J.S07045-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
v. :
:
MIGUEL A. LIRIANO, :
:
Appellee : No. 959 MDA 2015
Appeal from the Order Entered May 18, 2015
in the Court of Common Pleas of Berks County Criminal Division
at No(s): CP-06-CR-0005975-2014
BEFORE: BOWES, OTT, and FITZGERALD,* JJ.
MEMORANDUM BY FITZGERALD, J.: FILED JANUARY 29, 2016
The Commonwealth appeals from the order of the Berks County Court
of Common Pleas granting Appellee Miguel A. Liriano’s motion to suppress
statements and evidence obtained by police officers following a traffic stop.
The Commonwealth claims the officers’ interactions with Appellee
constituted a lawful investigative detention and the challenged evidence was
discovered during a proper consensual search of the vehicle. We reverse.
The facts underlying this appeal are not in dispute.
On December 7th, 2014, at approximately 1:00 am,
Police Officer Danny Voorhies and Officer Joseph Ring of
the Reading Police Department were on patrol in the area
of the Italian Garden parking lot in the 800 block of Court
Street. The officers observed a male[, Appellee,] exit
*
Former Justice specially assigned to the Superior Court.
J.S07045-16
[from the driver’s seat1] of a maroon Ford 500 parked in
the lot. Officer Voorhies ran the license plate of the
vehicle and discovered the tag had an insurance
cancellation. The Officers parked their patrol vehicle and
waited until the maroon Ford 500 exited the parking lot [at
approximately 2:00 am] and followed the vehicle . . . .
Officer Voorhies conducted a traffic stop and identified
the driver as [Appellee]. During the traffic stop, Officer
Voorhies received documentation on the vehicle and
discovered that [Appellee] did not own the vehicle. Officer
Ring[, who was standing outside passenger’s side door2]
noticed an open beer bottle in the driver’s side door in
plain view. Officer Voorhies also noticed a black rubber
band near the center console of the vehicle.[3] Officer
Voorhies suspected that the rubber band is used to
package heroin. Officer Voorhies asked [Appellee] to exit
the vehicle. Officer Voorhies conducted a pat down and
asked [Appellee] questions about the beer and black
rubber band in the vehicle. After the conversation,
[Appellee] gave consent to search the vehicle and drug
contraband[4] was found in the center console. [Appellee]
was placed under arrest and the Officers took him to the
Central Processing Center and then to the DUI center for
drug testing. [Appellee] refused to submit to a blood test.
1
There was reference to a passenger exiting the vehicle in the parking lot.
N.T. Suppression H’rg, 4/10/15, at 20. There were no indications that a
passenger was in the vehicle at the time of the stop.
2
Id. at 31.
3
Officer Voorhies testified he used his flashlight to illuminate the inside of
the vehicle. Id. at 23.
4
“Valtox” tests of the suspected narcotics were positive for
methamphetamine and heroin. Id. at 19. However, laboratory tests were
pending at the time of the hearing. Id.
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Trial Ct. Op., 8/11/15, at 2; see also Findings of Fact and Conclusions of
Law Pursuant to Pa.R.Crim.P. 581(I), 5/18/15, at 1. Officer Voorhies
described the evidence recovered from the vehicle:
In the center console . . . there was a clear sandwich
baggie.
* * *
In the sandwich baggie, there were fourteen (14) bags of
methamphetamine, it was broken down into different
denominations. There were four (4) bigger, clear Ziploc
baggies, there were five (5) smaller, clear Ziploc baggies
and then there were five (5) red tinted Ziploc baggies,
however, it was still clear enough that you could see into
the bags. There were—also inside of that bag was a
separate clear sandwich bag inside of that was bundles of
suspected heroin. Those bundles, there were three (3)
bundles which there were three (3) to a bundle and there
was one (1) loose cellophane bag. The bundles
themselves were secured with small black rubber bands,
the same kind of rubber band that was in plain view . . . .
