Com. v. Gonzalez, J.

J-A27040-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JONATHAN GONZALEZ :
:
Appellant : No. 1357 MDA 2021
Appeal from the Judgment of Sentence Entered October 18, 2021
In the Court of Common Pleas of Berks County Criminal Division at
No(s): CP-06-CR-0004947-2019
BEFORE: DUBOW, J., McLAUGHLIN, J., and COLINS, J.*
MEMORANDUM BY COLINS, J.: FILED: MARCH 29, 2023
Appellant, Jonathan Gonzalez, appeals from the judgments of sentence
that were imposed after a non-jury trial for possession of a controlled
substance with intent to deliver (cocaine), knowing or intentional possession
of a controlled substance (cocaine), possession of a small amount of
marijuana, possession of drug paraphernalia, and failing to signal.1 He
challenges the denial of a pre-trial suppression motion. Upon careful review,
we vacate the judgments of sentence, reverse the trial court’s suppression
order, and remand for further proceedings.
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* Retired Senior Judge assigned to the Superior Court.
1 35 P.S. § 780-113(a)(30), 35 P.S. § 780-113(a)(16), 35 P.S. § 780-
113(a)(31)(i), 35 P.S. § 780-113(a)(32), and 75 Pa.C.S. § 3334(a),
respectively.
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At 9:09 p.m., on November 6, 2019, Police Officer Christopher Fortin
stopped a car that Appellant was driving in the 1000 block of North 11th Street
in the city of Reading after the officer viewed Appellant commit a traffic
violation three blocks earlier. N.T. 2/18/20, 4-5. Appellant was the sole
occupant. Id. at 5. Officer Fortin approached the car on the driver’s side
while another officer named Baker approached on the passenger-side. Id.
Upon speaking with Appellant, Officer Fortin observed that he appeared “to be
very nervous.” Id. at 6. He noticed that Appellant’s chest “was moving rather
fast” and that he was sweating. Id. Appellant became agitated from the
officer’s questions about the car and his identification. Id. Appellant stated
that the car belonged to his friend, but he could not provide that individual’s
name. Id.
The area where the car stop took place was described by Officer Fortin
as a “very high drug, high crime area,” where the officer had made numerous
prior drug arrests. N.T. 2/18/20, 6. During his interaction with Appellant, he
saw that Appellant was wearing a fanny pack strapped across his chest. Id.
During his five-to-six-years as a police officer, he had recovered drugs and
weapons from fanny packs on other individuals. Id. at 7. When he went to
conduct a warrant and license check on Appellant, Officer Baker asked
Appellant, “What’s in the bag,” with respect to the fanny pack. Id. Upon his
return to the driver’s side of the car, Officer Fortin smelled the odor of
marijuana when Appellant unzipped the fanny pack. Id. Officer Fortin also
saw a large amount of money in the fanny pack before Appellant zipped the
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pack closed. Id. Appellant stated that he had “a little bit of weed in the bag”
and had a “medicinal card or [a] medical card.”2 Id. at 8.
Officer Fortin later testified that the opening and the closing of the fanny
pack was an “indicator” that Appellant “was trying to conceal something such
as a weapon or narcotic inside the bag. N.T. 2/18/20, 7-9. He had Appellant
exit the car and place his hands on the top of the car for “a quick pat[-]down.”
Id. at 9. Officer Fortin unzipped the fanny pack, placed it on the car roof, and
handcuffed Appellant. Id. Officer Baker waited with Appellant while Officer
Fortin searched the car and found an iPhone. Id. Officer Fortin then returned
to Appellant and searched the fanny pack. Id. Inside, he recovered the
money had had seen before, which totaled $8,600, along with marijuana that
was packaged in a material that was “gold reflective” on one side and clear on
the other side. Id. at 8-10. Upon intending to arrest Appellant for the
marijuana and search his person, Officer Fortin asked Appellant “if he had
anything else illegal on him.” Id. at 9-10 (“At that point he was under arrest
and I was about to search him…”). Appellant admitted to having some cocaine
on him. Id. at 10. The police recovered a “little over” sixty grams of cocaine
from an “airtight bag” in the front right pocket of Appellant’s jacket. Id.
In his suppression motion, Appellant claimed that the seizure of the
evidence from his person was unlawful because: (1) he did not consent to the
search; (2) the police did not have reasonable suspicion to detain him and
____________________________________________
2The General Assembly enacted the Medical Marijuana Act (“MMA”), 35 P.S.
§§ 10231.101-10231.2110, with an effective date of May 2016.
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search the vehicle upon noticing the odor of marijuana from his fanny pack;
(3) the seizure of the evidence from his person was based on a search
unrelated to officer safety and the location of a weapon; and (4) the search of
his person was not based upon probable cause. Omnibus Pre-trial Motion,
12/31/19, ¶¶ 24-27. He thus claimed that the admission of the evidence
recovered after the search of the car and the fanny pack violated his rights
under the Fourth and Fourteenth Amendments of the United States
Constitution and Article I, Section 8 of the Pennsylvania Constitution. Id. at
¶ 29.
At a hearing on the motion, Appellant’s counsel clarified that they were
not contesting the validity of the traffic stop but were contesting the search
and seizure of the drugs from Appellant’s person. N.T. 2/18/20, 3. Officer
Fortin testified to the above-summarized facts. Id. at 4-10.
The suppression court’s findings of facts largely tracked Officer Fortin’s
direct examination testimony with the exception of its finding that Appellant
provided a medical marijuana card to Officer Fortin in between Appellant’s
closing of the fanny pack and his admission to having some marijuana before
Officer Fortin asked him to exit the car. Findings of Fact, 4/21/20, 2-3. On
direct examination, the officer was unsure whether Appellant had provided
him the card prior to the arrest. N.T. 2/18/20, 9 (Officer Fortin, in response
to a question about placing Appellant in handcuffs, testified, “I don’t recall if
he had shown me his medicinal card at that point, but he did state that he
had one.”). On cross-examination, the officer agreed that Appellant showed
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him a medical marijuana card prior to the officer asking Appellant to exit the
car. Id. at 12-13. Officer Fortin confirmed that a medical marijuana card,
that had been issued to Appellant by the Pennsylvania Department of Health
on July 9, 2019, and was marked and moved into evidence, was similar to the
card that Appellant had showed him. Id. at 12, 27; Defense Exhibit 1 (Medical
Marijuana Card). The suppression court resolved the timing of Appellant’s
display of the medical marijuana card consistent with Officer Fortin’s cross-
examination testimony. Findings of Fact, 4/21/20, 3. On cross-examination,
Officer Fortin also confirmed that he asked Appellant to exit the car because
he was “concerned for officer safety” that Appellant may have had a weapon
in the fanny pack. N.T. 2/18/20, 13.
