Com. v. Ball, D. ( 2018 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF : IN THE SUPERIOR COURT OF
PENNSYLVANIA : PENNSYLVANIA
:
:
v. :
:
:
DUAUNE-MARC SHIRA BALL :
: No. 1481 MDA 2017
Appellant :
Appeal from the Judgment of Sentence September 7, 2017
In the Court of Common Pleas of Centre County Criminal Division at
No(s): CP-14-CR-0000986-2016
BEFORE: BOWES, J., MURRAY, J., and PLATT*, J.
MEMORANDUM BY MURRAY, J.: FILED APRIL 04, 2018
Duane-Marc Shira Ball (Appellant) appeals from the judgment of
sentence entered after the trial court convicted him of possession of a
controlled substance, possession with the intent to manufacturer or deliver a
controlled substance, and possession of drug paraphernalia.1 We affirm.
This case stems from a traffic stop conducted by Corporal Reed Grenci
(Corporal Grenci) of the Pennsylvania State Police (PSP). Corporal Grenci is
an 18-year veteran of the PSP and is presently the Central Supervisor in the
Safe Highways Initiative for Effective Law Enforcement (SHIELD) Unit. The
SHIELD Unit specializes in criminal highway interdiction in an effort to make
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* Retired Senior Judge assigned to the Superior Court.
1 35 P.S. §§ 780-113(a)(16), (30), (32).
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Pennsylvania’s motorways safer by enforcing the Vehicle Code and
investigating suspected criminal activity.
On May 26, 2016, at approximately 1:20 p.m., Corporal Grenci stopped
Appellant’s vehicle along Interstate 80 in Snow Shoe Township, Centre
County, based on his belief that Appellant’s windows were illegally tinted. See
75 Pa.C.S.A. § 4524(e)(1). As Corporal Grenci approached the vehicle, he
noticed that Appellant was the sole occupant, that the vehicle contained an
air freshener, that there were no keys accompanying the single key in the
ignition, and that there was no clutter in the vehicle. When Corporal Grenci
asked Appellant his destination, Appellant stated that he was travelling to
Canton, Ohio to visit his cousin.
While verifying Appellant’s license, registration, and insurance
information, Corporal Grenci learned that Appellant possessed a Brooklyn,
New York address, that the vehicle was registered to a third party in
Philadelphia, Pennsylvania,2 and that the vehicle’s insurance became active
on February 10, 2016 and was to expire on May 31, 2016, just a few days
later. Additionally, while Corporal Grenci verified Appellant’s driver’s license,
he learned that Appellant’s name was an alias for “Orlando Parker,” whom the
Federal Drug Enforcement Agency had arrested in 2009 on suspicion of
marijuana trafficking. Corporal Grenci testified, “[a]t that point I got my tint
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2 Appellant later identified the owner of the vehicle as his paramour.
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meter and took the tint meter reading.” N.T., 1/31/17, at 102. Corporal
Grenci confirmed that the tinted windows were in violation of the Vehicle Code,
but told Appellant he would receive a warning rather than a ticket. Id. In an
effort to verify Appellant’s identity, Corporal Grenci asked Appellant about
“Orlando Parker” and whether Appellant had ever been arrested. Appellant
initially responded by stating that he had never been arrested and that he had
discovered that his name was associated with another person, but had cleared
up the confusion up by visiting a “federal building.” Id. at 27. However,
Appellant subsequently admitted that he had been arrested and questioned in
a marijuana trafficking investigation but claimed he was not charged with any
crime.
At this point, Appellant became extremely nervous and began shaking
and trembling. In addition, he was unable to recall his social security number
and unable to give Corporal Grenci the name of the cousin he was on his way
to visit without first pausing to think for several seconds. Corporal Grenci also
noticed during the stop that Appellant made two separate cellphone calls, one
of which was on speakerphone.
Based on this information, Corporal Grenci suspected that Appellant was
involved in drug trafficking and asked Appellant if he could search the vehicle.
When Appellant refused, Corporal Grenci contacted a canine unit to conduct a
sniff search of the outside of the vehicle.
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During the canine sniff search, the canine alerted the troopers to the
presence of contraband in the vehicle’s trunk. Corporal Grenci proceeded to
manually search the vehicle’s trunk and recovered approximately 50 pounds
of marijuana, two cellphones, and $370.00 in cash. Appellant was arrested
and charged with the aforementioned offenses.
