Com. v. Roach, J. ( 2022 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
JASON P. ROACH :
:
Appellee : No. 1440 MDA 2021
Appeal from the Order Entered October 8, 2021
In the Court of Common Pleas of Bradford County
Criminal Division at No(s): CP-08-CR-0000311-2021
BEFORE: PANELLA, P.J., KUNSELMAN, J., and KING, J.
MEMORANDUM BY KING, J.: FILED: JULY 11, 2022
Appellant, the Commonwealth of Pennsylvania, appeals from the order
entered in the Bradford County Court of Common Pleas, granting the
suppression motion of Appellee, Jason P. Roach. We reverse.
The suppression court opinion set forth the relevant facts and procedural
history of this appeal as follows:
1. On November 11, 2020, Officers Casey Shiposh and Seth
Murrelle of the Sayre Borough Police Department observed
a motor vehicle, known to them to be unregistered, being
operated on West Lockhart Street in Sayre Borough. While
following the motor vehicle, the officers electronically
verified that it was unregistered and then subjected the
vehicle to a traffic stop.
2. Officer Shiposh made contact with the vehicle’s driver,
Erica Coolbaugh, and Officer Murrelle moved to the
passenger side of the vehicle in order to be better able to
view the ongoing movements of the vehicle’s passenger,
subsequently identified as [Appellee]. [Appellee’s]
movements involved reaching in and around the
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passenger’s seat, and were, in the officer’s opinion, “furtive”
in nature. Following his initial contact with [Appellee], and
based upon his observation of [Appellee’s] “furtive”
movements, Officer Murrelle asked [Appellee] to alight from
the vehicle which he did without incident.
3. Once outside of the vehicle, [Appellee] was asked if he
was in possession of anything illegal or that could hurt the
officers, to which question he replied in the affirmative,
explaining that there was a hypodermic needle in his right
front pocket. [Appellee] surrendered the hypodermic
needle to the officers who then searched [Appellee’s] person
and found United States currency in the amount of $500.00,
which amount was seized as evidence.[1]
4. While being searched, [Appellee] spontaneously uttered
the words “good luck finding it” several times. [Appellee]
was queried by the officers as to the meaning of the
statements but he refused to answer.
5. Following the search of [Appellee’s] person, the officers
noticed a black bag in plain view on the floor of the vehicle
in front of the passenger seat. The bag, which was observed
as having a clear sandwich baggie protruding therefrom,
was searched with the result that multiple individual clear
sandwich baggies and a knife were found therein.
6. Based upon the seizure of the hypodermic needle, the
$500.00 in United States currency, and the black bag,
[Appellee] was placed under arrest for Possession of Drug
Paraphernalia and removed by the Officers to the Sayre
Borough police station where he was strip searched during
which procedure a white baggie containing a crystal-like
substance fell out of [Appellee’s] underwear. The baggie of
crystal-like substance was seized by the officers and
[Appellee] was charged with Possession of a Controlled
Substance.
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1 At the suppression hearing, Officer Shiposh testified that the needle
recovered from Appellee contained a small amount of residue that was
consistent with drug use. (See N.T. Suppression Hearing, 8/3/21, at 46).
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(Suppression Court Opinion, filed October 7, 2021, at 1-2) (internal footnotes
omitted).
On April 30, 2021, the Commonwealth filed an information charging
Appellee with multiple offenses related to the contraband recovered from the
vehicle and Appellee’s person. Appellee filed his suppression motion on June
17, 2021. In it, Appellee argued that “the police lacked probable cause to ask
[Appellee] if he had anything on him such as a weapon or anything illegal …
since they had no reason to believe so.” (Brief in Support of Motion, filed
6/17/21, at 3) (unnumbered). Further, Appellee contended that his
subsequent arrest was illegal because the police lacked probable cause to
believe he had committed a crime. (See Suppression Motion, filed 6/17/21,
at ¶7).