Appellant testified that Officer Fortin asked him to open the fanny pack
and that, before doing so, he told the officer that he had a medical marijuana
card and that the fanny pack contained “a little bit of U.S. currency and a little
bit of [his] medical marijuana.” N.T. 2/18/20, 20-21. He asserted that he
then showed the officer his medical marijuana card and then opened the fanny
pack, while he was still in the car, to let the officers look inside the bag. Id.
at 21. He recalled that the officer conducted a pat-down search of him that
did not yield any weapons, a search of the car, and then a search of the fanny
pack that yielded the money and the marijuana. Id. at 21-22. He alleged
that, while he was handcuffed, Officer Fortin searched his pockets resulting in
the recovery of more money and the cocaine from his jacket pocket. Id. at
22-23. He denied that he admitted to the officer that he had been in
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possession of the cocaine. Id. at 23. The suppression court did not credit
that denial. Findings of Fact, 4/21/20, 3.
After hearing the testimony and the arguments of counsel, the
suppression court deferred issuing its ruling to another date so that it could
issue an opinion setting forth its findings and conclusions. N.T. 2/18/20, 30.
On April 21, 2020, the court denied the suppression motion. Order, 4/21/20,
1. The court concluded that there was reasonable suspicion to extend the
traffic stop based on the “high crime and high drug area” in which the events
were taking place, the testimony about Appellant appearing nervous,
Appellant’s inability provide a name for the car’s owner, the officer’s detection
of the marijuana odor, and his observation of the money when Appellant
opened the fanny pack. Conclusions of Law, 4/21/20, 4-6. The court also
included that the factors supporting the reasonable suspicion to extend the
traffic stop, in addition to the fact that the stopped car was owned by a third
party that was not present in the car, supported probable cause permitting
Officer Fortin’s search of the fanny pack. Id. at 6-10.
The court issued the following findings of fact:
1. On November 6, 2019, Officer Fortin was employed by the
Reading Police Department. He was on patrol in full uniform
and displaying a badge of authority.
2. While on patrol, Officer Fortin observed a vehicle commit a
traffic violation in the 700 block of 11th Street, Reading,
Berks County, Pennsylvania. This is a high drug and high
crime area where Officer Fortin has made numerous drug
arrests.
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3. Officer Fortin initiated a traffic stop and came into contact
with [Appellant], the operator of the vehicle. He was the
sole occupant.
4. Officer Baker was also present on scene and he approached
the passenger side of the vehicle.
5. Officer Fortin looked inside of the vehicle and observed that
[Appellant] appeared nervous. [Appellant]’s chest was
moving fast and he was sweating.
6. Officer Fortin asked [Appellant] for his identification and
inquired about the vehicle. [Appellant] became agitated by
the questioning.
7. [Appellant] stated that the vehicle belonged to his friend but
he couldn’t provide that individual’s name.
8. While interacting with [Appellant], Officer Fortin noticed that
[Appellant] was wearing a fanny pack across his chest.
During his time as a police officer, Officer Fortin has
recovered drugs in fanny packs from other individuals.
9. As Officer Fortin moved away from the vehicle to check
[Appellant] for warrants and run his license, Officer Baker
asked [Appellant] what he had in the fanny pack. Officer
Fortin returned to the vehicle and [Appellant] unzipped his
fanny pack. Officer Fortin immediately smelled the odor of
marijuana. He also observed a large amount of U.S.
currency in the fanny pack.
10. After [Appellant] unzipped the fanny pack, he immediately
closed it. [Appellant] informed the officers that he had a
little bit of weed and that he had a medical card for it.
[Appellant] provided Officer Fortin with a medical marijuana
card. Officer Fortin believed that [Appellant] was
attempting to conceal a weapon or narcotics.
11. After seeing [Appellant]’s medical marijuana card, Officer
Fortin asked [Appellant] to exit his vehicle. [Appellant] was
patted down for the safety of the officers and placed into
handcuffs. Officer Fortin testified that he was concerned
that [Appellant] may have a weapon in the fanny pack.
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Officer Fortin also testified that [Appellant] was being
investigated for possession of marijuana.
12. During the pat-down of [Appellant], Officer Fortin did not
notice anything indicative of a weapon or contraband.
13. Due to the odor of marijuana, [Appellant]’s vehicle was
searched but nothing else was located. [Appellant]’s fanny
pack was also searched revealing marijuana. The marijuana
was located in a gold, reflective bag that was see-through
on one side. There were no markings on the bag or
packaging indicating that the marijuana originated from a
dispensary.
14. Officer Fortin approached [Appellant] and he admitted that
he had cocaine on his person. Officer Fortin recovered the
cocaine which weighed a little over 60 grams.
15. In addition to the narcotics, Officer Fortin discovered
$8,600.00 in U.S. currency and an iPhone.
Findings of Fact, 4/21/20, 2-3.
Prior to trial, Appellant filed four motions for reconsideration of the
denial of the suppression motion. First Reconsideration Motion, 6/8/20;
Second Reconsideration Motion, 7/13/20; Third Reconsideration Motion,
11/30/20; Fourth Reconsideration Motion, 1/13/21. The suppression court
denied the motions. Order, 7/15/20, 1; Order, 1/14/21, 1; Order, 2/16/21,
1.
