Com. v. Decarlo, A.

J-A01036-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
v. :
:
ANTHONY JOSEPH DECARLO :
:
Appellee : No. 461 MDA 2021
Appeal from the Order Entered March 11, 2021
In the Court of Common Pleas of Berks County
Criminal Division at No(s): CP-06-CR-0003501-2019
BEFORE: LAZARUS, J., NICHOLS, J., and KING, J.
MEMORANDUM BY KING, J.: FILED APRIL 20, 2022
Appellant, the Commonwealth of Pennsylvania, appeals from the order
entered in the Berks County Court of Common Pleas, granting the second
suppression motion of Appellee, Anthony Joseph DeCarlo. We affirm.
The suppression court provided the following findings of fact:
1. The traffic stop in this case occurred on August 7,
2019. On that day, Trooper Hope was employed as a
trooper with the Pennsylvania State Police in the bureau of
criminal investigation. He was assigned to the S.H.I.E.L.D.
(Safe Highways Initiative through Effective Law
Enforcement and Detection) unit which patrols Pennsylvania
highways to disrupt the flow of criminal activity.
2. Trooper Hope has 18 years of experience as a
trooper with the Pennsylvania State Police. He became part
of a Pennsylvania State Police interdiction team in May of
2009 and then joined the S.H.I.E.L.D. unit in February of
2015.
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3. Trooper Hope testified that his training takes an “all
crimes approach” targeting various types of criminal activity
including human trafficking, credit card fraud, money
laundering, retail theft, etc.
4. On the above-referenced date, Trooper Hope was
in an unmarked patrol vehicle on Route 78, Bethel
Township, Berks County, Pennsylvania. He was on
stationary patrol monitoring westbound traffic when he
observed a silver sedan, subsequently identified as a Kia
Forte (“Kia”), pass his location.
5. Trooper Hope observed that the Kia had a South
Carolina registration and was occupied by one white male,
subsequently identified as [Appellee]. Based on Trooper
Hope’s training and experience, the Kia appeared to be a
rental vehicle. Trooper Hope testified that, during his 10
years involved with highway interdiction, he has arrested
around 200 people for possession with intent to deliver and
at least 70% of those individuals were in rental vehicles.
6. Trooper Hope followed the Kia and used a
calibrated speedometer to clock the vehicle traveling at 70
miles per hour in a 60 miles per hour zone. As Trooper Hope
was following the Kia, it quickly decelerated to 60 miles per
hour. Trooper Hope testified that this was one of his pre-
stop indicators of criminal activity. He believed [Appellee]
was aware of his presence when he decelerated.
7. Trooper Hope observed that [Appellee] had his
hand outside of the driver’s side window and was tapping
the top of the door/roof area. It was a hot August day and
Trooper Hope found this behavior to be unusual and
believed it was a nervous reaction to his presence.
8. At 13:24:42,[1] Trooper Hope initiated a traffic stop
of the Kia by activating his lights and siren. The Kia came
to a complete stop on the right shoulder of I-78’s westbound
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1 At Appellee’s first suppression hearing, the Commonwealth submitted a DVD
of the mobile video recording (“MVR”) of Trooper Hope’s encounter with
Appellee. (See N.T. First Suppression Hearing, 2/11/20, at 5). Throughout
its findings of fact, the court referred to the timestamps from the MVR.
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lanes of traffic at 13:24:55.
9. Trooper Hope opened the door to his patrol vehicle
at 13:25:40 and approached the Kia on the passenger side.
[Appellee] was the only occupant of the Kia.
10. At 13:26:00, Trooper Hope had his first interaction
with [Appellee] when he asked him how he was doing.[2]
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11. While Trooper Hope was talking with [Appellee]
through the passenger side window, he observed that
[Appellee] was holding one cellular telephone and an
additional cellular telephone was near the gearshift.
Trooper Hope testified that, in his experience, an individual’s
possession of multiple cellular phones is consistent with
involvement in criminal activity. Drug traffickers often have
one phone for personal use and another phone for
conducting criminal activity. Over 90% of Trooper Hope’s
arrests of individuals for possession with intent to deliver
have involved individuals with multiple cell phones.
