Com. v. Romero-Diaz, J.

J-S56030-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
JORGE DANIEL ROMERO-DIAZ
Appellant No. 220 MDA 2014
Appeal from the Judgment of Sentence of January 3, 2014
In the Court of Common Pleas of Berks County
Criminal Division at No.: CP-06-CR-0000763-2013
BEFORE: PANELLA, J., WECHT, J., and PLATT, J.*
MEMORANDUM BY WECHT, J.: FILED NOVEMBER 20, 2014
Jorge Daniel Romero-Diaz appeals from the judgment of sentence
entered on January 3, 2014, following a stipulated bench trial after which he
was convicted of driving under the influence (“DUI”)—highest rate, driving
while operating privilege is suspended or revoked (“DUS”), and accidents
involving damage to unattended vehicles or property.1 Specifically, Romero-
Diaz challenges the denial of his pretrial motion to suppress. After careful
review, we reverse the order denying Romero-Diaz’s motion to suppress his
confession, we vacate his judgment of sentence, and we remand for further
proceedings consistent with this memorandum.
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
1
75 Pa.C.S.A. §§ 3802(c), 1542(a), and 3745(a), respectively.
J-S56030-14
The trial court set forth the following statement of facts in its April 14,
2014 opinion:
On October 7th, 2012, Trooper[s] Michael Schatzmann and
Jason Hope [were] dispatched to a vehicle crash in the area of
2394 E. Main St[.], Union Township, Berks County. While [en]
route to the crash, Trooper Schatzmann observed [Romero-Diaz]
lying on the south side of the roadway on an embankment
approximately one mile west of the crash scene.
The Troopers pulled over to investigate the situation. As they
approached [Romero-Diaz], they saw another individual (later
identified as the passenger) also lying alongside of the roadway.
The passenger immediately stated “that [Romero-Diaz] was
operating the vehicle and they were just trying to made it back
to his residence in Birdsboro, Pa.” At this point Trooper
Schatzmann testified that he smelled a very strong odor of an
alcoholic beverage emanating from [Romero-Diaz’s] person. He
also observed [Romero-Diaz’s] eyes to be bloodshot and glassy.
Trooper Schatzmann proceeded to ask [Romero-Diaz] if he had
consumed any alcoholic beverages. [Romero-Diaz] admitted
that he drank “3 or 4 beers[.”] [Romero-Diaz] also stated that
“he did not consume any alcoholic beverages since the time of
the crash.” The Troopers testified they patted down both
individuals to make sure they were not armed and dangerous. A
set of car keys was found on [Romero-Diaz]. [Romero-Diaz] and
[the] passenger were handcuffed (detained for safety) and
transported to the scene of the crash. Upon arrival [Romero-
Diaz]’s handcuffs were removed to continue the investigation.
At this time [Romero-Diaz] started to cry. Trooper Hope
approached [Romero-Diaz] again and asked him if he was
operating the vehicle. [Romero-Diaz] answered “yes.”
At this point, [Romero-Diaz] said that his driver’s license was
suspended and that the vehicle was a rental belonging to the
passenger. [Romero-Diaz’s] footing was unstable and he
swayed side to side. [Romero-Diaz] had difficulty keeping his
eyes open and answering questions. Trooper Schatzmann asked
[Romero-Diaz] to perform a field sobriety test. [Romero-Diaz]
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complied with a HGN[2] and failed the test given. Due to the
dangerous location on the roadway, no further field sobriety
tests were administered. [Romero-Diaz] was placed under
arrest for DUI and transported to St. Joseph’s Hospital for
chemical testing. [Romero-Diaz] agreed to the blood test at
approximately 6:30 a.m. [His] BAC results were .202%.
Trial Court Opinion (“T.C.O.”), 4/14/2014, at 3-4.
The Commonwealth filed a criminal information on October 7, 2012,
and Romero-Diaz filed a motion to suppress and a petition for writ of habeas
corpus. On May 22, 2013, the trial court held a hearing on the pretrial
motions, and ultimately denied them on August 28, 2013. On January 3,
2014, the court held a stipulated bench trial after which the court found
Romero-Diaz guilty of the abovementioned counts and sentenced him to
county confinement of not less than seventy-two hours nor more than six
months, plus costs and fines. Romero-Diaz filed a notice of appeal on the
same day. On March 5, 2014, the court ordered Romero-Diaz to file a
concise statement of errors complained of on appeal pursuant to Pa.R.A.P.
