Com. v. Young, B.

J-A01014-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
BRETT YOUNG,
Appellant No. 163 EDA 2015
Appeal from the Judgment of Sentence September 8, 2014
In the Court of Common Pleas of Bucks County
Criminal Division at No(s): CP-09-CR-0002095-2013
BEFORE: LAZARUS, J., OTT, J., and STEVENS, P.J.E.*
MEMORANDUM BY STEVENS, P.J.E.: FILED MARCH 01, 2016
This is an appeal from the judgment of sentence entered in the Court
of Common Pleas of Bucks County by the Honorable Albert J. Cepparulo on
September 8, 2014, following Appellant’s convictions of two counts of
Possession of a Controlled Substance with Intent to Manufacture or Deliver
(PWID) and five counts of Use or Possession of Drug Paraphernaila.1 On
appeal, Appellant contends the trial court erred in denying his motion to
suppress items seized from his home following a traffic stop. Following a
careful review of the record, we affirm.
____________________________________________
1
35 Pa.C.S. §§780-113(a)(30), (a)(32), respectively.
*Former Justice specially assigned to Superior Court.
J-A01014-16
At the hearing held on Appellant’s pretrial motions, Officer Gregory
Smith, an eleven-year veteran of the Bensalem Township Police Department
specially trained in narcotics investigations, testified that in November of
2012 he was contacted by a reliable confidential informant (C.I.) who
informed him Appellant was a large-scale marijuana dealer in the area from
whom he or she had previously purchased marijuana. N.T., 8/21/13, at 26-
27. The C.I. relayed that Appellant lives near a bar and drives a black
pickup truck. Id. at 27. With a description of Appellant’s vehicle and home,
Officer Smith obtained Appellant’s name and address and discovered he
drove a black, Lincoln pickup truck. Id. at 27-29.
On November 26, 2012, Officer Smith set up a controlled buy between
Appellant and the C.I. Id. at 30. Officer Smith maintained constant
surveillance of the C.I., and Sergeant Robert Bugsch and Officer Joseph
Gansky, also of the Bensalem Township Police Department, maintained a
constant visual surveillance of Appellant’s residence at 5445 Flushing Road,
Bensalem Township, throughout the transaction.2 Id. at 31. Ultimately,
the C.I. purchased what was later determined to be one pound of raw
marijuana packaged in gallon-sized, plastic vacuum bags. Id. at 37-41.
____________________________________________
2
Both Sergeant Bugsch and Officer Gansky had been employed in the field
of law enforcement for a number of years and received narcotics training on
the federal, state and local levels. Between them, they had been involved in
over fifteen hundred (1,500) narcotics investigations. N.T., 8/22/13, at 183;
N.T., 8/23/13, at 462.
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Officer Smith thereafter prepared an application for and obtained a GPS
Tracker Order for Appellant’s vehicle which allowed police to monitor his
movements in that when he left the small street on which his home was
located, the aforementioned officers would receive an alert on their cell
phones. N.T., 8/21/13, at 41-42, 43-44, 128-29; N.T., 8/22/13, at 197-98;
N.T., 8/23/13, at 469-70.
On December 3, 2012, Officer Smith received an alert that Appellant’s
truck had left his residence and was traveling southbound on Roosevelt
Boulevard into Philadelphia. N.T., 8/21/13, at 44-45. He communicated
with surveilling officers who located Appellant’s vehicle in the Hop Angel bar
parking lot. N.T., 8/23/13, at 494-95. Approximately twenty minutes after
officers arrived, Appellant left the bar and proceeded to a gas station and
then onto I-76 toward Center City at which time officers lost sight of the
truck. N.T., 8/22/13, at 204-05, 208, 245; N.T., 8/23/13, at 497, 499.
Officer Smith who had been monitoring the truck’s GPS movements at the
police department soon after informed Sergeant Christie and Officer Gansky
the vehicle had stopped in the area of 30th Street and Cambridge Street in
Philadelphia, and Sergeant Christie and Officer Gansky responded to this
location. N.T, 8/21/13, at 48-49; N.T., 8/22/13, at 208. Officer Smith
believed that the number of short, quick stops Appellant was making along
the way indicated he was delivering marijuana at different locations. Id. at
56-58.
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Conducting surveillance of Appellant’s truck on foot, the officers
observed Appellant and an unknown individual exit the residence and walk
over to the vehicle where Appellant retrieved what appeared to be a heavy
hockey-style bag. The bag’s weight was suggested by the fact that
Appellant struggled to heave it onto his shoulder. N.T., 8/21/13, at 53;
8/22/13, at 209, 211, 216, 246-47; N.T., 8/23/13, at 500-01, 505.
Appellant returned with his companion to the residence where they remained
for ten to twenty minutes after which they exited with Appellant carrying the
same, still apparently heavy bag which he placed in the bed of his truck.
N.T., 8/22/13, at 215, 218; N.T., 8/23/13, at 502, 507. Officer Gansky
noticed plastic material hanging out of the top of the then-opened bag.
N.T., 8/22/13, 215-26, 247. After a brief conversation, Appellant left the
area, and the individual reentered the home. N.T., 8/22/13, at 217-18. The
man was later identified as Jason Mellor.
Appellant proceeded onto northbound I-95 toward Bensalem. N.T.,
8/22/13, at 222. Officer Smith contacted a K-9 officer, Officer Brian Cowden
of the Bensalem Township Police Department, to initiate a stop of Appellant's
vehicle when he exited I-95 and conduct a subsequent search of the vehicle
for drugs. N.T., 8/21/13, at 57-58. Officer Smith informed Officer Cowden
of the controlled buy involving the C.I. and Appellant that occurred a week
earlier and provided him continuous updated information regarding
Appellant’s stops and their location in Philadelphia. N.T., 8/22/13, 222-23,
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324, 339-40. In addition, Officers Smith and Gansky both testified that he
informed Officer Cowden of Appellant’s behavior earlier that evening, and
specifically, that he believed he was heading home to Bensalem with a large
bag in the back of his vehicle which, in light of his training and experience,
he believed contained marijuana. N.T., 8/21/13, at 59; N.T., 8/22/13, at
223.
