Com. v. Green, J.

J-S45001-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
JAYVON TYREEK GREEN,
Appellee No. 1670 WDA 2014
Appeal from the Order Entered September 11, 2014
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0008379-2013
BEFORE: OLSON, DUBOW AND PLATT,* JJ.
MEMORANDUM BY OLSON, J.: FILED JULY 18, 2016
The Commonwealth appeals from the order entered September 11,
2014, granting Appellee’s motion to suppress. We affirm.1
The suppression court made the following factual findings:
[Appellee] lived [on] Mellon Street [in] Pittsburgh, PA.
[Appellee’s] Honda automobile was parked on Mellon Street in
front of his home. Prior to entering his vehicle, he opened the
trunk and looked into it.
Pittsburgh police officers were conducting surveillance [on]
Mellon Street and had a search warrant for another individual
who lived several homes away from [Appellee].
[Appellee] then drove away in his automobile [and] was
followed by police officers. Police officers observed [Appellee]
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1
The Commonwealth certified that the order in question would terminate or
substantially handicap its prosecution of Appellee. Thus, we have
jurisdiction over this appeal. See Pa.R.A.P. 311(d).
*Retired Senior Judge assigned to the Superior Court.
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get out of his car and speak with another person, and then
something was placed into the trunk of [Appellee’s] car.
[Appellee] then pulled away without activating a turn signal.
Due to this traffic violation, [Appellee] was stopped by police
officers.
The police officers approached the vehicle; one went to the
driver’s side and the other went to the passenger’s side. The
one on the driver’s side requested [Appellee’s] driver’s license,
registration, and insurance papers, which were produced by
[Appellee. Based upon the identification documents, officers
realized Appellee was a witness or victim of a recent shooting
incident.]
The officers were able to look into [Appellee’s] vehicle and did
not observe any guns, drugs, or other illegal activity.
After a short bit of time, [Appellee] was ordered out of his
vehicle and was patted down for officer’s safety.
The record is devoid of any facts that would suggest other than a
mere traffic violation had occurred.
After [Appellee] had been removed from his car and the officers
had control of his documentation, which had been provided by
[Appellee] regarding the traffic stop, [Appellee], as well as any
other reasonable person, would believe that they were not free
to leave the scene of the traffic stop.
Police officers searched the interior of the vehicle; however,
[they] found no guns, drugs or any other indicia of other illegal
activity.
One of the police officers opened the trunk of [Appellee’s]
vehicle, using [Appellee’s] keys, which [the officer took] from
the automobile. Heroin was found in the trunk by the officer.
The officers indicated that they had obtained consent to search
the trunk.
Suppression Court Opinion, 2/13/2015, at 4-5; N.T., 9/11/2014, at 2-4.
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Following this incident, Appellee was charged with one count of
possession with intent to deliver a controlled substance,2 one count of
possession of a controlled substance,3 and one count of turning movements
and required signals.4 Appellee filed a motion to suppress the evidence,
claiming the traffic stop was pre-textual; the removal of Appellee from the
car and search of his person was unlawful; the search of the vehicle was not
consensual and was the result of the illegal detention; and the search of his
property at his Mellon Street residence was unlawful because the warrant
permitting it was based on the illegal seizure and search of the vehicle. A
hearing on the motion to suppress was held on April 30, 2014, in which the
suppression court granted the motion to suppress. The Commonwealth
timely appealed the granting of the motion.5
The Commonwealth presents two issues for our review:
1. Whether the police lacked a legally supportable basis to
detain [A]ppellee based upon their observation of seeing him
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2
35 P.S. § 780-113(a)(30).
3
35 P.S. § 780-113(a)(16).
4
75 Pa.C.S.A. § 3334(a).
5
On October 14, 2014, the suppression court ordered the Commonwealth to
file a concise statement of errors complained of on appeal (“concise
statement”). See Pa.R.A.P. 1925(b). On October 31, 2014, the
Commonwealth filed its concise statement. On February 13, 2015, the
suppression court issued its rule 1925(a) opinion. Both of the
Commonwealth’s issues were included in its concise statement.
