Com. v. Duodu, W.

J-S12018-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant

v.

WILLIAM NANBOATENG DUODU

Appellee No. 1047 MDA 2016

Appeal from the Order Entered June 21, 2016
In the Court of Common Pleas of Centre County
Criminal Division at No(s): CP-14-CR-0001298-2015

BEFORE: PANELLA, J., OTT, J., and MUSMANNO, J.

MEMORANDUM BY OTT, J.: FILED SEPTEMBER 12, 2017

The Commonwealth appeals1 from the order dated June 21, 2016,

entered in the Court of Common Pleas of Centre County, granting, in part,

and denying, in part, William Nanboateng Duodu’s motion to suppress. The

Commonwealth claims the trial court erred in granting Duodu’s motion

because the evidence at issue was discovered pursuant to a lawful search

and seizure of Duodu’s vehicle. After a thorough review of the submissions

by the parties, the certified record, and relevant law, we affirm.

The suppression court’s findings of fact are as follows:

____________________________________________

1
The Commonwealth has certified in its notice of appeal that the
suppression order will terminate or substantially handicap its prosecution of
the case. See Pa.R.A.P. 311(d).
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1. On August 18, 2015, Trooper Christopher Pifer was
monitoring westbound traffic on Interstate 80 in Boggs
Towhnship [sic], Centre County. Trooper Pifer was
stationed at the mile marker 166 crossover when he
observed a gold Nissan bearing Georgia plates in the left
lane attempting to pass another vehicle. However,
immediately upon coming into view of Trooper Pifer’s
patrol unit, the Nissan moved behind the vehicle it had
been attempting to pass.

2. Finding this behavior suspicious, Trooper Pifer began to
follow the Nissan, whereupon he observed it traveling less
than a single car length behind the vehicle in front of it at
speeds in excess of seventy miles per hour.

3. While following the Nissan, Trooper Pifer took the time to
run the vehicle’s registration information, which came back
“cancelled” out of Georgia. Trooper Pifer then activated
his overhead lights and conducted a traffic stop. The
vehicle pulled over at mile marker 159 in a curved area of
the roadway.

4. Trooper Pifer approached the vehicle from the passenger
side and made contact with [Duodu], who was the only
occupant in the vehicle. Trooper Pifer testified that
[Duodu] would only put his window down approximately
two inches to speak with him. He further testified that
when [Duodu] handed him his documentation, his hands
were visibly shaking, and that his level of nervousness
seemed to be more than that of the ordinary, innocent
motoring public.

5. Trooper Pifer asked [Duodu] basic questions about where
he was coming from, and he noticed that [Duodu] would
pause before answering questions and seemed to have
difficulty answering simple questions. In response to
Trooper Pifer’s questions, [Duodu] indicated he was
returning from Allentown to Johnstown, both of which the
Trooper testified are source-cities for drug trafficking.

6. Trooper Pifer also observed an odor spray and excessive
number of air fresheners in the vents, on the mirror, as
well as several packages on the floor and in the glovebox.

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7. After obtaining [Duodu]’s information, Trooper Pifer
returned to his patrol vehicle to run the vehicle and driver
information, including a criminal history check and again
verifying the vehicle’s registration information. These
checks revealed [Duodu] had both weapons and
automobile theft convictions, as well as a drug history.
Trooper Pifer again verified the “cancelled” registration.

8. Trooper Pifer returned to [Duodu]’s vehicle to inquire
about the vehicle’s owner, and learned it was owned by a
third party not present. [Duodu] was not able to give the
last name of the individual who owned the car.

9. Trooper Pifer asked more questions about [Duodu]’s travel
plans. [Duodu] indicated he ha[d] been traveling for a few
days, but Trooper Pifer only observed one small bag in the
backseat.

10. Trooper Pifer then returned to his vehicle a second time
and attempted to contact a K9 officer to do an exterior
search of the vehicle, but none were in the immediate
vicinity. In the meantime, Trooper Pifer approached
[Duodu]’s vehicle again to verify the VIN number.

11. [Duodu] was then asked to exit the Nissan and step
between his car and the patrol unit for Trooper Pifer to
explain the warning about the “cancelled” registration.
While explaining the registration warning, Trooper Pifer
asked [Duodu] a few follow-up questions about his trip.

