Com. v. Doyle, S.

J-S51023-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
SEYMOOR AGUSTUS DOYLE,
Appellee No. 1616 EDA 2015
Appeal from the Order Entered May 1, 2015
In the Court of Common Pleas of Delaware County
Criminal Division at No(s): CP-23-CR-0003506-2014
BEFORE: BOWES and SHOGAN, JJ., and STEVENS, P.J.E.*
MEMORANDUM BY SHOGAN, J.: FILED FEBRUARY 13, 2018
The Commonwealth appeals from the trial court’s May 1, 2015 order
granting in part and denying in part Seymoor Agustus Doyle’s (“Appellee”)
Omnibus Pre-Trial Motion. Specifically, the Commonwealth contends that
the trial court erred in suppressing statements made by Appellee to
Officer Jeffrey Shull (“Officer Shull”) and Agent Alan Basewitz
(“Agent Basewitz”) before Appellee was Mirandized.1, 2 We affirm in part,
reverse in part and remand.
____________________________________________
* Former Justice specially assigned to the Superior Court.
1 Miranda v. Arizona, 384 U.S. 436 (1966).
2 The May 1, 2015 order denied suppression of statements made by the
Appellee to Agent Basewitz. However, the trial court’s opinion later clarified
(Footnote Continued Next Page)
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The trial court set forth the following factual recitation:
This case involves the alleged March 6, 2014 trafficking of
marijuana through a private parcel carrier. Employees of United
Parcel Service (UPS) examined a package which revealed
contents suspicious for marijuana. Agents of the Pennsylvania
Attorney General’s Office were called to investigate the package.
The investigation revealed the package contained 25 lbs. of
suspected marijuana. A controlled delivery was conducted by
agents of the Pennsylvania Attorney General’s Office, DEA and
Springfield Township Police Department resulting in the arrest of
[Appellee] who claimed the package.
[Appellee] stands charged on six (6) criminal counts
including: (1) violation of [35 P.S. §780-113 (a)(30)]
manufacture, delivery, or possession with intent to deliver
marijuana an ungraded felony; (2) violation of [35 P.S. § 780-
113 (a)(16)] intent to possess controlled substance by person
not registered to lawfully possess (marijuana) an ungraded
misdemeanor; (3) violation of [18 Pa.C.S. § 7512 (a)] criminal
use of communication facility, a third degree felony; (4) violation
of [18 Pa.C.S. § 903 (c)] criminal conspiracy criminal use
communication facility, a felony of the third degree; (5) violation
of [18 Pa.C.S. §903 (c)] criminal conspiracy to possession of
marijuana, an ungraded misdemeanor; (6) violation of [18
Pa.C.S § 903 (c)] criminal conspiracy to deliver[] marijuana, an
ungraded felony.
On February 19, 2015 the [trial court] conducted
proceedings in connection with [Appellee’s] omnibus pretrial
motion which included a suppression motion and at that time
testimony was received by the Commonwealth’s witnesses
Agent Timothy King, Agent Alan Basewitz and Officer
Jeffrey Shull. An Order was entered on [May 1], 2015
suppressing certain un-Mirandized statements and in part
denying suppression of certain Mirandized statements. It is from
the [May 1], 2015 Order of Court from which [the
Commonwealth] appeals.
(Footnote Continued) _______________________
that the court was suppressing only the pre-Miranda statements to
Agent Basewitz and denying suppression of the post-Miranda statements.
Trial Court Opinion, 12/20/16, at 1.
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* * *
On March 6, 2014 Agent King was working in his capacity
as a narcotics agent for the Pennsylvania Attorney General’s
office when he and his partner received a request from UPS
management to investigate a suspicious parcel that they had at
their Philadelphia airport facility.
* * *
Agent King testified that he appeared at the facility and
was presented with a UPS package which was already opened.
He observed a large plastic shrink-wrap ball which he’s seen on
many prior occasions and he suspected it to be marijuana. Agent
King estimated the dimensions of the package to be
approximately 12" x 16".
[Agent King further testified that t]he box’s label indicated
that it was shipped from Custom Fabric in Burlington[,]
North Carolina but that his investigation revealed it had actually
been shipped from E and G Mailboxes in Los Angeles, California.
Agent King testified that E and G [M]ailboxes [is] a private
shipping and receiving agency.
Agent King testified that the box was addressed to
Outstanding Designs at 491 Baltimore Pike in Springfield, that
491 Baltimore Pike is a MailSource[] shipping and receiving
agency. He explained that his contact with MailSource revealed
that Outstanding Designs Company had an account with the
MailSource.