On July 27, 2016, Appellant filed a pre-trial suppression motion in which
he argued that Corporal Grenci impermissibly extended the traffic stop in the
absence of reasonable suspicion that criminal activity was afoot. On August
16, 2016, Appellant also served a subpoena on Corporal Grenci that sought to
compel Corporal Grenci’s attendance at the hearing on Appellant’s suppression
motion and directed Corporal Grenci to bring with him any training or
educational material that he had received related to traffic stops and drug
interdiction and all reports related to drug possession arrests that he had
made on a highway in the last three years. On December 14, 2016, the Office
of the Attorney General filed a motion to quash Appellant’s subpoena. On
January 4, 2017, the trial court granted the motion to quash in part as it
related to Appellant’s demand that Corporal Grenci bring with him documents
related to his prior drug arrests and any other educational information that he
possessed.
On January 31, 2017, the trial court held a hearing on Appellant’s
suppression motion; it denied the motion on April 27, 2017. On June 1, 2017,
the trial court conducted a stipulated bench trial, at the conclusion of which it
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found Appellant guilty of all charges. On September 7, 2017, the trial court
sentenced Appellant to 9 to 18 months of incarceration followed by one year
of probation.
Appellant filed this timely appeal. On October 3, 2017, the trial court
ordered Appellant to file a concise statement of errors complained of on appeal
pursuant to Pennsylvania Rule of Appellate Procedure 1925(b). On October
20, 2017, Appellant timely filed his Rule 1925(b) statement.
Appellant presents the following issues for our review:
1. Whether the lower court denied [Appellant] the opportunity
to present a complete defense and compel the attendance of
witnesses in his favor when it quashed the subpoena[] issued to
the Pennsylvania State Police?
2. Whether the lower court erred by allowing Corporal [] Grenci
to subvert the protections of Article I, [S]ection 8 of the
Pennsylvania Constitution and the Fourth and Fourteenth
Amendments to the United States Constitution when it concluded
that “Indicators” established probable cause to believe that
criminal activity was afoot and accordingly denied [Appellant]’s
motion to suppress.
3. Whether the lower court erred by concluding that Corporal
[] Grenci did not exceed his authority during a routine traffic stop
(i.e., to check documentation, ask a few brief questions, issue a
citation or warning, and allow [Appellant] to continue on his way)
when he engaged in aggressive questioning and otherwise held
[Appellant] beyond the time necessary to complete the stop.
Appellant’s Brief at 9.
First, Appellant argues that the trial court erred in quashing his
subpoena that directed Corporal Grenci to bring with him to the suppression
hearing any training or educational material that he had received related to
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traffic stops and drug interdiction and all reports related to drug possession
arrests he had made on a highway in the last three years. “Typically, the
standard of review regarding a motion to quash a subpoena is whether the
trial court abused its discretion.” Commonwealth v. McClure, 172 A.3d
668, 683 (Pa. Super. 2017) (quotations and citation omitted). Where the
issue raised, however, “is purely a question of law, this Court’s standard of
review is de novo and our scope of review is plenary.” Id. (quotations and
citation omitted).
The trial court concluded that the documentation Appellant sought was
“investigative information” under the Pennsylvania Criminal History Record
Information Act (CHRIA), 18 Pa.C.S.A. §§ 9101-9183, and that only a
“criminal justice agency” could request and receive such information. Trial
Court Opinion, 11/22/17, at 3-4. Section 9102 of CHRIA defines “investigative
information” as, “Information assembled as a result of the performance of any
inquiry, formal or informal, into a criminal incident or an allegation of criminal
wrongdoing and may include modus operandi information.” 18 Pa.C.S.A. §
9102.
Section 9106(c)(4) of CHRIA restricts the dissemination of “investigative
information” unless the party requesting the information is a criminal justice
agency:
Investigative and treatment information shall not be disseminated
to any department, agency or individual unless the department,
agency or individual requesting the information is a criminal
justice agency which requests the information in connection with
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its duties, and the request is based upon a name, fingerprints,
modus operandi, genetic typing, voice print or other identifying
characteristic.
18 Pa.C.S.A. § 9106(c)(4) (emphasis added).
CHRIA defines a criminal justice agency as:
Any court, including the minor judiciary, with criminal jurisdiction
or any other governmental agency, or subunit thereof, created by
statute or by the State or Federal constitutions, specifically
authorized to perform as its principal function the administration
of criminal justice, and which allocates a substantial portion of its
annual budget to such function. Criminal justice agencies include,
but are not limited to: organized State and municipal police
departments, local detention facilities, county, regional and State
correctional facilities, probation agencies, district or prosecuting
attorneys, parole boards, pardon boards, the facilities and
administrative offices of the Department of Public Welfare that
provide care, guidance and control to adjudicated delinquents,
and such agencies or subunits thereof, as are declared by the
Attorney General to be criminal justice agencies as determined by
a review of applicable statutes and the State and Federal
Constitutions or both.