N.T. Suppression H’rg, 4/10/15, at 15-16. The officer also recovered $33
and a cellphone during a search of Appellee after he was taken into custody.
Id. at 17.
Appellee was charged with two counts each of possession and
possession with intent to deliver controlled substances5 and four counts of
driving under the influence.6 Appellee filed an omnibus pretrial motion,
5
35 P.S. § 780-113(a)(16), (30).
6
75 Pa.C.S. § 3802(a)(1), (d)(1)(i)-(iii).
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including a motion to suppress all evidence obtained from the traffic stop.
The trial court held a hearing on April 10, 2014.
On May 18, 2015, the trial court granted Appellee’s suppression
motion. The court determined that “the questions asked by the officer
constitute[d a] custodial interrogation.” Trial Ct. Op. at 5. “[S]ince no
Miranda[7] warnings had been given at that time . . . the questioning on the
part of the officer was a violation of Appellee’s Fifth Amendment rights.” Id.
The court thus concluded, “Appellee’s statements are inadmissible as
evidence and the seizure of the contraband found in the center console did
occur in violation of [Appellee’s] constitutional rights . . . .” Id. This timely
appeal followed.8
The Commonwealth presents the following question for review:
Did the trial court err in suppressing evidence obtained as
a result of a lawful consensual search of the vehicle
[Appellant] was driving?
Commonwealth’s Brief at 4. The Commonwealth asserts Appellee “was
subject to an investigative detention[,]” namely, a traffic stop “to determine
whether the insurance on the vehicle was cancelled.” Id. at 14. The
Commonwealth further contends “[n]othing in the record suggests that the
7
Miranda v. Arizona, 384 U.S. 436 (1966).
8
The Commonwealth included a Pa.R.A.P. 311(d) certification in its June 2,
2015 notice of appeal and submitted a Pa.R.A.P. 1925(b) statement on June
15th. The trial court filed a responsive opinion.
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consent to search given by [Appellee] was a product of duress or coercion.”
Id. at 15. We agree and find relief is due.
The principles governing our review are as follows:
Our standard of review when the Commonwealth
appeals from a suppression order is well-settled. [W]hen
an appellate court reviews the ruling of a suppression
court, we consider only the evidence from the defendant’s
witnesses together with the evidence of the prosecution
that, when read in the context of the entire record,
remains uncontradicted. We must “first ascertain whether
the record supports the factual findings of the suppression
court, and then determine the reasonableness of the
inferences and legal conclusions drawn therefrom.”
Commonwealth v. Rosas, 875 A.2d 341, 346 (Pa. Super. 2005) (citations
omitted). “[W]here the appeal of the determination of the suppression court
turns on allegations of legal error, ‘the suppression court’s conclusions of law
are not binding on an appellate court, whose duty it is to determine if the
suppression court properly applied the law to the facts.’” Commonwealth
v. Kemp, 961 A.2d 1247, 1253 (Pa. Super. 2008) (en banc) (citations
omitted).
It is well settled that
[v]alid citizen/police interactions which constitute seizures
generally fall within two categories, distinguished
according to the degree of restraint upon a citizen’s
liberty: the investigative detention or Terry[9] stop, which
subjects an individual to a stop and a period of detention
but is not so coercive as to constitute the functional
equivalent of an arrest; and a custodial detention or
arrest, the more restrictive form of permissible encounters.
9
Terry v. Ohio, 392 U.S. 1 (1968).
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To maintain constitutional validity, an investigative
detention must be supported by a reasonable and
articulable suspicion that the person seized is engaged in
criminal activity and may continue only so long as is
necessary to confirm or dispel such suspicion; whereas, a
custodial detention is legal only if based on probable
cause.
Commonwealth v. Strickler, 757 A.2d 884, 889 (Pa. 2000) (citations
omitted).
