) (citations
omitted). Where the issue on appeal relates solely to a suppression ruling,
we examine “only the suppression hearing record.” Commonwealth v.
Yandamuri, 159 A.3d 503, 516 (Pa. 2017).
Appellant argues that the trial court erred in denying his motion to
suppress because the police officer impermissibly extended the traffic stop to
ascertain the status of his concealed carry permit. See Appellant’s brief at
11. Thus, he contends that he was subjected to an unreasonable seizure. It
is bedrock constitutional law that “[t]he 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).
Instantly, Appellant was stopped for committing a traffic offense while
driving a motor vehicle. The United States Supreme Court has observed the
following concerning traffic stops:
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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 the 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.
Rodriguez v. United States, 575 U.S. 348, 354-55 (2015). In short, “[t]he
seizure remains lawful only so long as [unrelated] inquiries do not measurably
extend the duration of the stop.” Id. at 355 (cleaned up).
In the case sub judice, Appellant argues that the “initial investigatory
detention for tailgating was improperly extended to inquire into a gun permit
issue” because Sergeant O’Leary checked for information regarding
Appellant’s concealed carry permit. Appellant’s brief at 10, 22. Therefore,
Appellant avers that his constitutional rights were violated and suppression is
warranted. Appellant analogizes his case to this Court’s decision in
Commonwealth v. Malloy, 257 A.2d 142, 149 (Pa.Super. 2021). See
Appellant’s brief at 19-20.
Therein, an officer stopped a vehicle based upon the improper
placement of a license plate. When asked for identification, Malloy produced
a lanyard, which the officer associated with an individual working as an armed
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security guard, causing the officer to ask whether he had a firearm. Malloy
responded affirmatively. For safety, the officer directed him to exit the vehicle
so he could secure the firearm, and then requested 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 subsequently arrested
after they determined that he did not. The trial court denied suppression, but
this Court rejected that conclusion. In so doing, we stated as follows:
[O]nce [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 153.
Appellant argues that, as in Malloy, the officer impermissibly prolonged
the traffic stop to investigate the status of Appellant’s concealed carry permit,
a matter that was not “mission-related.” Appellant’s brief at 22-23. Hence,
Appellant requests that we vacate the order denying suppression and remand
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for a new trial where any evidence of the status of Appellant’s firearm permit
is suppressed.1 Id. at 23.
We are unpersuaded by Appellant’s contentions, as the certified record
supports the trial court’s findings that suppression was not warranted under
the circumstances of this case. As the trial court noted, after Appellant handed
Sergeant O’Leary his identification card, the sergeant returned to his vehicle
to examine the status of Appellant’s driver’s license. See Trial Court Opinion,
4/18/23, at 2. Sergeant O’Leary testified as to the other information that law
enforcement officials simultaneously receive as a result of this query. Id. at
2. Indeed, he detailed that when he checked his mobile data terminal (“MDT”)
to ascertain the status of Appellant’s driver’s license, a screen displaying the
status of Appellant’s concealed carry permit “[came] up at the same time.”
N.T. Suppression Hearing, 12/5/22, at 7. The MDT revealed that Appellant
did not have a valid driver’s license and “when the concealed carry screen
came up for Westmoreland County[,] it indicated that that permit to carry
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1 Appellant also relies upon Commonwealth v. Hicks, 208 A.3d 916, 937
(Pa. 2019), wherein our High Court stated that mere possession of a concealed
firearm alone is not suggestive of criminal activity. Appellant avers that
Sergeant O’Leary had no reason to suspect Appellant was involved in criminal
activity and, accordingly, unlawfully investigated the legality of his concealed
carry permit. See Appellant’s brief at 21-22. However, Hicks is inapt
because, there, the officer stopped someone solely because he observed a
firearm. See Hicks, supra at 937. Here, Appellant was legally stopped by
Sergeant O’Leary for a traffic violation. Moreover, as discussed fully infra,
Sergeant O’Leary did not investigate the legality of Appellant’s concealed carry
permit; that information appeared on his screen automatically during the
permissible, routine check of Appellant’s driver’s license.
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concealed had expired over a year prior.” Id. at 8. Sergeant O’Leary
continued: “Various PennDOT form[s] come up; if somebody is wanted, a form
will come up, if they have a concealed carry permit or have ever had one, that
screen comes up as well, and it indicates validity.” 2 Id.
Based on this testimony, the trial court correctly held that Sergeant
O’Leary’s discovery of the status of Appellant’s concealed carry permit did not
violate his constitutional rights as it occurred simultaneously with the mission-
related check of the MDT to learn the status of Appellant’s driver’s license.
See Trial Court Opinion, 4/18/23, at 5-6. In fact, as noted, Sergeant O’Leary
did not conduct a separate search to determine whether the concealed carry
permit that he had observed was valid. See N.T. Suppression Hearing,
12/5/22, at 7-8. Accordingly, there simply was no extension of the stop. In
sum, the examination of the screen that appeared contemporaneously with
information regarding Appellant’s driver’s license did not extend the stop and,
as such, Appellant’s arguments do not entitle him to relief.3 See Rodriguez,
supra at 355.
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2 Sergeant O’Leary additionally confirmed that if a person has a Protection
from Abuse order lodged against him, a form so indicating will also appear
automatically. See N.T. Suppression Hearing, 12/5/22, at 13.
3 Furthermore, contrary to Appellant’s implied assertion, Sergeant O’Leary
was permitted to inquire about whether Appellant had a firearm. This Court
has stated that such a request “falls within the category of actions police
officers may undertake during a lawful traffic stop based solely on concerns
for their safety and security and without independent justification or cause.”
(Footnote Continued Next Page)
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For the foregoing reasons, the trial court did not err in denying
Appellant’s motion to suppress.
Judgment of sentence affirmed.
DATE: 2/15/2024
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Commonwealth v. Ross, 297 A.3d 787, 792 (Pa.Super. 2023). Notably, the
officer in Ross posed such a question with no knowledge as to whether Ross
had a firearm. Although not required, Sergeant O’Leary had independent
justification to inquire about the firearm since he observed the concealed carry
permit and, thus, there was an increased likelihood that Appellant had a
firearm on his person and may have posed a danger to the officer’s safety.
Hence, Appellant’s challenge to Sergeant O’Leary’s justification for asking
about the firearm fails.
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