On October 6, 2021, Appellant proceeded to be tried without a jury and
was found guilty of the above-referenced offenses. Verdict of the Court,
10/6/21, 1. On the same date, the court sentenced Appellant to eleven and
one-half to twenty-three months of imprisonment for possession of a
controlled substance with intent to deliver and one year of probation for
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possession of drug paraphernalia, and fines for possession of a small amount
of marijuana and the summary traffic offense; the sentences were stayed
pending appeal.3 Sentence Order (Possession of a Controlled Substance with
Intent to Deliver), 10/6/21, 1; Probation Order (Possession of Drug
Paraphernalia), 10/6/21, 1; Sentence Upon Conviction (Possession of a Small
Amount of Marijuana), 10/6/21, 1; Sentence Upon Conviction (Failing to
Signal), 10/6/21, 1. Appellant did not file any post-sentence motions and
timely filed a notice of appeal.4 Notice of Appeal, 10/19/21, 1. He
subsequently filed a timely statement of matters complained of on appeal
pursuant to Pa.R.A.P. 1925(b). Rule 1925(b) Statement, 11/12/21, 1; Rule
1925 Order, 10/29/21, 1
Appellant’s lone issue for our review challenges the denial of his
evidence suppression claims: “Whether the Court’s denial of the motion to
suppress and denial of the motion to reconsider the motion to suppress were
in error?” Appellant’s Brief at 7. Our standard of review on this issue is well-
settled:
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3 Knowing or intentional possession of a controlled substance merged for
sentencing purposes.
4 Appellant’s notice of appeal referenced the judgments of sentence imposed
on October 6, 2021, however, the trial court filed an amended/corrected
sentencing order on October 18, 2021. In cases where the trial court amends
the judgments of sentence during the period it maintains jurisdiction pursuant
to 42 Pa.C.S. § 5505, the direct appeal lies from the amended judgments of
sentence. See Commonwealth v. Garzone, 993 A.2d 1245, 1254 & n.6
(Pa. Super. 2010). Accordingly, the caption of this memorandum reflects that
this appeal is from the amended judgments of sentence.
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Our standard of review in addressing a challenge to a trial court’s
denial of a suppression motion is whether the factual findings are
supported by the record and whether the legal conclusions drawn
from those facts are correct. When reviewing the ruling of a
suppression court, we must consider only the evidence of the
prosecution and so much of the evidence of the defense as
remains uncontradicted when read in the context of the record.
Where the record supports the findings of the suppression court,
we are bound by those facts and may reverse only if the legal
conclusions drawn therefrom are in error.
Commonwealth v. Heidelberg, 267 A.3d 492, 498-99 (Pa. Super. 2021)
(en banc), quoting Commonwealth v. Bumbarger, 231 A.3d 10, 15 (Pa.
Super. 2020) (citation and ellipses omitted).
Appellant’s argument section consists of four subparts. First, he argues
the Officer Fortin lacked reasonable suspicion to believe that he was armed
and dangerous and thus the officer lacked the justification to conduct a limited
search for weapons in the car. Appellant’s Brief at 15-17. Second, he argues
that the search of the car, the fanny pack, and his person were not supported
by probable cause. Id. at 17-24. Third, he argues that the cocaine recovered
from his person should have been suppressed as the fruit of the poisonous
tree, i.e., that it was the product of an unlawful arrest and unconstitutional
searches. Id. at 24-25. Lastly, he argues that the Commonwealth did not
prove that exigent circumstances permitted the warrantless search of the car,
his person, and the fanny pack. Id. at 25. We will review our applicable
standards permitting the types of searches conducted in this case and address
Appellant’s arguments in the order in which they are presented.
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The Fourth Amendment of the United States Constitution and Article I,
Section 8 of the Pennsylvania Constitution guarantee individuals freedom from
unreasonable searches and seizures. See Commonwealth v. Singletary,
267 A.3d 1267, 1274 (Pa. Super. 2021). “A warrantless search or seizure of
evidence is … ‘presumptively unreasonable under the Fourth Amendment and
Article I, § 8, subject to a few specifically established, well-delineated
exceptions.’” Commonwealth v. Luczki, 212 A.3d 530, 546 (Pa. Super.
2019) (citation omitted).
The law recognizes three distinct levels of interactions between
police officers and citizens: (1) a mere encounter; (2) an
investigative detention, often described as a Terry stop, see
Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968);
and (3) a custodial detention.
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 and therefore
need not be justified by any level of police suspicion.
In contract, an investigative detention carries an official
compulsion to stop and respond. Since this interaction has
elements of official compulsion it requires reasonable suspicion of
unlawful activity.
Finally, 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.
This level of interaction requires that the police have probable
cause to believe that the person so detained has committed or is
committing a crime.
Commonwealth v. Jefferson, 256 A.3d 1242, 1247-48 (Pa. Super. 2021)
(en banc) (citations, quotation marks, and ellipses omitted).
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“In reviewing whether reasonable suspicion … exists, we must …
examine the totality of the circumstances to determine whether there exists
a particularized and objective basis for suspecting an individual [ ] of criminal
activity.” Commonwealth v. Epps, 608 A.2d 1095, 1096 (Pa. Super. 1992).
Even innocent factors, viewed together, may arouse suspicion that criminal
activity is afoot. Commonwealth v. Cook, 735 A.2d 673, 676 (Pa. 1999);
see also Commonwealth v. Riley, 715 A.2d 1131, 1135 (Pa. Super. 1998)
(“[A] combination of circumstances, none of which taken alone would justify
a stop, may be sufficient to achieve a reasonable suspicion.”). Moreover, “in
determining whether the officer acted reasonably in such circumstances, due
weight must be given, not to his inchoate and unparticularized suspicion or
‘hunch,’ but to the specific reasonable inferences which he is entitled to draw
from the facts in light of his experience.” Terry v. Ohio, 392 U.S. at 27.
An investigative detention may develop into a custodial detention.
Commonwealth v. Wright, 224 A.3d 1104, 1109 (Pa. Super. 2019). “The
key difference between an investigative and a custodial detention is that the
latter involves such coercive conditions as to constitute the functional
equivalent of an arrest.” Commonwealth v. Gonzalez, 979 A.2d 879, 887
(Pa. Super. 2009) (citation and internal quotation marks omitted). This Court
considers the totality of the circumstances to determine if an encounter is
investigatory or custodial. See Commonwealth v. Goldsborough, 31 A.3d
299, 306 (Pa. Super. 2011).