On August 3, 2021, the court conducted a suppression hearing. At that
time, Officers Shiposh and Murrelle provided testimony. The court granted
Appellee’s suppression motion on October 7, 2021. Specifically, the court
determined:
[A]s the only circumstance influencing the officers’ decision
to remove [Appellee] from [the] vehicle and detain him for
investigation of unspecified criminal activity was the
observation of furtive movements, the incriminating nature
of which was not explained, the officers cannot be said to
have had reasonable suspicion to believe that [Appellee]
was involved in ongoing criminal activity or that he was
armed. Therefore, the actions taken by the officers during
the investigative detention … were unlawful….
(Suppression Court Opinion at 8).
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The Commonwealth timely filed a notice of appeal on November 5, 2021
pursuant to Pa.R.A.P. 311(d). On November 8, 2021, the court ordered the
Commonwealth to file a Pa.R.A.P. 1925(b) concise statement of errors
complained of on appeal. The Commonwealth subsequently complied.
The Commonwealth now raises one issue on appeal:
Did the suppression court err in granting the motion to
suppress by concluding that the officer lacked reasonable
suspicion to conduct an investigative detention beyond the
initial traffic stop?
(Commonwealth’s Brief at 3).
On appeal, the Commonwealth contends “that police do not need even
reasonable suspicion to request both drivers and passengers alight from a
vehicle that has been lawfully stopped.” (Id. at 9) (emphasis in original). The
Commonwealth notes there is no dispute that Appellee was the passenger in
a vehicle subject to a lawful traffic stop, and that police ordered Appellee out
of the car after Officer Murrelle observed Appellee’s furtive movements. The
Commonwealth insists that the court committed an error of law by concluding
that the officers illegally ordered Appellee out of the vehicle at that point.
Based upon the foregoing, the Commonwealth concludes that the court
erroneously granted Appellee’s suppression motion. We agree.
“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
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1042, 1046 (Pa.Super. 2011) (en banc)). When the Commonwealth appeals
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).
Our analysis of the quantum of cause required for a traffic stop begins
with the Motor Vehicle Code, which provides:
§ 6308. Investigation by police officers
* * *
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(b) Authority of police officer.—Whenever a police
officer is engaged in a systematic program of checking
vehicles or drivers or has reasonable suspicion that a
violation of this title is occurring or has occurred, he may
stop a vehicle, upon request or signal, for the purpose of
checking the vehicle’s registration, proof of financial
responsibility, vehicle identification number or engine
number or the driver’s license, or to secure such other
information as the officer may reasonably believe to be
necessary to enforce the provisions of this title.
75 Pa.C.S.A. § 6308(b) (emphasis added).
“[D]espite subsection 6308(b)’s reasonable suspicion standard, some
offenses, by their very nature, require a police officer to possess probable
cause before he or she may conduct a traffic stop.” Commonwealth v.
Ibrahim, 127 A.3d 819, 823 (Pa.Super. 2015), appeal denied, 635 Pa. 771,
138 A.3d 3 (2016). “For a stop based on the observed violation of the Vehicle
Code or otherwise non-investigable offense, an officer must have probable
cause to make a constitutional vehicle stop.” Commonwealth v. Harris, 176
A.3d 1009, 1019 (Pa.Super. 2017). See also Commonwealth v. Feczko,
10 A.3d 1285, 1291 (Pa.Super. 2010), appeal denied, 611 Pa. 650, 25 A.3d
327 (2011) (stating mere reasonable suspicion will not justify vehicle stop
when driver’s detention cannot serve investigatory purpose relevant to
suspected violation).
Further, we note that an “investigative detention” is interchangeably
labeled as a “stop and frisk” or a “Terry[2] stop.” Commonwealth v. Brame,
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2 Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).
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239 A.3d 1119, 1127 (Pa.Super. 2020), appeal denied, ___ Pa. ___, 251 A.3d
771 (2021).