The trial court detailed what happened next as follows:
Officer Cowden had been a K9 officer at Bensalem
Township Police Department for nine (9) years. N.T. 8/22/13,
287. During this time, he had become a certified K-9 handler
and he had handled two (2) different canine officers. Id. at 288-
89, 290 -91. The K9 related to this case is "Edo." Id. at 290. Edo
is cross-trained to locate both subjects and the tracking and
recovery of evidence, building searches, and narcotics detection.
Id. at 292-296. Edo is trained to detect marijuana, crack
cocaine, powder cocaine, heroin, and methamphetamine.10 Id. at
296.
On December 3, 2012, Officer Cowden observed a 2007
black Lincoln pick-up truck at approximately 10:45 p.m. and
followed the vehicle off Street Road and onto the Route 13
(Bristol Pike) exit. N.T. 8/21/13, 105; N.T. 8/22/13, 325. He
followed the vehicle northbound on Bristol Pike in the area of
Park Avenue and effectuated a traffic stop. N.T. 8/22/13, 325.
Officer Cowden noticed the truck had dark-tinted windows on the
front wing windows, which is prohibited in Pennsylvania. Id.[3] He
____________________________________________
3
Section 4524 of the Motor Vehicle Code provides in relevant part:
§ 4524 Windshield Obstructions and wipers
***
(e) Sun screening and other materials prohibited.-
(1) No person shall drive any motor vehicle with any sun
screening device or other material which does not
permit a person to see or view the inside of the vehicle
(Footnote Continued Next Page)
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testified that this is the reason he pulled [Appellant] over "in
cooperation with also it being a narcotics investigation." Id. at
325, 416-17. However, he later candidly testified that he would
have pulled the vehicle over regardless of the dark–tinted
windows because he was given orders to do so. Id. at 358 -59.
During the stop, Officer Cowden first made contact with
[Appellant] and asked for his driver's license, insurance, and
registration.11 N.T. 8/22/13, 329, 402. During this stop,
[Appellant]'s hand was visibly shaking and he "wouldn't make
eye contact" with Officer Cowden. Id. at 327, 360. Officer
Cowden told him he was pulled over for his window tint, to which
[Appellant] responded he planned on having it removed
immediately. N.T. 8/22/13, 358. Officer Cowden took the
documents from [Appellant] and ran information back in the
patrol car. Id. at 360. He then re-approached [Appellant] and
inquired as to where he was coming from and where he was
going. N.T. 8/22/13, 338. [Appellant] indicated he came from La
Scala restaurant in Philadelphia and was going home. N.T.
8/22/13, 339. Officer Cowden asked [Appellant] to step out of
the vehicle and asked if he could pat him down and [Appellant]
indicated he could. Id. at 362-63, 404 -06. At this point he told
[Appellant] to calm down and relax because he "appeared
nervous." Id. at 364. Officer Cowden, while he had [Appellant]'s
documentation in his hands, continued to question [Appellant]
behind [Appellant]'s vehicle, and asked if he had ever been
arrested before, exactly where he was in Philadelphia, where he
lived and for how long, along with other questions. Id. at 364 -
65, 367-69, 406-07, 413-15, 425-26. Officer Cowden admitted
that none of these questions related to the window tint issue. Id.
at 366-67, 424, 425-26. Officer Thomas Mee (also of the
Bensalem Township Police Department), who responded to the
scene, also asked [Appellant] unrelated questions as well that
were not related to the window tint. Id. at 425.
Officer Cowden then instructed [Appellant] to get back into
his vehicle and he complied. Id. at 432. Officer Cowden went
back to his patrol vehicle to continue this "investigation" and
_______________________
(Footnote Continued)
so their windshield, side wing or side window of the
vehicle.
75 Pa.C.S.A. § 4524(e)(1).
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instead contacted Officers Smith and Gansky and they indicated
that he should go the "consent route" meaning asking the driver
if he would consent to a search of his vehicle. N.T. 8/22/13, 340
-41, 369 -70, 372-74.
Officer Cowden re-approached [Appellant] and had him
exit the vehicle a second time. N.T. 8/22/13, 376, 433. He
brought [Appellant] to the back of his vehicle and informed him
that he was getting a verbal warning for tinted windows, gave
him his documentation back, shook his hand and told him he
was free to go. Id. at 376-77, 393-94, 433-34. [Appellant] got
back into his vehicle. Id. at 376-77, 394-95.
However, shortly thereafter Officer Cowden went back to
the vehicle and asked [Appellant] for the third time to exit the
vehicle and for consent to search his truck. Id. at 378, 395.
[Appellant] exited but replied "No. Do you have a search
warrant?" N.T. 8/22/13, 342, 378. Officer Cowden responded
"No." Id. [Appellant] then turned to go back to his vehicle and
Officer Cowden immediately commanded [Appellant] to stand
towards the back of the vehicle for a third time with Officer
Mee.12 Id. at 343, 379, 396 -98, 434. [Appellant] complied and
Officer Cowden then deployed Edo. Id. at 343-44, 379. Edo
indicated the presence of narcotics at the driver's side of the
back bumper, in that he started sniffing intently and began to
scratch at this side of the rear bumper. Id. at 348-49.
