Com. v. Maldonado, D. ( 2016 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
DANIEL MALDONADO,
Appellee No. 1781 MDA 2015
Appeal from the Order Entered September 15, 2015
In the Court of Common Pleas of Lebanon County
Criminal Division at No(s): CP-38-CR-0000777-2015
BEFORE: FORD ELLIOTT, P.J.E., BENDER, P.J.E., and STEVENS, P.J.E.*
MEMORANDUM BY BENDER, P.J.E.: FILED OCTOBER 07, 2016
The Commonwealth appeals from the order suppressing evidence
seized from Appellee, Daniel Maldonado. The Commonwealth contends that
the suppression court erred by impermissibly relying on the subjective intent
of the arresting officer in reaching its conclusion that Appellee was subjected
to a temporary investigative detention, and that the detention was not
supported by reasonable suspicion. After careful review, we affirm.
The suppression court summarized the pertinent facts from the
suppression hearing as follows:
Detectives Ryan Mong and Lawrence Minnick (herein Det.
Mong and Det. Minnick) of the Lebanon County Drug Task Force
were conducting surveillance in the area of North 9th and
Crowell Streets in Lebanon City, Lebanon County,
____________________________________________
*
Former Justice specially assigned to the Superior Court.
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Pennsylvania[,] on the morning of January 29, 2015. Det.
Minnick testified that this area is a high crime area, specifically
for crimes involving drugs and violence. At approximately 11:30
a.m., the Detectives noticed an Hispanic male approach a black
Nissan sedan that was parked in a parking lot off of Crowell
Street. The Hispanic male was later identified to be Daniel
Maldonado (herein [Appellee]). Detectives allege that they
observed [Appellee] enter the vehicle, remain in the vehicle for
approximately thirty (30) seconds, and then exit the vehicle.
Detectives aver that the vehicle drove away after [Appellee]
exited. Detectives further allege that after exiting the vehicle,
[Appellee] was observed to be walking back and forth between
Crowell and Mifflin Streets. Detectives testified that the above
described behavior was suspicious.
The Detectives approached [Appellee] and asked to speak
with him and he agreed. At this time, both Detectives were in
plain clothes, with their weapons concealed. Det. Minnick
testified that they had their badges visible and identified
themselves to [Appellee] upon initiating the interaction.
Detectives told [Appellee] what they had observed and why they
had approached him. Det. Minnick testified that the tone of the
interaction was conversational. [Appellee] produced his
identification when it was requested. Det. Mong wrote down the
information and returned the identification to [Appellee]. Det.
Mong ran the information for warrant[s], which came back
negative. Detectives testified that it is their practice to return
identification to an individual as soon as possible so that the
person feels free to leave. When asked what he was doing in the
area, [Appellee] told Det. Minnick that he was getting fresh air
and that he enjoyed the cold. At the [p]re-[t]rial [h]earing,
[Appellee] testified that he was in the area to get lunch.
Detectives asked [Appellee] if he had any weapons, drugs,
or contraband on his person. [Appellee] responded in the
negative. Detectives testified that they asked [Appellee] if he
would consent to a search of his person and that he voluntarily
consented. [Appellee] avers that he was asked to consent to a
search, but that he declined and the Detectives conducted the
search anyway. After being patted down, Detectives found a
cigarette pack. Inside the cigarette pack was a cigarette that did
not look like the others in the pack. When asked, [Appellee]
admitted that it was marijuana.
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Detectives testified that the entire interaction was
approximately five to ten (5-10) minutes long. At the end of the
interaction, [Appellee] was permitted to leave and was told that
he would be charged as a result of the marijuana found on him.
Suppression Court Opinion (SCO), 9/15/15, at 2-4.
