Com. v. Ngyuen, T.

J-S12022-15
2015 PA Super 98COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
TAM THANH NGYUEN,
Appellant No. 911 EDA 2014
Appeal from the Judgment of Sentence entered March 14, 2014
In the Court of Common Pleas of Delaware County
Criminal Division at No(s): CP-23-CR-0003833-2012
BEFORE: BOWES, SHOGAN, and FITZGERALD,* JJ.
OPINION BY SHOGAN, J.: FILED APRIL 27, 2015
Appellant, Tam Thanh Ngyuen, appeals from the judgment of sentence
entered following his conviction for possession with intent to deliver a
controlled substance (“PWID”). For the reasons that follow, we vacate and
remand.
The following findings of fact, as rendered by the trial court, are
relevant to our analysis:
1. On January 4, 2012, shortly after 3:00 a.m., Trooper Jared
Bromberg, an officer with the Pennsylvania State Police, was on
duty and working patrol along with Trooper Thomas O’Konski
when he observed a black Mercedes traveling at a high rate of
speed. N.T., 6/20/13, pp. 21-23. Trooper Bromberg was working
the 11 P.M. to 7 A.M. shift that evening. Id. at 20.
____________________________________________
*
Former Justice specially assigned to the Superior Court.
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2. At approximately 3:15 A.M., as Trooper Bromberg was
driving southbound on Interstate 95 (hereinafter “1-95”), the
Mercedes drove past the troopers’ patrol vehicle. Id. at 22.
Upon observing the Mercedes, Trooper Bromberg “clocked” the
speed of the vehicle by matching its speed for six tenths of a
mile. Id. at 22. The Mercedes was traveling 73 MPH in a 55
MPH zone. See Commonwealth Exhibit, C-1, Affidavit of
Probable Cause. Trooper Bromberg also observed the car
following too closely. N.T., 6/20/13, p. 29.
3. Trooper Bromberg was in full uniform and in a marked
Pennsylvania State Police vehicle. Id. at 21.
4. Trooper Bromberg activated his lights and siren in order to
conduct a traffic stop of the vehicle. Id. at 22-23. The Mercedes
pulled over onto the right shoulder of the road, between exits 7
and 8 on 1-95. Id. at 23.
5. Trooper Bromberg, who has been with employed with the
Pennsylvania State Police for about eight and half years, has had
extensive police training in the detection of controlled
substances. Id. at 17-18. Over the course of his career,
Trooper Bromberg has been involved in hundreds of drug
investigations, and has investigated controlled substances while
on patrol approximately 250-300 times. Id. at 18. He has made
approximately 150 stops along the 1-95 Corridor that have
involved narcotics. Id. at 29.
6. Following the stop, Trooper Bromberg approached the
driver’s side of the Mercedes along with Trooper O’Konski. Id. at
23. Trooper Bromberg identified himself to the driver and
explained the reason for the stop. Id. at 24. After he obtained
the driver’s license and registration, he asked the driver to exit
the vehicle. Id. at 24-25. The driver complied and stood at the
rear of the vehicle per the trooper’s request. The driver was not
handcuffed. Id. at 26.
7. Trooper Bromberg observed the driver “moving around
excessively, “overtalking” and noticed that the driver was “overly
apologetic” during the stop. Id. at 24, 29.
8. As Trooper Bromberg approached the driver’s side of the
vehicle, Trooper O’Konski approached the passenger side.
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Trooper O’Konski stood at the right side of the vehicle without
engaging the passenger. Id. at 25.
9. When the driver was asked to step to the rear of the vehicle,
Trooper Bromberg then walked to the passenger side of the
vehicle and asked the passenger, [Appellant] herein, for his
driver’s license. Id. at 26-27. [Appellant] refused to answer the
trooper’s questions and did not make eye contact. Id. at 27.
Trooper Bromberg noted that in his experience, this type of
behavior is consistent with narcotics activity discovered during
traffic stops. [Appellant] eventually provided his information to
Trooper Bromberg. Id.
10. Trooper Bromberg then returned to his vehicle and ran both
the driver and [Appellant’s] information through both NCIC and
PENNDOT. Id. at 28. [Appellant] came back with “numerous
prior drug arrests.” Id. at 28.