1925(b), and he timely complied on March 26, 2014. On April 14, 2014, the
trial court entered its opinion pursuant to Pa.R.A.P. 1925(a).
Romero-Diaz raises the following issues for our review:
1. Whether the [c]ourt erred in denying [Romero-Diaz’s]
suppression motion in that:
____________________________________________
2
To perform a horizontal gaze nystagmus (“HGN”) test, an officer asks
the driver to follow a penlight with his eyes, and observes the angle at which
the eye twitches.
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a. The Troopers lacked the requisite reasonable
suspicion and/ or probable cause because the facts known
to the Troopers when ordering [Romero-Diaz] to come
down from the hill on the side of the road did not rise to
the requisite level of reasonable suspicion that criminal
activity was afoot or probable cause that a crime was
occurring or had occurred in violation of [Romero-Diaz’s]
right under Article I Section 8 of the Constitution of the
Commonwealth of Pennsylvania and the Fourth and
Fourteenth Amendments to the Constitution of the United
States.
b. The searching Trooper lacked reasonable
suspicion that [Romero-Diaz] was armed and dangerous to
conduct a protective pat-down of [Romero-Diaz’s] person
in violation of [his] rights under Article I Section 8 of the
Constitution of the Commonwealth of Pennsylvania and the
Fourth and Fourteenth Amendments to the Constitution of
the United States, and any evidence obtained from the
illegal pat-down must be suppressed as fruits of an illegal
search, specifically the keys recovered from [Romero-
Diaz’s] person as it was not readily apparent the keys were
a dangerous weapon nor is it criminal to possess keys.
c. The detention of [Romero-Diaz] after the initial
stop was not supported by the requisite probable cause, as
the Troopers’ actions of handcuffing [Romero-Diaz],
placing [Romero-Diaz] in the back of the marked police
car, and transporting [Romero-Diaz] to the scene of the
accident, effectively arose to the level of an arrest, and
this arrest was not supported by probable cause in
violation of [Romero-Diaz’s] right under Article I Section 8
of the Commonwealth of Pennsylvania and the Fourth and
Fourteenth Amendments to the Constitution of the United
States.
d. The Troopers failed to apprise [Romero-Diaz] of
his rights against self[-]incrimination pursuant to
Miranda[3] as the interrogation of [Romero-Diaz] in front
of the police car followed the handcuffing of [Romero-
____________________________________________
3
Miranda v. Arizona, 384 U.S. 436 (1966).
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Diaz], placing [Romero-Diaz] in the back of the marked
police car and transporting [Romero-Diaz] to the scene of
the crash, subjecting [Romero-Diaz] to a custodial
interrogation, as no Miranda warnings were given any
statements made by [Romero-Diaz] stemming from this
questioning must be suppressed.
Romero-Diaz’s Brief at 6-7.
Our standard of review in addressing a challenge to the denial of
a suppression motion is limited to determining whether the
suppression court’s factual findings are supported by the record
and whether the legal conclusions drawn from those facts are
correct. Because the Commonwealth prevailed before the
suppression court, we may consider only the evidence of the
Commonwealth 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 suppression court’s factual findings are
supported by the record, we are bound by these 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 our plenary review.
Commonwealth v. Thompson, 93 A.3d 478, 484 (Pa. Super. 2014)
(citations omitted).
In his first issue, Romero-Diaz contends that “[t]he Trooper’s
investigative detention . . . was not supported by reasonable suspicion.”
Romero-Diaz’s Brief at 16. Specifically, he argues that “at the time the
Troopers came upon Romero-Diaz there [were] no facts connecting him in
any way to the vehicle crash” to which the Troopers had been dispatched,
and there were no “specific or articulable facts” from which they could
reasonably suspect that criminal activity was afoot. Id. at 19. We disagree.
