Commonwealth v. Green , 2017 Pa. Super. 244 ( 2017 )

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2017 PA Super 244COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
LEVI A. GREEN
Appellant No. 1171 MDA 2016
Appeal from the Judgment of Sentence July 1, 2016
In the Court of Common Pleas of Luzerne County
Criminal Division at No(s): CP-40-CR-0000336-2015
BEFORE: SHOGAN, J., MOULTON, J., and PLATT, J.*
OPINION BY MOULTON, J.: FILED JULY 25, 2017
Levi A. Green appeals from the July 1, 2016 judgment of sentence
entered in the Luzerne County Court of Common Pleas following his
convictions for possession with intent to deliver a controlled substance
(“PWID”), possession of a controlled substance, and possession of drug
paraphernalia.1 We affirm.
On August 4, 2014, at approximately 4:00 p.m., Pennsylvania State
Police Trooper Mark Conrad was conducting radar enforcement on State
Route 115 in Bear Creek Township, Luzerne County, which had a speed limit
of 45 miles per hour. Trooper Conrad is assigned to the Northwest K-9 Unit
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*
Retired Senior Judge assigned to the Superior Court.
1
35 P.S. § 780-113(a)(30), (a)(16), and (a)(32), respectively.
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and had Astor, a Pennsylvania State Police canine, with him. 2 Trooper
Conrad’s vehicle was “positioned across from the Bear Creek Charter School
near [an] access ramp to the [Pennsylvania] Turnpike.” Trial Ct. Op.,
10/24/16, at 2 (“1925(a) Op.”).
Trooper Conrad measured the speed of a tan-colored Dodge sedan and
obtained a reading of 62 miles per hour. He then activated his emergency
lights and stopped the vehicle. When Trooper Conrad approached the
vehicle, he noticed that Green, the vehicle’s sole occupant, appeared “overly
nervous for [a] traffic violation stop,” as Green’s “lips and face area around
his lips were trembling, and . . . a carotid artery in his neck appeared to be
pounding.”3 N.T., 10/13/15, at 10-11.
Trooper Conrad recognized Green and the vehicle from two prior traffic
stops.4 In the first, Green was an occupant in a different vehicle traveling
from Philadelphia. During that stop, Trooper Conrad recovered cocaine and
marijuana hidden in the vehicle’s engine compartment. In the second,
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2
Trooper Conrad is certified to handle police canines, and Astor
received re-certification as a drug detection dog in December of 2014.
3
Green testified at the suppression hearing. Green told the trial court
that he appeared nervous because Trooper Conrad had previously arrested
members of his family. N.T., 10/13/15, at 44.
4
At the suppression hearing, Green testified that Trooper Conrad also
asked Green if the Trooper knew him from somewhere and Green responded
that he did not know from where the Trooper would know him. N.T.,
10/13/15, at 43-44.
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Trooper Conrad stopped the same tan Dodge sedan driven by its owner
almost three months before the current stop, and found a hypodermic
needle in the vehicle.
While at the window of the vehicle,5 Trooper Conrad asked Green for
the registration and insurance documents for the vehicle. Green replied that
he did not own the car and it was not registered to him. Trooper Conrad
then asked Green about his travel plans. Green stated that he was returning
from Philadelphia, where he had dropped off his son at approximately 9:00
a.m. Trooper Conrad returned to his vehicle and ran a criminal history
check on Green, which showed that Green had a “lengthy criminal history for
assault and drug offenses.” 1925(a) Op. at 3. Trooper Conrad called for
backup, returned to the vehicle, and asked Green to step out.
Suspicious that Green may have been trafficking drugs, Trooper
Conrad asked Green to consent to a search of the vehicle.6 When Green
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5
At the suppression hearing, Green testified that when he passed
Trooper Conrad’s vehicle, “there were at least five . . . cars behind him,” and
Trooper Conrad “did not pull directly behind Green’s vehicle, but rather
behind the fifth car behind Green.” 1925(a) Op. at 4. According to Green,
Trooper Conrad approached the vehicle and asked Green “if he knew that he
was speeding.” Id. Green denied speeding. Id.
6
At the suppression hearing, Green testified that after Trooper Conrad
went back to his cruiser and re-approached the sedan, Trooper Conrad
asked Green to step out of the vehicle and sign a document that Trooper
Conrad presented as a citation for speeding. Green, however, characterized
this document as a consent form to search the vehicle and refused to sign it.
Green stated that Trooper Conrad asked to search Green’s person and
(Footnote Continued Next Page)
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declined, Trooper Conrad deployed Astor. Astor alerted to the odor of
narcotics on both the driver and passenger sides of the vehicle. Trooper
Conrad then searched the vehicle and found a folded black bag in the engine
compartment next to the air filter, located on the passenger side of the
vehicle. Inside the black bag, Trooper Conrad discovered three sleeves of
heroin, containing 525 packets total.
