Com. v. Alston, S.

J-A16001-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
STEVEN ALSTON,
Appellee No. 1469 EDA 2013
Appeal from the Order Entered May 1, 2013
in the Court of Common Pleas of Philadelphia County
Criminal Division at No.: CP-51-CR-0015307-2012
BEFORE: LAZARUS, J., OLSON, J., and PLATT, J.*
MEMORANDUM BY PLATT, J.: FILED AUGUST 17, 2015
The Commonwealth appeals from the order of May 1, 2013, which
granted the motion of Appellee, Steven Alston, to suppress. 1 After review,
we are constrained to reverse and remand.
We take the underlying facts and procedural history in this matter
from the May 1, 2013 notes of testimony and our independent review of the
certified record.
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*
Retired Senior Judge assigned to the Superior Court.
1
The Commonwealth may take an appeal of right from an order that does
not end the entire case if it certifies in the notice of appeal that the order will
terminate or substantially handicap the prosecution. See Pa.R.A.P. 311(d);
see also Commonwealth v. Torres, 764 A.2d 532, 536 n.2 (Pa. 2001).
The Commonwealth has included such a certification in this case.
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On December 7, 2012, at approximately 9:50 p.m., Philadelphia Police
Officer Colin Goshert and his partner, Officer Jeff Thompson, were on routine
patrol when they observed Appellee’s vehicle. (See N.T. Suppression
Hearing, 5/01/13, at 4-5; see also Complaint, 12/08/12, at 1). The officers
observed that the vehicle had dark tint on all the windows and the license
plate lacked a registration sticker. (See id. at 5). Officer Goshert activated
the lights and sirens of his marked police vehicle; when Appellee pulled his
car over, both officers moved toward it on foot. (See id.).
Officer Goshert approached the driver’s window and asked Appellee for
his license, registration, certificate of insurance, and registration sticker.
(See id.). Appellee provided all the requested documents and the officers
returned to their police car. (See id. at 6). Officer Goshert then used
various police databases to confirm the validity of Appellee’s documents, the
absence of outstanding warrants, and the status of any permits to carry a
gun. (See id.). Officer Goshert testified that he always checks the gun
license status of drivers as well as outstanding warrants because of safety
concerns. (See id.). The check performed by Officer Goshert showed that
Appellee had a license to carry that had been revoked. (See id.).
The officers reapproached Appellee and Officer Thompson asked him if
he had a weapon. (See id.). Appellee stated that he had a gun in the back
seat. (See id. at 7). Concerned about their safety, the officers asked
Appellee to exit the car and when he did so, Officer Goshert recovered a
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weapon from the back pouch behind the passenger seat. (See id.). The
police arrested Appellee for carrying a firearm without a license and carrying
a firearm in public in the city of Philadelphia.2
On May 1, 2013, the trial court held a hearing on Appellee’s motion to
suppress.3 That same day, the trial court granted the motion. The instant,
timely appeal followed.4
On appeal, the Commonwealth raises the following question for our
review:
Did the [trial] court erroneously suppress the evidence of
[Appellee’s] gun and statement to the police based on the
court’s mistaken belief that officers conducting a lawful nighttime
traffic stop could not properly ask him whether he was armed
without first giving him warnings pursuant to Miranda v.
Arizona, 384 U.S. 436 (1966), even though he was not in
custody or interrogated?
(Commonwealth’s Brief, at 4).
The Commonwealth challenges the trial court’s grant of Appellee’s
motion to suppress. When the Commonwealth appeals from a suppression
order, this Court follows a clearly defined scope and standard of review: we
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2
18 Pa.C.S.A. §§ 6106(a)(1) and 6108, respectively.
3
There is no written motion to suppress in the certified record or listed on
the docket.
4
Although not initially ordered to by the trial court, the Commonwealth filed
a concise statement of errors complained of on appeal. See Pa.R.A.P.
1925(b). On September 23, 2014, the trial court issued an opinion. See
Pa.R.A.P. 1925(a).
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consider only the evidence from the defendant’s witnesses together with the
evidence of the prosecution that, when read in the context of the entire
record, remains uncontradicted. See Commonwealth v. Henry, 943 A.2d
967, 969 (Pa. Super. 2008), appeal denied, 959 A.2d 928 (Pa. 2008). This
Court must first determine whether the record supports the factual findings
of the suppression court and then determine the reasonableness of the
inferences and legal conclusions drawn from those findings. See id. Here,
because our review of the record demonstrates that the inferences and legal
conclusions that the trial court drew were not reasonable or legally correct,
we are constrained to reverse.