12. [Duodu] indicated he had gone to Allentown because
someone had died. When asked where he stayed, [Duodu]
hesitated and then provided two different street names
and told the Trooper he knew a lot of people in the
Allentown area.

13. Trooper Pifer asked [Duodu] for consent to search the car,
provided [Duodu] with the written consent form, but
[Duodu] denied consent saying he was not comfortable
agreeing to that as he was not the owner of the car.
Trooper Pifer asked if there was anything in the car he
needed to know about; [Duodu] indicated no.

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14. Trooper Pifer asked [Duodu] which items were his, but
[Duodu] couldn’t answer. Trooper Pifer then followed up
by asking if the black bag in the back seat belonged to him
and [Duodu] said yes.

15. After [Duodu] refused consent to search, Trooper Pifer
explained he intended to call a K9 unit to come do an
exterior search of the vehicle. A K9 unit was still not
available in the area, so Trooper Pifer had the car towed
back [to] the Rockview barracks and planned to apply for a
search warrant.

16. Trooper Pifer testified that he was unable to search the
vehicle on scene because the location of the vehicle on a
bend in the road, the foggy weather, and the number of
passing tractor trailers presented safety concerns. He also
testified that [Duodu] was not lawfully allowed to drive the
car from the scene due to the cancelled registration. Per
standard procedure, the car would have to be towed from
the scene and would be subject to an inventory search to
look for valuables and any other items that may need to be
secured.

17. Trooper Pifer explained this to [Duodu] and further
indicated he could not remain on the side of the highway
and would have to return to the barracks with him.
Trooper Pifer further explained to [Duodu] that he was not
under arrest, but that pursuant to standard procedure, he
would have to be searched and placed in handcuffs for the
duration of the trip to the station.

18. Once back at the station, Trooper Pifer removed the
handcuffs from [Duodu] and he was permitted to remain in
the lobby by himself. Trooper Pifer then began preparing
the search warrant for [Duodu]’s vehicle. While he was
doing this, [Duodu]’s vehicle arrived at the barracks and
was placed in the enclosed garage area.

19. Trooper Pifer approached the vehicle to double check the
VIN number, and as he was walking around it he detected
an odor of marijuana from inside the vehicle. He then took
[Duodu] into custody.

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20. Trooper Matthew Petrof arrived with his dog, Eric, who is
trained to alert to the presence of controlled substances.
Trooper Petrof deployed Eric on [Duodu]’s vehicle, and he
signaled on the rear passenger door.

21. Trooper Pifer incorporated this information into his search
warrant application, which was signed that day by the
Honorable Kelley Gillette-Walker. The application sought
to search the vehicle for contraband, documentation
related to travel, bank statements and financial
documents, among other things. These items were listed
on an attachment standard to Pennsylvania State Police
drug interdictions searches and the attachment was
reviewed by Trooper Pifer prior to its submission.

22. Once MDJ Gillette-Walker signed the search warrant,
Trooper Pifer searched [Duodu]’s vehicle. The search
recovered approximately 600 empty stamp bags, a large
amount of pure heroin, and three (3) ounces of an
unknown white substance.

Trial Court Opinion, 6/21/2016, at 1-5.

Duodu was subsequently charged with one count each of possession

with the intent to deliver a controlled substance, possession of a controlled

substance, possession of a small amount of marijuana, and possession of

drug paraphernalia.2 Duodu filed a pre-trial motion to suppress evidence, an

amended/supplemental motion, and a second amended/supplemental

motion on October 12, 2015, January 12, 2016, and March 8, 2016,

respectively. A hearing was held regarding the matter on April 12, 2016.

Thereafter, on June 21, 2016, in an order and corresponding opinion, the

court granted Duodu’s suppression motion, in part, with respect to the
____________________________________________

2
35 Pa.C.S. §§ 780-113(a)(30), (a)(16), (a)(31), and (a)(32), respectively.