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pull away from the curb into the lane of traffic without using
his turn signal?
2. Whether [A]ppellee’s consent to the search of the vehicle was
unlawful?
Commonwealth’s Brief at 4.
When reviewing the ruling of a suppression court, we must determine
whether the record supports the court’s findings. Commonwealth v.
Perez, 845 A.2d 779, 788 (Pa. 2004). If the record supports the findings,
we are bound by those facts and may only reverse if “the legal conclusions
drawn therefrom are erroneous.” Id. We are not bound by the legal
conclusions of the suppression court. In re T.B., 11 A.3d 500, 505 (Pa.
Super. 2010). Further, when the Commonwealth appeals a suppression
order, we only consider “the evidence of the [appellee’s] witnesses and so
much of the evidence of the [Commonwealth] as read in the context of the
record as a whole remains uncontradicted.” Commonwealth v. James,
486 A.2d 376, 379 (Pa. 1985).
The Fourth Amendment to the United States Constitution and Article I,
§ 8 of the Pennsylvania Constitution protect individuals from unreasonable
searches and seizures. Commonwealth v. By, 812 A.2d 1250, 1254 (Pa.
Super. 2002). As a general rule, all searches and seizures performed
without a warrant are per se unreasonable and unconstitutional, unless an
exception applies. Commonwealth v. Hudson, 92 A.3d 1235, 1241 (Pa.
Super. 2014). One exception is a search conducted after consent is
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voluntarily given. By, 812 A.2d at 1254. Consent cases require a two-
prong inquiry: first, “the constitutional validity of the citizen/police encounter
giving rise to the consent” and second, the voluntariness of the consent. Id.When the police encounter is lawful, the exclusive focus is the voluntariness.
Id. However, if the initial detention violates the Fourth Amendment, then
“any evidence seized during that stop must be excluded as fruit of an
unlawful detention[,] absent a demonstration by the government both of a
sufficient break in the causal chain between the illegal detention and the
seizure of evidence.” Id. at 1255. Such a break ensures that the search is
not exploitive of the illegal detention and that the consent was voluntary. Id.To assess the lawfulness of citizen and police encounters, the central
issue is whether the citizen has been seized. Commonwealth v. Strickler,
757 A.2d 884, 889 (Pa. 2000). Mere encounters, or those instances of
police questioning which involve no seizure or detention, do not need to be
supported by any level of suspicion. Id. Two other categories of
police/citizen interaction involve a measure of detention or seizures: an
investigative detention, which “subjects an individual to a stop and a period
of detention but [] is not so coercive as to constitute the functional
equivalent of an arrest” and a custodial detention, which is a more restrictive
form. Id. An investigative detention must be supported by reasonable
suspicion that the person is engaged in criminal activity and may continue
“only so long as is necessary to confirm or dispel such suspicion.” Id. A
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custodial detention, on the other hand, is only legal if based on probable
cause. Id.The objective test to determine whether a seizure has occurred
requires a determination of whether, looking to all surrounding
circumstances, a reasonable person would believe that he was free to leave.
Id. The focus is on whether or not the citizen’s movement was restricted,
by means of physical force or a show of authority. Id. at 890. Courts must
look at the totality of the circumstances to make the determination, as no
single factor may dictate the conclusion. Id.In its first issue, the Commonwealth argues that Appellee was not
unlawfully stopped or detained when he consented to a search of the
vehicle. Commonwealth’s Brief at 10-11. There is no dispute between the
parties that Appellee failed to use his turn signal when pulling his car into
the roadway, making the initial stop lawful. Any technical traffic violation
(supported by probable cause) legitimizes a stop, even if it is merely a
pretext for some other investigation. Whren v. United States, 517 U.S.
806 (1996). This applies even if the offense is only minor, as it was here.
Commonwealth v. Chase, 960 A.2d 108, 113 (Pa. 2008).