18 Pa.C.S.A. § 9102 (footnote omitted).
Appellant argues that his subpoena “did not compel the State Police to
provide the documents to counsel or [Appellant],” but instead directed
Corporal Grenci to bring them to the Court of Common Pleas of Centre County,
a criminal agency under Section 9102. Appellant’s Brief at 23. Upon review,
we conclude that the trial court did not err in quashing Appellant’s subpoena.
This court has held “that records of the PSP relating to a criminal
investigation of an accused who wished to inspect these records could not be
disclosed through the testimony of a subordinate PSP officer at trial.”
Commonwealth v. McElroy, 665 A.2d 813, 818 (Pa. Super. 1995) (citing
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Commonwealth v. Friday, 90 A.2d 856, 860 (Pa. Super. 1952)). “The
proper mode of procedure” for requesting such records is “the service of a
subpoena duces tecum upon the Commissioner of the PSP as the legal
custodian of records[.]” Id. We explained that the Commissioner of the PSP
is “the legal custodian of the records” and consequently, a criminal defendant
may only “obtain evidence [that] s/he deems material and [that] cannot be
obtained through other avenues by service of a subpoena duces tecum upon
the custodian of the record or other evidence sought.” Id.In this case, Appellant concedes that he served his subpoena on
Corporal Grenci, a supervisor in the SHIELD unit of the PSP, not the
Commissioner of the PSP. Appellant’s Brief at 23. Corporal Grenci is, without
question, subordinate to the Commissioner. Thus, Appellant improperly
issued the subpoena. Although counsel for Appellant has claimed, both before
the trial court and in his appellate brief to this Court, that he either had or was
going to take the necessary measures to cure this procedural defect, there is
no evidence in the certified record that such measures occurred. Accordingly,
we conclude that the trial court did not err in quashing Appellant’s subpoena.3
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3 The trial court quashed Appellant’s subpoena on substantive grounds,
concluding that the documentation Appellant sought was “investigative
information” and that only a “criminal justice agency,” not Appellant, could
request and receive such information. Trial Court Opinion, 11/22/17, at 3-4.
Although our reasoning differs from that of the trial court, it is well settled
that an appellate court can affirm on any basis. In re Jacobs, 15 A.3d 509,
n.1 (Pa. Super. 2011) (“[This Court is] not bound by the rationale of the trial
court, and may affirm on any basis.”).
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Next, we address Appellant’s second and third issues together because
they challenge the trial court’s denial of his suppression motion. Specifically,
Appellant argues that Corporal Grenci did not possess the reasonable
suspicion necessary to detain him for the purpose of conducting a canine sniff.
Appellant asserts that the facts relied upon by the trial court in concluding that
Corporal Grenci had reasonable suspicion to conduct a canine search of
Appellant’s vehicle were wholly innocent, “innocuous,” and provided Corporal
Grenci with “nothing more than a hunch that [Appellant] was involved in
criminal activity.” Appellant’s Brief at 25.
The standard of review for the denial of a motion to suppress evidence
is as follows:
[An appellate court’s] standard of review in addressing a challenge
to the denial of a suppression motion is limited to determining
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, [the appellate court is] bound by [those]
findings and may reverse only if the court’s legal conclusions are
erroneous. Where ... 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 [ ] plenary review.
Commonwealth v. Smith, 164 A.3d 1255, 1257 (Pa. Super. 2017) (citation
omitted). Our review is limited to the suppression hearing record. In re L.J.,
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79 A.3d 1073, 1085 (Pa. 2013). “[I]t is the sole province of the suppression
court to weigh the credibility of witnesses,” and “the suppression court judge
is entitled to believe all, part or none of the evidence presented.”
Commonwealth v. Blasioli, 685 A.2d 151, 157 (Pa. Super. 1996) (quotation
and citation omitted), affirmed, 713 A.2d 1117 (Pa. 1998).