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physical evidence seized from the car. The court denied the motion, in part,

as to the statements made by Duodu to police. The Commonwealth filed

this timely appeal on June 24, 2016.3

In its sole issue on appeal, the Commonwealth complains the court

erred in granting Duodu’s motion to suppress as to the evidence recovered

from his vehicle following the seizure and impoundment of the car.

Specifically, the Commonwealth asserts the impoundment and subsequent

search of Duodu’s vehicle was valid because Trooper Pifer possessed

probable cause to justify the warrantless seizure of the car based on its

inherent mobility. Commonwealth’s Brief at 19-20. Relying on

Commonwealth v. Gary, 91 A.3d 102 (Pa. 2014), the Commonwealth

states, “There is no difference between the constitutional implications of

seizing a vehicle before obtaining a warrant to conduct a search and

conducting an immediate search without a warrant. Such seizures must be

supported by probable cause.” Commonwealth’s Brief at 16 (citation

omitted). It also points to the following as evidence that Trooper Pifer

possessed probable cause: (1) Duodu was stopped pursuant to a valid

traffic stop on Interstate 80, a major corridor for drug trafficking; (2) Duodu

____________________________________________

3
On June 27, 2016, the trial court ordered the Commonwealth to file a
concise statement of errors complained of on appeal pursuant to Pa.R.A.P.
1925(b). The Commonwealth filed a concise statement on July 18, 2016.
The trial court issued an opinion pursuant to Pa.R.A.P. 1925(a) on July 19,
2016, relying on its June 21, 2016, opinion.

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appeared nervous, his hands were visibly shaking, and he only rolled his

window down two inches; (3) Duodu had trouble answering basic questions;

(4) Duodu was traveling to and from well-known narcotics source cities; (5)

the trooper observed a number of masking agents, like air fresheners, in the

vehicle; (6) Duodu recently pled guilty to drug trafficking; (7) the out-of-

state vehicle belonged to a third party who was not present at the time of

the incident and whom Duodu could not identify by last name or provide

contact information; (8) Duodu said he was on an extended trip but had

insufficient luggage in the car; and (9) Duodu could not provide a specific

address or the name of individuals with whom he had been staying. Id. at

20. The Commonwealth asserts, “It is clear that the facts adduced by

Trooper Pifer during the course of the valid traffic stop were sufficient to lead

a man of his training and experience to believe that criminal activity was

afoot” and therefore, “Trooper Pifer had a sufficient basis to justify the

warrantless seizure of [Duodu]’s vehicle.” Id. at 20-21. The

Commonwealth also points to Commonwealth v. Loughnane, 128 A.3d

806 (Pa. Super. 2015), appeal granted in part, 158 A.3d 1224 (Pa. 2016), to

support its argument, stating that case held “a) police were not required to

obtain a search warrant prior to seizing the defendant’s vehicle, and b) mere

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mobility presented sufficient exigent circumstances to justify the seizure.”

Commonwealth’s Brief at 18 (citation omitted).4

Our standard of review of a trial court’s order granting a

defendant/appellee’s motion to suppress evidence is well established:

When the Commonwealth appeals from a suppression order, we
follow a clearly defined standard of review and 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. The suppression court’s
findings of fact bind an appellate court if the record supports
those findings. The suppression court’s conclusions of law,
however, are not binding on an appellate court, whose duty is to
determine if the suppression court properly applied the law to
the facts. Commonwealth v. Miller, 2012 PA Super 251, 56
A.3d 1276, 1278-79 (Pa. Super. 2012) (citations omitted). “Our
standard of review is restricted to establishing whether the
record supports the suppression court’s factual findings;
however, we maintain de novo review over the suppression
court’s legal conclusions.” Commonwealth v. Brown, 606 Pa.
198, 996 A.2d 473, 476 (2010) (citation omitted).

Commonwealth v. Korn, 139 A.3d 249, 252-253 (Pa. Super. 2016),

appeal denied, 159 A.3d 933 (Pa. 2016). “It is within the suppression

court’s sole province as factfinder to pass on the credibility of witnesses and

the weight to be given to their testimony. The suppression court is free to

believe all, some or none of the evidence presented at the suppression

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4
Moreover, the Commonwealth argues the marijuana odor emanating from
the vehicle as well as the K9’s exterior search provided additional probable
cause that the vehicle contained evidence of criminal activity. Id. at 21.
Lastly, the Commonwealth contends the justification for the warrantless
seizure did not vanish because Trooper Pifer could not safely conduct the
search where he stopped the vehicle. Id.