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A motor vehicle stop is generally an investigative detention.
Commonwealth v. Spence, --- A.3d ----, 2023 WL 2002292, *9 (Pa. Super.,
filed Feb. 25, 2023). “During a traffic stop, it is inherently reasonable for an
officer to order the driver of the vehicle to alight from the car.” Id., citing
Commonwealth v. Brown, 654 A.2d 1096 (Pa. Super. 1995).
It is well settled that an officer may pat-down an individual whose
suspicious behavior he is investigating on the basis of a
reasonable belief that the individual is presently armed and
dangerous to the officer or others. To validate a Terry frisk, the
police officer must be able to articulate specific facts from which
he reasonably inferred that the individual was armed and
dangerous. In determining whether a Terry frisk was supported
by a sufficient articulable basis, we examine the totality of the
circumstances.
Commonwealth v. Gray, 896 A.2d 601, 605-606 (Pa. Super. 2006)
(citations and footnote omitted). Under that standard, police may conduct a
limited pat-down of a person’s outer clothing “in an attempt to discover the
presence of weapons which may be used to endanger the safety of police or
others.” Commonwealth v. Wilson, 927 A.2d 279, 285 (Pa. Super. 2007)
(citation and quotation marks omitted).
In Michigan v. Long, 463 U.S. 1032 (1983), the United States
Supreme Court applied the principles set forth in Terry to a search of a
passenger compartment of a vehicle for weapons. The Long Court held that
“the search of the passenger compartment of an automobile, limited to those
areas in which a weapon may be placed or hidden, is permissible if the police
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officer possesses a reasonable belief based on specific, and articulable facts
which, taken together with the rational inferences from those facts, reasonably
warrant the officers in believing that the suspect is dangerous and the suspect
may gain immediate control of weapons.” Id. at 1049 (citation and internal
quotation marks omitted). “[T]he issue is whether a reasonably prudent man
in the circumstances would be warranted in the belief that his safety or that
of others was in danger.” Id. at 1050 (citation omitted).
“In evaluating the validity of an officer’s investigative or protective
conduct under Terry, the touchstone of our analysis is always the
reasonableness in all circumstances of the particular governmental intrusion
of a citizen’s personal security.” Long, 463 U.S. at 1051 (citation, internal
quotation marks, and ellipses omitted). “Therefore, the balancing required by
Terry clearly weighs in favor of allowing the police to conduct an area search
of the passenger compartment to uncover weapons, as long as they possess
an articulable and objectively reasonable belief that the suspect is potentially
dangerous.” Long, 463 U.S. at 1051. The Long court also emphasized that
a Terry investigation is “at close range, when the officer remains particularly
vulnerable in part because a full custodial arrest has not been effected, and
the officer must make a quick decision as to how to protect himself and others
from possible danger.” Long, 463 U.S. at 1052 (citation and internal
quotation marks omitted; emphasis in original).
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Our courts in Pennsylvania previously recognized the federal automobile
exception to the warrant requirement of the Fourth Amendment to the United
States Constitution, which permitted police to conduct a warrantless search or
seizure of an automobile solely based on probable cause without any need for
a separate finding of exigent circumstances. At the time of the car stop in this
case, the automobile exception was valid in Pennsylvania pursuant to
Commonwealth v. Gary, 91 A.3d 102, 138 (Pa. 2014) (plurality opinion).
Since then, our Supreme Court overruled Gary in Commonwealth v.
Alexander, 243 A.3d 177, 2017 (Pa. 2020), concluding that Article I, Section
8 of the Pennsylvania Constitution provides greater protection and only
permits warrantless vehicle searches upon a showing of probable cause and
exigent circumstances. To be entitled to retroactive application of a new
constitutional rule, such as the one in Alexander, a defendant must have
raised and preserved the issue in the court below. See Commonwealth v.
Arias, 286 A.3d 341, 347-48 (Pa. Super. 2022).
With respect to custodial detentions,
“Probable cause” is a practical, non-technical concept. To
establish probable cause, the Commonwealth must demonstrate
that a search meets the requirements of the ‘totality-of-the
circumstances’ test. Pursuant to that test, when presented with
an application for a warrant, “[a] magistrate is to make a practical,
common-sense decision whether, given all the circumstances set
forth in the affidavit before him, including the ‘veracity’ and ‘basis
of knowledge’ of persons supplying hearsay information, there is
a fair probability that contraband or evidence of a crime will be
found in a particular place.”
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Commonwealth v. Barr, 266 A.3d 25, 40 (Pa. 2021) (citations omitted).
“The police have probable cause where the facts and circumstances within the
officer’s knowledge are sufficient to warrant a person of reasonable caution in
the belief that an offense has been or is being committed.” Commonwealth
v. Hernandez, 935 A.2d 1275, 1284 (Pa. 2007), quoting Commonwealth
v. Rogers, 849 A.2d 1185, 1192 (Pa. 2004).
In the first part of his argument, Appellant alleges that the police
testimony did not support a reasonable belief that he was armed and
dangerous for purposes of permitting a protective search for weapons in the
car under Michigan v. Long. Appellant’s Brief at 15-17. Citing
Commonwealth v. Cartagena, 63 A.3d 294 (Pa. Super. 2013) (en banc),
he asserts that a nighttime car stop, his appearance of nervousness, and the
police officer’s awareness of other persons using fanny packs to store
weapons, did not support a limited frisk for weapons in the car. Appellant’s
Brief at 16-17.
As an initial matter, we note that Appellant does not explain how a
limited frisk for weapons in the car was material in this instance. Here, the
certified record contains only the notes of testimony from the hearing on his
suppression motion and does not include any notes of testimony from his trial.