An investigative detention … constitutes a seizure of a
person and thus activates the protections of Article 1,
Section 8 of the Pennsylvania Constitution. To institute an
investigative detention, an officer must have at least a
reasonable suspicion that criminal activity is afoot.
Reasonable suspicion requires a finding that based on the
available facts, a person of reasonable caution would believe
the intrusion was appropriate.
* * *
Reasonable suspicion exists only where the officer is able to
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.
Commonwealth v. Jones, 874 A.2d 108, 116 (Pa.Super. 2005) (internal
citations omitted).
“[W]hen an officer detains a vehicle for violation of a traffic law, it is
inherently reasonable that he or she be concerned with safety and, as a result,
may order the occupants of the vehicle to alight from the car.”
Commonwealth v. Brown, 654 A.2d 1096, 1102 (Pa.Super. 1995), appeal
denied, 544 Pa. 642, 664 A.2d 972 (1995). During a traffic stop, the officer
may ask the detainees “a moderate number of questions to determine [their]
identity and to try to obtain information confirming or dispelling the officer’s
suspicions.” Commonwealth v. Wright, 224 A.3d 1104, 1109 (Pa.Super.
2019), appeal denied, ___ Pa. ___, 237 A.3d 393 (2020). “Further, ‘if there
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is a legitimate stop for a traffic violation … additional suspicion may arise
before the initial stop’s purpose has been fulfilled; then, detention may be
permissible to investigate the new suspicions.’” Id. (quoting
Commonwealth v. Chase, 599 Pa. 80, 93 n.5, 960 A.2d 108, 115 n.5
(2008)).
Instantly, at the suppression hearing, Officer Murrelle testified that
officers observed Ms. Coolbaugh’s vehicle, which was “known” to law
enforcement from being “involved in numerous different things.” (N.T.
Suppression Hearing, 8/3/21, at 25). Officer Murrelle was aware that the
vehicle’s registration was expired at the time of the incident. (See id.)
Moreover, prior to initiating the traffic stop, the officers contacted the county
dispatcher to confirm that the vehicle’s registration had expired. Id. Under
these circumstances, the officers possessed probable cause to lawfully stop
Ms. Coolbaugh’s vehicle. See Harris, supra.
As the officers approached Ms. Coolbaugh’s vehicle, Officer Murrelle
observed Appellee making furtive movements. (See N.T. Suppression
Hearing at 26). Specifically, Appellee was “reaching around in the vehicle,
both lean[ing] forward … as well as turning to his left and right.” (Id.) After
noticing the furtive movements, Officer Murrelle spoke with Appellee to
ascertain his name and date of birth. (Id. at 34). The officers also directed
Appellee to exit the vehicle. (Id. at 26). Contrary to the suppression court’s
conclusion, the officers legally ordered Appellee to exit the vehicle. See
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Brown, supra. Further, the observation of furtive movements created the
need for additional questions to confirm or dispel the officers’ suspicions
regarding Appellee’s conduct. See Wright, supra.
The officers subsequently asked Appellee if he had anything on his
person which could harm them. (See N.T. Suppression Hearing at 26).
Appellee responded that he was carrying a hypodermic needle in his pocket,
which the officers later seized. (Id. at 26-27). This occurred before the initial
traffic stop had ended. (Id. at 47). Given the late-night hour, Appellee’s
furtive movements, and his admission to carrying a hypodermic needle, the
officers developed “additional suspicion” that Appellee was engaged in criminal
conduct prior to the conclusion of the initial vehicle stop. See Wright, supra.
On this basis, the police lawfully initiated a separate investigative detention of
Appellee. See Wright, supra; Jones, supra. Accordingly, we reverse the
order granting Appellee’s suppression motion and remand this case for further
proceedings consistent with this decision. See Korn, supra.
Order reversed. Case remanded with instructions. Jurisdiction is
relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 07/11/2022
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