Com. v. Varner, J. ( 2021 )

J-A16036-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JARROD CLARK VARNER :
:
Appellant : No. 1163 MDA 2020
Appeal from the Judgment of Sentence Entered August 13, 2020
In the Court of Common Pleas of Mifflin County Criminal Division at
No(s): CP-44-CR-0000275-2019
BEFORE: KUNSELMAN, J., McCAFFERY, J., and STEVENS, P.J.E.*
MEMORANDUM BY STEVENS, P.J.E.: FILED: SEPTEMBER 16, 2021
Appellant Jarrod Clark Varner appeals the judgment of sentence entered
by the Court of Common Pleas of Mifflin County after Appellant was convicted
of unlawful possession of a controlled substance (heroin), possession of drug
paraphernalia, and summary offenses.1 Appellant asserts the trial court erred
in denying his motion to suppress evidence confiscated from his vehicle during
the course of a consent search. After careful review, we affirm.
After Appellant was charged in this case, he filed a motion to suppress
evidence seized from his vehicle. While Appellant conceded the initial stop of
his vehicle was lawful, he alleges that he was subjected to a second, unlawful
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* Former Justice specially assigned to the Superior Court.
1 Appellant purported to appeal from the order denying his pre-trial
suppression motion. However, the appeal properly lies from the judgment of
sentence. See Commonwealth v. Pratt, 930 A.2d 561, 562 n.1 (Pa.Super.
2007) (citation omitted). The caption has been amended accordingly.
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seizure when the officers detained him to investigate matters unrelated to the
initial stop without reasonable suspicion of criminal activity. As a result,
Appellant asserts that his consent to the search of his vehicle was invalid as it
was not given during a lawful police encounter.
The trial court held two suppression hearings at which the following facts
were developed: on March 19, 2019, at approximately 8:00 p.m., Trooper
Chad Snook was on patrol in Lewistown when he noticed a black Ford Mustang
Shelby G.T. with an inoperable passenger side headlight. Notes of Testimony
(N.T.), 10/1/19, 4-8. Trooper Snook initiated a vehicle stop, approached on
foot, and observed the vehicle had an expired inspection sticker. Id. at 7-8.
Trooper Snook began conversing with the vehicle’s driver, Appellant,
and his female passenger, Keolani Elieisar. Id. at 6-7; N.T. Suppression,
12/10/19, at 19. Trooper Snook testified that it was “very obvious” that
Appellant was nervous because his hands were shaking, his lip was quivering,
he was very talkative, and had a worried demeanor. N.T., 10/1/19, at 11.
When Trooper Snook asked for Appellant’s license and registration,
Appellant identified himself as a veteran. Hearing Exhibit 1 (“MVR1”) (Trooper
Snook dashcam video along with bodycam audio). After Trooper Snook
pointed out that Appellant’s headlight was inoperable and his inspection
sticker was expired, Appellant acknowledged these facts and indicated that he
had just returned from the Harrisburg area, where he had been looking for a
new vehicle, specifically, a Prius. N.T., 10/1/19, at 11; MVR1. Trooper Snook
attempted to keep the conversation light by joking with Appellant as to why
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he would want a Prius after having a Mustang. MVR1. Trooper Snook took
Appellant’s documents and returned to the patrol vehicle. MVR1.
Trooper Snook called for backup as it was protocol to do so for officer
safety when conducting a stop of a vehicle with multiple occupants. N.T.,
10/1/19, at 9. Corporal Mark Kirby responded to assist Trooper Snook within
a few minutes of the initial stop. Id. at 10; MVR1.
At the suppression hearing, Trooper Snook testified that, before he
stopped Appellant’s vehicle, he had received intelligence information earlier
that day from a member of the “vice unit” who reported that a driver in a
black Mustang with a military license plate would be returning from the
Harrisburg area and the driver would “get[s] out of different incidents and
traffic stops based on his veteran status.” N.T., 10/1/19, at 11-12, 24-25.