[Appellant] was taken into custody and told the officers
were going to apply for a search warrant for his vehicle. N.T.,
8/22/13, 349-50, 380. Before any search warrant arrived, during
a search incident to arrest, Officer Cowden removed about $450
from [Appellant]'s person, as well as his ID and cell phone. Id. at
349-50, 383. Furthermore, Officer Cowden described [Appellant]
as "cool as a cucumber" in a text to Officer Gansky; he later
explained that he observed indicators that [Appellant] appeared
nervous. Id. 331-35. He testified that the following factors
indicate an individual is nervous: perspiration, carotid artery in
the neck pulsing vigorously, short breaths/not being able to
catch one[’]s breath, and folded arms. Id. In [Appellant], Officer
Cowden only noticed that he crossed his arms very briefly, did
not make eye contact and his hand was shaking when he initially
turned documents over to the officer. Id. at 327, 334-35,421-22,
443.
Officer Gansky was situated across the street during the
stop and thereafter he conducted an inventory search of
[Appellant]'s vehicle, which was not recorded because Officer
Cowden had turned off the overhead lights of his vehicle which
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activated the video recording. Id. at 226, 228, 250-51, 387-89,
392. Officer Gansky filled out the general inventory form which
documents any valuables inside the vehicle as well as the
present condition of the vehicle. Id. at 228-29. However, at the
time of the hearing Officer Gansky did not have the form nor
was it given to the District Attorney in discovery because it was
not logged with the rest of the evidence and Officer Gansky
believes it was in a paperwork filing cabinet. Id. 229-30.
Furthermore, he testified he did not get permission to perform
an inventory search of the vehicle from a sergeant because he
did not need to. Id. at 260 -61. However, the BTPD inventory
policy, which was in effect May 27, 2011, indicates that the
officer directing the vehicle to be towed/seized "will inspect and
inventory the vehicle unless responsibility has been transferred
to someone upon approval of an off -duty supervisor." N.T.
8/22/13, 260-61; See Exh. DS-1. Further, the policy provides
that "the search must be conducted in good faith and not as a
substitute for warrantless investigatory search for gathering
incriminating evidence or contraband." N.T. 8/22/13, 258-59,
262-63; See Exh. DS-1. Finally, the inventory policy provides
that on every inventory, a Vehicle Inventory Form is required to
be filled out, containing a detailed description of the items
discovered and a detailed description of where the item was
located in the motor vehicle, among other things. N.T. 8/21/13,
152; N.T. 8/22/13, 386; See Exh. DS -1. Officer Gansky stated
he did not smell anything when he opened up the bed of
[Appellant]'s truck. N.T. 8/22/13, 281-82. A duty tow was called,
and following the inventory, Officer Cowden escorted the duty
tow back to the Bensalem Township Police Department sally
port. Id. at 351-52.
Following an inventory of [Appellant]'s truck, Officer
Gansky, along with Sergeant Christie and BTPD Officer David
Clee, Jr. (who is assigned through Bensalem to the Drug
Enforcement Agency),13 made contact with one of the occupant
owners of 918 North 30th Street, Jason Mellor. N.T. 8/22/13,
230-32. Mr. Mellor was identified as the subject that was with
[Appellant] earlier that night. Id. at 231. He advised that he had
purchased seven (7) pounds of marijuana from [Appellant] for
$21,000. Id. at 232.
Meanwhile, Corporal Brady and Officer Smith together
authored a search warrant for [Appellant]'s vehicle. N.T.
8/21/13, 64. Included in this search warrant is the following
information: the C.I.'s initial information, the controlled buy
conducted on November 26, 2012, observations during the
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Philadelphia surveillance, and the specifics regarding the traffic
stop and subsequent K9 search of [Appellant]'s vehicle. See Exh.
CS-2. The search warrant was approved by a magisterial district
judge and was thereafter executed. N.T. 8/21/13, 67; See Exh.
CS -2.
The evidence seized from the search of the truck was
utilized in the Search Warrant for [Appellant]'s Residence. N.T.
8/21/13, 78-79; See Exh. CS-4. This search warrant was
approved by magisterial district judge Gary Gambardella and the
signed warrant was sent back to the BTPD headquarters at
approximately 4:00 a.m. on December 4, 2012. N.T. 8/21/13,
81; See Exh. CS-4. In the search warrant, the following facts
were sworn to: the initial information provided by the C.I., the
November 26, 2012 controlled buy, the December 3, 2012
physical surveillance of Mr. Young in Philadelphia, the stop of
[Appellant’s] vehicle in Bansalem, items seized from this stop,
and information received following a knock and talk with Jason
Mellor. Id. However, on the face sheet of the search warrant in
the area designated for "Date(s) of Violation," in error 12 /16/12
was placed. N.T. 8/21/13, 97-99, 163-64, 165; See Exh. C -4.
Officer Smith explained that this was a typo because
[Appellant]'s date of birth is December 16Th. N.T. 8/21/13, 163 -
66.
Corporal Adam Kolman (of the BTPD) and Officer Cowden
were sent to secure [Appellant]'s residence at approximately
1:30 a.m. on December 4, 2012, as [Appellant]'s house backs
up to the Neshaminy Creek and it would be difficult or impossible
to safely secure the residence and also out of fear that any other
evidence would be destroyed. N.T. 8/21/13, 88-90; N.T.
8/22/13, 353, 355; N.T. 8/23/13, 515, 530 -31. [Appellant] lives
on a small block of four to five homes. N.T. 8/23/13, 516. The
officers were provided with a key to [Appellant]’s residence
recovered from [Appellant] by members of the special
investigation unit. N.T. 8/21/13, 91-93; N.T. 8/23/13, 515, 520,
530 -31. They were instructed to make outside observations first
and to report back to Officer Smith as to their observations. N.T.
8/23/13, 515. During this time, [Appellant] was in custody. N.T.