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[I]n assessing the lawfulness of citizen/police encounters, a
central, threshold issue is whether or not the citizen-subject has
been seized. Instances of police questioning involving no seizure
or detentive aspect (mere or consensual encounters) need not
be supported by any level of suspicion in order to maintain
validity.[1] Valid citizen/police interactions which constitute
seizures generally fall within two categories, distinguished
according to the degree of restraint upon a citizen’s liberty: the
investigative detention or Terry[4] stop, 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 or arrest, the more restrictive form of
permissible encounters. To maintain constitutional validity, an
investigative detention must be supported by a reasonable and
articulable suspicion that the person seized is engaged in
criminal activity and may continue only so long as is necessary
to confirm or dispel such suspicion; whereas, a custodial
detention is legal only if based on probable cause. To guide the
crucial inquiry as to whether or not a seizure has been effected,
the United States Supreme Court has devised an objective test
entailing a determination of whether, in view of all surrounding
circumstances, a reasonable person would have believed that he
was free to leave. In evaluating the circumstances, the focus is
directed toward whether, by means of physical force or show of
authority, the citizen-subject’s movement has in some way been
restrained. In making this determination, courts must apply the
totality-of-the-circumstances approach, with no single factor
dictating the ultimate conclusion as to whether a seizure has
occurred.
[1]
See generally Florida v. Bostick, 501 U.S. 429, 434-
35 (1991) (explaining that, even when the officers have no
basis for suspecting criminal involvement, they may
generally ask questions of an individual “so long as the
police do not convey a message that compliance with their
request is required”); Immigration and Naturalization
Serv. v. Delgado, 466 U.S. 210, 216-17 (1984); [Florida
v.] Royer, 460 U.S. [491,] 497-98 [(1983)] (“if there is
no detention—no seizure within the meaning of the Fourth
____________________________________________
4
Terry v. Ohio, 392 U.S. 1 (1968).
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Amendment—then no constitutional rights have been
infringed”); Commonwealth v. Ellis, 662 A.2d 1043,
1047 (1995).
Commonwealth v. Strickler, 757 A.2d 884, 889-90 (Pa. 2000) (some
citations and footnotes omitted; some citations modified). In the instant
case, the record supports the trial court’s conclusion that Romero-Diaz and
his passenger were subject to an investigative detention.
Here, Trooper Schatzmann testified at the pretrial hearing that he and
Trooper Hope received a call from dispatch at approximately 4:30 a.m. on
October 7, 2012, that there had been a crash and the vehicle had been
abandoned. About a mile from the scene, they saw Romero-Diaz and his
passenger lying in the brush near the road.
Q. Okay. So at this point when you received a call from
dispatch, you weren’t sure when the accident happened, you just
know there was a 9-1-1 call of an accident and you were
responding to that 9-1-1 call?
A. If I recall correctly, a 9-1-1 call was made in a vehicle
accident happened, it wasn’t hours ago, it was just within the
last five minutes. She called in, they heard a crash, they saw a
vehicle, didn’t see anybody around the vehicle.
Q. Okay.
A. While we were approaching the vehicle, we had our eyes
peeled for anyone that may be walking or involved.
N.T. at 36.
Trooper Schatzmann and Trooper Hope saw someone lying on an
embankment on the side of the road, later determined to be Romero-Diaz,
who stood when they stopped their patrol car. Id. at 48-49. The Troopers
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then saw a second man, the passenger, further up the embankment, and
instructed him to come down to where they were standing. Id. at 49. As
the second man approached the Troopers, he insisted, without being
prompted, that he had not been driving and that Romero-Diaz was the
driver. Trooper Hope observed at that time that Romero-Diaz appeared
“[h]ighly intoxicated, [with a] strong odor of alcoholic beverage emanating
about his person. His speech was slurred. [His e]yes were blood shot. He
had a hard time keeping his eyes open.” Id. at 50.
Accordingly, at the time the Troopers asked Romero-Diaz and his
passenger to come down from the embankment, they knew that there had
been an accident with an abandoned vehicle, they had discovered two men,
one visibly intoxicated, lying on the side of the road near the accident site,
and it was 4:30 in the morning. Thus, the record supports the suppression
court’s findings when it held as follows:
For safety reasons, the Troopers did have specific and articulable
facts along with rational inferences to follow the next step for a
Terry pat down. 1) They received a dispatch call for an
investigation in that area. 2) They saw two men lying on the
side of the road close to the crash scene. 3) Information from
one of the men about operating a vehicle. 4) Strong signs that
[Romero-Diaz] was under the influence of alcohol. 5) And it was
dark outside at approximately 4:30 a.m.
Findings of Fact at 6. The investigative detention of Romero-Diaz and his
passenger was supported by a reasonable and articulable suspicion that
criminal activity was afoot, and thus, Romero-Diaz’s first issue does not
merit relief. Strickler, 757 A.2d at 889-90.