Appellee was charged with possession of paraphernalia, 35 P.S. § 780-
113(a)(32),1 and possession of a small amount of marijuana, 35 P.S. § 780-
113(a)(31)(i). He filed a suppression motion on July 2, 2015, challenging 1)
the legality of the stop, premised on the allegation that the detectives lacked
reasonable suspicion to conduct an investigative detention, as well as 2) the
legality of the subsequent search as the fruit of that illegal stop, and due to
his factual assertion that consent to search was not given. The suppression
court held a hearing on that motion on July 25, 2015, at which Det. Mong,
Det. Minnick, and Appellee testified. After further briefing by both parties,
the suppression court issued an opinion and order granting Appellee’s
suppression motion on September 15, 2015.
The Commonwealth filed a timely notice of appeal on October 14,
2015. The Commonwealth also filed a timely, court-ordered Pa.R.A.P.
1925(b) statement on October 29, 2015. On November 3, 2015, the
suppression court issued an order in lieu of a Rule 1925(a) opinion,
indicating that it was relying on its September 15, 2015 opinion.
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1
The Commonwealth separately charged Appellee for the cigar wrapper that
contained the small amount of marijuana. Thus, both charges stemmed
from Appellee’s possession of a single marijuana ‘joint’ or ‘blunt.’
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The Commonwealth now presents the following question for our
review: “Whether the [suppression] court erred in finding that [Appellee]
was the subject of an unlawful detention?” Commonwealth’s Brief at 4
(unnecessary capitalization omitted).
When reviewing an [o]rder granting a motion to suppress
we are required to determine whether the record supports the
suppression court's factual findings and whether the legal
conclusions drawn by the suppression court from those findings
are accurate. In conducting our review, we may only examine
the evidence introduced by appellee along with any evidence
introduced by the Commonwealth which remains uncontradicted.
Our scope of review over the suppression court's factual findings
is limited in that if these findings are supported by the record we
are bound by them. Our scope of review over the suppression
court's legal conclusions, however, is plenary.
Commonwealth v. Gutierrez, 36 A.3d 1104, 1107 (Pa. Super. 2012)
(quoting Commonwealth v. Henry, 943 A.2d 967, 969 (Pa. Super. 2008)).
As a threshold matter, we must address waiver. The Commonwealth’s
statement of the question and the Commonwealth’s Rule 1925(b) statement
both appear to raise a single issue/claim for our review. See
Commonwealth’s Brief at 4; Commonwealth’s Rule 1925(b) Statement, at 1
(single page) (“The [suppression] court erred in granting [Appellee]’s
[m]otion to [s]uppress after finding that [Appellee] was the subject of an
unlawful investigative detention.”). The argument section of the
Commonwealth’s brief, however, raises two, and perhaps three distinct
claims. The Commonwealth’s argument section contains two subsections,
the first addressing the claim that the court erred in determining that
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Appellee was subjected to an investigative detention. We conclude that this
claim has clearly been preserved for our review.
The second subsection presents a wholly separate argument,
contending that Appellee voluntarily consented to the subsequent search.
That issue is not only entirely separate from the nature and legality of
preceding stop, but it was also not raised in the Commonwealth’s Rule
1925(b) statement, see Commonwealth v. Lord, 719 A.2d 306, 309 (Pa.
1998) (“Any issues not raised in a 1925(b) statement will be deemed
waived.”), and it was not separately set forth in the Commonwealth’s
statement of questions involved. See Rule 2116(a) (“No question will be
considered unless it is stated in the statement of questions involved or is
fairly suggested thereby.”); Thomas v. Elash, 781 A.2d 170, 176–77 (Pa.
