Com. v. Keys, M., Jr.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
MICHAEL SEAN KEYS, JR., :
:
Appellant : No. 731 MDA 2014
Appeal from the Judgment of Sentence Entered April 24, 2014
In the Court of Common Pleas of York County
Criminal Division No(s).: CP-67-CR-0007095-2013
BEFORE: FORD ELLIOTT, P.J.E., PANELLA, and FITZGERALD,* JJ.
DISSENTING MEMORANDUM BY FITZGERALD, J.: FILED MARCH 27, 2015
I respectfully dissent. I agree with the majority that the trial court
properly found the officer had probable cause to initiate the vehicle stop. I
respectfully disagree, however, that Appellant has waived a challenge to the
officer’s demand for his identification and inquiry for criminal information
using his name.
Because counsel has filed an Anders petition to withdraw, this Court is
tasked with conducting “our own review of the proceedings and mak[ing] an
independent judgment to decide whether the appeal is, in fact, wholly
frivolous.” See Commonwealth v. Washington, 63 A.3d 797, 800 (Pa.
Super. 2013).
*
Former Justice specially assigned to the Superior Court.
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In Commonwealth v. Campbell, 862 A.2d 659 (Pa. Super. 2004),
this Court held “that the officer did not unreasonably intrude on a protected
privacy right of a passenger in a vehicle lawfully stopped when he asked [the
defendant/passenger] to identify himself.” Id. at 665. However, I discern a
further question that has arisen in this case—whether an officer must have
reasonable suspicion or probable cause to then search a police or criminal
database with the passenger’s name.
In Campbell, the officer asked the defendant/passenger for his name
and date of birth. Id. at 661. “When asked whether he recognized” the
defendant’s name, the officer “responded, ‘I thought there might be
warrants for [him]. I checked [him] for warrants.’” Id. “This statement by
[the officer] was not challenged on cross-examination.” Id. “Upon
checking, [the officer] discovered that there was an outstanding warrant for
[the defendant’s] arrest.” Id. The demand for the defendant’s identification
was upheld by this Court. Id. at 665.
In Commonwealth v. Durr, 32 A.3d 781 (Pa. Super. 2011), the
officer attempted to identify the defendant/passenger, consistent with police
department policy “to identify everyone that is in a vehicle during a traffic
stop.” Id. at 783. The defendant gave the name of ‘James Durr,’ which was
a known alias for [him. The officer] received further information regarding a
description of [the d]efendant’s tattoos, which matched [the d]efendant’s
appearance.” Id. The officer discovered an outstanding warrant for the
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defendant and arrested him. Id. On appeal, this Court relied on Campbell
and concluded the officer “did not violate [the d]efendant’s Fourth
Amendment rights by requesting that he identify himself.” Id. at 784.
In Commonwealth v. Reed, 19 A.3d 1163 (Pa. Super. 2011), the
officer found the driver of the vehicle had an outstanding arrest warrant and
arrested her. Id. at 1164. “[T]he police dispatcher told [the officer] that
the vehicle belonged to a man in” another county, and the officer asked the
defendant/passenger whether he was the owner of the vehicle. Id. The
defendant gave a fictitious name and date of birth. Id. “There was no
police record found regarding that information. When confronted, [the
defendant] provided his real name and birth date” and the officer
determined there were no outstanding warrants for him. Id. However, the
officer asked the defendant to exit the vehicle and conducted a protective
frisk, in which he recovered a loaded gun. Id. On appeal to this Court, the
defendant claimed, inter alia, “that he was improperly subjected to an
investigatory detention in the absence of reasonable suspicion that criminal
activity was afoot.” Id. at 1165-66. Noting that Campbell held “police may
constitutionally request identification from a passenger during a routine
traffic stop,” this Court denied relief. Id. at 1168.
In the case sub judice, Officer Tiffany Vogel testified at the
suppression hearing that she observed Appellant in the rear seat of the
vehicle, and he did not have his seat belt on. N.T., 3/21/14, at 11. The
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officer testified,
I did recognize him as Michael Keys, [Appellant.1] I did
ask him for his name because I didn’t remember off the
top of my head exactly what his name was. I just know I
encountered him before. He did give me his name. upon
running his name for warrants, it was found that he was
wanted . . . and we had detained him at that time,
arrested him.
Id.On cross-examination, the following exchange occurred:
[Appellant’s counsel:] And the reason for you
speaking to [Appellant] was that he was not wearing a
seat belt?
[Officer Vogel:] Yes, that’s the violation. However, I
always speak to all occupants.
* * *
Q. And in speaking to [Appellant], you recognized that
passenger as Mr. Keys?
A. Yes.
Q. Even though you recognized him, you simply asked
him for his ID?
A. I didn’t quite remember part of his name. I don’t
remember if it was . . . Michael, if I couldn’t remember
Keys, or vice versa. That’s why I asked him for his name,
which he gave me his correct name.
Q. And that’s how you determined he had outstanding
warrants?
A. That’s correct.
1
At this point, Officer Vogel identified Appellant in the courtroom. N.T.,
3/21/14, at 11-12.
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Id. at 20-21.
We note the following. In Campbell and Durr, the officer had some
additional facts or information of wrongdoing before checking the
defendant’s name on police records—in Campbell, a belief that the
defendant had an arrest warrant and in Durr, the officer’s knowledge that
the name given was an alias for the defendant as well as information
regarding his tattoos.2 Durr, 32 A.3d at 783; Campbell, 862 A.2d at 661.
In Reed, the recitation of facts revealed no such additional facts before the
officer checked the name first given by the defendant. See Reed, 19 A.3d
at 1164. Nevertheless, none of these decisions addressed whether an officer
must have reasonable suspicion or probable cause to check police databases
with a name given.
I believe this issue is properly before us in this appeal. See
Washington, 63 A.2d at 800. In the instant case, Officer Vogel observed
Appellant did not have on a seatbelt and testified specifically that this was
“the violation.” N.T. at 20. The officer also recognized Appellant from a
prior encounter. Id. at 11-20. Accordingly, I would remand for counsel to
file either an amended Anders brief or advocate’s brief addressing this
issue—whether the officer could check Appellant’s name in the police
database. I would also allow the Commonwealth the opportunity to respond.
For these reasons, I dissent.
2
There was no further explanation in Durr as to how the officer received the
information about the defendant’s tattoos. See Durr, 132 A.3d at 783.
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