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Second, Romero-Diaz contends that “[t]he troopers had no reasonable
suspicion to believe that Romero-Diaz was armed and dangerous; therefore,
the Terry search of Romero-Diaz was illegal and all physical evidence seized
as a result of the search must be suppressed.” Romero-Diaz’s Brief at 19.
Specifically, he argues that the Commonwealth failed to carry its burden of
proof to support the warrantless search and seizure of Romero-Diaz’s keys
because the Troopers “were not in a lawful position to detect the presence of
contraband” through the plain feel doctrine, and because keys are not
contraband. Id. at 21. We disagree.
To conduct a pat down for weapons, a limited search or “frisk” of
the suspect, the officer must reasonably believe that his safety
or the safety of others is threatened. If either the seizure (the
initial stop) or the search (the frisk) is found to be unreasonable,
the remedy is to exclude all evidence derived from the illegal
government activity.
The Terry totality of the circumstances test applies to traffic
stops or roadside encounters in the same way that it applies to
typical police encounters. . . . Indeed, as we have observed,
roadside encounters, between police and suspects are especially
hazardous, and that danger may arise from the possible
presence of weapons in the area surrounding a suspect.
Commonwealth v. Simmons, 17 A.3d 399, 403 (Pa. Super. 2011)
(citations omitted).
Since the sole justification for a Terry search is the protection of
the police and others nearby, such a protective search must be
strictly limited to that which is necessary for the discovery of
weapons which might be used to harm the officer or others
nearby. Thus, the purpose of this limited search is not to
discover evidence, but to allow the officer to pursue his
investigation without fear of violence. If the protective search
goes beyond what is necessary to determine if the suspect is
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armed, it is no longer valid under Terry and its fruits will be
suppressed.
Commonwealth v. Guillespie, 745 A.2d 654, 657-58 (Pa. Super. 2000);
see also Commonwealth v. Rehmeyer, 502 A.2d 1332, 1335 (Pa. Super.
1985) (“[If] probable cause to arrest exists, but the officer does not
effectuate the arrest, the officer may nevertheless conduct a protective pat-
down search when he decides to transport the individual in the patrol car.”).
Here, Trooper Schatzmann stated that “[a]t the first time we detained
[Romero-Diaz and the passenger] we explained to them they are not under
arrest, they were being detained for our safety and transported to the crash
scene.” Id. at 19, 51. As the Trooper observed, “[i]t was dark, there’s no
street lights in that location. . . . So we weren’t sure if they were armed or
anything like that.” Id. at 11; see id. at 14 (describing the embankment as
“a very vulnerable section of that road which is a bad road to begin with”).
Likewise, Trooper Hope observed Romero-Diaz’s visible intoxication and
determined that:
[W]e needed to get to the crash scene to further [the]
investigation. So with protocol we handcuffed both individuals,
told them they were not under arrest but needed to go back to
the crash scene. At that point we patted them both down.
[Romero-Diaz] had keys to a vehicle in the back I believe it was
right pocket. Put them in the patrol vehicle and we resumed to
where the crash was.
Q. And who recovered those keys?
A. I did.
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N.T. at 51. Trooper Hope further explained that their marked vehicle was
open and did not have a cage separating the backseat. Id. at 60.
For their own safety, the Troopers were entitled to perform a limited
frisk for weapons before securing Romero-Diaz and his passenger in their
vehicle for transport. Thus, the Troopers had lawful access to pursue a plain
feel patdown of Romero-Diaz, at which point Trooper Hope felt a “bulge” that
was revealed to be his keys. The Troopers’ search ended at that point, and
was “strictly limited to that which is necessary for the discovery of weapons
which might be used to harm the officer or others nearby.” Guillespie, 745
A.2d at 657-58. Therefore, the record supports the trial court’s conclusion
that, in the totality of the circumstances, “[t]he keys found [are] not fruits of
an illegal search and should not be suppressed.” T.C.O. at 8.
Furthermore, Romero-Diaz claims that “once Trooper Hope realized
the object was keys he would have to further investigate to identify these
keys as capable of operating the vehicle involved in the crash.” Romero-
Diaz’s Brief at 22. However, this is speculation that is unsupported by the
record. Neither Trooper stated that Romero-Diaz’s keys were used to
further the investigation in any way. See N.T. at 54-56 (describing events
at accident scene, which included Romero-Diaz’s confession, failed HGN test,
and arrest, and the Troopers calling a tow truck). In fact, Romero-Diaz’s
own counsel solicited the information about his keys; the Commonwealth did
not contend that they were contraband or that they led to the discovery of
any evidence. Id. at 51-52.