Instantly, Appellant does not dispute the legality of the initial traffic stop
based on the dark tint of the vehicle’s windows. Instead, Appellant contends
that Corporal Grenci impermissibly extended the traffic stop and improperly
conducted a canine sniff of the vehicle because he lacked reasonable suspicion
of criminal activity beyond the initial reason for the stop – in this case the
illegally tinted windows.
During a traffic stop, an officer “may ask the detainee a moderate
number of questions to determine his identity and to try to obtain information
confirming or dispelling the officer’s suspicions.” Berkemer v. McCarty, 468
U.S. 420, 439 (1984). “[I]f there 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.” Commonwealth v. Chase, 960 A.2d 108, 115 n.5 (Pa. 2008).
This Court has held that such investigations, including a canine sniff of the
exterior of a vehicle, must be supported by reasonable suspicion.
Commonwealth v. Harris, 176 A.3d 1009, 1021 (Pa. Super. 2017)
(“[C]onsidering the relatively minor privacy interest in the exterior of the
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vehicle and the minimal intrusion occasioned by a canine sniff, ...mere
reasonable suspicion, rather than probable cause, [is] required prior to [a dog]
sniffing the exterior of [a] vehicle.”).
Our Supreme Court has explained:
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. Commonwealth v. Cook, [] 735
A.2d 673, 676 ([Pa.] 1999). “This standard, less stringent than
probable cause, is commonly known as reasonable suspicion.” Id.In order to determine whether the police officer had reasonable
suspicion, the totality of the circumstances must be considered.
In re D.M., [] 781 A.2d 1161, 1163 ([Pa.] 2001). 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.” Cook, 735 A.2d at 676
(quoting Terry v. Ohio, 392 U.S. 1, 27 [] (1968)). 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, “[e]ven a combination of innocent facts, when
taken together, may warrant further investigation by the police
officer.” [Id.]
Commonwealth v. Rogers, 849 A.2d 1185, 1189 (Pa. 2004).
We conclude that Corporal Grenci possessed reasonable suspicion to
detain Appellant and request a canine sniff of the vehicle. Corporal Grenci,
who had extensive training and experience in drug interdiction as a member
of the PSP’s SHIELD Unit, testified that he stopped Appellant along Interstate
80, which is widely known as a major drug trafficking corridor in the United
States. N.T., 1/31/17, at 10. He explained that he immediately observed in
the car an air freshener, two cans of Red Bull, a single key in the ignition
unaccompanied by house keys, and a clean interior of the vehicle with no
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visible luggage or clutter beyond a sweatshirt in the backseat. Id. at 17.
Corporal Grenci stated that based on his experience, drug traffickers often use
air fresheners to mask the smell of controlled substances, and energy drinks
for long trips with immediate turnarounds. Id. at 18. Corporal Grenci testified
that the single key in the ignition also indicated that the vehicle was owned
by a third party and that, in his experience, drug traffickers commonly use
third-party vehicles so that the driver can claim that he did not know the
vehicle contained drugs. Id. at 17-18.
When Corporal Grenci verified Appellant’s license, registration and
insurance information, he discovered that Appellant resided in Brooklyn, New
York, that the car was registered to a third-party in Philadelphia, Pennsylvania,
and that the car’s insurance became active on February 10, 2016 and was set
to expire on May 31, 2016, just a few days later. Id. at 13-18. Corporal
Grenci testified that based on his experience, drug traffickers often use
vehicles with registrations or insurance that are only active for a short period
of time because it makes it more difficult for the police to track and conduct
surveillance on the vehicles. Id. at 16-18.
As Corporal Grenci was in the process of verifying Appellant’s license in
his computer, he learned that Appellant’s name was an alias for another
identity, “Orlando Parker,” whom the Federal Drug Enforcement Agency had
arrested in 2009 for marijuana trafficking. Id. at 24-25. At this point,
Corporal Grenci was unable to verify Appellant’s actual identity. Id. at 25-26.
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Consequently, Corporal Grenci questioned Appellant about the name “Orlando
Parker” and whether Appellant had ever been arrested. Id. at 26-27. While
Appellant initially claimed that he had never been arrested, he eventually
admitted to Corporal Grenci that he had been arrested and questioned in
connection with a marijuana trafficking ring. Id. at 27-28, 32-33. Corporal
Grenci testified that based on his experience, Appellant’s behavior was
consistent with a person engaged in criminal activity. Id. at 32.