Agent King testified that he returned the package to his
headquarters and conducted a field test on the contents which
revealed a 25 pound ball of compressed marijuana. He resealed
the package and along with other agents and task force agents
went to 491 Baltimore Pike with the package. He placed the
package in a pile in the middle rear of the store where incoming
packages were generally piled up. Agent King then set up
surveillance inside the store.
At 11:30 AM Agent King observed [Appellee] walk into the
MailSource and walk directly to the pile of packages and pick up
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the marijuana package without even reading the label and
walked out the door with it.
Agent King testified he observed [Appellee] walk to a gold
Nissan Maxima in the parking lot and place the package on the
rear seat area and a get into the car and drive it out of the
parking lot all the while the other backup officers were following.
Agent King explained that he was in radio communication with
the officers outside and they also observed [Appellee] enter and
exit with the package and place it in his vehicle.
* * *
[Agent Basewitz took the stand next and testified that
after Appellee put the package in his car and drove out of the
parking lot], a Springfield Township unmarked police car
operated by Officer Jeffrey Schull followed [Appellee’s] vehicle
and activated its emergency lights and [Appellee] pulled into a
parking lot adjacent to a Home Depot. Officer Jeffrey Schull then
spoke with [Appellee] ostensibly for a routine traffic stop and
eventually removed him from the vehicle and had him standing
at the rear trunk area of the car when Agent Basewitz
approached with another Officer Thomas Hawn of the
Philadelphia Police Department. [Appellee] contended he had
just come from the Hibachi restaurant. Agent Basewitz
confronted [Appellee] about coming from the MailSource and
[Appellee] relented and acknowledged coming from the
MailSource.
* * *
Agent Basewitz testified that after [Appellee] voluntarily
acquiesced in the search of the trunk of his car, the agents
asked him where he was coming from and what he was doing
with the package. [Appellee] answered that he was going to
Bosco Moving and Storage at 53rd and Baltimore in Philadelphia
and was intending to re-ship the package. Further Agent
Basewitz testified [Appellee] said he was picking the package up
for somebody he knows as "Peter". [He also testified that],
[Appellee] stated that he knew "Peter" through a woman he has
known for several years. [Appellee] was to be paid one hundred
dollars to retrieve (and re-ship) the package. [Basewitz testified
that Appellee told him] that this "Peter" was going to call him
when he arrived at Bosco and tell him the name and address of
the person to re-ship the package. [Appellee] refused to permit
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the agents to search his car. At this point [Appellee] was
Mirandized and a consensual conversation purportedly ensued.
The Agent testified that [Appellee] was not handcuffed
until Agent Hawn read him Miranda warnings and then engaged
[in] further conversation. Agent Basewitz described [Appellee]
as very animated when standing by the trunk of his car; that he
was walking and pacing and walking back and forth and was
agitated and that he appeared angry and defensive. [Appellee]
was cautioned to stay close to his car. Essentially, the Agents
and Officers were attempting to gain [Appellee’s] cooperation in
the investigation.
At the scene, [Appellee] repeatedly refused to permit the
search of the parcel package containing the illegal marijuana. In
response to a question of whether drug dogs would react to a
sniff of his car, [Appellee] said he loaned his car earlier that day
to people who brought it to a repair shop in west Philly and that
they had smoked "weed" in the car.
Apparently as the conversation continued [Appellee] began
to contradict himself regarding the story surrounding loaning his
vehicle to two people who smoked "weed" in it. [Appellee] could
not identify the repair shop where the vehicle was purportedly
taken.
With respect to the contents of the box [Appellee] said he
doesn’t care what’s in it is (sic) not any of his business and he
doesn’t care if it is guns, marijuana, cocaine or pornography.
Agent Basewitz was asked if he purposely engaged in
conversation to elicit information prior to [Appellee] being
Mirandized. The agent responded that they engaged in a
pretextual stop and conversation but that there wasn’t much
substance to that. That a conversation was attempted to
determine where he was going and get some cooperation or
consent. [Appellee] resisted that attempt.
On cross-examination the agent admitted that he did
confront [Appellee] with the fact that he saw him come from the
MailSource not Hibachi.
Agent Basewitz testified that Officer Schull, himself and
Officer Hawn were all present at the back of the car. Although
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there were a dozen officers at the scene most were unknown
(undercover of some kind) to [Appellee]. Agent Basewitz
testified that the post–Miranda conversations with the [Appellee]
were essentially the same as the pre–Miranda conversations.
The agent admitted there were some conversations that
occurred pre-Miranda that elicited different information than
post-Miranda conversations. The post-Miranda conversation
concerned the people who smoked weed in his car, the drug sniff
dog and forgetting the name of the repair shop and its owner.
On redirect the agent testified that [Appellee] also
possessed $2,049.00 in cash in his pocket. [Appellee] blurted
that it was tuition money for his son. Agent Basewitz’s
testimony concluded.