However, it is clear that a seizure that is lawful at its start can later
violate the Fourth Amendment. Illinois v. Caballes, 543 U.S. 405, 407
(2005). A traffic stop is a relatively brief encounter and a seizure for such a
violation justifies a police investigation of that particular violation.
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Rodriguez v. United States, 135 S.Ct. 1609, 1614 (2015). The
permissible duration of a traffic stop is determined by the seizure’s “mission,
[which is to] address the traffic violation that warranted the stop.” Id.Because of this purpose, the stop may not last longer than necessary to
accomplish that purpose. Id. Thus, authority for the seizure ends “when
tasks tied to the traffic infraction are–or reasonably should have been–
completed.” Id. On scene investigation into other crimes detours the traffic
mission. Id. at 1616.
Here, officers lawfully stopped Appellee for a violation of the traffic
laws. N.T., 4/30/2014, at 6, 42. Then, police officers asked him to step out
of his car to discuss a completely different incident (a shooting), which
involved his brother. Nothing in the record indicates Appellee was ever told
of the traffic violation or the true reason he was pulled over. There is no
testimony that officers resolved the traffic violation by issuing a ticket or
summons.6 Instead, the record indicates that the shooting incidence
became the sole or primary focus of the officers’ attention once they
discovered Appellee’s identity and relation to the shooting incident. N.T.,
4/30/2014, at 48. The record is equally clear that the officers neither
observed nor acquired evidence of any illegal activity, except Appellee’s
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6
We acknowledge that Appellee was eventually charged for failing to use his
turn signal; however, there is nothing in the record that shows the officers
on the scene completed the traffic stop and gave him a ticket.
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failure to signal. N.T., 4/30/2014, at 20-21, 44. An unrelated check, such
as investigating another crime, is permissible if it does not extend the time
necessary to complete the traffic stop. Rodriguez, 135 S.Ct. at 1615.
Here, Appellee gave officers his identification information, but it was not
returned to him until after police questioned him about an unrelated
shooting incident. N.T., 4/30/2014, at 16. Even if this questioning lasted
only a short period of time, it extended the traffic stop beyond what is
typical for such a minor offense. Investigating the other crime detoured the
traffic mission and extended the time necessary to complete the stop, thus
making Appellee’s detention unlawful. Rodriguez, 135 S.Ct. at 1616.
Further, Appellee’s nervousness and the police officers’ apparent
hunch that “there was more going on” is not adequate to justify their search
of the trunk or detention of Appellee. Nervousness, even when excessive,
without more than a “hunch,” cannot give rise to a reasonable suspicion of
criminal activity. Commonwealth v. Reppert, 814 A.2d 1196, 1205-1206
(Pa. Super. 2002). The suppression court correctly found “the police
observed a traffic violation and no other illegal activity, so without further
reasonable suspicion or probable cause, [they] were not permitted to
escalate to a custodial detention.” Suppression Court Opinion, 2/13/2015, at
5.
In its second issue, the Commonwealth argues that Appellee gave
lawful consent to search his vehicle. When the underlying encounter is
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found to be unlawful, “the exclusionary rule requires suppression of evidence
obtained” unless the Commonwealth can show a “sufficient break in the
causal chain” between the illegal detention and the seizure of the evidence
to ensure the search is not “an exploitation of the prior illegality” and is
voluntary. Strickler, 757 A.2d at 889.
Here, nothing in the record or the Commonwealth’s brief shows that
there was a sufficient break in the causal chain or that the consent was
voluntary. The facts do not suggest that a reasonable person would have
felt that he was free to leave. Police officers failed to explain the nature or
reason for the stop to Appellee, and then proceeded to question him about
an unrelated shooting incident without resolving the original traffic violation.
Under the circumstances, the Commonwealth failed to show a sufficient
break in the causal chain between the illegal detention and the seizures of
evidence so as to ensure that the consent in this case was both voluntary
and not an exploitation of Appellee’s unlawful detention. Accordingly, the
suppression court did not err in granting the motion to suppress.
Order affirmed.
Judge Dubow joins this memorandum.
Judge Platt concurs in the result.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/18/2016
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