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We find the circumstances of Romero-Diaz’s claim substantially similar
to those in Commonwealth v. Toro, 638 A.2d 991, 1002 (Pa. Super.
1994):
Appellant contends that the keys should have been suppressed
because the police lacked the requisite probable cause to arrest
appellant. We are somewhat perplexed by appellant’s argument.
A review of the record demonstrates that the Commonwealth
never introduced into evidence the keys taken from appellant.
Because the keys were not used at trial the evidence was, in
effect, suppressed by the Commonwealth. See
Commonwealth v. Baker, 531 Pa. at 552, 614 A.2d at 668
(omission of evidence by the Commonwealth is the equivalent of
suppression).
Commonwealth v. Toro, 638 A.2d 991, 1002 (Pa. Super. 1994) (footnote
omitted); see also Commonwealth v. Ellis, 608 A.2d 1090, 1092 (Pa.
Super. 1992) (“[T]he primary purpose of the exclusionary rule is to deter
unlawful police conduct.”).
Here, the Commonwealth made no claim that the keys found on
Romero-Diaz belonged to the vehicle abandoned at the scene of the
accident. In addition, as previously stated, the Troopers were entitled to
take security measures to remove objects from Romero-Diaz that could
potentially be used as a weapon while he was placed in their open police
vehicle for transportation purposes. Guillespie, 745 A.2d at 657-58.
Moreover, suppression of the keys would not have affected the case because
no evidence was derived from their seizure. See Simmons, 17 A.3d at
403; Ellis, 608 A.2d at 1092. Thus, Romero-Diaz’s second issue does not
merit relief.
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Third, Romero-Diaz claims that “[t]he Troopers’ detention of Romero-
Diaz was overly coercive such that it constituted an illegal arrest that was
not supported by probable cause.” Romero-Diaz’s Brief at 23. Specifically,
he contends that no exigent circumstances were present which would justify
his transportation to the accident scene, and thus his investigative detention
rose to the level of an illegal arrest. Id. at 26-27. We disagree.
Police detentions become custodial, therefore requiring probable
cause, when, under the totality of the circumstances, the
detention becomes coercive to the extent it functions as an
arrest.
The factors to be used to determine whether the detention has
become an arrest are[:]
The basis for the detention; its length; its location;
whether the suspect was transported against his or her
will, how far, and why; whether restraints were used;
whether the law enforcement officer showed, threatened
or used force; and the investigative methods employed to
confirm or dispel suspicions.
Commonwealth v. Revere, 814 A.2d 197, 200 (Pa. Super. 2002) (citations
omitted); see also Commonwealth v. Douglass, 539 A.2d 412, 421 (Pa.
Super. 1988) (citing cases).
In Lovette, our Supreme Court held that placing defendant and
his companions in a police vehicle and transporting them to the
scene of an offense, without their consent and without exigent
circumstances, constituted an illegal arrest without probable
cause and that evidence gained as a result of the arrest must be
suppressed notwithstanding the Commonwealth’s contention
that the seizure was intended to serve investigative purposes
rather than to arrest and charge the suspect.
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Commonwealth v. White, 516 A.2d 1211, 1214 (Pa. Super. 1986) (citing
Commonwealth v. Lovette, 450 A.2d 975, 980 (Pa. 1982) (finding no
exigent circumstances where “[t]he police had the option of detaining the
suspects at the site of the initial encounter and either bringing the
complainant to the site for his identification of the questioned articles or
taking those items to him.”)). However, “when such an action is justified,
placing a suspect into a police vehicle in order to transport him to the scene
is not an arrest and need not be supported by probable cause. Indeed, what
Lovette stresses is that any intrusion upon a person’s liberty must be
justified.” Revere, 814 A.2d at 200.