Trooper Snook testified that once he pulled Appellant over for his inoperable
headlight, he remembered the information given to him directly by the vice
officer at the state police barracks just hours earlier on the same patrol shift
(3 p.m. to 11 p.m.). Id. at 15, 22-24.
Corporal Kirby confirmed that he had received the same intelligence
information from the vice officer from the “drug unit” and agreed that
Appellant met the description of that driver. Id. at 40, 42; Hearing Exhibit 2
(“MVR2”) (Corporal Kirby dashcam video along with bodycam audio). Neither
trooper could testify at the suppression hearing as to where the vice unit
officer obtained this intelligence information but Corporal Kirby indicated that
the vice unit officer works with police informants to make controlled purchases
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of drugs. N.T., 10/1/19, at 41. Corporal Kirby testified that he has received
reliable information in the past from this particular officer. Id. at 41.
After Corporal Kirby arrived on the scene, he approached the vehicle on
the passenger side while Trooper Snook ran Appellant’s identification.
Corporal Kirby briefly spoke with Appellant, who explained how he broke his
headlight and indicated that he planned to have it repaired before obtaining a
valid inspection certificate. MVR2.
Corporal Kirby then returned to Trooper Snook’s patrol car, and shared
his observation that Appellant was “freaking out” and looked like a “nervous
wreck.” MVR2. Corporal Kirby also noted that Appellant would not make eye
contact with him. N.T., 10/1/19, at 65. Trooper Snook admitted at the
suppression hearing that he did not complete a criminal record check of either
occupant as he did not know how to do it from the patrol vehicle. Id. at 32.
Thereafter, the troopers decided to converse with the vehicle’s
occupants separately based on a number of factors. MVR1, MVR2; N.T.
10/1/19, at 10, 16-17, 43, 60. The troopers were concerned about Appellant’s
extreme nervousness, the information they received from the vice unit officer,
the fact that Appellant had been traveling back from Harrisburg, and their
disbelief of Appellant’s story that he traveled a significant distance to look at
a Toyota Prius. Id. Both officers noted that Harrisburg is a source city for
drug trafficking and testified that “Harrisburg is a very large source of
controlled substances that is coming through Mifflin County … and the
surrounding areas.” Id. at 10, 51.
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Based on these observations, Corporal Kirby voiced suspicion that
Appellant and Elieisar were in possession of a controlled substance and his
concern that Elieisar was concealing it on her person. Id. at 10, 51; MVR1,
MVR2. Corporal Kirby indicated through his experience in conducting
numerous arrests and in his training in drug interdiction and trafficking, he
learned that males often use female companions to hide controlled
substances, which can be very small, as “law enforcement is predominantly
male and that we are more reluctant to do a thorough search of them and that
female officers aren’t always available.” N.T. 10/1/19, at 47, 50.
While Corporal Kirby spoke with Elieisar through the passenger side
window, Trooper Snook asked Appellant to get out of the vehicle to answer
some brief questions. MVR1. Appellant agreed and asked if he was in trouble
to which Trooper Snook responded “no, man.” MVR1. Trooper Snook again
asked where Appellant was coming from and Appellant indicated that he was
coming from a location past Harrisburg, where he was shopping for a vehicle.
N.T. 10/1/19, at 18; MVR1. Trooper Snook noted that Appellant continued to
appear agitated during their conversation. N.T. 10/1/19, at 18-19. Trooper
Snook asked if Appellant was ok as he appeared to be “shaky, nervous, and
chattery.” MVR1. Appellant indicated that he was fine. MVR1.
Trooper Snook asked if Appellant had “anything in the vehicle that
should not be in the vehicle”; Appellant responded “no.” MVR1. Trooper Snook
asked Appellant for consent to search his vehicle, and Appellant stated that
he did have anything in the car. MVR1. Trooper Snook responded “Ok. I’m
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asking you for consent to look. That’s totally up to you. You just seem real
nervous to me, chattery, and jittery. Is it all right [to search the car]?”