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hearing.” Commonwealth v. Elmobdy, 823 A.2d 180, 183 (Pa. Super.

2003) (citations omitted), appeal denied, 847 A.2d 58 (Pa. 2004).

Nevertheless, the suppression court’s conclusions of law are not binding on

an appellate court, and are subject to plenary review. Commonwealth v.

Johnson, 969 A.2d 565, 567 (Pa. Super. 2009) (citations omitted).

The Fourth Amendment of the United States Constitution provides,

“[t]he right of the people to be secure in their persons, houses, papers, and

effects, against unreasonable searches and seizures, shall not be violated

….” U.S. Const. amend. IV. The Pennsylvania Constitution also protects this

interest by ensuring, “[t]he people shall be secure in their persons, houses,

papers and possessions from unreasonable searches and seizures ….” Pa.

Const. Art. I, § 8. Moreover, “a lawful search generally extends to the entire

area in which the object of the search may be found.” Commonwealth v.

Rega, 933 A.2d 997, 1013 (Pa. 2007) (citation omitted), cert. denied, 552

U.S. 1316 (2008).

In Commonwealth v. Gary, 91 A.3d 102 (Pa. 2014), the

Pennsylvania Supreme Court, in an Opinion Announcing the Judgment of the

Court (“OAJC”),5 “adopt[ed] the federal automobile exception to the warrant

____________________________________________

5
It merits mention that while Gary is a plurality decision, the result is
precedential due to the nature of Justice Saylor’s concurring opinion. Gary,
91 A.3d at 138 (“I join the lead Justices in adopting the federal automobile
exception.”).

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requirement, which allows police officers to search a motor vehicle when

there is probable cause to do so and does not require any exigency beyond

the inherent mobility of a motor vehicle.” Gary, 91 A.3d at 104.6 Further,

the Court opined:

The prerequisite for a warrantless search of a motor vehicle is
probable cause to search; no exigency beyond the inherent
mobility of a motor vehicle is required. The consistent and firm
requirement for probable cause is a strong and sufficient
safeguard against illegal searches of motor vehicles, whose
inherent mobility and the endless factual circumstances that
such mobility engenders constitute a per se exigency allowing
police officers to make the determination of probable cause in
the first instance in the field.

Id. at 138.

The Pennsylvania Supreme Court has defined probable cause as

follows:

Probable cause is made out when the facts and circumstances
which are within the knowledge of the officer at the time of the
[stop], and of which he has reasonably trustworthy information,
are sufficient to warrant a man of reasonable caution in the
belief that the suspect has committed or is committing a crime.
The question we ask is not whether the officer’s belief was
correct or more likely true than false. Rather, we require only a
probability, and not a prima facie showing, of criminal activity.
In determining whether probable cause exists, we apply a
totality of the circumstances test.

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6
Before the Gary decision was announced, “in order for police officers to
conduct a lawful search of an automobile without a warrant, the officers
were required to have probable cause and exigent circumstances.”
Commonwealth v. Hudson, 92 A.3d 1235, 1241 (Pa. Super. 2014)
(emphasis added), appeal denied, 106 A.3d 724 (Pa. 2014).

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Commonwealth v. Martin, 101 A.3d 706, 721 (Pa. 2014) (citation

omitted) (emphasis in original), cert. denied, 136 S. Ct. 201 (U.S. 2015).

Here, the trial court found as follows:

Based on the totality of the above circumstances, the
Court finds that Trooper Pifer developed reasonable suspicion
that criminal activity was afoot such to justify an investigatory
detention after the initial traffic stop. See Commonwealth v.
Rogers, 849 A.2d 1185 (Pa. 2004) (Totality of the
circumstances including extreme nervousness, presence of
masking agents, prior drug convictions, fraudulent vehicle
paperwork, and reasonable inferences derived therefrom, gave
rise to reasonable suspicion justifying detention and search);
Commonwealth v. Kemp, 961 A.2d 1247 (Pa. Super. Ct.
2008) (Reasonable suspicion existed where defendant exhibited
extremely nervous behavior, was operating a third party vehicle,
there was an overwhelming odor of air fresheners, defendant
failed to provide correct name of owner of vehicle, and he was
traveling from a source city). Accordingly, Trooper Pifer also had
the requisite reasonable suspicion to conduct a canine sniff of
the exterior of the vehicle.