11. Trooper Bromberg then returned to the Mercedes and issued
a written warning for speeding and following too closely. Id. at
29. Trooper Bromberg returned the driver and [Appellant’s]
paperwork to them. Id. at 29-30.
12. Trooper Bromberg then told the driver that the traffic stop
was complete and that he was free to go. Id. at 30. He told him
“to be careful pulling away.” Id.
13. The driver began walking back towards the front driver’s
seat of the Mercedes and the troopers walked towards their
patrol vehicle. Id. at 30-31.
14. Before Trooper Bromberg entered the patrol car, he turned
around and reengaged the driver. Id. at 31. He explained that
he had approached his door and the driver had reached the front
driver’s side door to the Mercedes at this time. Id. at 31. He
asked the driver if he could ask him some more questions, and
the driver said yes. Id. at 31.
15. Trooper Bromberg asked the driver about his nervousness,
and asked where he had been coming from. Id. at 31-32. He
also asked about his relationship with [Appellant]. Id. The
driver answered all of his questions. Id.
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16. Trooper Bromberg then asked the driver for consent to
search the vehicle and “all of its contents.” Id. at 33. The driver
gave consent. Id. at 34.
17. Trooper Bromberg did not use any threatening language or
draw his gun during this time. The driver and [Appellant] were
not handcuffed.
18. [Appellant] was asked to step out of the vehicle and was told
that the driver had given consent to search the vehicle. Id. at
34.
19. [Appellant] did not make eye contact with Trooper
Bromberg. Id. at 34. [Appellant] exited the vehicle after Trooper
Bromberg made a second request. Id. 20.
20. When [Appellant] exited the vehicle, he stuck his hands in
his pockets. Id. at 34. Trooper Bromberg asked [Appellant] to
take his hands out of his pockets and keep his hands visible, and
he complied. Id. at 34-35.
21. Trooper Bromberg asked [Appellant] if he had any weapons
on him, and [Appellant] said no. Id. at 35.
22. Trooper Bromberg then asked [Appellant] if he could frisk
him for officer safety. Id. at 35. [Appellant] said yes. Id.
23. Trooper Bromberg frisked [Appellant] by checking his waist,
then his pant pocket area. Id. at 35. Upon frisking [Appellant],
Trooper Bromberg felt a cell phone in his pocket. Id. at 39. He
asked [Appellant] what the object was and [Appellant] replied
that it was a cell phone. Id. When Trooper Bromberg felt
[Appellant’s] right rear pocket, he felt a large amount of cash.
Id. When he asked [Appellant] what it was that he felt,
[Appellant] replied that it was cash. Id.
24. In [Appellant’s] right front pocket, Trooper Bromberg felt a
“soft package” that based upon his experience and training, he
believed was bagged pills. Id. at 39-40. He asked [Appellant]
what the object was and [Appellant] said “OxyContin.” Id. at 40.
25. Trooper Bromberg ordered [Appellant] to take the package
out of his pocket, and [Appellant] complied. Id. at 42.
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26. When [Appellant] removed the item from his pocket, Trooper
Bromberg observed “clear, small Ziploc baggies.” Id. at 42. He
was familiar with these bags from past arrests for narcotics and
acknowledged that they are commonly referred to as coin bags.
Id. Trooper Bromberg had seen these types of bags hundreds of
times before. Id. at 42-43.
27. Trooper Bromberg then handcuffed [Appellant] and placed
him under arrest. Id. at 43.
28. A search incident to arrest was performed and three bundles
of cash held together with a rubber band, a cell phone, four bags
of cocaine, and four jars of crack cocaine were recovered from
[Appellant’s] person. Id. at 43. The amount of cash recovered
amounted to $1058.20. Id. at 43-44. Trooper Bromberg
immediately recognized the substance in the jars to be crack
cocaine, based upon past arrests. Id. at 43.
29. The court found the testimony of Trooper Bromberg to be
credible.
Trial Court Opinion, 8/21/14, at 3-6.
Appellant was arrested and charged with PWID,1 possession of a
controlled substance,2 and possession of drug paraphernalia.3 Prior to trial,
Appellant filed a motion to suppress evidence, which the trial court denied
after conducting a suppression hearing.