On appeal, the Commonwealth argues that “the suppression court
erred by adopting [Appellee’s] theory that police performing a lawful,
nighttime traffic stop could not ask him whether he had a gun without first
giving him Miranda warnings.” (Commonwealth’s Brief, at 11). Initially, we
note that this Court has held that there are three levels of interaction
between citizens and police officers: (1) mere encounter, (2) investigative
detention, and (3) custodial detention. See Commonwealth v. Jones, 874
A.2d 108, 116 (Pa. Super. 2005). Thus, we have stated:
A mere encounter can be any formal or informal
interaction between an officer and a citizen, but will normally be
an inquiry by the officer of a citizen. The hallmark of this
interaction is that it carries no official compulsion to stop or
respond.
In contrast, an investigative detention, by implication,
carries an official compulsion to stop and respond, but the
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detention is temporary, unless it results in the formation of
probable cause for arrest, and does not possess the coercive
conditions consistent with a formal arrest. Since this interaction
has elements of official compulsion it requires reasonable
suspicion of unlawful activity. In further contrast, a custodial
detention occurs when the nature, duration and conditions of an
investigative detention become so coercive as to be, practically
speaking, the functional equivalent of an arrest.
Id. (citation omitted). This Court has also stated that:
The numerous factors used to determine whether a
detention has evolved into an arrest include the cause for the
detention, the detention’s length, the detention’s location,
whether the suspect was transported against his or her will,
whether physical restraints were used, whether the police used
or threatened force, and the character of the investigative
methods used to confirm or dispel the suspicions of the police.
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 of action in any
significant way. Further, an interrogation occurs when the police
should know that their words or actions are reasonably likely to
elicit an incriminating response from the suspect. Miranda
warnings must precede a custodial interrogation.
Commonwealth v. Clinton, 905 A.2d 1026, 1032 (Pa. Super. 2006),
appeal denied, 934 A.2d 71 (Pa. 2007) (internal quotation marks, emphasis,
and citations omitted). It is long-settled that Miranda warnings are only
required for the third-level interaction, custodial interrogation. See
Commonwealth v. Smith, 836 A.2d 5, 18 (Pa. 2003). However, equally
settled law states that a motor vehicle stop is a second-level interaction, an
investigative detention. See Clinton, supra at 1030.
The courts have also plainly held that officer safety is a heightened
concern during traffic stops. The United States Supreme Court has
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emphasized that there is an “inordinate risk confronting an officer as he
approaches a person seated in an automobile. According to one study,
approximately 30% of police shootings occurred when a police officer
approached a suspect seated in an automobile.” Pennsylvania v. Mimms,
434 U.S. 106, 110 (1977) (internal quotation marks and citation omitted).
In a recent decision, the Supreme Court reiterated 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). The danger continues
throughout the stop because “if the suspect is not placed under arrest, he
will be permitted to reenter his automobile and he will then have access to
any weapons inside.” Michigan v. Long, 463 U.S. 1032, 1051-52 (1983)
(citation omitted). Those concerns are even greater when the motor vehicle
stop occurs at night. See In re OJ, 958 A.2d 561, 566 (Pa. Super. 2008),
appeal denied, 989 A.2d 918 (Pa. 2010) (noting that nighttime “creates a
heightened danger that an officer will not be able to view a suspect reaching
for a weapon.”).
Because of these 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), appeal denied, 882 A.2d 1004 (Pa.
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2005) (citations omitted). The police may do so “despite the lack of an
articulable basis to believe that criminal activity if afoot or that the driver is
armed and dangerous.” Commonwealth v. Brown, 654 A.2d 1096, 1100
(Pa. Super. 1995), appeal denied, 664 A.2d 972 (Pa. 1995) (citations
omitted). “[T]he concern for officer safety [is so serious that it] outweighs
the minor intrusion on drivers and passengers whose freedom of
movement has already been curtailed by the traffic stop.” Clinton, supra
at 1030 (citation omitted, emphases in original). Such minimal intrusions on
privacy rights 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).
Further, the courts have held that it is constitutionally permissible for
the police to access databases to search criminal history, warrant status,
and related information during a traffic stop, so long as it does not
unreasonably extend the stop. See Rodriguez, supra at 1615 (so long as
it does not unreasonably extend stop, police officer may conduct “certain
unrelated checks during an otherwise lawful traffic stop.”); Clinton, supra
at 1030 (police may check or secure information they believe necessary to
enforce provisions of Motor Vehicle Code); Commonwealth v. Bolton, 831
A.2d 734, 737 (Pa. Super. 2003) (police officer does not need to have some
level of suspicion prior to running license plate through the NCIC computer).
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In the instant matter, the trial court found that there was “reasonable
suspicion and probable cause” for the initial stop of the motor vehicle. (Trial
Court Opinion, 9/23/14, at 4). However, the trial court then held that the
police completed the stop once they “determined that [Appellee’s] driver’s
license and insurance were current and valid. . . .” (Id.). The trial court
continued that there was “no reasonable basis or cause for the officer to
investigate, search, or inquire as to the [Appellee’s] licensure status for a
firearm.” (Id.). The trial court also found that length of the interrogation
supports a finding of custodial interrogation, as did “the investigative
methods used by the officers[.]” (Id. at 5). The trial court fails to cite to
any legal authority in support of these findings.
