Com. v. Jones, R., III

J-A01037-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
v. :
:
RICHARD LLOYD JONES, III :
:
Appellee : No. 463 MDA 2021

Appeal from the Order Entered March 11, 2021
In the Court of Common Pleas of Berks County
Criminal Division at No(s): CP-06-CR-0001335-2020

BEFORE: LAZARUS, J., NICHOLS, J., and KING, J.

MEMORANDUM BY KING, J.: FILED: APRIL 12, 2022

Appellant, the Commonwealth of Pennsylvania, appeals from the order

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

suppression motion of Appellee, Richard Lloyd Jones, III. We affirm.

The suppression court provided the following findings of fact:

1. On February 26, 2020, Pennsylvania State Trooper
Ralph Vance … and Trooper [Eric] Dreisbach were on
Interstate 78 West in Bethel Township, Berks County,
Pennsylvania. They were both in full uniform operating a
marked patrol vehicle.

2. Interstate 78 is a known drug corridor.

3. While on patrol, the troopers observed a grey
Nissan Sentra (“Sentra”) being operated without
Pennsylvania inspection or emission stickers.

4. Trooper Dreisbach ran the vehicle’s registration
and discovered that the Sentra was a rental vehicle and
owned by Avis. Trooper Dreisbach found it unusual that the
Sentra did not have its stickers displayed because rental
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companies prefer to keep their vehicles up to date.

5. Trooper Dreisbach activated his lights and siren to
initiate a traffic stop. The Sentra pulled off to the side of
the road.

6. Trooper Dreisbach approached the Sentra on its
passenger side and came into contact with [Appellee] and
Trai’vone Tyriek Ferguson (“Ferguson”). [Appellee] was the
operator of the Sentra. Ferguson was in the front passenger
seat.

7. Trooper Dreisbach identified himself to [Appellee]
and Ferguson. He asked [Appellee] for his license,
registration and proof of insurance.

8. [Appellee] informed Trooper Dreisbach that the
Sentra was a rental vehicle and provided him with his
driver’s license and rental paperwork.

9. While outside of the Sentra, Trooper Dreisbach
observed ashes and an open energy drink in the center
console. In Trooper Dreisbach’s experience, drug traffickers
use energy drinks to stay alert during their travels. Also,
the presence of ash was concerning because people often
do not smoke in rental vehicles.

10. There were several air fresheners present in the
Sentra. In Trooper Dreisbach’s experience, people will often
use air fresheners to hide the odor of narcotics. He found it
unusual that someone would put air fresheners into a rental
vehicle since the vehicle would have to be returned at the
conclusion of the rental period.

11. Neither [Appellee] nor Ferguson’s name was on the
rental paperwork. [Appellee] stated that his aunt rented the
vehicle. The vehicle was rented in Charlottesville, Virginia.

12. Trooper Dreisbach asked [Appellee] to step out of
the vehicle to clear up the issues surrounding the rental
agreement. In Trooper Dreisbach’s experience, drug
traffickers will operate vehicles rented to a third party to
distance themselves from the vehicle in the event they are
caught.

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13. In Trooper Dreisbach’s opinion, [Appellee] was not
free to leave as he was outside of the Sentra speaking with
Trooper Dreisbach.

14. As Trooper Dreisbach was talking with [Appellee]
at the rear of the Sentra, he instructed Trooper Vance to
talk to Ferguson who was still seated in the vehicle.

15. [Appellee] informed Trooper Dreisbach that he was
coming from Wilmington, New Jersey. Trooper Dreisbach
asked him if he meant Wilmington, Delaware. [Appellee]
said that he was going to see a friend and Ferguson came
along with him on his trip. They left from Charlottesville,
Virginia, and then traveled to New Jersey before making
their return trip to Charlottesville again all in one day.
Trooper Dreisbach testified that this was an indicator of
criminal activity.

16. [Appellee] appeared to be nervous during the
conversation with Trooper Dreisbach.

17. Trooper Dreisbach talked to Trooper Vance about
the conversation he had with Ferguson. The information
provided by Ferguson about his trip was inconsistent with
the information provided by [Appellee]. Ferguson informed
Trooper Vance that he was in Manhattan in New York City
visiting a female friend for a week. He got into an argument
with her and was staying with his brother and their friends.
Ferguson then contacted [Appellee] to pick him up to return
to Virginia.

