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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
ANTOINE POTEAT
Appellant No. 3305 EDA 2015
Appeal from the Judgment of Sentence October 20, 2015
In the Court of Common Pleas of Lehigh County
Criminal Division at No(s): CP-39-CR-0003752-2014
BEFORE: STABILE, J., MOULTON, J., and MUSMANNO, J.
MEMORANDUM BY MOULTON, J.: FILED MAY 23, 2017
Antoine Poteat appeals from the October 20, 2015 judgment of
sentence entered in the Lehigh County Court of Common Pleas following his
bench-trial conviction for two counts of possession with intent to deliver a
controlled substance (“PWID”) and two counts of possession of a controlled
substance.1 We affirm.
The trial court summarized the relevant facts as follows:
On February 20, 2013, at approximately 1:30 PM, while
on patrol in full uniform and in an unmarked police vehicle,
Trooper Gerald Lydon of the Pennsylvania State Police,
Fogelsville Barracks, was traveling westbound on Route I-
78 in the area of West Rock Road, Salisbury Township,
Lehigh County, Pennsylvania, when he observed a grey
Toyota Camry following a tractor trailer with approximately
one (1) vehicle length separating it from the tractor trailer.
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1
35 P.S. §§ 780-113(a)(30) and (16), respectively.
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The vehicle was traveling at approximately 60 to 65 miles
per hour in a posted 55 miles per hour zone. The distance
between the vehicles was closer than reasonable and
prudent for the existing conditions, based on the speed,
the type of roadway, and the fact that the vehicle being
followed was a tractor trailer. The recommended safe
distance is approximately 6 to 7 seconds. Nevertheless,
the grey Toyota Camry was following approximately one-
half (1/2) second behind the tractor trailer. In fact, the
operator of the grey Toyota Camry, later identified as
[Poteat], had to apply the brakes of his vehicle numerous
times over the course of the mile to mile and [a] half that
Trooper Lydon was following him.
Consequently, Trooper Lydon effectuated a traffic stop
in the area of West Lehigh Street, Allentown, utilizing his
vehicle’s emergency lights and siren. Trooper Lydon
approached the passenger side of the vehicle and observed
several unopened air fresheners on the passenger seat, as
well as a couple of opened air fresheners hanging from the
steering column. In addition, he saw fabric softener
sheets and an opened bottle of cologne on the passenger
seat. Trooper Lydon smelled fresh marijuana emanating
from the vehicle. Furthermore, Trooper Lydon viewed (2)
cell phones in the vehicle, one (1) of which was a prepaid
phone that repeatedly rang over the course of the traffic
stop.
Trooper Lydon made verbal contact with the operator of
the vehicle and advised him that he was being stopped
because he was traveling too closely behind the tractor
trailer, in contravention of the Pennsylvania Motor Vehicle
Code, 75 P.S. § 3310(a).3 [Poteat] appeared extremely
nervous. Trooper Lydon inquired of the Defendant from
where he was coming. [Poteat] indicated that he was
coming from Allentown. This response was inconsistent
with the direction on which [Poteat] was heading on I-78,
as he was traveling towards Allentown. In addition,
Trooper Lydon noticed a NYC Parking Authority citation in
the car dated the day before, February 19, 2013. [Poteat]
denied being in New York the day before and advised the
trooper that his cousin, Keith, had used the rental vehicle
on that date.
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3
Specifically, § 3310(a) of the Motor Vehicle
Code provides:
(a) General rule. – The driver of a motor
vehicle shall not follow another vehicle more
closely than is reasonable and prudent, having
due regard for the speed of the vehicles and
the traffic upon and the condition of the
highway.
Trooper Lydon requested that [Poteat] produce his
driver’s license and the registration to the vehicle. At that
time, [Poteat] informed the trooper that the vehicle was a
rental from Enterprise Rent-A-Car. However, he was
unable to locate the rental agreement. Consequently,
Trooper Lydon returned to his police vehicle to contact
Enterprise Rent-A-Car in order to verify the rental of the
subject vehicle. While waiting for Enterprise Rent-A-Car to
return his telephone call, the trooper ran a background
check on [Poteat] and learned that he had previous arrests
for possession of marijuana and possession with intent to
deliver marijuana. As a result of the marijuana odor that
he detected in the vehicle, as well as the masking agents
in the vehicle, Trooper Lydon called for assistance,
including a K-9 Unit to perform a drug sniff.