Officer Jeffrey Shull was next called to testify.
* * *
Officer Shull testified that after he pulled [Appellee’s] car
over, he spoke to [Appellee] through the passenger side window
requesting his vehicle information, license, insurance and
registration. Officer Shull treated it as a regular vehicle stop.
Ultimately [Appellee] provided everything the officer asked for.
The officer engaged [Appellee] in a conversation on where he
was coming from and initially [Appellee] responded that he was
coming from Hibachi, a Chinese restaurant. Officer Shull asked
him if he had anything illegal in the car and [Appellee] stated
"no you can check the trunk" At that point DEA agents arrived on
the scene. Officer Shull had no further involvement at that
point.
Trial Court Opinion, 12/20/16, at 2-12 (citations omitted).
The Commonwealth presents a single issue for our review:
Whether the trial court erred as a matter of law in granting
the [Appellee’s] motion to suppress all the pre-Miranda
statements made by [Appellee] during a lawful, non-custodial
investigative detention?
Commonwealth’s Brief at 1.
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Specifically, the Commonwealth argues the trial court erred when it
suppressed Appellee’s pre-Miranda statements made to Officer Shull that
he was leaving an Hibachi restaurant, and the answers Appellee gave to
Agent Basewitz’s questions regarding the package Appellee had retrieved
and his whereabouts prior to being stopped. The Commonwealth asserts
that the above statements were made during what was effectively a brief
traffic stop, before the stop turned custodial, that did not require Appellee be
Mirandized. Commonwealth’s Brief at 16–17.
Our standard of review is well established:
When the Commonwealth appeals an order suppressing
evidence, we may consider on review only the evidence from the
defendant's witnesses along with the Commonwealth's evidence
that remains uncontroverted. Our standard of review is
restricted to establishing whether the record supports the
suppression court's factual findings; however, we maintain de
novo review over the suppression court's legal conclusions.
Where the suppression court's factual findings are supported by
the record, [the appellate court] is bound by [those] findings and
may reverse only if the court's legal conclusions are erroneous.
Where the appeal of the determination of the suppression court
turns on allegations of legal error, the suppression court's legal
conclusions are not binding on an appellate court, whose duty it
is to determine if the suppression court properly applied the law
to the facts. Thus, the conclusions of law of the courts below are
subject to plenary review.
Commonwealth v. Forsythe, 164 A.3d 1283, 1286 (Pa. Super. 2017)
(citations omitted).
Under Pennsylvania law, there are three types of encounters between
citizens and police officers. Commonwealth v. Acosta, 815 A.2d 1078,
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1082 (Pa. Super. 2003) (en banc). The first is a mere encounter, which
requires no level of suspicion on the part of the officer and carries no
compulsion for the citizen to respond. Id. The second is an investigative
detention, which requires a showing of reasonable suspicion. Id. This
second type of stop includes “a period of detention, but does not involve
such coercive conditions as so constitute the functional equivalent of an
arrest.” Id. Finally, the third category, arrest or custodial detention, must
be supported by probable cause. Id. A statement made under custodial
interrogation is presumptively involuntary unless the individual in custody is
advised of his Miranda rights. Commonwealth v. Levanduski, 907 A.2d
3, 23 (Pa. Super. 2006).
“The overlying test to determine whether a person is being subjected
to a custodial interrogation necessitating Miranda warnings is whether he is
physically deprived of his freedom in any significant way or is placed in a
situation in which he reasonably believes his action or movement is
restricted by such interrogation.” Commonwealth v. Turner, 772 A.2d
970, 973 (Pa. Super. 2001). See also Commonwealth v. Luster, 71 A.3d
1029, 1051 (Pa. Super. 2013) (“Custodial interrogation has been defined as
questioning initiated by the police after a person has been taken into
custody or otherwise deprived of his or her freedom in any significant way”).
Indeed, in order to determine if an individual has been detained, our
Supreme Court set forth a non-exclusive list of factors to consider, including:
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the presence of police excesses, physical contact by the police or an attempt
to restrain an individual’s movement, the demeanor of the police officer, the
location of the confrontation, the police officer’s manner towards the
individual, and the content of the questions asked by the officer.
Commonwealth v. Strickler, 757 A.2d 884, 897–898 (Pa. 2000). A court
should look at the totality of the circumstances when determining whether
an individual has been subject to custodial interrogation. Commonwealth
v. Clinton, 905 A.2d 1026, 1032 (Pa. Super. 2006).