12. [During their conversation, Appellee admitted that
he had rented the Kia. Trooper Hope then asked to see the
rental agreement.] Trooper Hope testified that, in [his]
experience, rental agreements are either in paper or
electronic form. Paper rental contracts are used for
infrequent renters. Electronic rental contracts are typically
used for people who rent more often. He found it unusual
that [Appellee] first attempted to provide a paper rental
agreement and then offered to locate an electronic rental
agreement on his phone. Although no rental agreement was
provided,[3] Trooper Hope testified that there is no legal
requirement that someone must have a rental agreement
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2 Throughout its findings of fact, the court provided verbatim transcriptions of
Trooper Hope’s conversations with Appellee. These conversations do not
impact our analysis of the issue on appeal, and we have omitted them.
3 Later in the investigation, Trooper Hope confirmed that Appellee had rented
the car from Avis, and the rental term had not expired at the time of the traffic
stop. (See N.T. Second Suppression Hearing, 2/18/21, at 11-12).
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while operating a rental vehicle.
13. [During their conversation, Appellee stated that he
was returning to North Carolina after a trip to New York].
Trooper Hope testified that New York is a source city for
narcotics.
* * *
17. After the initial conversation with [Appellee],
Trooper Hope entered his patrol vehicle and closed the door
at 13:29:06.
18. While inside of his patrol vehicle, Trooper Hope
learned that [Appellee’s] driver’s license was valid and that
he was not a wanted individual. Trooper Hope looked up
[Appellee’s] criminal history which revealed that [Appellee]
was charged with two misdemeanor marijuana offenses in
2013, a marijuana and firearms charge in 2014 and an
additional charge of possession with intent to deliver in
2014. [Appellee] was sentenced to serve 18 months in
prison on the possession with intent to deliver charge and
was under supervised release in 2017.
19. Before exiting his patrol vehicle, Trooper Hope
prepared a warning for the speeding violation.
20. At 13:39:32, Trooper Hope exited his patrol vehicle
and went to the passenger side of the Kia. The second
cellular phone that he had previously observed near the
gearshift was no longer visible. Trooper Hope believed that
[Appellee] may be involved in criminal activity. Specifically,
he believed [Appellee] may have been in possession of
controlled substances with the intent to deliver them or
laundering money. Trooper Hope then asked [Appellee] if
he could talk to him outside of the Kia. [Appellee] exited
the vehicle and walked to the back of the Kia.
21. While standing with Trooper Hope between the
front of Trooper Hope’s patrol vehicle and the back of the
Kia, [a] conversation took place[. Trooper Hope asked
Appellee whether there was contraband in the vehicle.
Appellee denied transporting any illegal items. Trooper
Hope asked for consent to conduct a pat down search, and
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Appellee provided consent.]
22. At 13:40:36, Trooper Hope patted down [Appellee]
with negative results.
23. Following the pat down of [Appellee], Trooper Hope
continued … the … conversation[. Trooper Hope asked for
consent to search the vehicle, and Appellee did not provide
consent. Trooper Hope then indicated that he would be
calling for a canine to sniff the exterior of the vehicle.]
24. At 13:42:00, Trooper Hope’s conversation with
[Appellee] ended and he entered his patrol vehicle at
13:42:08. [Appellee] continued to stand between the back
of the Kia and front of Trooper Hope’s patrol vehicle.
* * *
37. At 14:21:21, Trooper Swope arrived on scene. He
had a brief conversation with [Appellee] about the canine
search shortly after he arrived.
* * *
43. Trooper Swope began the canine search at
14:27:05. [Appellee] was outside of the patrol vehicle
during the canine search. The canine search ended at
14:28:54.