Appellant responded “no.” MVR1.
At that point, Trooper Snook stopped questioning Appellant and awaited
Corporal Kirby, who in the meantime was speaking separately with Elieisar.
MVR1. When Corporal Kirby asked Elieisar where she had traveled with
Appellant that day, she indicated they went to Harrisburg to visit Appellant’s
friend, who she could not name or describe. MVR2. Corporal Kirby recalled
Elieisar gave him vague answers, was “very nervous, [and] was fidgeting in
her seat.” N.T. 10/1/19, at 44. While Appellant had told both officers that he
had just returned from car shopping, Elieisar denied going anywhere else on
their trip besides Appellant’s friend’s apartment building. MVR2.
After recognizing that Appellant’s and Elieisar’s accounts of their
whereabouts were inconsistent, Corporal Kirby approached Appellant to
question him further. Corporal Kirby told Appellant pointed out to Appellant
that he was shaking and his lip was quivering, and again asked Appellant
where he had been traveling from. N.T. 10/1/19, at 45; MVR2. Appellant
repeated his claim that they had gone to look for a vehicle and expressly
denied stopping at a friend’s house. MVR2.
When Corporal Kirby told Appellant that Elieisar had admitted they had
traveled to meet Appellant’s friend, Appellant’s voice started wavering. N.T.
10/1/19, at 45, 47. Appellant asserted that he did not “understand why he
was being questioned” to which Corporal Kirby responded that “something
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was going here” based on Appellant’s extreme nervousness as well as
Appellant and Elieisar’s conflicting statements about their visit to Harrisburg.
MVR2. Appellant then stated that he went to see a friend who lived in a single-
family home, not an apartment building as Elieisar had reported. MVR2.
Corporal Kirby then asked Appellant if he had ever consumed illegal
drugs, to which Appellant initially responded “never.” MVR2. Without further
questioning, Appellant admitted he had smoked marijuana years ago and that
he and Elieisar were on the Methadone program, as he was previously addicted
to Percocet, which he had been prescribed for Post-Traumatic Stress Disorder
(PTSD) that arose from his deployment to Iraq. MVR2.2 Corporal Kirby
thanked Appellant for his service, expressed sympathy, and acknowledged
that it was understandable that Appellant might have a drug problem. MVR2.
Corporal Kirby then inquired whether there was anything illegal in the
vehicle. MVR2. Appellant admitted he had a handgun in the center console
which he was licensed to carry. MVR2. At that point, Corporal Kirby asked
Appellant to search the vehicle, not knowing that Trooper Snook had already
done so. MVR2. Appellant indicated that he would prefer that the vehicle not
be searched and asked why a search was necessary. MVR2. Corporal Kirby
pointed to Appellants’ inconsistent statements and nervousness, and asserted
there were multiple indicators that he would not discuss again. MVR2.
____________________________________________
2 The troopers admitted that neither Appellant nor Elieisar exhibited signs of
impairment. N.T. 10/1/19, at 36.
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Thereafter, Corporal Kirby emphasized that Appellant did not have to
consent to the search and stressed that it was Appellant’s right to decline the
search. MVR2. However, Corporal Kirby suggested that he “would take other
avenues” that would “prolong [Appellant’s] night.” MVR2. Appellant then
indicated that he consented to the search. MVR2. Corporal Kirby repeated “I
don’t want to infringe on any of your rights. Are you telling me I can search
[your vehicle]?” MVR2. Appellant again agreed to the search. MVR2.
Thereafter, Corporal Kirby asked Elieisar to exit the vehicle and retrieved
the firearm from the center console where he found a blue wax paper baggie
containing two red straws and a white powdery substance, which Corporal
Kirby opined, based on his training and experience, was likely paraphernalia
used to snort heroin. N.T. 10/1/19, at 48. After this discovery, Elieisar
voluntarily surrendered her purse, which contained several unused blue
baggies and a very small metal spoon which Corporal Kirby also found was
indicative of snorting heroin. Id. at 49.