Turning first to the statements made to Officer Shull, the trial court
found those statements were made while Appellee was subject to a custodial
interrogation. Trial Court Opinion, 12/20/16, at 20. We disagree, and after
reviewing the totality of Appellee’s interaction with Agent Shull, we find that
the trial court erred when it suppressed the statements made to Officer Shull
because their interaction did not reach the threshold of custodial
interrogation.
In the instant case, Officer Shull was alone when he stopped Appellee
and requested Appellee’s license, registration, and insurance. N.T., 2/19/15,
at 59. Officer Shull asked Appellee where he was coming from and if he had
anything illegal in the car. Id. at 60. Appellee replied that he did not have
anything illegal in the car and informed Officer Shull that he could search the
trunk. Id. At that point, Officer Shull asked Appellee to step out of the car
and the DEA agents arrived. Id. The entirety of Appellee’s exchange with
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Officer Shull took a “couple minutes.” Id. Officer Shull had no further
contact with Appellee once the DEA agents arrived. Id. at 61.
Reviewing the relevant factors set forth in Strickler, 757 A.2d at 898–
899, we find Appellee was not subject to custodial detention. Here,
Officer Shull was a single police officer; thus there was no excessive police
presence. Further, Officer Shull was not confrontational with Appellee.
Instead, he asked routine questions and neither challenged Appellee on any
of his responses nor attempted to restrain Appellee’s movement, beyond
asking Appellee to exit the vehicle. To the extent the trial court found that
Appellee’s interaction’s with Officer Shull constituted a custodial
interrogation, the trial court erred. The Appellee’s statements to
Officer Shull should not have been suppressed because they occurred during
an investigatory detention, not a custodial detention. See Commonwealth
v. Clinton, 905 A.2d 1026 (Pa. Super. 2006) (finding investigatory
detention, not custodial interrogation, where police officer pulled appellee
over after appellee ran a stop sign, asked appellee if he had any weapons or
anything “the police should be aware of” and appellee responded that he
“had a little bit of weed”).
The same cannot be said for Appellee’s interaction with Agent
Basewitz. Again, looking at the totality of the circumstances, Appellee was
subject to a custodial interrogation once Agent Basewitz and another officer
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arrived at the scene and began questioning him. As the trial court set forth
in its opinion:
[Appellee and Officer Shull] were joined by Officer Hawn
and Agent Basewitz at the back of the car. Surrounded by three
(3) law enforcement officers with additional officers immediately
nearby as well as even more officers along a perimeter indicates
a compelling police presence. Neither handcuffs nor weapons
were immediately deployed, however [Appellee] was instructed
to stay in place by officers when he began to pace and wander at
the back of the car during questioning.
The manner of questioning proceeded with [Appellee]
being confronted with questions about where he was coming
from, headed to and then confronted by officers with his
inconsistencies and a demand for explanation. [Appellee’s]
responses quickly broke down. Law enforcement asked for
permission to search his vehicle to which [Appellee] responded
they could search the trunk of the vehicle. He said he did not
give permission for the officers to search the package.
Ultimately, the officers handcuffed and Mirandized [Appellee]
who continued to voluntarily answer essentially the same line of
questioning.
Under the totality of the circumstances the statements
made by [Appellee] prior to being Mirandized are properly
suppressed. The questions were expressly for the purpose of
benefiting the ongoing investigation and therefore would
foreseeably elicit incriminating admissions from [Appellee].
[Appellee’s] liberty was significantly restricted. The suppression
hearing testimony was clear that agents were going to detain,
question and likely charge whoever showed up to pick up the
package containing marijuana. [Appellee] received specific
orders to step and stay close to the rear bumper of his vehicle
without wandering. The fact that neither handguns nor
handcuffs were initially deployed is not in and of itself dispositive
of the coerciveness of the interrogation. Rather, the officers
quickly employed handcuffs and Mirandized [Appellee] and re-
initiated virtually the same line of questioning eliciting even
further incriminating statements once the officers felt [Appellee]
was neither cooperative nor responsive.
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Also, the officer’s conversational tone in and of itself also
did not obviate the necessities of Miranda. Essentially, the
identical line of questioning was reengaged and the [Appellee]
voluntarily responded once Mirandized. The likelihood of eliciting
incriminating answers from the [Appellee] was reasonably
foreseeable because the officers were well aware of the
contraband in the vehicle.
Trial Court Opinion, 12/20/16, at 18–19.
We agree with the trial court’s assessment as it applies to Appellee’s
interaction with Agent Basewitz and adopt it as our own. Appellee was
under custodial interrogation when Agent Basewitz began questioning
Appellee; thus, the trial court did not err when it suppressed Appellee’s
statements to Agent Basewitz prior to Appellee receiving his Miranda
warning.
Order affirmed in part and reversed in part. Case remanded for
further proceedings. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/13/18
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