44. During the canine search, Trooper Swope and
Muso[, the canine,] moved left to right around the Kia. As
Muso reached the rear of the Kia, Muso stopped his left to
right movement and turned his head towards the rear,
driver’s side portion of the Kia. Trooper Swope testified he
heard deep, audible nose breaths at the same time. Trooper
Swope took Muso around the Kia again and Muso alerted a
second time on the rear, driver’s side portion of the Kia
along the seam of the trunk. Muso also attempted to belly
crawl under the Kia. Trooper Swope testified that this is not
typical behavior and that Muso was attempting to locate the
source of the odor.
45. At 14:29:30, Trooper Swope informed [Appellee]
that the dog alerted to the back corner of the Kia near the
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trunk area.
46. At 14:30:32, Trooper Hope and Trooper Fleisher[,
a back-up officer,] opened the trunk of the Kia and located
62 one-pound bags of vacuum sealed marijuana. [Appellee]
was placed under arrest.
47. The troopers searched the remainder of the Kia and
located two bags, one containing $1,700.00 in U.S. currency
and the other containing 20 marijuana vape pens.
(First Findings of Fact and Conclusions of Law, filed 4/23/20, at 2-18) (internal
footnotes omitted).
On September 6, 2019, the Commonwealth filed a criminal information
charging Appellee with two (2) counts each of possession of a controlled
substance and possession of a controlled substance with intent to deliver.4
Appellee filed his first suppression motion on October 7, 2019. In it, Appellee
argued that the troopers “unconstitutionally prolonged [the] traffic stop
without reasonable suspicion.” (First Suppression Motion, filed 10/7/19, at
1). On February 11, 2020, the court conducted a suppression hearing. The
court issued findings of facts and conclusions of law on April 23, 2020. In a
separate order also entered on April 23, 2020, the court denied Appellee’s first
suppression motion.
On October 19, 2020, Appellee waived his right to a jury trial. That
same day, at the conclusion of a stipulated bench trial, the court found
Appellee guilty of one count of possession of a controlled substance with intent
____________________________________________
4 35 P.S.§ 780-113(a)(16), (30).
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to deliver. The court scheduled Appellee’s sentencing hearing for January 14,
2021.
Prior to sentencing, Appellee filed notice of his intention to make an oral
motion for extraordinary relief pursuant to Pa.R.Crim.P. 704(B).5 In the
notice, Appellee indicated that he would “make an oral motion in arrest of
judgment, for a judgment of acquittal, or for a new trial as a result of” our
Supreme Court’s recent decision in Commonwealth v. Alexander, ___ Pa.
___, 243 A.3d 177 (2020), which eliminated the automobile exception to the
warrant requirement in Pennsylvania. (Notice, filed 1/4/21, at 1). On January
26, 2021, the court granted Appellee’s request for extraordinary relief,
vacated the guilty verdict, and ordered a new trial.
Appellee filed his second suppression motion on February 4, 2021.
Relying on Alexander, Appellee argued that the trooper conducted an illegal,
warrantless search of the vehicle’s trunk and passenger compartment.
Appellee maintained that “[n]o exigent circumstances, which would legally
excuse the lack of such a search warrant, were present” before or during the
search. (Second Suppression Motion, filed 2/4/21, at 4). The court conducted
another suppression hearing on February 18, 2021. At that time, the
____________________________________________
5 “Under extraordinary circumstances, when the interests of justice require,
the trial judge may, before sentencing, hear an oral motion in arrest of
judgment, for a judgment of acquittal, or for a new trial.” Pa.R.Crim.P.
704(B)(1). “The judge shall decide a motion for extraordinary relief before
imposing sentence, and shall not delay the sentencing proceeding in order to
decide it.” Pa.R.Crim.P. 704(B)(2).
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Commonwealth presented additional testimony from Trooper Hope to oppose
Appellee’s claims.