Super. 2001) (“Pennsylvania Rule of Appellate Procedure 2116(a) mandates
that an appellant must present all issues on appeal in the [s]tatement of
[q]uestions [i]nvolved section of his brief. This rule is to be considered in
the highest degree mandatory, admitting of no exception; ordinarily, no
point will be considered which is not set forth in the statement of questions
involved or suggested thereby.”) (quotation marks omitted); but see Rule
2116(a) (“The statement will be deemed to include every subsidiary
question fairly comprised therein.”). Appellee’s consent (or lack thereof) to
the search is not a subsidiary issue to the separate question of whether
Appellee was subjected to an investigative detention. A stop is not a search,
and a search is not a stop. Thus, we deem the Commonwealth’s consent-
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related arguments to be waived under Lord, for its failure to raise the
consent issue in its Rule 1925(b) statement, and also waived under Rule
2116(a), for the Commonwealth’s failure to separately raise that issue in its
statement of the questions involved.2
Because the Commonwealth waived its consent-related claim, it is not
entitled to any form of relief on its preserved claim. The nature of the
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2
We find waiver particularly appropriate in this circumstance, because the
suppression court’s opinion only briefly touches upon the question of
consent, see SCO at 11-12. Notably, the suppression court’s opinion lacks
any specific credibility determinations regarding 1) Appellee’s claim that he
did not consent; and 2) the detectives’ claim that he did. Instead, the
suppression court appears to have only addressed whether it should even
reach the matter of consent, given the fact that it had already determined
that Appellee was illegally detained without reasonable suspicion. The court
did conclude that “even if [Appellee] did give consent to the search of his
person, such consent was involuntary under the circumstances.” Id. at 12
(emphasis added). However, as phrased and in the context of the preceding
analysis appearing in the opinion, the referenced ‘circumstances’ were not
credibility determinations, but the fact that the court had concluded that
Appellee was illegally detained.
Had the Commonwealth raised the matter of consent separately in its
Rule 1925(b) statement, particularly since it was already aware of the
suppression court’s opinion (as it had accompanied the order granting
suppression), the suppression court could have rendered a more specific
analysis regarding the matter of consent in a Rule 1925(a) opinion instead of
merely relying on the already-issued opinion. See Commonwealth v.
Castillo, 888 A.2d 775, 779 (Pa. 2005) (holding that “the Lord[] rule
remains necessary to insure trial judges in each appealed case the
opportunity to opine upon the issues which the appellant intends to raise,
and thus provide appellate courts with records amendable to meaningful
appellate review”).
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Commonwealth’s preserved claim is that the suppression court erred by
concluding that Appellee was subjected to an investigative detention by the
detectives. However, if, as the Commonwealth argues, Appellee was only
subjected to a ‘mere encounter’ - there must still be a legal justification for
the subsequent search that yielded Appellee’s marijuana cigarette. At no
point does the Commonwealth argue, or even suggest, that the search which
yielded the contraband was based upon probable cause to search for such
contraband.3 Instead, it is patently clear from the record that the search
was justified only by Appellee’s alleged consent. Thus, the legal conclusion
that Appellee was subjected to investigative detention rather than a mere
encounter, even if erroneous, cannot alone justify the reversal of the order
granting suppression. Even if Appellee was lawfully detained (or not
detained), there was no showing of probable cause to conduct the
subsequent search that yielded the suppressed contraband.
Accordingly, we conclude that the Commonwealth has failed to meet
its burden on appeal to show that the trial court’s order granting suppression
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3
There is also no evidence of record, nor any argument made by the
Commonwealth, suggesting that the detectives had a reasonable suspicion
to search Appellee for a weapon. “[A] protective search cannot be justified
… unless the officer can articulate facts that establish an individualized,
objective basis for perceiving a threat of armed violence.” Commonwealth
v. Grahame, 7 A.3d 810, 816 (Pa. 2010). Nevertheless, even if the
detectives possessed reasonable suspicion to conduct a pat-down search of
Appellee for weapons, they did not, in fact, conduct such a pat-down.
Instead, they searched the interior of Appellee’s cigarette pack, a location
highly unlikely to contain a weapon in any event.
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was erroneous. We note that, “as an appellate court, we may affirm on any
legal basis supported by the certified record.” Commonwealth v.