Here, at the suppression hearing, the Troopers testified that they
believed it was too dangerous to remain at the location where they found
Romero-Diaz and his passenger because they were “at a very vulnerable
section of that road which is a bad road to begin with, no street lights.” N.T.
at 14; see id. at 11. As previously discussed, due to Romero-Diaz’s
appearance of intoxication, his passenger’s protests that Romero-Diaz had
been driving, the close proximity of Romero-Diaz and the passenger to the
crash scene, and the late hour, the Troopers had reasonable suspicion to
believe that criminal activity was afoot for purposes of conducting a Terry
investigative detention. Id. at 52. Although Romero-Diaz and his
passenger were visibly intoxicated, there is no allegation that the Troopers
used force when patting down and handcuffing them for the Troopers’ safety
while transporting them for “[m]aybe a minute” to the scene of the crash.
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Id. Furthermore, upon arrival at the crash scene, the Troopers removed
Romero-Diaz from their vehicle and removed his handcuffs, telling him that
he was not under arrest while they continued their investigation by speaking
to the homeowners who reported the crash and gathering information from
the vehicle. Id. at 53-54.
We conclude, based upon the totality of the circumstances, that the
Troopers were justified in transporting Romero-Diaz and his passenger the
short distance to the crash site, and that this transportation did not rise to
the level of an arrest. See Revere, 814 A.2d at 200. Unlike in Lovette,
supra, the Troopers did not have the option of detaining Romero-Diaz and
his passenger on the embankment because it was unsafe and there were no
other troopers dispatched to the scene, and the Troopers determined that
they were unable to continue their investigation without proceeding to the
crash site. See Lovette, 450 A.2d at 980. Thus, exigent circumstances
existed that justified the transportation of Romero-Diaz and his passenger,
which the Troopers executed in a minimally-invasive manner. See White,
516 A.2d at 1214. Accordingly, the record supports the trial court’s denial of
suppression on this ground. Thompson, 93 A.3d at 484. Romero-Diaz’s
third issue does not merit relief.
We now turn to the admissibility of Romero-Diaz’s confession made to
the Troopers at the scene of the accident. In his fourth issue, Romero-Diaz
argues that he “was in custody for the purposes of Miranda; therefore, his
statements were illegally procured and must be suppressed.” Romero-Diaz’s
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Brief at 29. He asserts that, in the totality of the circumstances, he was
“badgered and coerced” into confessing, and had a clear right to have been
presented with his Miranda rights or have his statements suppressed. Id.
at 31. We agree that Romero-Diaz’s Miranda rights should have been
administered prior to questioning him.
Statements made during custodial interrogation are
presumptively involuntary, unless the accused is first advised of
[his] Miranda rights. Custodial interrogation is questioning
initiated by law enforcement officers after a person has been
taken into custody or otherwise deprived of [his] freedom of
action in any significant way. [T]he Miranda safeguards come
into play whenever a person in custody is subjected to either
express questioning or its functional equivalent. Thus,
[i]nterrogation occurs where the police should know that their
words or actions are reasonably likely to elicit an incriminating
response from the suspect. [I]n evaluating whether Miranda
warnings were necessary, a court must consider the totality of
the circumstances. In conducting the inquiry, we must also keep
in mind that not every statement made by an individual during a
police encounter amounts to an interrogation. Volunteered or
spontaneous utterances by an individual are admissible even
without Miranda warnings.
Whether a person is in custody for Miranda purposes
depends on whether the person is physically denied of
[his] freedom of action in any significant way or is placed
in a situation in which [he] reasonably believes that [his]
freedom of action or movement is restricted by the
interrogation. Moreover, the test for custodial
interrogation does not depend upon the subjective intent
of the law enforcement officer interrogator. Rather, the
test focuses on whether the individual being interrogated
reasonably believes [his] freedom of action is being
restricted.
Said another way, police detentions become custodial
when, under the totality of the circumstances, the
conditions and/or duration of the detention become so
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coercive as to constitute the functional equivalent of
arrest.
Thus, the ultimate inquiry for determining whether an individual
is in custody for Miranda purposes is whether there [was] a
formal arrest or restraint on freedom of movement of the degree
associated with a formal arrest.
Commonwealth v. Williams, 941 A.2d 14, 30-31 (Pa. Super. 2008)
(citations omitted); compare Commonwealth v. Gonzalez, 546 A.2d 26(Pa. 1988) (holding that officer was permitted to ask “what happened” at the
scene of a fatal car accident where driver was exhibiting indicia of
intoxication), with Commonwealth v. Meyer, 412 A.2d 517, 518 (Pa.
1980) (holding that appellant placed in police vehicle for thirty minutes
before questioning was subject to custodial detention).