A law enforcement officer must administer Miranda
warnings prior to custodial interrogation. The standard for
determining whether an encounter with the police is
deemed “custodial” or police have initiated a custodial
interrogation is an objective one based on a totality of the
circumstances, with due consideration given to the
reasonable impression conveyed to the person
interrogated. Custodial interrogation has been defined as
“questioning initiated by law enforcement officers after a
person has been taken into custody or otherwise deprived
of his [or her] freedom of action in any significant way.”
“Interrogation” is police conduct calculated to, expected to,
or likely to evoke admission. When a person’s inculpatory
statement is not made in response to custodial
interrogation, the statement is classified as gratuitous, and
is not subject to suppression for lack of warnings.
* * *
The test for determining whether a suspect is being
subjected to custodial interrogation so as to necessitate
Miranda warnings is whether he is physically deprived of
his freedom in any significant way or is placed in a
situation in which he reasonably believes that his freedom
of action or movement is restricted by such interrogation.
Said another way, police detentions become custodial
when, under the totality of the circumstances, the
conditions and/or duration of the detention become so
coercive as to constitute the functional equivalent of
arrest.
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The factors a court utilizes to determine, under the
totality of the circumstances, whether a detention
has become so coercive as to constitute the
functional equivalent of arrest include: the basis for
the detention; its length; its location; whether the
suspect was transported against his or her will, how
far, and why; whether restraints were used; whether
the law enforcement officer showed, threatened or
used force; and the investigative methods employed
to confirm or dispel suspicions. The fact that a police
investigation has focused on a particular individual
does not automatically trigger “custody,” thus
requiring Miranda warnings.
Commonwealth v. Schwing, 964 A.2d 8, 11-12 (Pa. Super. 2008)
(citation omitted).
Generally, a routine traffic stop constitutes an investigative detention.
Cf. Commonwealth v. Chase, 960 A.2d 108, 113 (Pa. 2008). “Thus, in
the typical situation in which a motorist is temporarily ordered to remain by
the side of his car, Miranda warnings are not essential.” Commonwealth
v. Sullivan, 581 A.2d 956, 958 (Pa. Super. 1990) (citation omitted).
Miranda may apply “when the suspect is placed under arrest or when the
questioning of the suspect is so prolonged or coercive as to approximate the
atmosphere of a station house interrogation.” Id.; see also
Commonwealth v. Turner, 772 A.2d 970, 974-976 (Pa. Super. 2001) (en
banc) (holding detention was custodial when, inter alia, officer detained
defendant in patrol car until second officer arrived, and second officer
questioned defendant while blocking doorway and leaning into backseat).
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Instantly, the initial traffic stop was proper. See 75 Pa.C.S. § 6308(b)
(“Whenever a police officer . . . has reasonable suspicion that a violation of
this title is occurring or has occurred, he may stop a vehicle, upon request or
signal, for the purpose of checking the vehicle’s registration, proof of
financial responsibility, vehicle identification number or engine number or
the driver’s license.”); see also 75 Pa.C.S. § 1786(a) (“Every motor vehicle
of the type required to be registered under this title which is operated or
currently registered shall be covered by financial responsibility”);
Commonwealth v. Bolton, 831 A.2d 734, 736-37 (Pa. Super. 2003).
Further, under the totality of the circumstances, Officer Voorhies possessed
specific facts to conduct a further investigation given the presence of an
open beer bottle, as well as the rubber band, in plain view. That the officer
ordered Appellee out of the car, directed him to the rear of the vehicle, and
conducted a pat-down search in anticipation of field sobriety tests did not
transform a proper investigative detention into a custodial detention. See
Rosas, 875 A.2d at 348, 350 (noting facts that state trooper ordered
defendant out of vehicle and handcuffed him did not support conclusion that
defendant was under arrest); Sullivan, 581 A.2d at 957-58 (holding
defendant not in custody after he was directed to perform simple sobriety
tests).
Moreover, Officer Voorhies, during direct examination by the
Commonwealth, described the interaction as follows:
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[Commonwealth]: So, officer, after you had noticed the
open bottle and the rubber bands, what did you do next?