The suppression hearing transcript reveals only that a cellular telephone was
recovered from the car but does not address whether any information from
the phone was ever used as evidence of his guilt in connection with the drug
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and drug paraphernalia charges that concerned the contraband recovered
from his person. N.T. 2/18/20, 9 (“I believe there was an iPhone, but nothing
else relevant inside the vehicle.”). With the factual scenario presented in this
case, it is not immediately apparent that any contraband recovered from
Appellant’s person was the fruit of any improper search of the car. Even
assuming that any material evidence was recovered from a limited frisk of the
car, we would not agree with Appellant’s assessment that a limited frisk of the
car was not supported by a reasonable belief that he was possibly armed and
dangerous.
Appellant fails to make his argument consistent with the facts found by
the suppression court. First, he fails to address additional factors for
consideration such as his agitation at the officer’s questioning of his identity
and information about the car and the fact he could not provide the name of
the car’s third-party owner, beyond saying that it was a friend. N.T. 2/18/20,
6. Second, his characterization of the opening of the fanny pack does not
match the officer’s testimony and the court’s findings. The officer’s testimony
did not support the assertion that Appellant opened the fanny pack so the
officer could view its contents. Id. at 7-9. The manner in which he opened
and closed the fanny pack made the officer believe that he was trying to
conceal something in it. Id. at 7 (“Immediately after he -- the defendant
opened it, it appeared that he zipped it back closed. I can’t speak for why he
did that, but that was an indicator to me that he was trying to conceal
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something such as a weapon or narcotic inside the bag.”). The suppression
court’s findings noted that he immediately closed the pack after opening it.
Findings of Fact, 4/21/20, ¶ 10.
In Cartagena, this Court, sitting en banc, found that an officer lacked
reasonable suspicion to conduct a protective weapons search of the passenger
compartment of a vehicle where: (1) the stop occurred at night, (2) the
defendant’s vehicle had tinted windows, and (3) the defendant appeared to
be nervous. Id. at 304. The Cartagena court noted that there was no
testimony indicating, inter alia, that the defendant had made furtive
movements and that the stop occurred in a high-crime area. Id. at 304-06;
see also Commonwealth v. Moyer, 954 A.2d 659, 669-70 (Pa. Super.
2008) (en banc) (holding that evidence that a vehicle’s occupants engaged in
furtive movements and a defendant appeared nervous was insufficient to
establish reasonable suspicion); Commonwealth v. Reppert, 814 A.2d
1196, 1206 (Pa. Super. 2002) (en banc) (same). The instant case does not
closely align with Cartagena as Appellant suggests.
Appellant’s location in a “high crime area” and his sweating, which
implies nervousness, are factors that may be considered in determining
whether the police officer possessed reasonable suspicion. See
Commonwealth v. Anderson, 276 A.3d 282, 295 (Pa. Super. 2022) (en
banc); Cartagena, 63 A.3d at 304 n.24; Commonwealth v. Foglia, 979
A.2d 357, 361 (Pa. Super. 2009) (en banc). The fact that the car was owned
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by a third-party and Appellant failed to provide the name of the owner were
additional permissible factors for purposes of a determination on reasonable
suspicion. See Commonwealth v. Kemp, 961 A.2d 1247, 1254-55 (Pa.
Super. 2008) (en banc) (among factors providing reasonable suspicion during
a car stop for a traffic code violation where a state trooper detected an odor
of raw marijuana included the fact that the vehicle used by passenger Kemp
and his associate driver was a vehicle owned by a third-party and Kemp did
not provide the correct name of the car’s owner); Commonwealth v.
Benitez, 218 A.3d 460, 477-78 (Pa. Super. 2019) (among factors for
reasonable suspicion was the fact that Benitez could not identify the owner of
the car he was using whom he claimed was his friend). The fact that the traffic
stop was happening at nighttime, which was one of the few relevant
circumstances present in Cartagena, was another adequate factor for
consideration. See In re O.J., 958 A.2d 561, 566 (Pa. Super. 2008) (en
banc) (“The vehicle stop occurred at night, which creates a heightened danger
that an officer will not be able to view a suspect reaching for a weapon.”).
Moreover, the quick motion to open and close the fanny pack would
appear to be akin to furtive movements along a waistline because a person
could use a fanny pack to holster and conceal a weapon just as one may tuck
a gun or weapon in their waistband. Furtive movements such as that can be
an additional acceptable factor for determining reasonable suspicion. See
Foglia, 979 A.2d at 361 (concluding that reasonable suspicion for an
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investigative detention and Terry pat-down existed in part because the
defendant “touched his waist area and sat down on a stoop behind some
females … [and t]he police officer was aware, based upon his experience with
armed suspects, that weapons are often concealed in a person’s waistband[
]”). “Among the circumstances that can give rise to reasonable suspicion are
the [officer]’s knowledge of the methods used in recent criminal activity and
the characteristics of persons engaged in such illegal practices.”
Commonwealth v. Bozeman, 205 A.3d 1264, 1274 (Pa. Super. 2019),
citing United States v. Mendenhall, 446 U.S. 544, 563 (1980).
Accordingly, the officer’s stated familiarity with defendants using fanny packs
to conceal weapons and contraband was relevant to the suppression court’s
review. N.T. 2/18/20, 6 (Officer Fortin testifying with respect to fanny packs,
“Due to my training and experience, it’s known to me that a lot of people who
are associated with criminal activity carry narcotics and weapons in those
bags.”), 7 (“Q. Had you ever in your experience ever recovered drugs and/or
weapons from a pack like that? A. Yes, both.”).
Based on the totality of the circumstances, we conclude the officers had
reasonable suspicion to conduct a pat-down frisk of Appellant and a protective
weapons search of the passenger compartment of the car he was driving. See
Commonwealth v. Buchert, 68 A.3d 911, 916-17 (Pa. Super. 2013)
(holding that furtive movement along with extreme nervousness and a night-
time stop was sufficient to warrant a reasonable police officer to believe that
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his safety was in danger and that the defendant might gain immediate control
of a weapon); see also Commonwealth v. Simmons, 17 A.3d 399, 404 (Pa.
Super. 2011) (finding reasonable suspicion where the traffic stop was
conducted at night in a high-drug and high-crime area, and the officer
witnessed the defendant make a furtive movement of reaching under his seat
and then towards his chest, consistent with concealing a weapon).