18. New York City is a source city for narcotics
trafficking.

19. Ferguson appeared nervous during his
conversation with Trooper Vance. He appeared to be
distracted by his phone and broke eye contact with Trooper
Vance.

20. Trooper Dreisbach asked [Appellee] if there was
anything illegal in the Sentra and for consent to search.
[Appellee] refused consent.

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21. Trooper Dreisbach instructed Trooper Vance to
contact a canine unit.

22. Trooper Dreisbach approached the Sentra and
talked to Ferguson. Ferguson appeared nervous and looked
as if he was about to cry.

23. Trooper Dreisbach asked Ferguson if there was
anything illegal in the Sentra. Ferguson told Trooper
Dreisbach that there was a marijuana joint in the center
console. Based on his training and experience, Trooper
Dreisbach testified that people will offer something small in
order to distract from other parts of a vehicle. He also
believed that [Appellee] and Ferguson were too nervous for
just a marijuana joint.

24. Trooper Dreisbach seized the marijuana joint and
asked Ferguson to exit the Sentra. He was in possession of
Ferguson’s driver’s license at that time.

25. After Ferguson exited the Sentra, Trooper
Dreisbach informed both [Appellee] and Ferguson that he
had probable cause to search the vehicle and canceled the
canine unit.

26. Trooper Dreisbach proceeded to search the Sentra.
Trooper Dreisbach looked inside of the Sentra’s trunk. He
observed a backpack and asked both [Appellee] and
Ferguson if it belonged to them. They both denied
ownership of the backpack.

27. Trooper Dreisbach opened the backpack and
discovered a vacuum-sealed kilogram of an unknown
substance. He told both [Appellee] and Ferguson to put
their hands behind their backs. Ferguson ran away.

28. Trooper Dreisbach pursued and apprehended
Ferguson. He was placed under arrest and searched. No
contraband was discovered on Ferguson. Additionally, the
keys to the Sentra were not located on him. [Appellee] was
also searched incident to arrest with negative results.

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29. Miranda[1] warnings were read to [Appellee] and
Ferguson. They both agreed to speak to the troopers.
[Appellee] admitted that they had traveled to New Jersey,
picked up the backpack and were taking it to Virginia where
they were going to get paid in product. [Appellee] indicated
that he didn’t believe Ferguson knew the purpose of the trip
but guessed that he probably could have figured it out.
However, upon additional questioning, [Appellee] then said
that he and Ferguson both knew the purpose of their trip to
obtain cocaine and get paid in product upon delivery.
Ferguson provided a different story and said that he traveled
to New York with his girlfriend where [Appellee] picked him
up and they were traveling to Virginia. Ferguson denied
knowledge of the backpack in the trunk.

30. Cellular phones were recovered from [Appellee]
and Ferguson. Ferguson provided written consent to search
his phone. Another state trooper, Trooper Fluck, went
through Ferguson’s cellular phone and confronted Ferguson
with the messages. The text messages referenced Ferguson
being a “middle man” in other drug sales. Ferguson said he
dabbled in marijuana and cocaine.

31. A search warrant was obtained for the cell phones.
Trooper Dreisbach was provided with the extracted data
from the cell phones and observed all of the text messages.
The text messages show that there was a conversation
between [Appellee] and an unknown individual about drugs.
Ferguson was not mentioned in that conversation. There
was another text conversation between [Appellee] and
Ferguson about the trip from Virginia to the New York/New
Jersey area with nothing specific about picking up drugs.

32. The substance in the vacuum-sealed package
located within the backpack tested positive for cocaine.

33. The backpack also contained a pair of size 38
pants. These pants would have been too big for Ferguson
who was listed as standing 5’6” and weighing 160 pounds.

34. If Trooper Dreisbach had not searched the Sentra,
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1 Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

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he would have towed the vehicle. An inventory search
would have been conducted prior to towing.

35. The sole reason that the Sentra would have been
towed was because neither [Appellee] nor Ferguson were
listed on the rental agreement for the vehicle.

36. Trooper Dreisbach did not attempt to contact the
individual named in the rental agreement or the Avis rental
company to learn more about the Sentra.

37. There were no exigent circumstances present on
February 26, 2020, during Trooper Dreisbach’s interaction
with [Appellee].

(Findings of Fact and Conclusions of Law, filed 3/11/21, at 2-6).

On June 24, 2020, the Commonwealth filed a criminal information

charging Appellee with possession of a controlled substance, possession of a

controlled substance with intent to deliver, possession of drug paraphernalia,

and conspiracy.2 Appellee filed an omnibus pretrial motion on July 24, 2020.