Williams, 125 A.3d 425, 433 (Pa. Super. 2015). Furthermore, “[a]
warrantless search or seizure is presumptively unreasonable under the
Fourth Amendment and Article I, § 8, subject to a few specifically
established, well-delineated exceptions.” Commonwealth v. McCree, 924
A.2d 621, 627 (Pa. 2007). Even if we were to agree with the
Commonwealth that the suppression court erred in determining that
Appellee was subjected to an investigative detention, the Commonwealth
fails to present any preserved claim that their presumptively unreasonable
search satisfied an exception to the warrant requirement.
In any event, we would agree with the suppression court that Appellee
was subjected to an investigative detention requiring reasonable suspicion,
that such suspicion was lacking, and that any consent given thereafter was
vitiated by the taint of that illegal detention.
The legal standard of proof required by a police officer
when engaging or interacting with a citizen varies depending on
whether the citizen has been detained, and if so, the degree of
the detention and the circumstances surrounding the interaction.
See Commonwealth v. Sands, 887 A.2d 261, 268–69 (Pa.
Super. 2005) (quoting Commonwealth v. Hill, 874 A.2d 1214,
1217 (Pa. Super. 2005)). There are three basic levels of
interaction between citizens and police officers, and the
accompanying standard of proof needed for each level is firmly
established:
The first category, a mere encounter or request for
information, does not need to be supported by any level of
suspicion, and does not carry any official compulsion to
stop or respond. The second category, an investigative
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detention, derives from Terry and its progeny: such a
detention is lawful if supported by reasonable suspicion
because, although it subjects a suspect to a stop and a
period of detention, it does not involve such coercive
conditions as to constitute the functional equivalent of an
arrest. The final category, the arrest or custodial
detention, must be supported by probable cause.
Id. (quoting Hill, 874 A.2d at 1217); see also Terry v. Ohio,
392 U.S. 1, 23–26 … (1968). “‘No constitutional provision
prohibits police officers from approaching a citizen in public to
make inquiries of them.’ However, ‘if the police action becomes
too intrusive, a mere encounter may escalate into an
investigatory [detention] or seizure.’” Commonwealth v.
Beasley, 761 A.2d 621, 624 (Pa. Super. 2000) (quoting
Commonwealth v. Boswell, … 721 A.2d 336, 339–40 ([Pa.]
1998) (plurality)). “The term ‘mere encounter’ refers to certain
non-coercive interactions with the police that do not rise to the
level of a seizure of the person under the fourth amendment.”
Commonwealth v. Peters, … 642 A.2d 1126, 1129 ([Pa.
Super.] 1994) (quoting Commonwealth v. Bennett, … 604
A.2d 276, 280 ([Pa. Super.] 1992)). For example, a mere
encounter transpires when an officer approaches a citizen on a
public street for the purpose of making inquiries. Id. (quoting
Bennett, 604 A.2d at 280).
In contrast, “[a]n investigative detention occurs when a
police officer temporarily detains an individual by means of
physical force or a show of authority for investigative purposes.”
Commonwealth v. Smith, 904 A.2d 30, 35 (Pa. Super. 2006)
(quoting Commonwealth v. Barber, 889 A.2d 587, 592 (Pa.
Super. 2005)). In other words, in view of all the circumstances,
if a reasonable person would have believed that he was not free
to leave, then the interaction constitutes an investigatory
detention. See Peters, 642 A.2d at 1129 (quoting
Commonwealth v. Harper, … 611 A.2d 1211, 1215 ([Pa.
Super.] 1992)); Hill, 874 A.2d at 1218–19 (quoting
Commonwealth v. Johonoson, 844 A.2d 556, 562 (Pa. Super.
2004)). An investigatory detention triggers the constitutional
protection of the Fourth Amendment to the United States
Constitution, Article I, Section 8 of the Pennsylvania
Constitution, and the prerequisites for such a detention as set
forth in Terry, supra. Smith, 904 A.2d at 35 (quoting Barber,
889 A.2d at 592).
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Commonwealth v. Cauley, 10 A.3d 321, 325–26 (Pa. Super. 2010)
(footnote omitted).