However, at the time Trooper Pifer was in need of a K9
unit, none were readily available. Instead of waiting for a K9
unit to arrive on scene, Trooper Pifer had the vehicle towed back
to the barracks. Trooper Pifer testified that per standard
Pennsylvania State Police procedure, he was required to tow the
vehicle from the roadway because it could not be lawfully driven
away due to the cancelled registration. However, the
Commonwealth has provided no evidence of such a policy or
procedure. The Court finds it difficult to imagine that in dealing
with the ordinary motoring public, the police tow every vehicle
with a registration violation after having given the driver a
warning and having no other cause for suspicion. This practice
seems illogical and would result in a waste of resources. The
Court finds that in the instant case, the decision to tow
[Duodu]’s vehicle, while made with actual reasonable suspicion,
was pre-textual. Trooper Pifer did not yet have probable cause
to seize the vehicle, and therefore, all evidence obtained after
the vehicle was seized is fruit of the poisonous tree and must be
suppressed.

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Trial Court Opinion, 6/21/2016, at 9-10. We agree with the trial court’s

conclusion.

“It is well settled that an officer may stop a motor vehicle if the officer

reasonably believes that a provision of the Motor Vehicle Code is being

violated. Incident to this stop, the [officer] may check the vehicle’s

registration and the driver’s license and issue a citation.” Commonwealth

v. Henley, 909 A.2d 352, 358 (Pa. Super. 2006) (citations and internal

quotation marks omitted), appeal denied, 927 A.2d 623 (Pa. 2007). Here,

Trooper Pifer testified that he stopped Duodo for a canceled vehicle

registration. N.T., 4/12/2016, at 14. Duodo concedes a canceled

registration is a violation of the Motor Vehicle Code. See Duodo’s Brief at

31. Further, the trial court found “Trooper Pifer developed reasonable

suspicion that criminal activity was afoot such to justify an investigatory

detention after the initial traffic stop.” Trial Court Opinion, 6/21/2016 at 9

(citation omitted).

Next, because the stop was proper, we must determine whether

Trooper Pifer possessed probable cause to search the car pursuant to Gary,

supra. As noted above, the Supreme Court in Gary “adopt[ed] the federal

automobile exception to the warrant requirement, which allows police

officers to search a motor vehicle when there is probable cause to do so and

does not require any exigency beyond the inherent mobility of a motor

vehicle.” Gary, 91 A.3d at 104. Here, the Commonwealth’s argument

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appears to infer that under Gary, and in turn, Loughnane,7 the exigency of

the mobility of the vehicle modifies the necessity of the officer possessing

probable cause in order to search and seize. This is erroneous. Under

Gary, the exigency replaces the need for the officer to obtain a search

warrant prior to further investigation; it does not eliminate the requirement

of probable cause.

Furthermore, as found by the trial court, there is critical testimony

missing that would have supported an inference of probable cause that

Duodo was committing a crime. See Martin, supra. For example, Trooper

Pifer discovered during the initial criminal background check that Duodo

had prior gun charges and automobile theft, but not a drug history. N.T.,

4/12/2016, at 21-22, 75.8 The trooper did not observe a gun in the car, the

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7
In Loughnane, a panel of this Court held “Gary applies to vehicles
parked in driveways at private residences, because driveways are not part of
a home's curtilage, and an individual does not have a reasonable expectation
of privacy over the driveway.” Loughnane, 128 A.3d at 817. The
Pennsylvania Supreme Court has granted the defendant’s petition for
allowance to appeal to determine: “Whether the Superior Court erred by
holding that the automobile exception, adopted in Commonwealth v. Gary,
625 Pa. 183, 91 A.3d 102 (Pa. 2014), allowed police to seize a vehicle from
the defendant’s private residential driveway without a warrant?”
Loughnane, 158 A.3d 1224 (Pa. 2016).
8
The trooper testified that during his initial criminal history check, there
was no drug history indicator for Duodo. N.T., 4/12/2016, at 75. It is
unclear from the record when the trooper later determined Duodo did indeed
have a drug record but not for drug trafficking. Id. at 22.