Following a bench trial, Appellant was convicted of PWID. At the
conclusion of trial, Appellant waived his right to a presentence report and
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1
35 P.S. § 780-113(a)(30).
2
35 P.S. § 780-113(a)(16).
3
35 P.S. § 780-113(a)(32).
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asked the trial court to proceed to sentencing. Appellant was sentenced to
the mandatory minimum sentence of thirty-six to seventy-two months.
Appellant filed a timely notice of appeal on March 25, 2014. The trial
court directed Appellant to file a Pa.R.A.P. 1925(b) statement and Appellant
timely complied. The trial court issued an opinion pursuant to Pa.R.A.P.
1925(a).
Appellant presents the following issues for our review:
1. Whether the lower court abused its discretion in denying
motion to suppress physical evidence, where Appellant’s consent
to submit to Terry v. Ohio pat down for weapons was coerced,
during the course of illegal detention that was wholly
unsupported by reasonable suspicion that Appellant was
engaged in criminal activity or articulable suspicion that
Appellant was armed and dangerous, which violated Appellant’s
right to a fair search and seizure under the Fourth Amendment,
and Article 1, Section 8 of the Pennsylvania State Constitution?
2. Whether the lower court abused its discretion in denying
motion to suppress physical evidence, where police exceeded
scope of Terry stop, by conducting invasive search for
contraband, without reasonable suspicion and after ascertaining
that Appellant was not armed and dangerous, which violated
Appellant’s constitutional right to a fair search and seizure under
the Fourth Amendment and Article 1, Section 8 of the
Pennsylvania State Constitution?
3. Whether the lower court abused its discretion in denying
motion to suppress incriminating statement, where police elicited
statement during custodial interrogation, without advising
Appellant of his Miranda Rights, which violated Appellant’s
constitutional right against self-incrimination under the Fifth
Amendment and Article 1, Section 9 of the Pennsylvania State
Constitution?
4. Whether Appellant was denied a fair suppression hearing,
where Commonwealth presented evidence of 1) Appellant’s
consent to submit to pat down and 2) Appellant’s verbal
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admission to possessing Oxycontin, without apprising Appellant
of such evidence, through police affidavits or other discoverable
paper work, prior to the commencement of the suppression
hearing?
5. Whether the mandatory minimum sentence of three (3) to six
(6) years imposed by the trial court should be vacated, where
the Superior Court, in Commonwealth v. Newman held that
Pennsylvania mandatory minimum sentencing statutes no longer
pass constitutional muster, pursuant to the United State
Supreme Court holding in Alleyne v. United States, that
mandatory minimum sentencing statutes are unconstitutional
because they permit the trial court, to increase a defendant’s
minimum based upon a preponderance of the evidence, rather
than a jury beyond a reasonable doubt?
Appellant’s Brief at 5-6.
In his first issue, Appellant argues that the trial court abused its
discretion in denying the motion to suppress physical evidence because the
Terry4 pat-down occurred during the course of an illegal detention
unsupported by reasonable suspicion. Appellant’s Brief at 13. Appellant
maintains that the Trooper’s redirection to Appellant to exit the vehicle, after
concluding the initial traffic stop and advising the parties they were free to
leave, was a new interaction requiring an independent showing of reasonable
suspicion that criminal activity was afoot or that Appellant was armed and
dangerous. Id. at 18. Accordingly, Appellant argues, because the Trooper
did not have reasonable suspicion justifying the second interaction, all
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4
Terry v. Ohio, 392 U.S. 1, 30 (1968).
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evidence recovered incident and subsequent to the Terry pat-down should
be suppressed as fruit of the poisonous tree. Id.The standard of review an appellate court applies when considering an
order denying a suppression motion is well established. An appellate court
may consider only the Commonwealth’s evidence and so much of the
evidence for the defense as remains uncontradicted when read in the
context of the record as a whole. Commonwealth v. Russo, 934 A.2d
1199, 1203 (Pa. 2007) (citing Commonwealth v. Boczkowski, 846 A.2d
75 (Pa. 2004)). Where the record supports the factual findings of the trial
court, the appellate court is bound by those facts and may reverse only if
the legal conclusions drawn therefrom are in error. Id. However, it is also
well settled that the appellate court is not bound by the suppression court’s
conclusions of law. Id. (citing Commonwealth v. Duncan, 817 A.2d 455(Pa. 2003)).