8/21/13, 89; N.T. 8/23/13, 532. Additionally, the officers were
informed by members of the special investigations unit that
there would be a large dog in the residence. N.T. 8/23/13, 519 -
20.
Once officers arrived, they noticed a work pickup truck
parked in front of [Appellant]'s residence and other cars parked
in the cul-de-sac next to his residence. Id. at 516, 531-32.
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Neither officer was aware of what vehicles belonged to what
home, as this was a common parking lot. Id. at 517. There was
some interior lighting on the first floor of the residence. Id. at
516, 518, 532.
Officer Cowden testified that he believed the two knocked
on the door and announced their presence prior to entrance.
N.T. 8/22/13, 354, 446, 448. Corporal Kolman testified to the
same, and stated it was his common practice to announce his
presence before entering a residence. N.T. 8/23/13, 521, 533.
Thereafter, they waited to go into the residence for ten (10) to
twenty (20) seconds. N.T. 8/22/13, 449. The officers were not
sure if anyone else would be in the residence. N.T. 8/23/13,
538. Upon entry, they observed the dog secured in a crate. N.T.
8/22/13, 449-50; N.T. 8/23/13, 522. They cleared the entire
residence and announced their presence on every level of the
home. N.T. 8/23/13, 522-23, 535-36. In an upstairs bathroom,
they observed a rifle. N.T. 8/23/13, 522. In the basement, they
observed a four-foot-by-five–foot safe with a bulletproof vest
next to it and an unopened box that contained eight by ten inch
freezer bags. N.T. 8/23/13, 522-23. Thereafter, they remained
on the first (main) floor of the residence until the search warrant
was obtained. N.T. 8/23/13, 525. They were on scene for
approximately three (3) hours and during this time no one tried
to gain entrance to the residence. N.T. 8/23/13, 525. Neither
officer searched through other items and did not do anything
other than clear the residence. N.T. 8/23/13, 526. The search
warrant was thereafter executed on the home at approximately
4:20 a.m. on December 4, 2012. N.T. 8/21/13, 95.
Based on both the complexity and number of issues
presented, we took the matter under advisement and it was
determined that both the District Attorney and defense would
submit letter briefs. N.T. 8/23/13, 560-61. We ordered that the
defense was to submit a brief within twenty (20) days, and the
District Attorney was given ten (10) days thereafter to respond.
Id. at 561.
The defense submitted a brief on or about Thursday,
September 12, 2013. The Commonwealth submitted a brief on
or about September 23, 2013.
Based upon the comprehensive testimony received, the
legal briefs submitted by both parties, and this court's
exhaustive review of all applicable appellate law, we issued an
Order on January 6, 2014 outlining our conclusions of law, with
the intention of apprising the parties on the record of our
findings of fact prior to [Appellant]'s trial. We compartmentalized
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the volume of issues into three (3) categories and Ordered that
the motion to suppress all physical evidence seized from
Defendant's vehicle was granted and all evidence seized was
suppressed, the motion to suppress physical evidence seized
during the initial entry into Defendant's residence was denied,
and the motion to suppress all physical evidence seized pursuant
to a search warrant issued for Defendant's residence was denied.
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10
[Appellant] initially challenged Edo’s qualifications to conduct
the dog sniff of the exterior of [Appellant’s] vehicle during the
stop. See “Omnibus Pretrial Motion,” 6/11/13, ¶¶ 27-28.
However, based on comprehensive testimony of both Officer
Cowden (Edo’s handler) and his independent trainer Robert
Swann, we determined that, without question, Edo is qualified.
See N.T. 8/22/13, 175-182, 290-321; N.T. 8/23/13, 546-53;
See Exh. CS-8; CS-10. However, because [Appellant] does not
challenge this determination on appeal, we see no need to set
forth a detailed account of the facts supporting our reasoning.
11
The entire stop was captured by the audio and visual recording
devices in Officer Cowden’s patrol vehicle. N.T. 8/22/13, 356-
57. The recitation of the facts regarding the stop below is based
upon the evidence submitted at the suppression hearing in the
form of witness testimony as well as our independent review of
this recording, which was entered into evidence as CS-9.
12
Specifically, Officer Cowden stated “step back over there with
him” four separate times in an increasingly louder voice. N.T.
8/22/13, 399, 437-38.
13
See N.T. 8/21/13, 109.
Trial Court Opinion, filed March 12, 2015, at 9-16.
Following a stipulated waiver trial held on September 8, 2014, the trial
court found Appellant guilty of the aforementioned crimes. On that same
date, Appellant was sentenced to twenty-four (24) months to sixty (60)
months in prison on the PWID conviction. Finding him to be RRRI eligible,
the sentencing court reduced his minimum sentence to eighteen (18)
months. Appellant was further sentenced to a one (1) year period of
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probation on the five Possession of Drug Paraphernalia convictions which
were to be served consecutively to Count 2 and to each other. Appellant
filed his Motion for Reconsideration of Sentence on September 17, 2014, and
the same was denied following a hearing on December 15, 2014.
Appellant filed a notice of appeal with this Court on January 13, 2015,
and his Statement of Matters Complained of on Appeal on February 3, 2015,
wherein he raised the same five issues he presents in his appellate brief for
our review:
A. Whether the Trial Judge correctly decided that there was
probable cause for the stop of [Appellant’s] vehicle.
B. Whether the Trial Judge correctly decided that there was
probable cause to seize and arrest [Appellant] during the
traffic stop which led to the seizure of the key to the
searched home and created a delay during which time the
police obtained information for use in the search warrant
of the home.
C. Whether the Trial Judge correctly decided that the police
had probable cause and exigent circumstances for a
warrantless entry of [Appellant’s] residence under both the
4th Amendment and Pennsylvania Constitution when no
one was home and [Appellant] was in custody which would
have required suppression of the evidence found therein.