On August 17, 2015, Green filed a motion to suppress, arguing that
(1) Trooper Conrad had no reasonable suspicion to detain him or to deploy
Astor to sniff the vehicle, and (2) Trooper Conrad lacked probable cause to
search the vehicle.
On October 13, 2015, the trial court held a suppression hearing.
Trooper Conrad testified on behalf of the Commonwealth, noting that, along
with the factual information above, he had been employed by the
Pennsylvania State Police for 10 years, had received specialized training in
drug investigation and drug interdiction, had been involved in approximately
1,000 drug investigations, and had been previously qualified as an expert in
drug trafficking and highway interdiction. On the Commonwealth’s motion,
the trial court accepted Trooper Conrad as an expert in drug trafficking and
drug interdiction. Trooper Conrad testified that based on: (1) his
experience, (2) his prior contacts with Green and the vehicle, (3) Green’s
_______________________
(Footnote Continued)
performed a pat-down search. Green described the search as offensive,
alleging that Trooper Conrad grabbed Green’s genitals. 1925(a) Op. at 5.
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nervousness, (4) Green’s return from Philadelphia, which is a drug-source
city, and (5) Green’s use of a third-party vehicle whose owner was not
present, he believed that he had reasonable suspicion to deploy Astor.
On December 23, 2015, the trial court denied Green’s motion to
suppress. Green proceeded to a jury trial. On May 26, 2016, the jury
convicted Green of the aforementioned charges. On July 1, 2016, the trial
court sentenced Green to an aggregate term of 1 to 2 years’ incarceration
followed by 2 years’ probation. On July 7, 2016, Green timely filed a notice
of appeal.
Green raises three issues on appeal:
I. Whether Trooper Conrad exceeded the scope of the
predicate traffic stop of [Green], for allegedly
speeding, and then subjected [Green] to an illegal
detention that was wholly unsupported by
reasonable suspicion that [Green] was engaged in
criminal activity or articulable suspicion that [Green]
was armed and dangerous?
II. Whether Trooper Conrad conducted an illegal canine
sniff of [Green]’s vehicle after the conclusion of the
predicate traffic stop and without the requisite
reasonable suspicion that [Green] was engaged in
criminal activity?
III. Whether Trooper Conrad conducted an illegal
warrantless search of [Green]’s car after the
conclusion of the predicate traffic stop and without
the requisite probable cause to conclude that
[Green] was engaged in criminal activity?
Green’s Br. at 4 (suggested answers omitted).
In reviewing the denial of a suppression motion, we must determine
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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).
First, Green argues that Trooper Conrad lacked reasonable suspicion to
detain Green. Green asserts that Trooper Conrad’s traffic stop was limited
to issuing Green a citation for the speeding infraction and, therefore, Trooper
Conrad illegally detained him “after the conclusion of the predicate traffic
stop.” Green’s Br. at 10. Further, Green contends that Trooper Conrad
lacked reasonable suspicion to detain Green based on the totality of the
circumstances, likening his case to Commonwealth v. Dales, 820 A.2d 807(Pa.Super. 2003), in which this Court found that a police officer lacked
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reasonable suspicion to detain a vehicle and acted on a hunch. 7 We
disagree.
Green asserts that Trooper Conrad subjected him to an investigative
detention. The Commonwealth does not argue otherwise and we agree.
See Commonwealth v. By, 812 A.2d 1250, 1255-56 (Pa.Super. 2002)
(“Where the purpose of an initial traffic stop has ended and a reasonable
person would not have believed that he was free to leave, the law
characterizes a subsequent round of questioning by the police as an
investigative detention or arrest.”).
Because an investigative detention “constitutes a seizure of a person
and activates the protections of the Fourth Amendment[,]” Commonwealth
v. Baldwin, 147 A.3d 1200, 1203 (Pa.Super. 2016), we must determine
whether Trooper Conrad had reasonable suspicion to detain Green
independent of the traffic stop. “To constitute a valid investigative
detention, the seizure must be justified by an articulable, reasonable
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7
Green concedes that Trooper Conrad lawfully stopped the vehicle for
an alleged speeding violation. In its opinion, the trial court used the
reasonable-suspicion standard to determine that Trooper Conrad lawfully
stopped Green for a speeding violation. 1925(a) Op. at 8. Under
Pennsylvania law, a police officer may only stop a motorist for speeding if
that officer possesses probable cause that the motorist was speeding.