At that point, Corporal Kirby advised Appellant and Elieisar that he was
going to call for a female officer to patdown Elieisar. Id. at 49. At that point,
Appellant again became very nervous and directed Elieisar to give the officers
“the dope,” after which she pulled out a bag of suspected heroin from the front
of her underwear. Id. at 49-50. At that point, the troopers placed Appellant
and Elieisar under arrest. Id. at 51.
Appellant was subsequently charged with possession of a controlled
substance (heroin), possession of drug paraphernalia, general lighting
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requirements (headlamps), and operation of a vehicle without an official
certificate of inspection.3 Appellant filed an omnibus pretrial motion which
included claims to suppress the evidence obtained from the stop. At the first
of two suppression hearings, defense counsel indicated that he was unaware
the officers would rely on intelligence information to justify their stop. In
response, the prosecutor admitted that he had just recently been notified of
this intelligence information and asked Trooper Snook why this information
was not included in the police report. Id. at 12-13.
Trooper Snook admitted that he did not include any detail about the
intelligence information he received prior to the stop of Appellant’s vehicle in
any of the police reports or the affidavit of probable cause out of concern for
the safety of the vice officer, who works undercover. N.T. 10/1/19, at 13, 26,
60. Moreover, both Trooper Snook and Corporal Kirby testified that they
believed that they already had the requisite suspicion to justify the interaction
based on their own observations. Id. at 26, 60. At the suppression hearing,
both Trooper Snook and Corporal Kirby specifically identified the vice officer
by name and Trooper Snook indicated that this officer could be made available
to testify in this case. Id. at 13, 22, 40.
On February 28, 2020, the trial court entered an order denying
Appellant’s suppression motion. Appellant filed a timely appeal and complied
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3 35 Pa.C.S.A. §§ 780-113(A)(16), (32); 75 Pa.C.S.A. §§ 4303(a), 4703,
respectively.
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with the trial court’s direction to file a concise statement of errors complained
of on appeal pursuant to Pa.R.A.P. 1925(b).
Appellant raises the following issues in the Statement of Questions
Involved portion of his appellate brief:
1. Whether the trial court committed an error of law in finding that
Appellant was subject to a lawful investigative detention after the
initial traffic stop, where the police officers had resolved the
reasons for the initial stop and held Appellant at the scene to
further investigate other unrelated conduct against Appellant’s will
without reasonable, articulable grounds for the continued stop.
2. Whether the trial court committed an error of law in failing to
consider the veracity and reliability of the unnamed informant that
the police officers allegedly relied upon as the basis for continuing
to seize Appellant after the initial reasons for the traffic stop had
been resolved.
3. Whether the trial court committed an error of law in finding that
Appellant voluntarily gave valid consent to the vehicle search,
where the police officers had resolved the reasons for the initial
traffic stop, held Appellant against his will for additional questions
about unrelated criminal allegations, and told Appellant that they
would take measures to search his vehicle even if he refused after
Appellant had refused to consent to the search three times.
Appellant’s Brief, at 3-4.
In reviewing an appeal from the denial of a motion to suppress evidence,
we are guided by the following standard of review:
Our standard of review in addressing a challenge to a trial
court's denial of a suppression motion is whether the factual
findings are supported by the record and whether the legal
conclusions drawn from those facts are correct. When
reviewing the ruling of a suppression court, we must
consider only the evidence of the prosecution and so much
of the evidence of the defense as remains uncontradicted
when read in the context of the record. ... Where the record
supports the findings of the suppression court, we are bound
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by those facts and may reverse only if the legal conclusions
drawn therefrom are in error.
Commonwealth v. Eichinger, 591 Pa. 1, 915 A.2d 1122, 1134
(2007) (citations 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 their testimony.” Commonwealth v.