After approximately twenty (20) minutes, Enterprise
Rent-A-Car made contact with Trooper Lydon and informed
him that [Poteat] did have a valid contract with them. At
this time, Trooper Lydon exited his police vehicle and
approached [Poteat’s] vehicle once again. He requested
that [Poteat] exit his vehicle. Then, Trooper Lydon issued
[Poteat] a warning, citing him for a motor vehicle violation
under the Pennsylvania Motor Vehicle Code, 75 P.S. §
3310(a): Following too closely. [Poteat] was then told by
Trooper Lydon that he was free to leave and the
documents were returned to [Poteat]. However, Trooper
Lydon reinitiated contact with [Poteat] by inquiring about
his not being in New York the previous day. Trooper Lydon
again advised [Poteat] that he was free to leave, but
explained that his vehicle was not. [Poteat] refused to
provide consent to search the rental vehicle.
Trooper Chad Labour of the Canine Division arrived on
scene and deployed a drug detection canine to conduct an
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exterior search of the vehicle. It appeared as if the dog
displayed positive alert behavior. Based on the totality of
the circumstances, a search warrant for [Poteat’s] rental
vehicle was applied for by Trooper Lydon. After
approximately forty (40) to forty-five (45) minutes from
the inception of the vehicle stop, [Poteat] was voluntarily
taken from the scene and transported to police
headquarters by Trooper Nicholas Goldsmith so that
[Poteat] could make arrangements for other
transportation. An execution of the Search Warrant
yielded 1,004 grams of cocaine and 90 grams of marijuana
in the rental vehicle.
Memorandum Opinion, 12/1/15, at 2-5 (“1925(a) Op.”) (emphasis in
original).
On October 31, 2014, Poteat filed an omnibus pre-trial motion, which
included an application to compel discovery and an application to suppress
the evidence seized from Poteat’s vehicle. On February 12, 2015, the trial
court held a hearing on Poteat’s motion. Trooper Lydon and Poteat testified
at the hearing. On February 18, 2015, the trial court denied Poteat’s
motion. On May 11, 2015, Poteat filed a motion for reconsideration of the
trial court’s denial of his motion to suppress, which the trial court denied on
May 19, 2015.
On September 21, 2015, following a bench trial, Poteat was convicted
of two counts of PWID and two counts of possession of a controlled
substance. On October 20, 2015, the trial court sentenced Poteat to an
aggregate term of 5 to 10 years’ incarceration. On November 2, 2015,
Poteat filed a timely notice of appeal.
Poteat raises the following issue on appeal:
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Did the Trial Court err in denying Antoine Poteat’s Motion
to Suppress the Evidence, filed after Pennsylvania State
Police obtained evidence as a result of a search, which
violated [Poteat’s] rights under the Fourth Amendment to
the United States Constitution as well as Article I, Section
VIII, of the Pennsylvania Constitution[?] See USCS Const.
Amend. 4; Pa. Const. Art. I, § 8.
Poteat’s Br. at 4.
In reviewing the denial of a suppression motion, we must determine:
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
Commonwealth prevailed before the suppression court, we
may consider only the evidence of the Commonwealth and
so much of the evidence for the defense 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, we are bound by these findings
and may reverse only if the court’s legal conclusions are
erroneous. Where, as here, the appeal of the
determination of the suppression court turns on allegations
of legal error, the suppression court’s legal conclusions are
not binding on an appellate court, whose duty it is to
determine if the suppression court properly applied the law
to the facts. Thus, the conclusions of law of the courts
below are subject to our plenary review.
Commonwealth v. Jones, 988 A.2d 649, 654 (Pa. 2010) (internal
quotations and citations omitted).