To begin with, we find that the trial court’s conclusion that the police
completed the traffic stop once Officer Goshert determined that Appellee’s
license and insurance were current and valid and that, therefore, running the
weapons check created a custodial interrogation, is neither reasonable nor
legally correct. (See Trial Ct. Op., 9/23/14, at 4). While our Supreme Court
has not created a bright line rule as to when an initial valid traffic stops ends
and thus new reasonable suspicion is necessary to support a continued
detention, it has set forth certain factors for us to consider, including:
. . . the existence and nature of any prior seizure;
whether there was a clear and expressed endpoint to any
such prior detention; the character of police presence and
conduct in the encounter under review (for example—the
number of officers, whether they were uniformed, whether police
isolated subjects, physically touched them or directed their
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movements, the content or manner of interrogatories or
statement. . . ); geographic, temporal and environmental
elements associated with the encounter; and the presence or
absence of express advice that the citizen-subject was free to
decline the request for consent to search. In general, a full
examination must be undertaken of all coercive aspects of the
police/citizen interaction.
Commonwealth v. Freeman, 757 A.2d 903, 906-07 (Pa. 2000) (emphasis
added, citation omitted).
In Freeman, supra, our Supreme Court found that a second, unlawful
detention had occurred. See id. at 907-08. It stated that once the police
gave the driver a written warning, returned her license and registration and
told her she was free to leave, the stop had ended. See id. at 905, 907-08.
Therefore, before returning to the vehicle, interrogating the driver, and
obtaining her consent to search the vehicle, the police required new
reasonable suspicion. See id.
In a recent decision, relying on Freeman, this Court held that the
police had subjected the driver to a second, unlawful detention. See
Commonwealth v. Nguyen, --- A.3d ---, 2015 WL 1883050, at **8-9 (Pa.
Super. April 27, 2015). We held that, after the police officer issued a
written warning, told the driver that the traffic stop was complete and he
was free to go, the officer could not reenter his patrol vehicle, return to the
driver, interrogate him and ask his consent to search the car absent
additional reasonable suspicion. See id. **2, 8-9. We specifically stated
that the officer had accomplished the purpose of the lawful detention
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because he had issued a warning and told the driver he was free to go. See
id. at *9.
Here, the trial court failed to undertake the full examination of the
circumstances mandated by the Freeman Court. (See Trial Ct. Op.,
9/23/14, at 4). Our review of the record demonstrates that there had not
been a clear and expressed endpoint of the prior detention at the time
highlighted by the trial court. (See N.T. Suppression Hearing, 5/01/13, at
6). Rather, Appellee was still detained pursuant to the lawful detention
because, at the time Officer Goshert ran the gun license check, he had not
returned Appellee’s documents to him and still had the option of issuing a
warning or citation to him. Thus, the trial court’s holding that the traffic
stop concluded after the police officer ran the driver’s license check, is not
supported by the record. See Freeman, supra at 907-08; Nguyen, supra
at ** 8-9.
Further, the trial court’s holdings that there was “no reasonable basis
or cause for the officer to investigate, search, or inquire as to the
[Appellee’s] licensure status for a firearm[;]” and that the length of the
interrogation supports a finding of custodial interrogation, as did “the
investigative methods used by the officers[;]” cannot stand. (Trial Ct. Op.,
9/23/14, at 4-5). We find this Court’s decision in Clinton, supra to be
instructive.
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In Clinton, the police stopped a vehicle for failing to stop at a stop
sign. See Clinton, supra at 1028. The police parked their unmarked
vehicle, with lights and sirens, behind the defendant, and three police
officers approached the car. See id. One of the officers asked for license
and registration and then asked the defendant if he had a weapon or
anything that the police should know about and the defendant admitted that
he had marijuana. See id. This statement led to the search of the
defendant’s person and car and his subsequent arrest. See id. The trial
court granted the defendant’s motion to suppress concluding that, while the
initial traffic stop was valid, the detective acted in a manner that was
“inherently coercive with the aim of eliciting incriminating evidence without
having advised [the defendant] of his rights against self-incrimination.” Id.
at 1029 (internal quotation marks and record citation omitted). On appeal,
we disagreed.