Commonwealth v. Salter, 121 A.3d 987, 993 (Pa.Super. 2015) (“If a
vehicle is stopped for speeding, the officer must possess probable cause to
stop the vehicle. . . . because when a vehicle is stopped, nothing more can
be determined as to the speed of the vehicle when it was observed while
traveling upon a highway.”). However, it is clear that Trooper Conrad had
probable cause to stop Green for a speeding violation.
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suspicion that [Green] may have been engaged in criminal activity
independent of that supporting h[is] initial lawful detention.”
Commonwealth v. Freeman, 757 A.2d 903, 908 (Pa. 2000). This Court
has stated the following regarding reasonable suspicion:
[T]o establish grounds for reasonable suspicion, the
officer must articulate specific observations which, in
conjunction with reasonable inferences derived from those
observations, led him reasonably to conclude, in light of
his experience, that criminal activity was afoot and that
the person he stopped was involved in that activity. The
question of whether reasonable suspicion existed at the
time [the officer conducted the stop] must be answered by
examining the totality of the circumstances to determine
whether the officer who initiated the stop had a
particularized and objective basis for suspecting the
individual stopped. Therefore, the fundamental inquiry of
a reviewing court must be an objective one, namely,
whether the facts available to the officer at the moment of
the [stop] warrant a man of reasonable caution in the
belief that the action taken was appropriate.
Commonwealth v. Basinger, 982 A.2d 121, 125 (Pa.Super. 2009)
(internal citations and quotation marks omitted; alterations in original).
We conclude that Trooper Conrad possessed reasonable suspicion to
detain Green on suspicion that he was trafficking drugs. When Trooper
Conrad approached the vehicle and made contact with Green, he
immediately noticed that Green was “overly nervous just for being stopped
for a traffic violation,” as Green’s carotid artery was pulsating and “his lips
and face area around his lips were trembling.” N.T., 10/13/15, at 11-12.
Upon reviewing the vehicle’s documentation, Trooper Conrad discovered that
the vehicle belonged to an absent third party, which, in his experience,
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raised his suspicion that the vehicle was being used for drug trafficking. In
addition, Green stated that he was returning from Philadelphia, a city known
to Trooper Conrad as a source location for narcotics. Trooper Conrad also
performed a criminal background check on Green, which showed “a lengthy
criminal history for . . . assault and drug offenses.” 1925(a) Op. at 3.
Further, when Trooper Conrad stopped the vehicle, he remembered prior
contacts with Green and with the subject vehicle. Trooper Conrad’s prior
contact with Green, where Green was a passenger in a vehicle stopped by
Trooper Conrad, resulted in recovery of cocaine and marijuana hidden in the
engine compartment of the vehicle. Trooper Conrad’s prior contact with the
tan Dodge sedan resulted in recovery of a hypodermic needle in the
passenger compartment. Under these circumstances, we agree with the trial
court that Trooper Conrad possessed reasonable suspicion that Green was
trafficking drugs.
Green argues that his case is controlled by our decision in Dales.
There, an officer stopped a vehicle for a suspected illegal tint and during that
stop noticed a number of air fresheners in the vehicle and some type of
“mediciney” scent in the vehicle, but not a scent that was attached, in that
officer’s experience, to any particular controlled substance. Dales, 820 A.2d
at 809-10. After the officer checked the driver’s information and determined
that the driver was properly licensed and the vehicle registered and insured,
the officer explained the nature of the window tint violation to the driver and
that if the driver removed the tint, he would be in compliance the Vehicle
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Code. Id. The officer then began asking questions about travel plans and
asked the driver whether there was anything illegal in the vehicle. Id. at
811. The driver responded in the negative and the officer asked to search
the vehicle. Id. The driver consented to a search and the officer recovered
approximately one pound of crack cocaine from the trunk of the vehicle. Id.On the driver’s motion, the trial court suppressed the crack cocaine found by
the officer. Id.We affirmed the trial court’s ruling that the officer lacked reasonable
suspicion to detain the driver beyond the initial traffic stop. Id. at 815.
Specifically, we found that the officer continued with a second round of
questioning after citing the driver for the violation, which required
reasonable suspicion of criminal activity beyond the tint violation. Because
the officer “only observed [that]: (1) there was a smell of bactine emanating
from the [driver]’s vehicle; (2) [there] were several air fresheners in the
vehicle, and (3) the [driver] appeared nervous[,]” we concluded that the
facts available to the officer supported no more than a hunch of criminal
activity and, as such, the officer lacked reasonable suspicion to detain the
driver. Id. at 814-15. Here, in contrast, the facts and circumstances
available to Trooper Conrad, independent of the speeding violation for which
Trooper Conrad stopped Green, provided reasonable suspicion that Green
was trafficking drugs.
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Next, Green argues that Trooper Conrad lacked reasonable suspicion
to deploy Astor and conduct a canine sniff. For the reasons set forth above,
we disagree.