Poteat argues that he was unlawfully seized for a second time after the
conclusion of the traffic stop. Specifically, Poteat submits that “after issuing
a ticket and informing [Poteat] that he was free to leave, the [t]rooper
unlawfully extended the stop when he, again, seized [Poteat].” Poteat’s Br.
at 10. Poteat argues that the trial court should have therefore suppressed
evidence recovered following the allegedly unlawful seizure. Id. at 13. The
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trial court denied Poteat’s motion to suppress, reasoning that Poteat’s
detention was supported by reasonable suspicion and probable cause that a
crime was being committed. 1925(a) Op. at 9.
The law recognizes three levels of interaction between police officers
and citizens: (1) a mere encounter; (2) an investigative detention; and (3) a
custodial detention. See Commonwealth v. Downey, 39 A.3d 401, 405
(Pa.Super. 2012). This Court has previously discussed the requirements for
police at each level:
The first of these [interactions] is a “mere
encounter” (or request for information) which need
not be supported by any level of suspicion, but
carries no official compulsion to stop or to respond.
The second, an “investigative detention” must be
supported by a reasonable suspicion; it subjects a
suspect to a stop and a period of detention, but
does not involve such coercive conditions as to
constitute the functional equivalent of an arrest.
Finally, an arrest or “custodial detention” must be
supported by probable cause.
Id. (quotation omitted).
“The matter of when a traffic stop has concluded or otherwise given
way to a new interaction does not lend itself to a ‘bright[-]line’ definition.”
Commonwealth v. Reppert, 814 A.2d 1196, 1202 (Pa.Super. 2002).
In Commonwealth v. Strickler, [] 757 A.2d 884
([Pa.] 2000), our Supreme Court analyzed under what
circumstances a police interdiction can devolve into a mere
encounter following a traffic stop when police continue to
question the person after the reason for the traffic stop
has concluded. The Supreme Court in Strickler ruled that
after police finish processing a traffic infraction, the
determination of whether a continuing interdiction
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constitutes a mere encounter or a constitutional seizure
centers upon whether an individual would objectively
believe that he was free to end the encounter and refuse a
request to answer questions.
Our Supreme Court adopted a totality-of-the-
circumstances approach. It delineated a non-exclusive list
of factors to be used in making this assessment. Those
factors include 1) the presence or absence of police
excesses; 2) whether there was physical contact; 3)
whether police directed the citizen’s movements; 4) police
demeanor and manner of expression; 5) the location and
time of the interdiction; 6) the content of the questions
and statements; 7) the existence and character of the
initial investigative detention, including its degree of
coerciveness; 8) “the degree to which the transition
between the traffic stop/investigative detention and the
subsequent encounter can be viewed as seamless, . . .
thus suggesting to a citizen that his movements may
remain subject to police restraint,” id. at 898; and 9)
whether there was an express admonition to the effect
that the citizen-subject is free to depart, which “is a
potent, objective factor.” Id. at 899. Our Supreme Court
also observed that when an individual has been subjected
to a valid detention but police continue to engage the
person in conversation, the person is less likely to
reasonably believe that he is actually free to leave the
scene.
Commonwealth v. Kemp, 961 A.2d 1247, 1253 (Pa.Super. 2008) (ellipses
in original).
Furthermore, our Supreme Court has held that reasonable suspicion is
required prior to a canine sniff of the exterior of a vehicle. Commonwealth
v. Rogers, 849 A.2d 1185, 1191 (Pa. 2004). “[T]he law is clear that once a
canine sniff of a vehicle's exterior triggers a positive indication, reasonable
suspicion of contraband in the vehicle ripens into probable cause.”
Commonwealth v. Hernandez, 935 A.2d 1275, 1285 (Pa. 2007).
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Following the traffic stop, Trooper Lydon returned Poteat’s documents
to him, issued him a warning, and told him that he was free to leave. Poteat
turned around and began to walk to his car. N.T., 2/12/15, at 32. Trooper
Lydon then re-engaged Poteat in conversation seamlessly by immediately
“inquiring about his not being in New York the previous day.” 1925(a) Op.
at 4. Because Trooper Lydon immediately continued to engage Poteat in
conversation, a reasonable person in Poteat’s position would not reasonably
believe that he was free to leave the scene.2 See Kemp, 961 A.2d at 1253.