In so doing, we reiterated that a traffic stop constitutes an
investigative detention, not a custodial interrogation. See id. at 1030. We
held that a question by police regarding the presence of a weapon is
constitutionally permissible, stating that such a question “unquestionably
and completely” falls on the side of officer safety and such a question “is
clearly less intrusive than a request by police to exit the vehicle.” Id. at
1031 (emphasis in original). Further, we specifically found that such a
question “is not of the type that would typically elicit incriminating
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statements.” Id. In holding that the trial court erred in finding that the
conditions were so coercive as to create a custodial interrogation, we stated:
The cause for Appellee’s detention was a traffic stop after
the police observed Appellee commit a traffic violation. The
investigatory traffic stop had not yet concluded when Appellee
made his incriminating statement; indeed, Appellee had not yet
even produced the requested registration and insurance
information. Appellee’s detention had, therefore, been relatively
brief at the time he made his statement. The location of the
detention was in an apartment building parking lot off a public
roadway. Appellee had not been transported against his will at
the time he made his incriminating statement. Appellee had not
been physically restrained. The police did not threaten force.
Finally, Detective Love’s question was not threatening,
demanding, onerous, devious, or characterized by trickery. The
question was plain, even-tempered, and to the point. Moreover,
as we determined above, Detective Love’s question was not one
reasonably likely to elicit an incriminating response from
Appellee, and thus the question did not constitute an
interrogation at all. Even though Appellee’s vehicle was blocked
by a police car, there was no reason to conclude that Appellee
could not have simply walked away or asked the police to move
their vehicle at the conclusion of the investigatory stop had
Appellee not volunteered his incriminating statement. Finally, it
cannot be denied that the restrictive nature of Appellee’s
encounter with the police paled in comparison to the restrictive
nature of the encounter between the pedestrian and police
officer that our Supreme Court determined was not a custodial
detention in [Commonwealth v.] Pakacki, [901 A.2d 983, 988
(Pa. 2004)].[5]
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5
In Pakacki, a police officer stopped a pedestrian who resembled the
description of the suspect in a shooting; asked him if he had any weapons,
drugs, or needles; told him that for officer safety reasons he would perform
a pat down, and asked the defendant several questions about the shooting.
See Pakacki, supra at 985. During the frisk, the police officer smelled
marijuana and felt what he believed to be a marijuana pipe. See id. When
questioned, the defendant admitted that it was a marijuana pipe. See id.
Our Supreme Court held that the defendant was not in custody and the
(Footnote Continued Next Page)
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Id. at 1033 (emphasis omitted).
We see little meaningful distinction between the facts in Clinton and
those in the instant matter. While Officer Goshert ran a check for a gun
license in the instant matter, which did not occur in Clinton, as discussed
above, database checks are constitutionally permissible so long as they do
not unreasonably extend the time of the stop. See Rodriguez, supra at
1615.
Here, although the trial court held that the detention was unduly
lengthy, it fails to cite to anything in the record to support this factual
finding. (See Trial Ct. Op., at 5). Our review of the record demonstrates
that there was no testimony at all about the length of the detention. (See
N.T. Suppression Hearing, 5/01/13, at 4-12). Thus, because the record
does not support the trial court’s factual finding about the length of the
detention, we are not bound by it. See Henry, supra at 969.
Moreover, given the inherent dangers of a nighttime traffic stop, a
check to see if the driver has a permit to own a weapon appears to be
precisely the type of de minimis invasion of privacy, one that is far less
intrusive than asking a driver to exit the vehicle, which the courts have
_______________________
(Footnote Continued)
officer was not required to give Miranda warnings prior to questioning him
about the object in his pocket. See id. at 988.
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previously allowed. See Rodriguez, supra at 1614-16; Campbell, supra
at 663, Clinton, supra at 1030.
Further, as in Clinton, the traffic stop had not concluded when
Appellee made the statement that he possessed a weapon. The location of
the detention was a public street in the city of Philadelphia. Appellee had
not been transported against his will at the time he made the statement. He
had not been physical restrained. The police had not even asked him to exit
his vehicle. The police did not threaten force. Officer Thompson’s question
was not threatening or in any manner devious. There is no indication that
Officer Thompson raised his voice or acted in an intimidating manner.
Additionally, as we stated in Clinton, a question about whether
Appellee possessed a weapon “was not one reasonably likely to elicit an
incriminating response from Appellee, and thus . . . did not constitute an
interrogation[.]” Clinton, supra at 1033 (emphasis omitted). While the
police parked their vehicle behind Appellee’s car, there is nothing in the
record to support a conclusion that police would not have permitted him to
leave had he not stated that he possessed a weapon. (See N.T.
Suppression Hearing, 5/01/13, at 5-7). Thus, the trial court’s conclusion
that the police subjected Appellee to a custodial interrogation requiring the
administration of the Miranda warnings is neither reasonable nor legally
correct. See Packacki, supra at 988; Clinton, supra at 1033.
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Accordingly, we are constrained to reverse the grant of suppression and
remand the matter for further proceedings consistent with this decision.
Order reversed. Case remanded. Jurisdiction relinquished.
Judge Olson files a Concurring Statement.
Judge Lazarus files a Dissenting Memorandum.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/17/2015
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