The Commonwealth argues that the suppression court erred because it
improperly considered the “subjective intent of the investigating officer[s].”
Commonwealth’s Brief, at 19. However, the subjective intent of the
detectives at issue – that they intended to investigate Appellee for a
suspected drug deal – was, in fact, verbally conveyed to Appellee during the
course of the stop. See SCO at 9 (“Detective Minnick testified that he told
[Appellee] why they asked to speak with him.”). It was not, therefore, truly
subjective within the meaning of that term as used in the case law. As the
Supreme Court of the United States has opined when discussing the import
of the subjective intent of an officer regarding whether, under the totality of
the circumstances, an individual is ‘in custody’ for purposes of Miranda v.
Arizona, 384 U.S. 436 (1966):
It is well settled, then, that a police officer's subjective view that
the individual under questioning is a suspect, if undisclosed,
does not bear upon the question whether the individual is in
custody for purposes of Miranda. The same principle obtains if
an officer's undisclosed assessment is that the person being
questioned is not a suspect. In either instance, one cannot
expect the person under interrogation to probe the officer's
innermost thoughts. Save as they are communicated or
otherwise manifested to the person being questioned, an
officer's evolving but unarticulated suspicions do not affect the
objective circumstances of an interrogation or interview, and
thus cannot affect the Miranda custody inquiry.
…
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An officer's knowledge or beliefs may bear upon the
custody issue if they are conveyed, by word or deed, to
the individual being questioned.
Stansbury v. California, 511 U.S. 318, 324–25 (1994) (internal citation
omitted, emphasis added).
Similarly, here, while the objective test for whether Appellee was
subjected to an investigative detention is not informed by the subjective
beliefs of the detectives, those beliefs were known to Appellee at the time of
the stop, which rationally informed whether a reasonable person in
Appellee’s situation would feel free to leave. Coupled with the duration of
the stop (5-10 minutes), and the detectives’ numerical advantage (2-1),
their request for Appellee’s ID, and the request to search his person, the
suppression court acted within its discretion in weighing the totality of the
circumstances so as to conclude that Appellee was subjected to an
investigative detention, and not a mere encounter.4 As the term
‘investigative detention’ implies, the detectives temporarily detained
Appellee in order to further investigate whether he was involved in a drug
deal. Thus, even if waiver did not apply and we were to reach the
Commonwealth’s primary argument, we would conclude that it lacks merit.
Regarding whether the detectives possessed reasonable suspicion to
conduct this stop, the suppression court stated as follows:
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4
Due to other factors (no physical restraints applied, no forced movement,
no weapons drawn), we also agree with the conclusion that Appellee was not
subjected to the functional equivalent of a formal arrest.
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A police officer may detain an individual in order to
conduct an investigation if that officer reasonably suspects
that the individual is engaging in criminal conduct. This
standard, less stringent than probable cause, is commonly
known as reasonable suspicion. In order to determine
whether the police officer had reasonable suspicion, the
totality of the circumstances must be considered. In
making this determination, we must give due weight to the
specific reasonable inferences the police officer is entitled
to draw from the facts in light of his experience. Also, the
totality of the circumstances test does not limit our inquiry
to an examination of only those facts that clearly indicate
criminal conduct. Rather, even a combination of innocent
facts, when taken together, may warrant further
investigation by the police officer.
Commonwealth v. Kemp, 961 A.2d 1247, 1255 (Pa.Super.
2008).