The motion included a request to suppress all evidence “obtained illegally as

the result of an … illegal search made without reasonable suspicion, made

without probable cause or a … valid search warrant or consent.” (Omnibus

Pretrial Motion, filed 7/24/20, at ¶6). Appellee filed a supplemental omnibus

pretrial motion on September 23, 2020.

The court conducted multiple hearings to receive evidence on the claims

____________________________________________

2 35 P.S.§ 780-113(a)(16), (30), (32) and 18 Pa.C.S.A. § 903, respectively.

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in Appellee’s omnibus pretrial motions.3 On January 13, 2021, the

Commonwealth filed a motion to supplement the pretrial hearing record.

Specifically, the Commonwealth acknowledged our Supreme Court’s recent

decision in Commonwealth v. Alexander, ___ Pa. ___, 243 A.3d 177

(2020), which eliminated the automobile exception to the warrant

requirement in Pennsylvania. Due to this substantive change in the law, the

Commonwealth requested the opportunity to introduce additional evidence in

opposition to Appellee’s suppression claims. After considering the

Commonwealth’s motion, the court conducted another hearing on February

12, 2021.

On March 11, 2021, the court issued findings of fact and conclusions of

law. Initially, the court determined that the troopers possessed reasonable

suspicion of criminal activity, which justified an extension of the original traffic

stop. (See Findings of Fact and Conclusions of Law at 10). Mr. Ferguson’s

subsequent admission regarding the presence of a marijuana joint in the

Sentra’s center console did not require suppression, because it was not the

product of a custodial interrogation. (Id. at 12-13). According to the

suppression court, Trooper Dreisbach subsequently conducted a warrantless

____________________________________________

3 At a hearing conducted on November 10, 2020, Mr. Ferguson’s attorney
entered the preliminary hearing transcripts into evidence. The parties agreed
that the transcripts would be part of the record for purposes of Mr. Ferguson
and Appellee’s suppression claims. (See N.T. Pretrial Hearing, 11/10/20, at
4).

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search of the trunk based solely on his belief that probable cause supported

the search. (Id. at 15). Pursuant to Alexander, the court concluded that

both probable cause and exigent circumstances needed to be present for

Trooper Dreisbach to search without obtaining a warrant. (Id.) The record

did not reveal any exigent circumstances to support the warrantless search.

(Id.)

To the extent the Commonwealth sought to rely on the inevitable

discovery doctrine, the court found that “Trooper Dreisbach was not

authorized by the Vehicle Code to tow the Sentra[,] … an inventory search

would not have been performed and the drugs would not have been inevitably

discovered.” (Id. at 21). The court also found that the evidence obtained

from Appellee’s cell phone and the statements made following the illegal

search were inadmissible as “fruit of the poisonous tree.” (Id. at 22).

Consequently, the court granted Appellee’s suppression motion as to the drugs

discovered in the trunk of the Sentra, the cell phone data, and any statements

made following the search of the Sentra. The court denied the motion as to

any statements made prior to the search of the Sentra.

The Commonwealth timely filed a notice of appeal on Monday, April 12,

2021, under Pa.R.A.P. 311(d).4 On April 16, 2021, the court ordered the

____________________________________________

4 See Pa.R.A.P. 311(d) (stating that in criminal case, Commonwealth may
take appeal as of right from order that does not end entire case where
Commonwealth certifies in notice of appeal that order will terminate or
substantially handicap prosecution).

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Commonwealth to file a Pa.R.A.P. 1925(b) concise statement of errors

complained of on appeal. The Commonwealth timely filed its Rule 1925(b)

statement on April 30, 2021.

The Commonwealth now raises two issues for this Court’s review:

Did the trial court err in suppressing evidence obtained as a
result of a warrantless search of [Appellee’s] vehicle based
upon probable cause?

Consequently, did the trial court err in suppressing cell
phone evidence and statements made after the search as
fruit of the poisonous tree?

(Commonwealth’s Brief at 5).

The Commonwealth’s claims are related, and we address them together.

The Commonwealth acknowledges our Supreme Court’s decision in

Alexander, which held that the Pennsylvania Constitution requires both a

showing of probable cause and exigent circumstances to justify the

warrantless search of an automobile. Nevertheless, the Commonwealth

insists that an exception to the warrant requirement is present under the

circumstances of this case. Relying on 75 Pa.C.S.A. §§ 3352(c)(4) and

3353(a)(2)(vii), the Commonwealth posits that the trooper had the authority

to order the towing of the Sentra because it was parked on a “limited access

highway.” (Id. at 17). The Commonwealth maintains that an inventory

search would have occurred prior to towing, and the trooper’s discovery of the

contraband was inevitable.