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car was not reported stolen,9 and there were no drugs or paraphernalia in

plain view.10 Trooper Pifer’s observations of Duodo and the appearance of

the car, such as his nervousness, his narrative of the trip, and an excessive

number of air fresheners, only rose to the level of reasonable suspicion and

did not convert to probable cause. Indeed, this is evidenced by the fact that

the trooper was only going to give Duodo a warning regarding the canceled

registration. Accordingly, the Commonwealth’s argument fails.

We offer the following additional analysis with respect to the seizure of

the vehicle because Trooper Pifer did not search the vehicle until after he

had it towed and impounded. Section 6309.2(a)(2) of the Pennsylvania

Motor Vehicle Code addresses the immobilization, towing, and storage of

vehicles for driving without registration or insurance and provides, in

relevant part:

(a) General rule.- Subject to subsection (d), the following
shall apply:

…

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9
We point out the fact that given Duodo’s criminal history of automobile
theft, the car in which he was traveling was not reported as “stolen.” As
such, we agree with the trial court that there was no other reason for
suspicion to tow the vehicle.
10
Moreover, the trooper did not see anything in the glove compartment
when Duodo opened it and he did not smell any drugs in the car during the
traffic stop. N.T., 4/12/2016, at 50, 72. The trooper also did not testify that
Duodo appeared to be under the influence of any type of narcotic.

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(2) If a motor vehicle or combination for which there is no
valid registration or for which the registration is suspended
for failing to maintain financial responsibility, as verified by
an appropriate law enforcement officer, is operated on a
highway or trafficway of this Commonwealth, the motor
vehicle or combination shall be immobilized by the law
enforcement authority, and the appropriate judicial
authority shall be so notified.

75 Pa.C.S. § 6309.2(a)(2).

An inventory search of an automobile is permissible when (1) the
police have lawfully impounded the vehicle; and (2) the police
have acted in accordance with a reasonable, standard
policy of routinely securing and inventorying the contents of the
impounded vehicle. [South Dakota v.] Opperman, 428 U.S.
[364,] 375 [(1976)].

Commonwealth v. Lagenella, 83 A.3d 94, 102 (Pa. 2013) (emphasis

added).

Turning to the present matter, as found by the trial court, the

Commonwealth did not offer into evidence the Pennsylvania State Police

policy or procedure with respect to towing a vehicle under these

circumstances, and the trial court found the trooper’s testimony regarding

such police policy to be incredible. See Trial Court Opinion, 6/21/2016, at

9-10.11 See also Elmobdy, supra (credibility determinations are within the

sole province of the suppression court). Additionally, Trooper Pifer did not

testify that Duodo’s vehicle jeopardized public safety. There was no

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11
It merits mention the Commonwealth also did not present this Court with
such procedure documents on appeal.

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evidence presented that the vehicle was blocking traffic or too close to the

highway lanes. Rather, the trooper testified that he could not perform a

search safely where he stopped the vehicle because “we were on a curve, it

was a foggy morning, and there was multiple traffic-trailers [sic] that went

by the location in the right lane, passing us.” N.T., 4/12/2016, at 32.12

Therefore, we find the Commonwealth did not demonstrate the towing and

the inventory search of Duodo’s vehicle were proper. Accordingly, we

conclude the trial court did not err in granting Duodo’s motion to suppress.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 9/12/2017

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12
We note these facts are distinguishable from Henley, where the court did
find the vehicle at issue posed a public safety threat. See Henley, 909 A.2d
at 365 (noting “appellant’s vehicle was stopped in the middle of the roadway
such that it constituted a traffic hazard; that the particular street on which
appellant’s vehicle was stopped did not permit parking on either side; and
that there was a great amount of snow on the road, preventing appellant
from pulling onto the sidewalk so as not to interfere with traffic.”).

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