With respect to factual findings, we are mindful that it is
the sole province of the suppression court to weigh the credibility
of the witnesses. Further, the suppression court judge is entitled
to believe all, part or none of the evidence presented. However,
where the factual determinations made by the suppression court
are not supported by the evidence, we may reject those findings.
Only factual findings which are supported by the record are
binding upon this [C]ourt.
Commonwealth v. Benton, 655 A.2d 1030, 1032 (Pa. Super. 1995)
(citations omitted). In addition, we are aware that questions of the
admission and exclusion of evidence are within the sound discretion of the
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trial court and will not be reversed on appeal absent an abuse of discretion.
Commonwealth v. Freidl, 834 A.2d 638, 641 (Pa. Super. 2003).
“‘Interaction’ between citizens and police officers, under search and
seizure law, is varied and requires different levels of justification depending
upon the nature of the interaction and whether or not the citizen is
detained.” Commonwealth v. DeHart, 745 A.2d 633, 636 (Pa. Super.
2000). The three levels of interaction are: mere encounter, investigative
detention, and custodial detention. Id.A mere encounter can be any formal or informal
interaction between an officer and a citizen, but will normally be
an inquiry by the officer of a citizen. The hallmark of this
interaction is that it carries no official compulsion to stop or
respond.
In contrast, an investigative detention, by implication,
carries an official compulsion to stop and respond, but the
detention is temporary, unless it results in the formation of
probable cause for arrest, and does not possess the coercive
conditions consistent with a formal arrest. Since this interaction
has elements of official compulsion it requires reasonable
suspicion of unlawful activity. In further contrast, a custodial
detention occurs when the nature, duration and conditions of an
investigative detention become so coercive as to be, practically
speaking, the functional equivalent of an arrest.
Id. (internal citations and quotation marks omitted).
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. Therefore, this Court must make an objective
inquiry, namely, whether the facts available to the officer at the
moment of the [intrusion] warrant a man of reasonable caution
in the belief that the action taken was appropriate.
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Commonwealth v. Plante, 914 A.2d 916, 922 (Pa. Super. 2006) (internal
citations and quotations omitted).
“To determine whether a mere encounter rises to the level of an
investigatory detention, we must discern whether, as a matter of law, the
police conducted a seizure of the person involved.” Commonwealth v.
Reppert, 814 A.2d 1196, 1201 (Pa. Super. 2002).
To decide whether a seizure has occurred, a court must consider
all the circumstances surrounding the encounter to determine
whether the demeanor and conduct of the police would have
communicated to a reasonable person that he or she was not
free to decline the officer’s request or otherwise terminate the
encounter. Thus, the focal point of our inquiry must be whether,
considering the circumstances surrounding the incident, a
reasonable [person] innocent of any crime, would have thought
he was being restrained had he been in the defendant’s shoes.
Id. at 1201-1202 (internal citations and quotations omitted).
More specifically, our Supreme Court has had the opportunity to
address investigative detentions in the context of motor vehicle traffic stops.
In Commonwealth v. Freeman, 757 A.2d 903 (Pa. 2000), a Pennsylvania
State Police trooper noticed two vehicles traveling fairly close together,
switching lanes and jockeying for position as if in a “cat and mouse” fashion.
Id. at 904. The trooper stopped one of the vehicles, which was driven by
Diana Freeman (“Freeman”), while another officer stopped the second
vehicle. Id. Freeman’s vehicle contained two passengers. Id. When the
trooper asked Freeman if she was lost or having a problem with the other
driver, she explained that she had entered the wrong lane and had
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maneuvered to the left lane to continue west on Interstate 80. Id. She also
denied traveling with the other vehicle. Id.
While conducting a radio check of Freeman’s driver’s license and
registration card, the trooper learned from another trooper that the
occupants of the other vehicle contradicted Freeman by stating that the two
vehicles were traveling together and further explained that they were
following Freeman’s car because it was having some type of engine problem.
Freeman, 757 A.2d at 905. Returning to Freeman’s car, the trooper gave
Freeman a written warning, returned her license and registration card, and
informed her that she was free to leave. Id.
The trooper went back to his patrol car but then returned to Freeman’s
vehicle and again asked whether Freeman was traveling with the second car.