Romero-Diaz objects to the admission of his confession, made at the
scene of the accident, that he had been driving the abandoned vehicle.
Romero-Diaz’s Brief at 31. As previously discussed, Romero-Diaz was
subjected to an investigative detention when the Troopers transported him
to the scene. At the suppression hearing, Trooper Hope testified:
Q. When you get to the crash scene what occurs; what did
you do first?
A. Took [Romero-Diaz] out of the vehicle. We separated both
of them, we kept the passenger inside the vehicle. We took the
handcuffs off [Romero-Diaz] because we told him he wasn’t
under arrest. Then we continued our investigation from there.
Q. What specifically did you do in that investigation; what are
you investigating?
A. Well, we were investigating the crash, who was operating
the vehicle, trying to determine whether there’s witnesses at the
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crash scene, make sure the safety of the crash scene, make sure
the vehicle was not blocking anything, if we needed fire/EMS.
Q. And what specifically did you do when you get to that
scene; this is 2394 East Main Street in Union Township?
A. I proceeded and the majority of what I did, I gathered
information from the vehicle. Initially when I got there I
approached the property owners and I spoke with them.
Q. And when you go to speak to them where is [Romero-
Diaz], if you are aware?
A. From what I remember I think he is in front of our patrol
car[.]
Q. Outside of the patrol car?
A. Yes.
Q. And is he with anybody?
A. Trooper Schatzmann.
Q. And after speaking—how long are you with the—do you
know the people—what the homeowner’s names were?
A. No, I don’t.
Q. When—how long were you speaking with them for?
A. Maybe a minute or two, two minutes.
Q. And after speaking with them what did you do?
A. I came back over to [Romero-Diaz] and I told them I just
spoke with the homeowners who called the crash in. I said now
is the time to be honest with me.
Q. And when you approached [Romero-Diaz], is Trooper
Schatzmann still there?
A. Yes, I believe he was standing in close proximity. Yes.
Q. And is that the front of the patrol car?
A. Like I said, I believe it was right in the front.
Q. And how did [Romero-Diaz] respond?
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A. He put his head down and said yes, I was driving.
N.T. at 53-55. Trooper Schatzmann testified that he and Romero-Diaz stood
at the front of the patrol vehicle for a “[f]ew minutes.” Id. at 33. He asked
Romero-Diaz some questions but his response was “very minimal” and “[h]e
was kind of bobbing his head.” Id. at 33-34. Once Trooper Hope joined
them and Romero-Diaz admitted that he had been driving, Trooper
Schatzmann administered the HGN test, which Romero-Diaz failed, and
placed him under arrest for DUI. Id. at 34, 36.
Considering the totality of the circumstances, the Troopers’ basis for
detaining Romero-Diaz prior to issuing Miranda warnings was to investigate
the accident. The Troopers’ inquiries took place in public view at the scene
of the accident.
Although the Troopers restrained Romero-Diaz only for the duration of
the drive to the scene, and immediately removed him from their vehicle and
removed his handcuffs, they both stood with him at the front of the police
vehicle. They did not threaten or draw their weapons, or otherwise engage
in a show of force. However, Trooper Hope explicitly stated to Romero-Diaz,
“[N]ow is the time to be honest with me.” N.T. at 54. The Troopers never
indicated to Romero-Diaz that he was free to leave, and his passenger
remained handcuffed in the backseat of the police vehicle while they
questioned Romero-Diaz.
Under these circumstances, we conclude that Trooper Hope’s
statement was “reasonably likely to elicit an incriminating response from the
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suspect” and that Romero-Diaz’s detention was sufficiently coercive at this
point to constitute the functional equivalent of arrest. Williams, 941 A.2d
at 33. Thus, he was in custody for purposes of Miranda when he admitted
he was the driver of the vehicle. For failure to administer Miranda warnings
in a custodial setting before eliciting Romero-Diaz’s confession, it must be
suppressed. Thompson, 93 A.3d at 484.
“Because a confession is the most damning of all evidence, we cannot
say that we are convinced beyond a reasonable doubt that the error did not
affect the judgment.” Commonwealth v. Bullard, 350 A.2d 797, 801 (Pa.
1976). Accordingly, we must vacate the judgment of sentence and remand
for additional proceedings consistent with this memorandum.
Judgment of sentence vacated. Order denying Romero-Diaz’s motion
to suppress his confession reversed. Case remanded for additional
proceedings. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/20/2014
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