A canine sniff is a search pursuant to Article I, Section 8 of the
Pennsylvania Constitution. Commonwealth v. Rogers, 849 A.2d 1185,
1190 (Pa. 2004).8 However, because “this type of search . . . ‘is inherently
less intrusive upon an individual’s privacy than other searches[,]’” our
Supreme Court has held that police do not need “probable cause to conduct
a canine search of a place.” Id. (quoting Commonwealth v. Johnston,
530 A.2d 74, 79 (Pa. 1987)). “[R]ather, the police need merely have
reasonable suspicion for believing that narcotics would be found in the place
subject to the canine sniff.”9 Id.In light of our conclusion that Trooper Conrad possessed reasonable
suspicion that Green was trafficking drugs, we similarly conclude that
Trooper Conrad had reasonable suspicion to believe that narcotics would be
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8
This is different from federal law. See, e.g., Illinois v. Caballes,
543 U.S. 405, 409 (2005) (holding that canine sniff “performed on the
exterior of respondent’s car while he was lawfully seized for a traffic
violation” was not “a constitutionally cognizable infringement . . . on
respondent’s privacy expectations” under the Fourth Amendment)
9
When the subject of the search is a person, police must possess
probable cause. See Commonwealth v. Martin, 626 A.2d 556, 560 (Pa.
1993).
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found in the vehicle. Accordingly, Trooper Conrad was entitled to deploy
Astor and conduct a canine sniff of Green’s vehicle.
Next, Green argues that Trooper Conrad lacked the requisite probable
cause to search the vehicle after Astor indicated the presence of drug odors.
Green argues that “Trooper Conrad based his illegal warrantless search on
the illegal canine sniff of [Green’]’s car[,]” and that “[a] reading of [Trooper
Conrad’s] suppression hearing testimony indicates no independent factors
that would have provided Trooper Conrad with the probable cause needed to
support a warrantless search of [Green]’s vehicle. Green’s Br. at 16. We
disagree.
Police may search an automobile without a warrant so long as they
have probable cause to do so, as an automobile search “does not require
any exigency beyond the inherent mobility of a motor vehicle.”
Commonwealth v. Gary, 91 A.3d 102, 104 (Pa. 2014).10 Our Supreme
Court has concluded that Article I, Section 8 of the Pennsylvania Constitution
is co-extensive with the Fourth Amendment to the United States
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10
Gary is technically a plurality decision. Former Justice Orie Melvin
did not participate in the consideration or decision of the case, which led to a
decision by only six justices of the Court. Justice McCaffery wrote the
opinion announcing the judgment of the Court, which Chief Justice Castille
and Justice Eakin joined. Justice Todd wrote a dissent that Justice Baer
joined. Justice Saylor, however, wrote a concurrence, in which he “join[ed]
the lead Justices in adopting the federal automobile exception.” Gary, 91
A.3d at 138 (Saylor, J., concurring). Therefore, Gary is binding precedent
on this Court with respect to Pennsylvania’s adoption of the federal
automobile exception to the warrant requirement.
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Constitution, which has long supported a warrant exception for automobile
searches so long as probable cause to search exists. See id. at 108-13; see
also Carroll v. United States, 267 U.S. 132 (1925) (establishing federal
automobile exception to warrant requirement under Fourth Amendment).
With respect to probable cause to search, our Supreme Court instructs us
that
[p]robable cause exists where the facts and circumstances
within the officers’ knowledge are sufficient to warrant a
person of reasonable caution in the belief that an offense
has been or is being committed. With respect to probable
cause, this [C]ourt adopted a “totality of the
circumstances” analysis in Commonwealth v. Gray, 509
Pa. 476, 503 A.2d 921, 926 (1985) (relying on Illinois v.
Gates, 462 U.S. 213, . . . (1983)). The totality of the
circumstances test dictates that we consider all relevant
facts, when deciding whether [the officer had] probable
cause.
Commonwealth v. Luv, 735 A.2d 87, 90 (Pa. 1999) (some citations and
quotations omitted).
Astor indicated the presence of narcotics odors on both sides of the
vehicle. Astor’s indication alone was sufficient to raise Trooper Conrad’s
reasonable suspicion to probable cause. See Rogers, 849 A.2d at 1192
(“[The dog] alerted to the driver’s side door; this indicated to the officers
that she had detected narcotics. At that juncture, a person of reasonable
caution [would believe] that an offense has been or is being committed, and
reasonable suspicion ripened into probable cause.”) (internal quotation
omitted; some alterations in original). In light of Trooper Conrad’s drug
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interdiction and drug-detection experience and Astor’s indication, we
conclude that the facts and circumstances known to Trooper Conrad were
“sufficient to warrant a person of reasonable caution in the belief that” Green
was trafficking drugs.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/25/2017
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