Freeman, 757 A.2d at 905. When she replied that she was not, the trooper
informed her that the occupants of the second car had said otherwise, and
he asked her to get out of the vehicle. Id. Freeman did so and walked to
the rear of the car. Id. At this point, the trooper asked Freeman for
consent to search her vehicle, which Freeman granted. Id. The ensuing
search of the vehicle resulted in the discovery of five bags of marijuana. Id.
Freeman and her passengers were charged with possession of a
controlled substance and possession with intent to deliver. Freeman, 757
A.2d at 906. Freeman filed a motion to suppress, which was denied. Id.
After being convicted, appeals were filed by the Commonwealth and
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Freeman. Id. Freeman’s appeal centered on the failure to suppress and
was based upon the argument that her consent to a search of the vehicle
had been tainted by an illegal detention. Id. As the initial stop was deemed
lawful, the question was whether there had been, in the interaction between
Freeman and the police officer, a “second” detention that was illegal,
thereby rendering the granted consent invalid. Id. Our Supreme Court
concluded that the “second” round of questioning constituted a seizure,
commenting that:
The transition to and character of the subsequent
interaction, however, supports the conclusion that Freeman was
subject to a second seizure. Since the trooper had accomplished
the purpose of the stop, as he expressly indicated, Freeman
would have been entirely within her rights to drive away at that
point. Nevertheless, the trooper’s subsequent actions were
inconsistent with his statement to Freeman that she was free to
leave, as he: returned to Freeman’s vehicle; questioned her
about the second vehicle; pointed out the inconsistent
statements from the vehicle’s occupants when she denied
traveling with that vehicle; and, ultimately and most
significantly, asked her to step out of the vehicle prior to the
request for consent. … Moreover, given everything that had
come before, although these events occurred after express
conferral of advice that Freeman was free to depart, they would
have suggested to a reasonable person that such advice was no
longer operative.
Id. at 907-908.
In Commonwealth v. Moyer, 954 A.2d 659 (Pa. Super. 2008), (en
banc), this Court was faced with a traffic stop encounter featuring a
“second” round of questioning and also concluded that the additional
questioning constituted a seizure. There, Moyer’s vehicle was stopped by
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two Pennsylvania State Police troopers when it was observed that the
vehicle’s taillight had a hole in it. Id. at 661. One of the troopers also
observed movement within the vehicle near the passenger side floor area.
Id. After approaching the vehicle, the trooper explained the reason for the
stop and obtained Moyer’s license and registration. Id. A check of Moyer’s
background, prompted by the fact that he had bloodshot eyes and acted
nervous, revealed a previous arrest involving marijuana possession. Id. at
661-662. A written warning for the taillight violation was prepared, after
which the officer returned to the vehicle and directed Moyer out of the
vehicle, showed Moyer the issue with the taillight and told him to have it
repaired. Id. at 662. The trooper then handed Moyer the warning card and
told him he was free to leave. Id.However, as Moyer reached the driver’s door of his vehicle, the trooper
called out Moyer’s name and asked him if he minded answering a few
questions. Moyer, 954 A.2d at 662. Moyer was then confronted with the
information regarding his prior arrest and the trooper’s observation of
movement in the vehicle. Id. The trooper then asked Moyer if there were
any drugs or paraphernalia in the car. Id. When Moyer responded
negatively, the trooper asked him if there were any drugs or paraphernalia
on his person. Id. Moyer again responded negatively, prompting the
trooper to ask if he could check the vehicle to make sure. Id. The trooper
did not inform Moyer that he could refuse the request, and Moyer then
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consented. Id. The ensuing search produced two crack pipes, leading
Moyer to admit that he had consumed crack previously. Id.Upon these facts, we concluded that Moyer had been subjected to a
subsequent custodial interrogation. Moyer, 954 A.2d at 668. In making
this assessment, we noted:
when an individual has been subjected to a valid detention and
the police continue to engage that person in conversation, the
citizen, having been in official detention, is less likely to
understand that he has the right to refuse to answer questions
or a search. Furthermore, … the Court stressed that “conferral
of the ‘free-to-go’ advice is, itself not a reason to forego a
totality assessment” and therefore does not constitute a
controlling factor in assessing whether a person would actually
credit a police indication that he was free to leave.
Id. at 665 (emphasis in original) (citing Commonwealth v. Strickler, 757
A.2d 884, 899 n.24 (Pa. 2000)).