Appellant next argues that there was not probable cause to search the
car, his person, and his fanny pack. Appellant’s Brief at 17-24. He makes the
following points: (1) the smell of marijuana alone did not give rise to probable
cause; (2) “it [was] not enough for the Commonwealth to rattle off facts and
circumstances; the facts and circumstances relied upon must come together
and allow the officer to form a particularized suspicion of criminal activity;”
and (3) because he produced his medical marijuana card, the officer did not
have “a particularized suspicion that criminal activity was afoot, let alone
probable cause.” Id. He reasons that there was a lack of probable cause to
permit his arrest and the search of his person and things; the smell of
marijuana was the only reason for the search; and the fruits of the “unlawful
searches” should have been suppressed. Upon our review of the totality of
the circumstances, we agree with Appellant that the evidence did not support
probable cause.
Here, the suppression court’s findings of fact agree that, after Appellant
informed Officer Fortin about his possession of “a little bit of weed” and
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provided the officer with a medical marijuana card, the officer asked Appellant
to exit the car. Findings of Fact, 4/21/20, ¶ 10-11. Thereafter, the police
conducted a pat-down search of Appellant that did not indicate the possession
of weapons or contraband, and searched the car and fanny pack. Id. at ¶ 12-
13. The officer’s testimony notes that, at the time of the pat-down search, he
unzipped the fanny pack and placed it in on the car’s roof. N.T. 2/18/20, 9.
Officer Fortin searched the fanny pack, discovering its contents of marijuana
and a large amount of money, after searching the car. Id.The suppression court found that there was probable cause to search
the fanny pack based on the odor of marijuana coming from it, in addition to
the factors addressed in our reasonable suspicion analysis:
In the case at bar, this court finds that Officer Fortin possessed
probable cause to believe that the fanny pack possessed
contraband. … Here, in addition to the odor of marijuana
emanating from the fanny pack, the following additional factors
were present: 1) high crime area; 2) Gonzalez’s nervous
behavior; 3) the vehicle was owned by a third-party not present
in the vehicle; 4) Gonzalez’s inability to provide the name of the
friend who owned the vehicle; and 5) large amount of U.S.
currency present. Therefore, in consideration of the totality of the
circumstances, this court finds that Officer Fortin had probable
cause to search Gonzalez’s fanny pack.
Conclusions of Law, 4/21/20, 10. In this situation, we do not agree that the
odor of marijuana was evidence in support of an ongoing crime that permitted
a warrantless search of the fanny pack and that the stated factors – absent
the odor of marijuana – otherwise supported a finding of probable cause.
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In our above analysis of the question of reasonable suspicion and the
appropriateness of a vehicle frisk under Michigan v. Long, we declined to
address the aspect of the odor of marijuana as a contributing factor. This is
because our Supreme Court held in Commonwealth v. Hicks, 208 A.3d 916(Pa. 2019), that “conduct in which hundreds of thousands of Pennsylvanians
are licensed to engage lawfully” is, on its own, “an insufficient basis for
reasonable suspicion that criminal activity is afoot.” Id. at 945. Further, in
Commonwealth v. Barr, 266 A.3d 25 (Pa. 2011), our Supreme Court
recognized that the passage of our Medical Marijuana Act (“MMA”) “makes
abundantly clearly that marijuana no longer is per se illegal” and “the odor of
marijuana may be a factor, but not a stand-alone one, in evaluating the
totality of the circumstances for purposes of determining whether police had
probable cause to conduct a warrantless search.” Id. at 41. In our recent
decision in Commonwealth v. Cunningham, 287 A.3d 1, 9 (Pa. Super.
2022), we took note of a holding in an unpublished opinion that “the smell of
fresh marijuana cannot objectively suggest anything more than possession of
a substance that many Pennsylvanians can legally possess.”
Appellant produced a medical marijuana card to the officers in between
their detection of the marijuana odor and the search of the fanny pack which
uncovered a supply of marijuana. Findings of Fact, 4/21/20, ¶ 9-11. After
the presentation of the medical marijuana card, the odor should not have been
considered as a reflection of possible criminal conduct. The Commonwealth
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notes that while Appellant possessed a medical marijuana card, his possession
of marijuana was still illegal because it was not in proper packaging required
by the MMA. Commonwealth’s Brief at 14, citing 35 P.S. § 10231.303(b)(6),
(8). That assertion does not support a notion that the odor of marijuana
supported a reason for a search here because the officers could only confirm
the existence of the improper packaging by conducting a search of the fanny
pack which required probable cause as a prerequisite to the search.
Acceptance of the Commonwealth’s argument on that point would permit a
search for marijuana upon any odor detection to ensure its proper packaging
and that would fly in the face of our Supreme Court’s holding in Barr and the
Commonwealth’s established search and seizure jurisprudence.5
Given our reasonable suspicion analysis, the police officers undoubtedly
could have conducted a pat-down of the fanny pack to deduce whether it
contained any weapons that would have placed the officers in danger. That
did not occur. The only proof of illegal conduct giving rise to probable cause
was the discovery that Appellant’s marijuana was not in proper packaging
____________________________________________
5 If there were evidence in this case of paraphernalia used for smoking
marijuana in the car or the officers had smelled burnt marijuana then the
existence of a marijuana odor would have a relevant factor for considering
reasonable suspicion or probable cause. See 35 P.S. § 10231.304(b) (“It is
unlawful to: (1) Smoke medical marijuana”); see also Cunningham, 287
A.3d at 10 (addressing unpublished decisions of this Court appreciating that
the MMA does not permit the smoking of marijuana). The police testimony
here did not give any impression that the odor was of burnt marijuana. See
N.T. 2/18/20, 7, 11.
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under the MMA. To learn that fact, however, the police improperly conducted
a warrantless search of Appellant’s fanny pack. That is where the suppression
court’s analysis went awry.