In addition, when Trooper Lydon re-initiated contact with Poteat, Poteat was
still outside his vehicle. See id. at 1254 (“[W]hen a person is standing
outside rather than inside his vehicle, he is less likely to believe that he can
actually leave the area by entering the car and driving away.”). Moreover,
because Trooper Lydon had seen indicia of drug-related activity, it would
have been unlikely that he would have permitted Poteat to leave in his car.
See id. (noting that “Trooper DeLuca had observed major indicia of drug-
related activity during the course of the traffic stop. It is unlikely that after
returning the documents and telling Appellant to have a nice day, Trooper
DeLuca would have permitted Appellant to enter the car and drive away.”).
Trooper Lydon subsequently told Poteat that he was free to leave, but his
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2
Although not dispositive, Poteat testified at the suppression hearing
that he did not believe he was free to leave when Trooper Lydon re-engaged
him in conversation after Poteat had turned around and started walking
towards his vehicle. N.T., 2/12/15, at 44.
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vehicle was not. 1925(a) Op. at 4-5. In light of the totality of the
circumstances, we conclude that Poteat was not free to leave despite
Trooper Lydon’s statement to the contrary. Instead, Poteat was subjected to
an investigatory detention.
We must now determine whether the investigative detention was
constitutionally proper.
The Supreme Court in [Commonwealth v. Freeman, 757
A.2d 903 (Pa. 2000)] quite plainly stated that in order to
justify a continued detention beyond the initial valid
detention, which was the traffic stop, police needed
reasonable suspicion that the defendant was engaged in
criminal activity independent of that initial lawful
detention. In other words, once police process the traffic
violation, they cannot rely upon the traffic violation to
prolong the detention; they need other information
supporting reasonable suspicion.
Kemp, 961 A.2d at 1258.
In Kemp, an en banc panel of this Court held that facts gathered
during a valid traffic stop can be used to justify a subsequent investigatory
detention occurring after a police officer informs a defendant that he is free
to leave. Id. at 1260.
In Kemp, this Court concluded that the police officer in question had
sufficient facts at his disposal to establish reasonable suspicion to suspect
that the appellant and his passenger were in possession of a controlled
substance. Id. at 1254-55. These facts included: 1) the presence of
masking agents (including dryer sheets and different types of air
fresheners); 2) third-party vehicle ownership; and 3) an odor of fresh
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marijuana indicating that a significant amount of that substance was
present. Id. at 1255. “Furthermore, [the passenger] displayed extreme
nervousness, [the] [a]ppellant did not provide the correct name of the car’s
owner, and they were traveling from a source city.” Id.
The facts of the instant matter are similar to those in Kemp. Trooper
Lydon testified that when he approached the vehicle, he observed several
open air fresheners hanging from the steering column, unopened air
fresheners on either the driver’s or passenger’s seat, and a bottle of
perfume/cologne and an open box of fabric softener sheets on the
passenger’s seat. N.T., 2/12/15, at 14. Poteat’s vehicle was a rental. Id.
at 16. Trooper Lydon testified that he could smell the odor of fresh
marijuana coming from the vehicle and that Poteat appeared “overly
nervous.” Id. at 15. Although Poteat was the only occupant of the car,
Trooper Lydon noticed two cell phones, one of which appeared to be a
prepaid cell phone. Id. Furthermore, Trooper Lydon observed a parking
ticket from New York City in Poteat’s vehicle.3 Id. at 33. In light of these
facts, we conclude that Trooper Lydon’s investigative detention of Poteat
was supported by a reasonable suspicion that Poteat was engaged in
criminal activity.
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3
In Kemp, the police officer testified that one indicia of drug courier
activity was “whether the car is coming from a source city, such as New
York, Allentown, Lancaster, Reading, Philadelphia, Pittsburgh, or Harrisburg.”
961 A.2d at 1251.
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Finally, the police applied for and received a search warrant for
Poteat’s vehicle. Because the canine unit dispatched to the scene displayed
positive-alert behavior for the presence of drugs in the vehicle, 1925(a) Op.
at 5, the search warrant was properly supported by probable cause.
Accordingly, the trial court did not err in denying Poteat’s motion to
suppress.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/23/2017
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