In the case sub judice, Appellant does not dispute the validity of the
initial traffic stop. It appears that the trooper appropriately effectuated the
stop based upon the motor vehicle code violations he observed. After
ending the interaction based on the traffic violation, however, Trooper
Bromberg initiated a second round of questioning with the driver. Thus, the
question becomes whether this second interaction constituted a seizure and
whether that subsequent seizure was supported by reasonable suspicion.
Moyer, 954 A.2d at 665.
Trooper Bromberg provided the following testimony regarding his re-
engagement of the driver. Trooper Bromberg testified that after issuing the
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warning, the driver “thanked me. Again, he was very apologetic and was, as
I was explaining, was over-talking, which is nervousness.” N.T., 6/20/13, at
29. Trooper Bromberg referenced the following exchange with the driver
after re-engaging him:
I asked him if I can ask him a few questions. He related yes. I
asked him about his nervousness, about him being very
apologetic, about moving around outside of the vehicle, how he
knew the passenger, where they were coming from.
Id. at 31-32.
When asked on cross-examination why he re-engaged the driver after
issuing the warning and walking back to his cruiser, Trooper Bromberg
testified: “I took the totality of the circumstances of the driver’s behavior,
the passenger’s behavior, and the passenger’s rap sheet.” Id. at 51.
Trooper Bromberg agreed with Appellant’s counsel that he possessed the
information regarding Appellant’s criminal record after running the driver’s
and Appellant’s information and before ending the interaction based on the
initial traffic violation. Id. Thus, when again asked why he re-engaged the
driver, Trooper Bromberg testified that “before I could ask for a consent to
search, the driver has to feel free to leave.” Id. at 52. Explaining further,
he stated: “Before the driver was – in order to get consent, I had to turn it
into a mere encounter.” Id. Trooper Bromberg provided the following
additional testimony regarding this second round of questioning:
[Appellant’s counsel]: I thought you told His Honor that my –
the individuals were free to leave when you told them you were
giving them a warning.
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[Trooper Bromberg]: To end the traffic stop.
[Appellant’s counsel]: To end the traffic stop.
[Trooper Bromberg]: Correct.
[Appellant’s counsel]: But in your mind, they weren’t really free
to leave because you were going to reengage. Weren’t you?
[Trooper Bromberg]: I made the decision, after I told them
they were free to go, that I was going to reengage him and ask
him questions.
[Appellant’s counsel]: And that was pre-meditated for legal
reasons. Yes?
[Trooper Bromberg]: Yes.
N.T., 6/20/13, at 53.
Given the facts surrounding the subsequent interaction, we conclude
that the driver and Appellant were subject to a second seizure. As noted,
the driver and Appellant were stopped for a lawful detention resulting from
the motor vehicle code violations. Because the trooper had accomplished
the purpose of the stop, as indicated by his issuance of a warning and
stating that the driver and Appellant were free to go, the driver would have
been within his rights to drive away at that point. Nevertheless, the
trooper’s subsequent actions were inconsistent with his statement that they
were free to leave. After walking toward his cruiser, the trooper turned
around and returned to the driver’s vehicle, approached the driver, and
began to ask the driver additional questions. Moreover, when the trooper
re-engaged the driver, the driver was still standing outside of his vehicle.
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N.T., 6/20/13, at 73. As this Court has noted, when a person is standing
outside rather than inside his vehicle, he is less likely to believe that he can
actually leave the area by entering the car and driving away.
Commonwealth v. Kemp, 961 A.2d 1247, 1254 (Pa. Super. 2008) (citing
Moyer, 954 A.2d at 659).
Thus, even though the trooper advised the driver and Appellant that
they were free to leave, the trooper’s actions would suggest to a reasonable
person that such advice was no longer operative. Freeman, 757 A.2d at
908. Indeed, the trooper testified that it was his intention to re-engage the
driver after ending the initial traffic violation stop. As such, we cannot
conclude that a reasonable person would feel free to leave the scene. As
noted previously, “when an individual has been subjected to a valid
detention and the police continue to engage that person in conversation, the
citizen, having been in official detention, is less likely to understand that he
has the right to refuse to answer questions or a search.” Moyer, 954 A.2d
at 665. Thus, we conclude that the driver and Appellant were not involved
in a mere encounter with the troopers at that point, but instead were
subjected to a second investigative detention. See Commonwealth v.