An individual's mere presence in a "high crime area" alone
is also insufficient to support the existence of reasonable
suspicion. Illinois v. Wardlow, 528 U.S. 119 (2000); Brown
v. Texas, 443 U.S. 47 (1979); Commonwealth v. Kearney,
411 Pa.Super. 274 (1992); In re D.M., 566 Pa. 445 (2001);
Commonwealth v. Key, 789 A.2d 282 (Pa.Super. 2001). "The
officer must be able to articulate more than an inchoate and
unparticularized suspicion or hunch of criminal activity."
Wardlow, 528 U.S. at 123-24 (citing Terry …) (holding that an
officer may, consistent with the Fourth Amendment, conduct a
brief, investigatory stop when the officer has a reasonable,
articulable suspicion that criminal activity is afoot)). "The Fourth
Amendment requires at least a minimal level of objective
justification for making the stop." Wardlow, 528 U.S. at 123
(citing United States v. Sokolow, 490 U.S. 1, 7 (1989)). "The
determination of reasonable suspicion must be based on
commonsense judgments and inferences about human
behavior." Wardlow, 528 U.S. at 125 (citing United States v.
Cortez, 449 U.S.411, 418 (1981)).
"Any curtailment of a person's liberty by the police must
be supported at least by a reasonable and articulable suspicion
that the person seized is engaged in criminal activity."
Commonwealth v. Lewis, 535 Pa. 501, 508 (1994) (quoting
Reid v. Georgia, 448 U.S. 438, 440 (1980)). "A court must
examine all surrounding circumstances evidencing a show of
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authority or exercise of force, including the demeanor of the
police officer, the manner of expression used by the officer in
addressing the citizen, and the content of the interrogatories and
statements." Commonwealth v. Mendenhall, 552 Pa. at 488
(citations omitted).
In the case before this Court, [the d]etectives observed
[Appellee] get into a car for thirty (30) seconds in a high crime
area, on a well-traveled street. The [d]etectives testified that
their experience on the Drug Task Force had led them to believe
that [Appellee]'s behavior was consistent with a drug deal. [The
d]etectives were not able to observe what occurred in the
vehicle, but the short duration of [Appellee]'s stay within the
vehicle led [the d]etectives to believe that a drug deal had taken
place. …
An investigative detention requires law enforcement to
have reasonable suspicion that criminal activity is afoot and that
the individual detained is involved with that criminal activity.
Reasonable suspicion is more than an unparticularized suspicion
or hunch and requires that law enforcement be able to articulate
particular reasons for their suspicion. [The d]etectives testified
that they stopped [Appellee] because he was in a high crime
area, he was in a vehicle for a short time, and he was walking on
the street in the cold. [Appellee] claimed at the Hearing that he
was in the area to get something to eat. While the Court does
not believe the explanation [Appellee] gave at the Hearing, there
are restaurants and other businesses in that area. An
individual's mere presence in an area of high crime is insufficient
to raise reasonable suspicion without more. The Commonwealth
cannot rely on the experience of the [d]etectives alone, or in
combination with the high crime area, to suggest that this raised
a reasonable suspicion for the [d]etectives. The [d]etectives
must be able to articulate why [Appellee]'s behavior gave them
reasonable suspicion. They failed to articulate particular reasons
for their encounter with [Appellee] aside from their experience
and the area. This Court finds that it was an illegal investigative
detention because the [the d]etectives lacked reasonable
suspicion to conduct the detention of [Appellee].
SCO, at 8-10.
We would agree. Appellee was observed, in broad daylight, getting
into a car and then exiting that vehicle shortly thereafter, in a busy, well-
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travelled area. Police did not observe anything that occurred in that vehicle.