A I asked [Appellee] to step out of the vehicle, I was going
to administer field sobriety tests.
Q And what occurred after he stepped out of the vehicle?
A He stepped out of the car, I performed a pat down for
weapons, no weapons were found on the person, and then
he walked to the rear of the vehicle.
Q And now, at this point can you kind of describe the
scene for the court? How many officers were involved?
A Just myself and Officer Ring.
Q And I’m assuming it was dark out?
A Yes, it was two in the morning.
Q Could you describe—well, we’ll get to that in a minute,
I’m sorry. After he had gone to the back of the vehicle,
What occurred then?
A At that point I was informing him of why I had him step
out of the car. I informed him he had an open container of
beer in the car and I observed the small rubber band in
the center console area. I asked him, I said, There’s
nothing else in your car? He said, No, and he said, You
can check. I didn’t ask him, he just said, You can check.
At that point I then asked him again, I said, So you
don’t mind if I look in your car, and I believe his exact
words were—as close to—There shouldn’t be anything in
there, but you can go ahead and look.
Q Could you describe your tone of voice at this time?
A We were having a normal conversation like we’re having
right now.
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Q At this point you had testified previously that you had
asked him for his driver’s license were you still in
possession of that document?
A Yes, I was.
Q After he had told you that you could check the vehicle,
what did you do?
A At that point I took him up on the offer and I went in
and checked the inside of the vehicle.
N.T. at 13-14.
On cross-examination by Appellee’s counsel, Officer Voorhies
acknowledged that Appellee was “in custody” and not “free to walk away[.]”
Id. at 32. However, as to the circumstances of the interaction, the following
exchange occurred:
[Appellee’s counsel]: So, at that point then you talk about
the, whether you can look in the car and search the car?
A At that point I was explaining to him why he was
removed from the car.
Q All right. You would agree with me, would you not, that
he was in your custody and couldn’t just walk off?
A That’s correct.
Q And at that point you didn’t explain to him his Miranda
warnings, is that correct?
A Correct.
Q But you continued to have dialogue with him about
these items you saw in the car, right?
A There was only one sentence that was interchanged
between the two of us.
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Q So, I’ll take that as a “yes”.
And then the discussion about consenting search in the
car took place, right?
A No question was asked, he offered consent, correct.
Q The vehicle that he didn’t own to your knowledge, right?
A Correct.
Q Now, where was Officer Ring standing when that
discussion took place?
A I believe he was off to my right side.
Q Were you both standing there in the same general area
where [Appellee] was?
A No, I was standing talking to him as contact, he would
have been cover, standing off to the right-hand side.
Q How far from where you were standing?
A Far enough that when I was speaking to him, I didn’t
notice him in my peripheral vision, but as far as feet, I
can’t testify to how far that was.
Q You conducted a search of the vehicle?
A Right.
Q Where was [Appellee] when you were searching the
vehicle?
A He was at the back of the car with Officer Ring.
Q At any point in time when he was standing outside the
vehicle was he placed into handcuffs?
A No.
N.T. at 32-34.
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In light of the uncontradicted evidence regarding the interaction, we
conclude the detention was not custodial. See Schwing, 964 A.2d at 11-
12; Rosas, 875 A.2d at 349-50; Sullivan, 581 A.2d at 958. Moreover, the
exchange leading to Appellee’s consent to a search was not an interrogation.
Thus, Miranda was not implicated. See Schwing, 964 A.2d at 11-12;
Rosas, 875 A.2d at 349-50; Sullivan, 581 A.2d at 958. Lastly, we discern
no basis in the record to conclude that Appellee’s consent was coerced by
the officers or involuntarily offered. Accordingly, we must reverse the trial
court’s order granting suppression and remand this matter for further
proceedings.
Order reversed. Case remanded. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/29/2016
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Com. v. Liriano, M.
Combined Opinion