From this moment forward, Corporal Grenci indicated that Appellant
became extremely nervous to the point that he was shaking and trembling
and was unable to properly recount his social security number and had to
pause several seconds before answering when Corporal Grenci asked him for
the name of the cousin he was planning to visit. Id. at 28-33. Corporal Grenci
reiterated that Appellant’s demeanor, based on Corporal Grenci’s training and
experience, was suspicious for criminal activity. Id. at 33.
Further, Corporal Grenci testified Appellant was talking on his cellphone
on two different occasions during the traffic stop, with one of the calls being
on speakerphone. Id. at 37-38. Although he did not hear what was discussed
during those phone conversations, Corporal Grenci testified that in his
experience, drug traffickers will make calls during a traffic stop to inform their
suppliers or trail cars that they have been stopped. Id.
Corporal Grenci testified that based on the totality of this information,
he believed that Appellant was trafficking drugs and therefore asked for
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Appellant’s consent to search the vehicle. Id. at 34. When Appellant declined,
Corporal Grenci called the canine unit. Id. at 35.
The trial court credited Corporal Grenci’s testimony and concluded:
While no single factor would necessarily suffice to establish
reasonable suspicion, viewing Corporal Grenci’s testimony in its
totality supplies a valid basis upon which he could extend the
traffic stop to continue his investigation. The [c]ourt finds the
totality of the circumstances supported Corporal Grenci’s
reasonable suspicion that criminal activity was afoot and thus
permitted him to investigate his suspicion by requesting a canine
unit to conduct a sniff search of the exterior of [Appellant]’s
vehicle.
Trial Court Opinion, 4/27/17, at 6. After careful consideration, we agree.
We are aware that, when viewed on their own, several of the indicators
upon which Corporal Grenci relied appear innocuous. For example, we would
not conclude that a police officer could detain a vehicle on suspicion for drug
trafficking and subject it to a canine sniff merely because the vehicle contained
an air freshener or energy drinks, because it was free from clutter, or because
the officer stopped the vehicle along Interstate 80. We are, however, required
to view the totality of the circumstances. Rogers, 849 A.2d at 1189. In doing
so, considering these indicators along with other factors including that this
stop involved a vehicle owned by a third party with insurance set to expire
only a few days after the stop, Appellant’s prior arrest for marijuana
trafficking, and his escalating nervousness when Corporal Grenci questioned
him about that arrest, lead us to conclude that the record supports the trial
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court’s determination that Corporal Grenci’s detention of Appellant was
supported by reasonable suspicion. Recent case law supports our conclusion.
This Court, in Commonwealth v. Freeman, 150 A.3d 32 (Pa. Super.
2016), appeal denied, 169 A.3d 524 (Pa. 2017), held that an investigative
detention and canine sniff search of a vehicle was supported by reasonable
suspicion under circumstances factually similar to this case. In Freeman, a
Pennsylvania State Trooper stopped a vehicle along Interstate 80 for an
unsafe lane change and following another vehicle too closely. Id. at 33.
During the stop, the trooper observed air fresheners, that the vehicle was a
single-day rental, that the defendant was verbally inconsistent as to where he
was traveling and why he was traveling to that location, that defendant was
acting nervous and “somewhat shaky,” and that the defendant had been
arrested previously for a gun crime. Id. at 37.
Based on these observations, this Court affirmed the trial court’s
determination that the state trooper possessed the reasonable suspicion
necessary to detain the vehicle and request a canine sniff search. Id. at 40-
41. We explained:
We recognize that, when viewed in isolation, many of the facts on
which the troopers relied appear innocuous. We would hesitate to
hold that a vehicle may be detained for more than an hour and
subjected to a canine search merely because it had been rented
for a one-way trip from New York to Binghamton, a purported drug
destination, or because the driver, when stopped, appeared
agitated. But we are required to review the circumstances in their
totality, and, upon doing so, we conclude that the evidence was
sufficient to support the trial court’s determination that the
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troopers’ detention of Appellant was supported by reasonable
suspicion.
Id. at 41.
Here, as with Freeman, Corporal Grenci stopped Appellant along
Interstate 80 and observed that Appellant’s vehicle was registered to a third
party, was exceptionally clean and contained an air freshener, that Appellant
had an arrest history, and became progressively more nervous during the
encounter. Additionally, with respect to Appellant’s prior arrest for marijuana
trafficking, Corporal Grenci had even greater reason to believe that Appellant
was involved in drug activity than the trooper in Freeman, given that (1) the
defendant in Freeman only had a prior arrest for a gun violation while
Appellant was previously arrested for a drug crime, and (2) Appellant lied
about his prior arrest. See id. at 33.