D. Whether the Trial Judge correctly decided that there was
probable cause for the authorization of a night time search
warrant after excluding information from the search
warrant as a result of suppression.
E. Whether the night time search warrant for the home was
supported by probable cause for a night time execution if
the evidence observed by police during the warrantless
entry was omitted.
Brief for Appellant at 3-4.
In addressing these claims, we are mindful of our well-settled standard
of review:
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Our standard of review in addressing a challenge to a trial
court’s denial of a suppression motion is limited to determining
whether the factual findings are supported by the record and
whether the legal conclusions drawn from those facts are
correct.
[W]e may consider only the evidence of the
prosecution 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 record
supports the findings of the suppression court, we
are bound by those facts and may reverse only if the
court erred in reaching its legal conclusions based
upon the facts.
Commonwealth v. Williams, 941 A.2d 14, 26-27 (Pa.Super. 2008) (en
banc) (citations, quotations, and quotation marks omitted).
Initially, Appellant asserts the trial court incorrectly decided officers
had probable cause to stop his vehicle. We note this Court has held that
there are three categories of interactions between police officers and
citizens.
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. Fleet, 114 A.3d 840, 845 (Pa.Super. 2015) (quotation
omitted).
75 Pa.C.S.A. § 6308(b) permits a police officer to conduct a vehicle
stop if he has reasonable suspicion to believe that a violation of the Motor
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Vehicle Code is occurring or has occurred; thus, where a Vehicle Code
violation is suspected, but a traffic stop is necessary to further investigate
whether a violation has occurred, an officer need only possess reasonable
suspicion to make the stop. Commonwealth v. Salter, 121 A.3d 987, 993
(Pa.Super. 2015); see also Commonwealth v. Holmes, 14 A.3d 89 (Pa.
2011) (determining the standard of reasonable suspicion was sufficient to
stop a vehicle to investigate a front windshield obstruction).
To meet the less stringent standard of reasonable suspicion, the officer
must point to specific and articulable facts which, together with the rational
inferences drawn therefrom, reasonably warrant the intrusion.
Commonwealth v. Smith, 904 A.2d 30, 35 (Pa.Super. 2006). Thus, to
establish reasonable suspicion, a police officer must be able to identify
specifically facts which led him to reasonably suspect a violation of the
Vehicle Code, in this case Section 4524(e).
The courts also have plainly held that officer safety concerns are
heightened during traffic stops. The United States Supreme Court recently
emphasized that “[t]raffic stops are especially fraught with danger to police
officers, so an officer may need to take certain negligibly burdensome
precautions in order to complete his mission safely.” Rodriguez v. United
States, 135 S. Ct. 1609, 1616 (2015) (internal quotation marks and citations
omitted). Safety concerns are even greater when the motor vehicle stop
occurs at night. See In re OJ, 958 A.2d 561, 566 (Pa.Super. 2008) (noting
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that nighttime “creates a heightened danger that an officer will not be able
to view a suspect reaching for a weapon.”). In light of such valid safety
concerns, police officers who conduct a traffic stop are entitled to require
that the driver and any passengers step out of a vehicle “as a matter of
course.” Commonwealth v. Campbell, 862 A.2d 659, 663 (Pa.Super.
2004). Such minimal intrusions on the privacy rights of drivers and
passengers are permissible “because the expectation of privacy with respect
to one’s automobile is significantly less than that relating to one’s home or
office.” California v. Carney, 471 U.S. 386, 391 (1985).
Furthermore,
[w]hile it is argued the lesser standard will allow a vehicle stop
to be made based on pretextual motives, the United States
Supreme Court made clear that case law “foreclose[s] any
argument that the constitutional reasonableness of traffic stops
depends on the actual motivations of the individual officers
involved.” [Commonwealth v. ]Whren, [517 U.S. 806] at 813,
116 S. Ct. 1769 [(1996)]. In other words, if police can
articulate a reasonable suspicion of a Vehicle Code
violation, a constitutional inquiry into the officer's motive
for stopping the vehicle is unnecessary.
Commonwealth v. Chase, 960 A.2d 108, 120 (Pa. 2008) (emphasis
added).
Our review of the record contradicts Appellant’s assertion the initial
traffic stop was illegal, for while the trial court maintained the police officers
had probable cause to stop him for a violation of the Vehicle Code, in light of
the foregoing authority, they needed only reasonable suspicion. Officer
Cowden testified Appellant’s vehicle had dark tinted windows on the front
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wing window which is prohibited in Pennsylvania, even though he also
candidly admitted he would have pulled him over for a narcotics
investigation notwithstanding. N.T., 8/22/13, at 325-26. In addition, both
Sergeant Christie and Officer Gansky indicated that while surveilling
Appellant prior to the stop, they did not have a clear view of the vehicle’s
interior due to the tint. Id. at 207, N.T., 8/23/13, at 495. Furthermore,
Appellant himself admitted to Officer Cowden he was planning to have the
tint removed as he had difficulty seeing out of the vehicle. N.T., 8/22/13, at
327, 376. As such, under the totality of the circumstances, the officers’
initial observation of Appellant’s dark tinted windows gave them reasonable
suspicion to believe Appellant was in violation of 74 Pa.C.S.A. § 4524(e)(1);
therefore, the subsequent traffic stop to investigate further the window tint
was supported by reasonable suspicion. See 75 Pa.C.S.A. § 6308(b);
Commonwealth v. Feczko, 10 A.3d 1285, 1291 (Pa. Super. 2010) (en
banc), appeal denied, 25 A.3d 327 (Pa. 2011).
Regardless, the trial court suppressed all evidence seized from
Appellant’s vehicle and his post-arrest statement upon finding that the
purpose of the stop was effected prior to the officers’ detention of Appellant
and deployment of the K-9; thus, the trial court analyzed the validity of the
search warrant issued for Appellant’s residence without considering such
evidence.