Gallagher, 896 A.2d 583, 585 (Pa. Super. 2006). Moreover, our
scope of review from a suppression ruling is limited to the
evidentiary record that was created at the suppression hearing.
In re L.J., 622 Pa. 126, 79 A.3d 1073, 1087 (2013).
Commonwealth v. Bumbarger, 231 A.3d 10, 15, (Pa.Super. 2020), appeal
denied, 239 A.3d 20 (Pa. 2020).
Although Appellant concedes the officers’ initial stop of his vehicle was
justified due to his violation of the Vehicle Code as his car had an inoperable
headlight, Appellant suggests that the officers’ interaction transitioned into an
illegal detention when the officers began questioning Appellant about matters
unrelated to the initial basis for the stop when they had resolved all the issues
relevant to the traffic violations. As such, Appellant claims his consent to the
vehicle search was invalidated by the unlawful continued detention.
Our review of this claim is guided by the following principles:
The Fourth Amendment to the United States Constitution protects
the right of people in this country to be secure against
“unreasonable searches and seizures.” U.S. Const. amend. IV.
Thus, pursuant to the protections of the Fourth Amendment,
before a police officer may conduct a search, he must generally
obtain a warrant that is supported by probable cause and
authorizes the search. Schneckloth v. Bustamonte, 412 U.S.
218, 219, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973). A search warrant
is not required, however, where a person with the proper authority
unequivocally and specifically consents to the search. Florida v.
Jimeno, 500 U.S. 248, 250–51, 111 S.Ct. 1801, 114 L.Ed.2d 297(1991); Commonwealth v. Strickler, 563 Pa. 47, 757 A.2d 884,
888 (2000).
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To establish a valid consensual search, the prosecution must first
prove that the consent was given during a legal police interaction,
or if the consent was given during an illegal seizure, that it was
not a result of the illegal seizure; and second, that the consent
was given voluntarily. Strickler, 757 A.2d at 888–901; see also
Florida v. Royer, 460 U.S. 491, 497, 501–07, 103 S.Ct. 1319,
75 L.Ed.2d 229 (1983); Dunaway v. New York,442 U.S. 200,
219, 99 S.Ct. 2248, 60 L.Ed.2d 824 (1979). With regard to the
prosecution's first burden of proof, we note that:
Fourth Amendment jurisprudence has led to the
development of three categories of interactions between
citizens and the police. The first of these is a “mere
encounter” (or request for information) which need not be
supported by any level of suspicion, but carries no official
compulsion to stop or to respond. The second, an
“investigative detention” must be supported by a reasonable
suspicion; it subjects a suspect to a stop and a period of
detention, but does not involve such coercive conditions as
to constitute the functional equivalent of an arrest. Finally,
an arrest or “custodial detention” must be supported by
probable cause.
Commonwealth v. Ellis, 541 Pa. 285, 662 A.2d 1043, 1047
(1995) (citations omitted). Thus, pursuant to the Fourth
Amendment, a person may not be lawfully seized, either by means
of an investigative detention or a custodial detention, unless the
police possess the requisite level of suspicion.
***
Where a court finds that a person was illegally seized before he
allegedly consented to a search, any evidence obtained as a result
of the search must be excluded from the evidence against the
accused as fruit of the poisonous tree, i.e., the unlawful seizure,
unless the prosecution can establish that the alleged consent was
not a result of the illegal seizure. Strickler, 563 Pa. 47, 757 A.2d
884, 889–900; see also Dunaway, 442 U.S. at 219, 99 S.Ct.