Accordingly, we conclude that the trial court did not err in determining
that the totality of the circumstances in this case supported Corporal Grenci’s
suspicion that Appellant was engaged in criminal activity. While this may be
a close case, we discern no basis upon which to reverse the trial court’s denial
of Appellant’s suppression motion.
Appellant contends that this case is analogous to this Court’s decision in
Commonwealth v. Dales, 820 A.2d 807 (Pa. Super. 2003). In Dales, a
police officer stopped a vehicle for excessive window tinting. Id. at 809.
During that stop, the officer observed several air fresheners in the vehicle and
detected a smell that “he described as medicine, something like Bactine.” Id.- 16 -
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at 810. The officer also noted that the defendant appeared nervous when
answering his questions. Id.After the officer verified the defendant’s license, registration, and
insurance – without issue – he gave the defendant a written warning for the
tinted windows and explained to him the appropriate amount of tinting on a
vehicle’s windows. Id. The officer then began asking the defendant questions
about where he was travelling and who he was visiting. Id. at 811. Noticing
inconsistencies in the defendant’s answers, the officer asked the defendant if
there was anything illegal in the vehicle. Id. The driver responded in the
negative and consented to a search of the vehicle. Id. Upon searching the
vehicle, the officer discovered approximately one pound of crack cocaine in
the trunk. Id.The trial court granted the defendant’s motion to suppress the crack
cocaine discovered by the officer and this Court affirmed. Id. at 811, 815.
We explained:
Initially, we note that the reason for the initial traffic stop was
the excessive tinting on Defendant’s vehicle's windows. When
Officer Clee approached Defendant and requested his license,
registration, and proof of insurance, Defendant complied and gave
Officer Clee the requested documents. Officer Clee then returned
to his police car, radioed the information in, and established that
everything was in order. He then wrote up a warning slip advising
Defendant of the excessive tinting and returned to Defendant’s
vehicle. Officer Clee then instructed Defendant to accompany him
back to the police vehicle so that he could instruct Defendant on
the proper amount of tinting, as demonstrated by the tinting of
the police vehicle’s windows. Defendant complied and followed
Officer Clee to the police vehicle, where Officer Clee took
approximately 20-30 seconds to point out the permissible amount
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of tinting. Following this exchange, Officer Clee returned
Defendant’s various documents to him along with the warning
regarding the excessive tint. We conclude that the purpose of the
initial traffic stop ended at this point.
Nonetheless, Officer Clee continued with a “second ... round of
questioning.” … [W]e conclude that this second round of
questioning constituted an investigative detention, and that
Officer Clee lacked the reasonable suspicion necessary to support
it. …
* * *
[A]t the point in time that the second round of questioning
began, Officer Clee had only observed the following facts: (1)
there was a smell of bactine emanating from Defendant’s vehicle;
(2) there were several air fresheners in the vehicle; and (3)
Defendant appeared nervous.
We conclude that these facts were insufficient to establish
anything more than a hunch of possible criminal activity being
afoot. Thus, we find that Officer Clee lacked the reasonable
suspicion necessary to conduct the second round of questioning,
and consequently, the continued investigative detention was
illegal.
Id. at 814-815.
Dales stands for the proposition that where a police officer seeks to
detain a vehicle beyond the initial purpose of a traffic stop, the officer must
have reasonable suspicion that the defendant is engaged in criminal activity.
Appellant’s case is distinguishable from Dales. Corporal Grenci observed
several factors which together coalesced and caused him to believe Appellant
was engaged in drug trafficking (e.g., the stop occurred on Interstate 80, the
air freshener, the two cans of Red Bull, a third party owned the vehicle, the
insurance of the vehicle was set to expire in a few days and was only active
for a short period of time, and Appellant’s arrest for marijuana trafficking).
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Corporal Grenci learned of each of these indicators before completing
verification of Appellant’s identity. Further, because of the confusion
surrounding “Orlando Parker,” Corporal Grenci questioned Appellant about his
identity, at which time Appellant initially lied about his past arrest and became
increasingly nervous. All of this occurred before Corporal Grenci had a chance
to issue a citation for the excessively tinted windows of the vehicle. Unlike
the police officer in Dales, Corporal Grenci never established that “everything
was in order.” Id.After careful review, and for the above reasons, we conclude that the
trial court did not err in determining that the investigative detention was
supported by reasonable suspicion. We therefore affirm Appellant’s judgment
of sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/4/2018
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