The fact that this occurred in a high crime area does not render otherwise
innocuous facts into evidence of criminal activity. There are a hundred
innocent reasons why Appellee could have briefly entered and exited the
vehicle, none of which were dispelled by the detectives’ experience, their
observation of Appellee pacing back and forth afterwards, or any other
circumstances present in this case. The detectives’ assumption that criminal
activity occurred in the vehicle was no more than a hunch. See
Commonwealth v. Donaldson, 786 A.2d 279, 281 (Pa. Super. 2001)
(“While the term ‘reasonable suspicion’ is undoubtedly open to some degree
of interpretation, it would seem clear that it was meant to convey a level of
suspicion that goes beyond an ‘educated hunch.’”); id. at 282 (“While
certain activity may seem generally suspicious or ‘fishy,’ it does not
necessarily equate to ‘reasonable suspicion’ for purposes of search and
seizure law.”). The suppression court did not, therefore, err in concluding
that the officers lacked reasonable suspicion to conduct an investigatory
detention.
Finally, because we would conclude that Appellee was illegally
detained, any subsequent consent given was tainted by that illegal stop.
When a consensual search is preceded by an illegal detention,
“the government must prove not only the voluntariness of the
consent under the totality of the circumstances, but ... must also
establish a break in the causal connection between the illegality
and the evidence thereby obtained.” United States v.
Melendez-Garcia, 28 F.3d 1046, 1053 (10th Cir. 1994). See
also United States v. Jerez, 108 F.3d 684 (7th Cir. 1997). In
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determining whether the consent has been vitiated by the taint
of the preceding illegal detention, the reviewing court must
consider: “‘(1) the temporal proximity of the illegal detention
[and the defendants' consent]; (2) the presence of intervening
factors between the two events; and (3) the circumstances
surrounding, and the nature of, the official misconduct.’ United
States v. Sanchez-Jaramillo, 637 F.2d 1094, 1099 (7th Cir.)
(citing Brown v. Illinois, [422 U.S. 590, 603-04, 95 S.Ct.
2254, 45 L.Ed.2d 416 (1975)]), cert. denied, 449 U.S. 862, 101
S.Ct. 166, 66 L.Ed.2d 79 (1980).” Jerez, 108 F.3d at 695. See
also United States v. Chavez-Villarreal, 3 F.3d 124, 127-28
(5th Cir. 1993); United States v. Campbell, 920 F.2d 793, 797
(11th Cir. 1991); United States v. Delgadillo-Velasquez, 856
F.2d 1292 (9th Cir. 1988).
Commonwealth v. Sierra, 723 A.2d 644, 647–48 (Pa. 1999).
Here, the Commonwealth argues that “[t]here is absolutely no
evidence to show that [Appellee]’s consent was the product of anything
other than his own free will.” Commonwealth’s Brief, at 26. The
Commonwealth, however, misunderstands the applicable standard. Once it
is established that the preceding stop was illegal, it is the Commonwealth’s
burden to demonstrate the voluntariness of Appellee’s consent, not
Appellee’s burden to demonstrate that his consent was involuntary. Sierra,
supra.
Moreover, the Commonwealth offers no evidence or argument
regarding the temporal relationship between the stop and the consent, nor
any evidence or argument regarding the presence of intervening factors.
See id. Instead, the Commonwealth seeks to rely entirely on the
Appellee’s prior experience in the criminal justice system and the fact that
he is a “fully functional adult,” whatever that means. We find this argument
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to be woefully inadequate to establish “a break in the causal connection
between the illegality and the evidence thereby obtained.” Id. Accordingly,
we would conclude that the Commonwealth failed to prove that the
suppression court erred in determining that any consent given by Appellee
was tainted by the illegal stop.
In summary, we conclude that the Commonwealth is not entitled to
relief because it waived any claims regarding whether Appellee consented to
the search which yielded the seized contraband, and we would affirm the
suppression order on that basis. Nevertheless, even if we were to reach the
Commonwealth’s arguments, we would conclude that the suppression court
did not err in finding that Appellee was illegally detained without reasonable
suspicion, and that, even if he gave his consent to search his body, that
consent was vitiated by the taint of the immediately preceding illegal stop.
Suppression order affirmed.
President Judge Emeritus Ford Elliott joins this memorandum.
President Judge Emeritus Stevens concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/7/2016
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