2248. If the court finds that an illegal seizure preceded an alleged
consent but the consent was not caused by the illegal seizure or
that a lawful interaction preceded an alleged consent, the court
must then determine whether the prosecution has adequately
proven that the consent was made voluntarily and was not the
product of duress or coercion. Strickler, 757 A.2d at 889, 901;
see also Mendenhall, 446 U.S. at 558, 100 S.Ct. 1870; Royer,
460 U.S. at 497, 103 S.Ct. 1319.
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Commonwealth v. Reid, 571 Pa. 1, 25–27, 811 A.2d 530, 544–45 (2002)
(some footnotes omitted).
Appellant limited his appeal to claim that the trial court erred in denying
his suppression motion as Appellant’s consent to search his vehicle was not
given during a legal police interaction. While Appellant raised three issues in
his statement of questions involved section of his brief, he only presents one
undivided argument section in which he solely focuses on the first issue:
whether the officers subjected Appellant to an illegal investigative detention
when they continued to question Appellant after resolving the reasons for the
initial stop of his vehicle. We limit our discussion accordingly.4
In this case, the trial court found that, after the initial stop, the troopers
subjected Appellant to an investigative detention supported by reasonable
suspicion of criminal activity. The trial court reasoned that Appellant’s
“excessive talking, shaking hands, extreme nervousness, inconsistent stories
for his trip to Harrisburg, his misrepresentation of prior drug use, and the
information gathered at the police barracks warranted the officer to conduct
an investigative detention.” Trial Court Opinion, 2/28/20, at 4.
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4 Appellant did not develop any argument in his appellate brief to argue that
his consent was not voluntary or that the officers exceeded the scope of his
consent in searching the vehicle. To the extent that Appellant intended to
raise such claims on appeal, they are waived for lack of development.
Commonwealth v. Antidormi, 84 A.3d 736 (Pa.Super. 2014) (finding claim
waived for lack of development when appellant failed to cite any legal
authorities nor developed any meaningful analysis in support of the claim).
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However, the trial court did not analyze the question of whether there
was a clear, identified endpoint to the initial traffic stop or whether the initial
stop seamlessly transitioned into a second, separate detention. The trial court
did not assess whether the officers unlawfully extended the initial stop into an
illegal seizure with their questioning of the vehicle’s occupants.
It is undisputed that the troopers had resolved the basis for the initial
traffic stop at the point that they asked Appellant to get out of his vehicle to
question Appellant and Elieisar separately. Trooper Snook expressly admitted
at the suppression hearing that the troopers had resolved their concerns
related to the traffic violations before asking Appellant to get out of his vehicle
and conceded that their further questioning had nothing to do with the traffic
violations. N.T., 10/1/19, at 29.
We also observe that the initial stop did not have a clear endpoint as
Trooper Snook had not returned Appellant’s license and registration nor
informed Appellant that he was free to leave when he asked Appellant to get
out of the car. As such, the interaction did not shift back to a consensual
encounter, but rather, seamlessly transitioned into a second investigative
detention in which the troopers sought to ask additional questions about
Appellant’s travel to see if Appellant and his passenger would give
corroborating statements regarding their whereabouts.
As such, the key issue is whether the troopers had the authority to
extend the initial stop to question Appellant and his passenger on matters
unrelated to the basis of the stop. In Rodriguez v. United States, 575 U.S.
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348, 135 S. Ct. 1609, 191 L. Ed. 2d 492 (2015), the Supreme Court discussed
the permissible scope of an officer’s investigation during a traffic stop:
A seizure for a traffic violation justifies a police investigation of
that violation. “[A] relatively brief encounter,” a routine traffic
stop is “more analogous to a so-called ‘Terry stop’ ... than to a
formal arrest.” Knowles v. Iowa, 525 U.S. 113, 117, 119 S.Ct.
484, 142 L.Ed.2d 492 (1998) (quoting Berkemer v. McCarty,
468 U.S. 420, 439, 104 S.Ct. 3138, 82 L.Ed.2d 317 (1984), in
turn citing Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d
889 (1968)). See also Arizona v. Johnson, 555 U.S. 323, 330,
129 S.Ct. 781, 172 L.Ed.2d 694 (2009). Like a Terry stop, the
tolerable duration of police inquiries in the traffic-stop context is
determined by the seizure's “mission”—to address the traffic
violation that warranted the stop, [Illinois v.] Caballes, 543 U.S.