Jones, 874 A.2d 108, 116 (Pa. Super. 2005) (“[W]here the purpose of an
initial traffic stop has ended and a reasonable person would not have
believed that he was free to leave, the law characterizes a subsequent round
of questioning by the police as an investigative detention or arrest.”).
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Accordingly, for this investigative detention to pass constitutional
muster, it must be supported by reasonable suspicion of criminal activity.
Kemp, 961 A.2d at 1254. “Where the investigative detention at issue
follows a lawful traffic stop, the officer must demonstrate cause for suspicion
after the end of the initial stop, and independent of any basis on which he
conducted the prior stop.” Jones, 874 A.2d at 117.
Here, the trooper identified the fact that the driver was overly
apologetic, nervous, and talkative as reasons to re-engage the driver.
In [Commonwealth v.] Sierra[, 723 A.2d 644 (Pa.
1999)] and DeHart, our Courts pronounced an officer’s
assessment of nervous demeanor palpably insufficient to
establish reasonable suspicion of a citizen’s involvement in
criminal activity, even when viewed in combination with other
indicia of potential criminal acts. We have found furtive
movements similarly deficient even when they occur in high
crime environments in the late hours of the night. Thus, we find
no basis to conclude that excessive nervousness and furtive
movements, even considered together, give rise to reasonable
suspicion of criminal activity. A police officer’s observation of a
citizen’s nervous demeanor and furtive movements, without
more, establishes nothing more than a “hunch,” employing
speculation about the citizen’s motive in the place of fact. Were
we to validate such a practice, we would open every occupant of
a motor vehicle in this Commonwealth to law enforcement
officers’ wholly subjective interpretation of inoffensive conduct,
and undermine our Supreme Court’s time-honored insistence
that police officers may stop our citizens only on the basis of
objective criteria. This we cannot do. This we will not do.
Reppert, 814 A.2d at 1206 (some internal citations omitted).
Thus, we conclude that the driver’s behavior of being overly apologetic
or nervous is insufficient to establish reasonable suspicion. Additionally,
Trooper Bromberg possessed the information regarding Appellant’s criminal
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history prior to ending the initial stop based on the traffic violation.
Accordingly, such information could not serve as the basis of reasonable
suspicion for the subsequent interaction after the initial stop ended.
Moreover, as previously noted, Trooper Bromberg testified to having the
intention of re-engaging the driver after ending the initial traffic violation
stop with the hopes of turning that interaction into a mere encounter. Thus,
we cannot conclude that the Trooper had reasonable suspicion to justify the
second investigative detention.
Additionally, we find no validity to any argument that the subsequent
search of the vehicle was voluntary. 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.” Commonwealth v. Sierra, 723 A.2d
644, 647-648 (Pa. 1999). In 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.” Id. at 648 (brackets in original).
Under the facts of the present case, there was insufficient attenuation
between the consent and the illegal detention to purge the taint of the
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Trooper’s unlawful conduct. The driver consented to the search only
moments after the Trooper re-initiated questioning. Moreover, there were
no intervening circumstances that would have diminished the coercive
atmosphere of the illegal detention or otherwise justified the search. Finally,
as previously noted, at the time the driver offered to allow the search, the
vehicle was surrounded by two troopers, and Trooper Bromberg had just
repeated his questioning regarding the driver’s excessive nervous and
apologetic demeanor. Under such circumstances, the driver’s consent was
tainted by the officer’s conduct and was therefore ineffective to justify the
search. Sierra, 723 A.2d at 648.
Because the officers lacked reasonable suspicion to support the
detention and the driver’s consent was tainted, the officers had no authority
to search the car. Therefore, they had no justification for ordering Appellant
out of the vehicle pursuant to the search and subsequently patting him
down. As a result, the evidence seized during the pat-down search should
have been suppressed. Thus, we are constrained to conclude that the court
erred in denying Appellant’s motion to suppress.5
Judgment of sentence vacated and order denying Appellant’s
suppression motion reversed. Case remanded for a new trial. Jurisdiction
relinquished.
____________________________________________
5
Due to our resolution of Appellant’s first issue, we need not address
Appellant’s remaining claims raised on appeal.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/27/2015
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