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Nevertheless, Appellant next contends that but for their pretextual
stop of Appellant’s vehicle, officers would not have discovered marijuana in
his vehicle, which fact they used “to confront the individual in Philadelphia
which led to information for the search warrant and [ ] would not have had
his key to enter his home while he was in custody without a warrant.” Brief
for Appellant at 21-22. Appellant reasons that if the traffic stop had ended
prior to the K-9 search, he would have returned home with the knowledge
that officers were surveilling him and could have removed any contraband
therefrom and from his vehicle before they discovered it; thus, none of the
evidence uncovered following the search of his residence would have been
available to use against him at trial. Specifically, Appellant indicates that as
the search warrant was authorized approximately three hours after Officer
Cowden and Corporal Kolman arrived at Appellant’s residence, he would
have had a minimum four hours to remove the contraband from his vehicle
and his home. Brief for Appellant at 23-24.
Initially, we note that while our review of the record reveals Appellant
challenged the propriety of the traffic stop below, he did not set forth in
either his suppression motion or at trial the specific argument he makes
herein that but for the traffic stop, officers would not have been able to seize
evidence from his home pursuant to a search warrant because he would
have had an opportunity to destroy it. Having failed to raise this specific
issue before the trial court, Appellant has waived it for appellate review.
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Pa.R.A.P. 302(a)(issues not raised in the trial court are waived on appeal);
Commonwealth v. Muniz, 5 A.3d 345, 352 (Pa.Super. 2010) (this Court
will not consider an issue an appellant fails to raise before the suppression
court).
Even had he properly preserved this tenuous issue for appellate
review, Appellant’s speculative analysis ignores the fact that in light of its
determination Appellant had been illegally seized once the purpose of the
traffic stop concluded, the trial court suppressed all evidence recovered from
Appellant’s truck as well as his post-arrest statement. In addition, the trial
court properly applied the exclusionary rule when analyzing the validity of
the search warrant issued for his residence in that it carefully and distinctly
considered the items seized as a result of the traffic stop, the officers’ plain
view observations upon their initial entry into Appellant’s home, and their
search of his home pursuant to a warrant.
In doing so, the trial court noted Appellant erroneously presupposed
that the officer’s seizure of the key to his residence was a prerequisite for
the approval of a search warrant for the premises, for the probable cause
affidavit does not include any information that Corporal Kolman or Officer
Cowden either possessed a key to Appellant’s home or intended to use it to
gain entry thereto. The trial court further found that Appellant’s detention
did not create an unlawful delay in the submission of the application for a
search warrant, as no officer testified that he would have altered the course
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of the investigation had Appellant been out of custody. Trial Court Opinion,
filed March 12, 2015, at 19-20. Moreover, Officer Smith testified that prior
to the time he prepared the application for the search warrant for Appellant’s
residence, Officer Gansky had informed him he had spoken with the person
who had exited the home with Appellant in the Fairmont section of
Philadelphia, Jason Mellor. N.T., 8/21/13, at 70-72. Mr. Mellor advised
Officer Gansky he had just purchased several pounds of marijuana from Mr.
Young which Mr. Young carried into the residence in a black duffel bag. Id.
at 76. This information, included in the affidavit of probable cause, was not
dependent upon items seized following the traffic stop.
Appellant next avers that as he was in police custody during the time
Corporal Kolman and Officer Cowden entered his home and they had no
information that anyone else resided there, they cannot reasonably contend
they believed items therein were at risk of being destroyed or removed from
the residence; thus, the trial court erred in concluding the officers’
warrantless entry for purposes of securing the premises while they awaited a
search warrant was justified by exigent circumstances. Brief for Appellant
at 31-32. In analyzing this issue, we are mindful of the following:
It is well established that “probable cause alone will not
support a warrantless search or arrest in a residence ... unless
some exception to the warrant requirement is also present....
[A]bsent consent or exigent circumstances, private homes may
not be constitutionally entered to conduct a search or to
effectuate an arrest without a warrant, even where probable
cause exists.” [ ... ] [O]ur Supreme Court explained that “[i]n
determining whether exigent circumstances exist, a number of
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factors are to be considered,” such as, (1) the gravity of the
offense, (2) whether the suspect is reasonably believed to be
armed, (3) whether there is above and beyond a clear showing
of probable cause, (4) whether there is strong reason to believe
that the suspect is within the premises being entered, (5)
whether there is a likelihood that the suspect will escape if not
swiftly apprehended, (6) whether the entry was peaceable, and
(7) the time of the entry, i.e., whether it was made at night.
These factors are to be balanced against one another in
determining whether the warrantless intrusion was justified.
Other factors may also be taken into account, such as
whether there is hot pursuit of a fleeing felon, a likelihood that
evidence will be destroyed if police take the time to obtain a
warrant, or danger to police or other persons inside or outside
the dwelling. Nevertheless, police bear a heavy burden when
attempting to demonstrate an urgent need that might justify
warrantless searches or arrests.
Commonwealth v. Bowmaster, 101 A.3d 789, 793 (Pa.Super. 2014)
(citations omitted).
Herein, the trial court determined exigent circumstances permitted
investigating officers to enter Appellant’s home prior to obtaining a warrant.