[405,] 407, 125 S.Ct. 834 [160 L.Ed.2d 842 (2005)] and attend
to related safety concerns, infra, at 1619 – 1620. See also
United States v. Sharpe, 470 U.S. 675, 685, 105 S.Ct. 1568, 84
L.Ed.2d 605 (1985); Florida v. Royer, 460 U.S. 491, 500, 103
S.Ct. 1319, 75 L.Ed.2d 229 (1983) (plurality opinion) (“The scope
of the detention must be carefully tailored to its underlying
justification.”). Because addressing the infraction is the purpose
of the stop, it may “last no longer than is necessary to effectuate
th[at] purpose.” Ibid. See also Caballes, 543 U.S., at 407, 125
S.Ct. 834. Authority for the seizure thus ends when tasks tied to
the traffic infraction are—or reasonably should have been—
completed. See Sharpe, 470 U.S., at 686, 105 S.Ct. 1568 (in
determining the reasonable duration of a stop, “it [is] appropriate
to examine whether the police diligently pursued [the]
investigation”).
Rodriguez, 575 U.S. at 354, 135 S. Ct at 1614.
More specifically, our state Supreme Court and the U.S. Supreme Court
have held that police officers “may conduct certain unrelated checks during
an otherwise lawful traffic stop … but may not do so in a way that prolongs
the stop, absent the reasonable suspicion ordinarily demanded to justify
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detaining an individual.” In Int. of A.A., 649 Pa. 254, 266–68, 195 A.3d 896,
903–904 (2018) (quoting Rodriguez, 575 U.S. at 372, 135 S. Ct. at 1625).
Similarly, the U.S. Supreme Court has held that an officer may pursue
questioning unrelated to the initial stop as “[a]n officer's inquiries into matters
unrelated to the justification for the traffic stop … do not convert the encounter
into something other than a lawful seizure, so long as those inquiries do not
measurably extend the duration of the stop.” Arizona v. Johnson, 555 U.S.
323, 333, 129 S. Ct. 781, 788, 172 L. Ed. 2d 694 (2009) (quoting Muehler
v. Mena, 544 U.S. 93, 100–101, 125 S.Ct. 1465, 161 L.Ed.2d 299 (2005)).
As noted above, Trooper Snook expressly admitted that his tasks related
to Appellant’s traffic infractions had been completed before he asked Appellant
to step out of the car for further questioning. Further, the troopers admitted
that their subsequent questioning was completely unrelated to the traffic stop
and was designed to uncover criminal conduct. As the troopers had
accomplished the seizure’s mission in addressing the initial traffic violation
that had warranted the initial stop, the troopers’ authority for initial stop ended
before they directed Appellant to step out of his vehicle. Rodriguez, supra.As such, we must determine whether, at that point in the interaction,
the officers had reasonable suspicion that Appellant was engaged in criminal
activity to justify a second, investigative detention.
With respect to an investigative detention, our courts have held that:
[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, 558
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Pa. 50, 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., 566 Pa. 445, 781 A.2d 1161, 1163
(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, 88 S.Ct.
1868, 20 L.Ed.2d 889 (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.’ Cook, 735 A.2d
at 676.
A.A., 649 Pa. at 266-68, 195 A.3d at 903-904 (quoting Commonwealth v.
Rogers, 578 Pa. 127, 849 A.2d 1185, 1189 (2004)).
In Rogers, our Supreme Court concluded that the responding trooper
had reasonable suspicion to continue to detain the defendant beyond the initial
traffic stop, where the defendant was extremely nervous and shaking, gave
vague answers to the trooper’s questions, had conflicting paperwork for his
car, and his vehicle contained laundry supplies and packaging tape, which the
trooper knew from experience were used in packaging and distributing
controlled substances. Rogers, 578 Pa. at 134, 849 A.2d at 1189–90.