As for the fanny pack, “[t]he United States Supreme Court has held that
searches of closed containers (i.e., personal luggage) intrude upon protected
privacy interests as a matter of law.” Commonwealth v. Perel, 107 A.3d
185, 189 (Pa. Super. 2014), citing New Jersey v. T.L.O., 469 U.S. 325, 337
(1985) (“[T]he Fourth Amendment provides protection to the owner of every
container that conceals its contents from plain view.”) (citation omitted). In
this instance, Appellant used the fanny pack as a repository for his marijuana
and a large amount of money and shielded those items privately in a closed
container worn on his person. See Perel, 107 A.3d at 190 (“Indeed, the
obvious function of an opaque zippered bag is to safeguard the privacy of the
personal effects contained therein. … The contents of persons’ closed
containers are obscured from public view and generally are recognized as
private.”). Appellant’s subjective expectation of privacy in the contents of this
baggage, as evidenced by the totality of the circumstances, is one that society
would recognize as reasonable.
Even if there was evidence sufficient to permit an arrest of Appellant –
and we do not agree that the evidence supported probable cause – the
warrantless search of the fanny pack was improper. It is axiomatic that absent
a warrant, a search may only be justified if there is a recognized exception to
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the general warrant requirement. Commonwealth v. Smith, 511 A.2d 796,
798 (Pa. 1986). In this instance, there was no applicable exception that would
have applied to the fanny pack. To the extent that the officers could look in
the fanny pack when Appellant momentarily opened it, they only saw a large
amount of money in the container which, by itself, did not give rise to an
apparent crime. Accordingly, the plain view exception did not apply.
Moreover, there was no obvious basis for an arrest prior to the search of the
fanny pack and thus the search incident to arrest exception did not apply.
In any event, there was no adequate basis for a warrantless search. In
Commonwealth v. Shiflet, 670 A.2d 128, 131-32 (Pa. 1995), our Supreme
Court held that the search incident to arrest exception to the warrant
requirement did not justify the warrantless search of a passenger’s purse
under Article I, Section 8 of the Pennsylvania Constitution and the Fourth
Amendment to the United States Constitution. The driver and another
passenger of a car in which Shiflet was a passenger were arrested. Id. at
129. Shiflet was not arrested at the scene of the car stop. Id. When Shiflet
accepted a ride from a state trooper to a police barracks, the trooper seized
her purse and searched it without any consent requested. Id. The trooper
found that the purse contained a leather pouch and, upon requesting her
consent to open the pouch, the trooper found a small amount of marijuana
and drug paraphernalia in it. Id. Our Supreme Court affirmed this Court’s
decision that declined to extend the search incident to arrest warrant
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exception to circumstances where the property being search was in the
possession of a person who has not been arrested. Id. at 131-32. In so
holding the Supreme Court noted, “Where is there is no lawful arrest, and
therefore no ‘reasonable intrusion’ on the back of which the warrantless search
rides, the intrusion resulting from the warrantless search cannot be accepted
lightly.” Id. at 132.
Applying Shiftlet to the case at hand, we cannot view the warrantless
search of the fanny pack as proper and permitting the basis for the arrest
leading up to the questioning resulting in the recovery of the cocaine from
Appellant’s person. We are mindful of the dangers that police officers face,
especially during nighttime traffic stops that occur in high crime areas. We
would not have disagreed with the appropriateness of a Terry pat-down of
the fanny pack during the investigative detention in this case, however, we
fail to see that a warrant exception applied to the search of the fanny pack.
The search was not incident to an arrest and, in the absence of the search of
the fanny pack leading to the discovery of the improper packaging of
Appellant’s marijuana, we do not glean a basis for probable cause that would
have permitted an arrest and a search of Appellant, his fanny pack, and the
car that he was driving. Compare with Commonwealth v. Runyan, 160
A.3d 831, 838 n.7 (Pa. Super. 2017) (distinguishing Shiflet where police had
probable cause to search a vehicle and properly searched a purse contained
therein where it was capable of concealing the object of the search).
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In the third section of his argument, Appellant asserts that he was
subject to an unlawful arrest and an unconstitutional search of his vehicle and,
accordingly, the cocaine he subsequently admitted to having on his person
should have been suppressed “as fruit of the poisonous tree.” Appellant’s
Brief at 24-25. We agree that the cocaine was discovered as a result of an
illegal search.
Here, the Commonwealth argues that the cocaine was “properly
discovered on [Appellant’s] person incident to arrest” and that the marijuana
was discovered in the improper packaging “[i]n the frisk of the fanny pack.”
Appellant’s Brief at 16. The Commonwealth reasons that Officer Fortin had
probable cause to arrest Appellant for the possession the marijuana, given its
improper packaging, and thus any subsequent search of Appellant was proper
as it was incident to his arrest.
We do not agree with the Commonwealth’s assessment. The testimony
of Officer Fortin does not support the notion that the improper packaging of
the marijuana was discovered as a result of a lawful frisk. It indicates that
the officer put the fanny pack aside from Appellant during the time for frisking
Appellant’s person and that the officer then merely went into the fanny pack
to observe its contents without any attempt to frisk the fanny pack before or
after it was removed from Appellant’s person:
Q. Okay. So let’s go back to the stop itself then. After he made
the statements about the marijuana and zipped the bag back up,
what did you do next?
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A. Like I previously mentioned, that’s an indicator to me that
someone is trying to conceal a weapon or additional narcotics or
evidence. I had the individual exit his vehicle. It’s common
practice for me to have someone place their hands on top of the
vehicle so I can do a quick patdown. At that point I was going
to detain him in handcuffs, so I unzipped his fanny pack,
placed it on the roof, and I placed him in handcuffs and I
brought him back to the front of my patrol car.
…
A. So when I went back to him after I searched the vehicle, I
searched the fanny pack and located the marijuana, a large
amount of U.S. currency. I went to him. At that point he was
under arrest and I was about to search him, I asked him if he had
anything else illegal on him. And he admitted to something to the
extent of he had some coke on him referring to cocaine.
N.T. 2/18/20, 8-9 (emphasis added).