The trial court recognized that officers had no reason to believe Appellant,
who was in custody, posed a danger to them or that anyone knew he had
been arrested which may prompt him or her to attempt to destroy or conceal
evidence located in his residence. Notwithstanding, the trial court reasoned
that the home’s geographical location along the Neshaminy Creek posed a
safety concern in that it was impossible for officers to secure the residence
from the perimeter and further observed that prior to their entry, officers
noticed a light on in the home and viewed numerous vehicles parked in
Appellant’s cul-de-sac. The court also stressed that officers also had
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probable cause to believe Appellant had committed a felony drug delivery
offense the prior week, that he was suspected of possessing narcotics and
paraphernalia on the night in question, and that they entered his home
peaceably and solely to secure their safety. Trial Court Opinion, filed March
12, 2015, at 21-22. In the alternative, the trial court opined that even were
this Court to determine exigent circumstances did not exist to justify officers’
initial warrantless entry and protective sweep of Appellant’s residence, the
independent source exception to the exclusionary rule applies herein. Id. at
22 (citing Commonwealth v. Beck, 34 A.3d 111 (Pa.Super. 2011).4
Upon our review of the record, under the specific facts of this case, we
find the Commonwealth failed to establish that exigent circumstances
existed for Corporal Kolman and Officer Cowden to enter Appellant’s home
while they awaited the issuance of a search warrant. With only their
observations that the home was adjacent to a creek, a single light was on
inside, and vehicles were parked in his cul-de-sac, officers simply did not
have probable cause to believe Appellant, who was in their custody, was
armed or that criminal activity was afoot inside or outside of the dwelling.
Indeed, Officer Smith testified that generally it is possible for officers to
secure a home by simply standing at the front and back entrances thereto,
and admitted that they could have surveilled Appellant’s home without
____________________________________________
4
In light of our discussion, infra, we need not engage in an independent
source rule analysis herein.
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needing to stand in the Neshaminy Creek because a small deck/patio was
attached to the rear of the home. N.T., 8/21/13, at 90. In addition, as is
indicated in the aforementioned statement of the relevant facts, Corporal
Kolman and Officer Cowden indicated they saw no movement when they
canvassed the area around the home, and when they entered and
announced themselves they saw nothing and heard no movement aside from
a dog secured in a cage. Though parked vehicles were in the vicinity, the
officers were unsure whether any of those vehicles belonged to individuals
present inside the home. As such, while the officers stressed they had
probable cause to believe Appellant was dealing narcotics and peacefully
entered the home prior to obtaining a warrant in an effort to ensure that any
potential evidence would not be concealed or destroyed, under the facts
herein, their concerns do not outweigh Appellant’s individual rights and
liberties. See Bowmaster, supra.
However, even if the officers’ initial entry into Appellant’s residence
were not justified by exigent circumstances, such unlawful entry does not
mandate the suppression of the evidence they recovered later pursuant to a
valid search, for our Supreme Court has determined that where some
evidence listed in a search warrant affidavit had been unlawfully obtained,
we must nevertheless consider whether the affidavit otherwise sets forth
probable cause in the absence of such evidence. Commonwealth v.
Hernandez, 935 A.2d 1275 (Pa. 2007). “In other words, we must decide
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whether, absent the information obtained through illegal activity, probable
cause existed to issue the warrant. . . . Only evidence that was available to
police because of the unconstitutional search, i.e., the product of the illegal
police activity, is disregarded.” Id. at 1283-1284 (citations omitted). Our
review of the record leads us to conclude that the untainted, legally obtained
information contained within the search warrant affidavit was sufficient to
establish probable cause to search Appellant’s residence.
As the Commonwealth acknowledges, the Magisterial District Judge
who reviewed the warrant application had been informed of the initial
observations of officers securing the residence and, undoubtedly, they were
in communication with members of the special investigations unit as they
secured the home. Also, a single line on the last page of the six-page search
warrant application indicates that “[w]hile securing [Appellant’s] residence
[Corporal] Kolman and Officer Cowden observed the following items in plain
view in [Appellant’s] residence: a bulletproof vest, a rifle, and empty
[Z]iplock bags (identical to the ones recovered in [Appellant’s] truck), and a
large safe.” However, the decision to prepare an application for a search
warrant for Appellant’s residence had been made prior to the time at which
Corporal Kolman and Officer Cowden secured his residence to prevent the
destruction or concealment of any evidence until such warrant was issued.
On November 26, 2012, officers observed Appellant leave his home
carrying a large duffel bag, meet with the C.I. and provide him or her with
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marijuana in exchange for currency. On December 3, 2012, officers followed
Appellant to 30th Street in Philadelphia, watched him take a large duffel bag
from his truck, carry it into and out of the residence, and were informed
later that evening by an occupant of the home that Appellant sells him
marijuana. Thereafter, officers discovered a significant amount of money
and marijuana in the individuals’ room in the home. While these incidents
were separated by seven days, a lapse of time between officers’ discovery of
criminal activity and the issuance of a search warrant will not necessarily
dissipate probable cause or be deemed too remote where it is shown that
criminal activity is likely to have continued up to the time of the issuance of
a search warrant. Commonwealth v. Haggerty, 564 A.2d 1269, 1272
(Pa.Super. 1989).
After setting forth their employment and qualifications, the affiants,
Officers Smith and Brady detailed the following:
Whereas, within the last ten days your affiants spoke with a
confidential information (C.I. 12-72) in reference to someone
they knew was selling marijuana. The informant advised your
affiants that he/she would be able to purchase marijuana from a
male named Brett. The informant advised your affiants that
Brett lives in the Bensalem area. Your affiants were able to
determine that Brett, was Brett Young, of 5445 Flushing Rd. The
informant also advised your affiants that Brett drives a dark
colored pickup. The informant also advised your affiants that
he/she had purchased marijuana out of Young’s residence in the
past.
Whereas, on 11/26/12 your affiants conducted a controlled buy
utilizing (C.I.12-72). On that date the informant was issued pre
recorded buy money for the buy. He/she and their vehicle were
searched prior to the buy and found void of contraband. Prior to
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the buy Sgt. Bugsch and Officer Gansky were conducting
surveillance at Young’s residence at 5445 Flushing Rd Bensalem.