The Commonwealth urges that “the doctrine of inevitable discovery

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permits the admission of the evidence obtained as a result of the warrantless

search of the vehicle[.]” (Id. at 23). The Commonwealth recognizes that the

exclusionary rule “generally excludes physical or testimonial evidence

obtained as a direct and proximate result of unconstitutional conduct by

police,” but it contends that the inevitable discovery doctrine serves as an

exception to the exclusionary rule. (Id.) The Commonwealth further argues

that “[a]t the federal level, an exception to the exclusionary rule exists when

police unknowingly violate the constitution while acting in ‘good faith.’” (Id.

at 27). The Commonwealth notes that “[o]ther states have incorporated this

[good faith exception] into their jurisprudence,” and this Court should adopt

such an exception here, where “Trooper Dreisbach acted reasonably within

the boundaries of the law [as it existed] at the time of the search[.]” (Id. at

32, 38). Based upon the foregoing, the Commonwealth concludes that we

must remand this case for trial on all charges with all evidence.5 We disagree.

“At a suppression hearing, ‘the Commonwealth has the burden of

establishing by a preponderance of the evidence that the evidence was

properly obtained.’” Commonwealth v. Heidelberg, 267 A.3d 492, 499

(Pa.Super. 2021) (en banc) (quoting Commonwealth v. Galendez, 27 A.3d

1042, 1046 (Pa.Super. 2011) (en banc)). When the Commonwealth appeals

____________________________________________

5Because the Commonwealth opines that the warrantless search of the vehicle
was lawful, it also believes that the court erred in suppressing Appellee’s post-
search statements and cell phone evidence as fruit of the poisonous tree.
(See Commonwealth’s Brief at 38-39).

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from a suppression order, the relevant scope and standard of review are well-

settled:

[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. 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.

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. Korn, 139 A.3d 249, 252-53 (Pa.Super. 2016), appeal

denied, 639 Pa. 157, 159 A.3d 933 (2016) (internal citations and quotation

marks omitted). “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 hearing.” Commonwealth v.

Elmobdy, 823 A.2d 180, 183 (Pa.Super. 2003), appeal denied, 577 Pa. 701,

847 A.2d 58 (2004) (internal citations omitted).

“Both the Fourth Amendment of the United States Constitution and

Article I, Section 8 of the Pennsylvania Constitution guarantee individuals

freedom from unreasonable searches and seizures.” Heidelberg, supra at

502 (quoting Commonwealth v. Newsome, 170 A.3d 1151, 1154

(Pa.Super. 2017)). “As a general rule, ‘a warrant stating probable cause is

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required before a police officer may search for or seize evidence.’” Id.

(quoting Commonwealth v. Anderson, 40 A.3d 1245, 1248 (Pa.Super.

2012)). Regarding automobiles, “Article I, Section 8 affords greater protection

to our citizens than the Fourth Amendment, and … the Pennsylvania

Constitution requires both a showing of probable cause and exigent

circumstances to justify a warrantless search of an automobile.” Alexander,

supra at ___, 243 A.3d at 181.

“Absent the application of one of a few clearly delineated exceptions, a

warrantless search or seizure is presumptively unreasonable.” Heidelberg,

supra at 502 (quoting Commonwealth v. Whitlock, 69 A.3d 635, 637

(Pa.Super. 2013)). One of these exceptions to the warrant requirement is the

inevitable discovery doctrine, which provides:

[E]vidence which would have been discovered was
sufficiently purged of the original illegality to allow
admission of the evidence…. [I]mplicit in this doctrine is the
fact that the evidence would have been discovered despite
the initial illegality.

If the prosecution can establish by a preponderance of the
evidence that the illegally obtained evidence ultimately or
inevitably would have been discovered by lawful means, the
evidence is admissible. The purpose of the inevitable
discovery rule is to block setting aside convictions that
would have been obtained without police misconduct.

Commonwealth v. King, 259 A.3d 511, 522 (Pa.Super. 2021) (quoting

Commonwealth v. Bailey, 986 A.2d 860, 862 (Pa.Super. 2009), appeal

denied, 606 Pa. 660, 995 A.2d 350 (2010)).