While the Supreme Court acknowledged that there could be innocent
explanations for all of these circumstances, “reasonable suspicion does not
require that the activity in question must be unquestionably criminal before
an officer may investigate further[, but rather] requires a suspicion of criminal
conduct that is reasonable based upon the facts of the matter.” Id. at 134,
849 A.2d at 1190 (emphasis in original).
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Similarly, in this case, the officers noticed that Appellant was unusually
agitated during a routine traffic stop such that they indicated to each other at
the scene that Appellant was “extremely nervous,” “a nervous wreck,” and
was “freaking out.” MVR1, MVR2. Both officers separately observed that
Appellant was overly talkative, his hands were shaking, and his lip was
quivering. Corporal Kirby observed that Appellant would not make eye contact
with him, and the troopers testified that Appellant’s nervous behavior did not
subside during the stop.
In addition, the troopers recalled the intelligence information that they
had been disseminated directly on the same patrol shift from a vice officer
who reported that a male individual would be traveling from Harrisburg in a
black Mustang and had relied on his veteran status in the past to get out of
vehicle stops.
While the vice officer did not testify at Appellant’s suppression hearing,
the vice officer’s intelligence information was corroborated when Trooper
Snook observed Appellant’s black Mustang Shelby G.T with an inoperable
headlight and initiated a lawful traffic stop, during which Appellant admitted
he was returning from Harrisburg and identified himself as a veteran. See
Commonwealth v. Jackson, 548 Pa. 484, 490, 698 A.2d 571, 574 (1997)
(citing Alabama v. White, 496 U.S. 325, 110 S.Ct. 2412, 110 L.Ed.2d 301(1990) (emphasizing that even an anonymous tip can justify a Terry stop
“provided the tip is sufficiently corroborated by independent police work to
give rise to a reasonable belief that the tip was correct”); White, 496 U.S. at
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332, 110 S.Ct. at 2417 (finding anonymous tip reliable when the suspect
matched the tip’s description of the alleged criminal, left her house at a
predicted time in a vehicle matching the tip’s description, and traveled on the
most direct route to the predicted destination).
The arresting troopers employed the information disseminated to them
by their colleague officer to make their own independent assessment that
criminal activity was afoot in that they believed Appellant was returning from
Harrisburg in possession of illegal substances. Both of the troopers testified
that Harrisburg was a source city for drug trafficking to Mifflin County and the
surrounding areas. Appellant was predicted to be returning from Harrisburg
and was traveling from Harrisburg when stopped by Trooper Snook. Both
Trooper Snook and Corporal Kirby were concerned about Appellant’s extreme
nervousness and evasive eye contact. Further, both troopers expressed
skepticism of Appellant’s explanation that he traveled the considerable
distance (more than 60 miles) to reach a dealership to look at a Toyota Prius.5
Viewing the totality of the circumstances, we conclude the officers had
reasonable suspicion to continue to detain Appellant to investigate their
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5 We agree with Appellant that the trial court could not consider Appellant and
Elieisar’s contradictory statements about their whereabouts or Appellant’s
mischaracterization of his drug use in deciding whether the officers had
reasonable suspicion to detain Appellant beyond the initial traffic stop. As
these statements were elicited after the troopers had completed the purpose
of their stop and authorization for the initial stop had ended, reliance on these
statements in a reasonable suspicion analysis would be temporally misplaced.
However, we find that, even without such admissions, the troopers
demonstrated they had reasonable suspicion to continue to detain Appellant.
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concerns that he was in possession of a controlled substance. As Appellant’s
consent to search his vehicle was given during a lawful police encounter, the
trial court did not err in denying Appellant’s suppression motion.
Judgment of sentence affirmed.
Judge Kunselman joins the memorandum.
Judge McCaffery concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/16/2021
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