At approximately 1900 hours Sgt. Bugsch observed Young leave
his residence carrying a dark bag. (Young was driving his 2007
black Lincoln pick-up bearing PA registration YWS-1613. The tag
was run through NCIC and came back to Brett Young of 5445
Flushing Rd). Young was then followed to a pre arranged
meeting location where he sold the informant marijuana. After
the deal was [sic] the informant turned over the marijuana to
Officer Gansky. Young was then followed back to his residence
at 5445 Flushing Rd Bensalem PA.
Whereas, C.I. 12-72 has no crimi falsi arrests or convictions.
C.I. 12-72 has been deemed reliable based on cooperation with
the Bensalem Police Special Investigations Unit that has proven
to be accurate, truthful and reliable. The confidential
[i]nformant has supplied Affiant Smith with information
regarding drug usage and trafficking. The confidential informant
never supplied any information to Affiant Smith that turned out
to be inaccurate, untruthful or unreliable.
Whereas, on 12/3/12 your affiants were conducting surveillance
on Young. Young left his residence at approximately 1845 hours
and followed into Philadelphia. Young was followed to the area
of 30th and Cambridge St. in Philadelphia. Officer Gansky
observed Young retrieve a large black duffel bag from the rear of
his pick up bed. Officer Gansky stated that the bag appeared to
be very heavy. Young then carried that bag into 918 30 th Street
Philadelphia PA. Young was inside for approximately 20 minutes
before exiting. Young was observed carrying a large black duffle
[sic] bag out of that residence. Young was then followed from
918 30th Street Philadelphia PA. Young was then initiated in a
traffic stop on Bristol Pike Bensalem PA by Officer Cowden.
Whereas, Officer Cowden initiated Young’s vehicle in a traffic
stop for tinted windows and the previous described activity.
Officer Cowden observed that Young appeared to be nervous.
Officer Cowden stated that Young would not make eye contact
with him. Officer Cowden stated that Young’s hands were shaky
when handing him his registration. Officer Cowden asked Young
where he was coming from? Young stated that he was at a
friend’s house in the city. Officer Cowden also asked Young
where he was headed. Young stated that he was headed home
to Flushing Rd. After speaking [to] Young Officer Cowden asked
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Young for consent to search his vehicle. Young replied, “No, do
you have a search warrant[?]” . . . .
Affidavit of Probable Cause, 12/4/12, at ¶¶ 4-8.
This untainted information is distinguishable from the subsequently
tainted evidence obtained following the traffic stop and from the brief
reference to the items officers saw upon their warrantless entry into
Appellant’s residence. Indeed, Corporal Kolman and Officer Cowden entered
Appellant’s home not with an eye toward gaining additional information for
use in the preparation of the affidavit of probable cause, but rather to secure
it. Their entry was not forcible, and they made only cursory observations of
items in plain view as they sought to ensure no other occupants were
present; no evidence was seized until the search warrant was executed.
See Commonwealth v. Bruner, 564 A.2d 1277, 1282 (Pa.Super. 1989)
(observing that officers’ warrantless entry of premises did not result in a
search, seizure or observation of evidence or result in a modification in the
already executed search warrant). Moreover, their warrantless entry was
not the source of any significant substantive changes to the affidavit.
Accordingly, an analysis of the four corners of the affidavit reveals that it set
forth sufficient probable cause independent of any tainted evidence to
support the warrant; therefore, the warrant was valid and the evidence
seized under its authority was properly admitted at trial. See Herndndez,
supra.
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To the extent Appellant challenges the nighttime aspect of the
issuance of search warrant, we find this issue to be waived. At the
suppression hearing, Appellant argued simply that the entry into his home
prior to the issuance of a search warrant “violated not only the knock and
announce rule, but also that there were no exigent circumstances justifying
the entry into the home without probable cause with the search warrant.”
N.T, 8/21/13, at 6-7. Appellate review of an order denying suppression is
limited to an examination of the precise basis under which suppression
initially was sought, and no new theories of relief may be considered on
appeal. Commonwealth v. Little, 903 A.2d 1269, 1272-73 (Pa.Super.
2006). Appellant did not develop a specific argument regarding nighttime
execution of the warrant in his motion to suppress argued at the suppression
hearing or in his post sentence motion. Thus, it is waived. See
Commonwealth v. Gordon, 528 A.2d 631, 642 (Pa.Super. 1987) (“The
raising of one particular theory in support of a suppression claim is not
sufficient to preserve all other possible grounds for suppression of the same
evidence”).5
____________________________________________
5
We are mindful that our Supreme Court has mandated “(n)o search
warrant shall authorize a nighttime search unless the affidavits show
reasonable cause for such nighttime search.” Pa.R.Crim.P. 203(E). Due to
the greater intrusion upon an individual’s privacy occasioned by a nighttime
search, some greater justification than that required for a daytime search
must be shown. See Pa.R.Crim.P. [203(E) and Comment]. Put simply, the
(Footnote Continued Next Page)
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For all of the foregoing reasons, we affirm.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/1/2016
_______________________
(Footnote Continued)
affidavit for a warrant authorizing a nighttime search must show both
probable cause and some reason why the search cannot wait until morning.
Bowmaster, supra, 101 A.3d at 793-94 (italics and citations omitted).
Herein, Officers specifically requested a nighttime clause be granted for the
following reasons:
1. The residence is already secured by law enforcement.
2. To avoid the destruction of evidence.
3. [Appellant] is presently in custody and cannot be arraigned until
the search of the residence is executed.
4. There are no occupants inside of the residence, therefore, no
occupants will be disturbed while the search is being conducted
during the evening hours.
Affidavit of Probable Cause, 12/4/12, at 5.
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