The testimony did not support the Commonwealth’s suggestion that the
marijuana was recovered as a result of a frisk for weapons. It suggests that
the officer merely opened the fanny pack because he smelled an odor of
marijuana coming from the container and he wanted to examine the
marijuana. That happened after Appellant already admitted to having “a little
bit of weed in the bag,” see N.T. 2/18/20, 8, and Appellant provided the officer
with a medical marijuana card. See Findings of Fact, 4/21/20, ¶ 10. By
presenting the medical marijuana card, Appellant essentially rendered inert
the criminal nature of the odor of marijuana. There was no probable cause
for an arrest prior to the search of the fanny pack and, absent the discovery
of the packaging of the marijuana which was detected after the unlawful
search of the fanny pack, there was no basis for a lawful arrest prior to the
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search incident to arrest that yielded the cocaine on Appellant’s person.
Accordingly, we agree with Appellant that the cocaine was the fruit of the
poisonous search of the fanny pack.
When an officer effectuates an unlawful arrest, “any evidence seized
during a search incident to the arrest must be suppressed. Consequently, the
propriety of a search depends upon the validity of the arrest.”
Commonwealth v. Clark, 735 A.2d 1248, 1251 (Pa. 1999) (internal citation
omitted). The unlawful arrest following the unconstitutional search of the
fanny pack here should have compelled the trial court to suppress the cocaine
seized incident to the improper arrest.
In the final section of his argument, Appellant asserts that the
Commonwealth failed to articulate any exigent circumstances for a
warrantless search of his person, the car, and the fanny pack pursuant to
Commonwealth v. Alexander, 243 A.3d 177 (Pa. 2020). Appellant’s Brief
at 25. As acknowledged above, the car stop in this case occurred prior to the
issuance of the Alexander opinion, at a time in which our Supreme Court’s
plurality opinion in Commonwealth v. Gary, 91 A.3d 102 (Pa. 2014),
permitted warrantless searches of automobiles so long as police have probable
cause. The suppression court acknowledges that Appellant preserved a claim
concerning the retroactive application of Alexander, referring to its denial of
Appellant’s final reconsideration motion based on that case. Trial Court
Opinion, 12/2/21, 2 n.6. The suppression court and the Commonwealth
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advise us that Alexander did not apply or was inapposite because no items
of contraband were found pursuant to a vehicle search. Id. at 3 n.6;
Appellee’s Brief at 13 n.2.
Alexander applies retroactively in this case because Appellant asserted
its application in a motion for reconsideration below concerning the denial of
his suppression motion:
[W]here an appellate decision overrules prior law and announces
a new principle, unless the decision specifically declares the ruling
to be prospective only, the new rule is to be applied retroactively
to cases where the issue in question is properly preserved at all
stages of adjudication up to and including any direct appeal.
Commonwealth v. Newman, 99 A.3d 86, 90 (Pa. Super. 2014) (en banc)
(citation omitted); compare with Commonwealth v. Grooms, 247 A.3d 31,
37 (Pa. Super. 2021) (finding that Grooms waived any claim pursuant to
retroactive application of Alexander where he only disputed the existence of
probable cause and did not raise the issue of exigent circumstances or
challenged the validity of Gary in the trial court).
To the extent that the lower court and the Commonwealth quickly
dispense with Appellant’s Alexander claim by saying that that case did not
apply or was inapposite, we must dwell on that phrasing momentarily in this
case. Gary, as the precursor rule to Alexander, had a bearing on more than
just items recovered from vehicles – it was also applicable to items in certain
containers in vehicles. In In re I.M.S., 124 A.3d 311 (Pa. Super. 2015), this
Court recognized that as our Supreme Court in Gary had adopted the federal
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warrantless automobile search exception, courts in this Commonwealth should
also follow the United States Supreme Court precedent that authorized officers
to search any containers in a vehicle so long as they have probable cause to
search the vehicle generally. Id. at 317 (citing Wyoming v. Houghton, 526
U.S. 295 (1999)); see also Commonwealth v. Runyan, 160 A.3d 831, 837
(Pa. Super. 2017) (under I.M.S., “if [the o]fficer [ ] had probable cause to
search the vehicle at issue for contraband he was also permitted to search any
container found therein where the contraband could be concealed, including
[the defendant’s] purse”). In Commonwealth v. Scott, 210 A.3d 359 (Pa.
Super. 2019), this Court narrowed the authority of law enforcement to search
a closed container within a vehicle where the potential illegal activity that
afforded the officer probable cause to engage in the search had been
accounted for by contraband already collected during the vehicle search. Id.
at 364 (holding that the odor of burnt marijuana and a small amount of
contraband recovered from the passenger compartment of a vehicle was
insufficient to establish probable cause to search the trunk of the vehicle).
Presuming that there was probable cause to search the car that
Appellant had been driving – and we concluded above that there was not –
the application of Gary as opposed to Alexander would have mattered as it
would have not required a showing of exigent circumstances to permit a
warrantless search of the car. If a warrantless search of the car was
permissible under Gary then a search of the fanny pack as a container in the
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passenger compartment could have been appropriate under I.M.S. and
Houghton. Alexander undoubtedly applied here, given Appellant’s assertion
of a claim pursuant to that case in a reconsideration motion, so the warrant
exception for car searches under Gary could not excuse the search of the
fanny pack in the absence of a warrant or a combination of probable cause
and exigent circumstances.
We find that there was insufficient probable cause for a warrantless
search of the fanny pack so a determination on the sufficiency of exigent
circumstances under Alexander is immaterial. At the same time, we note
that the Commonwealth does not bother to argue that there was any support
for exigent circumstances for the fanny pack search because it believed that
the marijuana was properly recovered as a result of a Terry frisk and that the
recovery of the cocaine was already covered by the search incident to arrest
warrant exception. We disagree that the record supports that a Terry frisk of
the fanny pack occurred or that the search of the fanny pack was proper.
Presuming for the sake of argument that there was probable cause to search
the fanny pack, Appellant is correct that the Commonwealth failed to articulate
exigent circumstances for the warrantless search of the fanny pack. Because
the cocaine was recovered incident to an unlawful arrest as a result of the
improper search of the fanny pack, we agree with Appellant that the
suppression motion should have been granted.
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Judgments of sentence vacated. Order reversed. Case remanded.
Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/29/2023
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