Additionally, the Motor Vehicle Code permits police officers to order the

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towing of an automobile under the following circumstances:

§ 3352. Removal of vehicle by or at direction of police

* * *

(c) Removal to garage or place of safety.—Any
police officer may remove or cause to be removed to the
place of business of the operator of a wrecker or to a nearby
garage or other place of safety any vehicle found upon a
highway under any of the following circumstances:

* * *

(4) The vehicle is in violation of section 3353
(relating to prohibitions in specified places) except for
overtime parking.

75 Pa.C.S.A. § 3352(c)(4). Section 3353 prohibits a vehicle from parking or

standing “[o]n a limited access highway unless authorized by official traffic-

control devices.” 75 Pa.C.S.A. § 3353(a)(2)(vii).

Instantly, the suppression court analyzed Alexander and applied its

holding to the facts of Appellee’s case. The court determined that Mr.

Ferguson’s statement regarding the presence of a marijuana joint provided

Trooper Dreisbach with probable cause to search the Sentra. (See Findings

of Fact and Conclusions of Law at 15). “However, there was no testimony

regarding the exigent circumstances that would have prevented Trooper

Dreisbach from obtaining a search warrant.” (Id.)

Regarding the Commonwealth’s argument about the applicability of the

inevitable discovery doctrine, the court noted that Trooper Dreisbach would

have had the Sentra towed if he had not performed a search while the vehicle

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was stopped on the side of the road. (See id. at 19). The court emphasized

Trooper Dreisbach’s statement “that the sole reason for towing the vehicle

would have been because neither [Appellee] nor Ferguson were listed on the

rental agreement.” (Id.) Specifically, Trooper Dreisbach testified on this

matter as follows:

[DEFENSE COUNSEL]: You stated on direct examination
that you would have towed the vehicle?

[TROOPER]: Correct. Yes.

[DEFENSE COUNSEL]: Are you saying you would have
towed it because the driver was not on the rental
agreement?

[TROOPER]: Yes. So I would have towed it.
Neither occupant was on the rental agreement, they’re out
of the state where it was rented from. I mean, like I
explained during my testimony before, it’s a liability for the
rental company to have random people driving rental cars
around.

(N.T. Suppression Hearing, 2/12/21, at 18). Although the trooper briefly

mentioned that the Sentra was parked on the side of the interstate, he did not

expressly testify that location of the vehicle provided him with a basis for

towing it away from the scene. (Id. at 15, 18-20).

The court evaluated this testimony and the relevant portions of the

Motor Vehicle Code concluding that “the operation of a rental vehicle by an

individual not listed on a rental agreement is not a legal justification to tow a

vehicle pursuant to … the Vehicle Code.” (Findings of Fact and Conclusions of

Law at 21). Based upon the applicable standard of review, the suppression

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court properly applied the law to the facts. See Korn, supra. Although the

Commonwealth correctly observes that police are authorized to remove

vehicles that are parked on limited access highways pursuant to Section

3353(a)(2)(vii), the record does not demonstrate that this aspect of the Motor

Vehicle Code would have served as a catalyst for Trooper Dreisbach.

At the various suppression hearings, the Commonwealth failed to

develop the record regarding alternative bases for the towing of the Sentra.

The trooper’s only stated basis for a tow—the lack of Appellee or Mr.

Ferguson’s name on the rental agreement—is not one of the statutorily

enumerated circumstances that will justify law enforcement’s removal of a

vehicle. See 75 Pa.C.S.A. §§ 3352, 3353. Absent more, the Commonwealth

did not establish that the illegally obtained evidence in the trunk of the Sentra

ultimately or inevitably would have been discovered by lawful means. See

King, supra.

The Commonwealth now asks this Court to recognize an exception to

the exclusionary rule, but “Article I, Section 8 of the Pennsylvania Constitution

does not incorporate a ‘good faith’ exception to the exclusionary rule.”

Commonwealth v. Edmunds, 526 Pa. 374, 411, 586 A.2d 887, 905-06

(1991). See also Commonwealth v. Johnson, 624 Pa. 325, 86 A.3d 182

(2014) (declining to adopt good faith exception to exclusionary rule for

purpose of admitting physical evidence seized by police incident to arrest

based solely on expired arrest warrant, even if arresting officer believed

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warrant was valid). Accordingly, we affirm the order granting in part

Appellee’s motion for suppression of the evidence obtained as a result of the

illegal vehicle search.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 4/12/2022

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