On March 11, 2021, the court issued a second set of findings of fact and
conclusions of law.6 The court noted that Trooper Hope did not obtain a search
warrant for the Kia. (See Second Findings of Fact and Conclusions of Law,
filed 3/11/21, at 2). Pursuant to Alexander, the court concluded that both
probable cause and exigent circumstances needed to be present for Trooper
Hope to search without obtaining a warrant. (Id. at 4). According to the
court, the record did not reveal any exigent circumstances to support the
warrantless search. (Id. at 5). To the extent the Commonwealth sought to
rely on the inevitable discovery doctrine, “Trooper Hope testified that he would
have obtained a search warrant for the Kia if the traffic stop had happened
after the Alexander decision.” (Id. at 9). Nevertheless, the court found that
“an assertion that Trooper Hope could have obtained a warrant will not satisfy
the inevitable discovery doctrine.” (Id.) Consequently, the court granted
Appellee’s second suppression motion.
The Commonwealth timely filed a notice of appeal on Monday, April 12,
____________________________________________
6 The second set of findings of fact and conclusions of law “incorporate[d] by
reference [the court’s] findings of fact contained within its findings of fact and
conclusions of law” from April 23, 2020. (Second Findings of Fact and
Conclusions of Law, filed 3/11/21, at 2).
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2021, under Pa.R.A.P. 311(d).7 On April 16, 2021, the court ordered the
Commonwealth to file a Pa.R.A.P. 1925(b) concise statement of errors
complained of on appeal. The Commonwealth timely filed its Rule 1925(b)
statement on April 30, 2021.
The Commonwealth now raises one issue for this Court’s review:
Did the trial court err in suppressing evidence obtained as a
result of a warrantless search of [Appellee’s] vehicle based
upon probable cause?
(Commonwealth’s Brief at 4).
On appeal, the Commonwealth acknowledges our Supreme Court’s
decision in Alexander, which held that the Pennsylvania Constitution requires
both a showing of probable cause and exigent circumstances to justify the
warrantless search of an automobile. Nevertheless, the Commonwealth
insists that an exception to the warrant requirement is present under the
circumstances of this case. The Commonwealth contends that “the search of
[Appellee’s] vehicle was properly performed pursuant to [Commonwealth v.
Gary, 625 Pa. 183, 91 A.3d 102 (2014)], which was the binding precedent at
that time.” (Id. at 22). “Trooper Hope was clearly aware of the proper
procedure for obtaining warrants, as he testified that if Alexander existed at
the time of this traffic stop, the vehicle would have been towed back to the
____________________________________________
7 See Pa.R.A.P. 311(d) (stating that in criminal case, Commonwealth may
take appeal as of right from order that does not end entire case where
Commonwealth certifies in notice of appeal that order will terminate or
substantially handicap prosecution).
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station and secured pending the warrant application.” (Id.) Under these
circumstances, the Commonwealth asserts that the trooper’s discovery of the
contraband was inevitable.
The Commonwealth urges that “the inevitable discovery doctrine
permits the admission of the evidence discovered during the search of
[Appellee’s] vehicle.” (Id. at 18). The Commonwealth recognizes that the
exclusionary rule “generally excludes physical or testimonial evidence
obtained as a direct and proximate result of unconstitutional conduct by
police,” but it contends that the inevitable discovery doctrine serves as an
exception to the exclusionary rule. (Id. at 14). The Commonwealth further
argues that “[a]t the federal level, an exception to the exclusionary rule exists
when police unknowingly violate the constitution while acting in ‘good faith.’”
(Id. at 23). The Commonwealth notes that “[o]ther states have incorporated
this [good faith exception] into their jurisprudence,” and this Court should
adopt such an exception here, where “Trooper Hope acted in accordance with
the law at the time of the search.” (Id. at 27, 32). Based upon the foregoing,
the Commonwealth concludes that we must remand this case for trial on all
charges with all evidence. We disagree.
“At a suppression hearing, ‘the Commonwealth has the burden of
establishing by a preponderance of the evidence that the evidence was
properly obtained.’” Commonwealth v. Heidelberg, 267 A.3d 492, 499
(Pa.Super. 2021) (en banc) (quoting Commonwealth v. Galendez, 27 A.3d
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1042, 1046 (Pa.Super. 2011) (en banc)). When the Commonwealth appeals
from a suppression order, the relevant scope and standard of review are well-
settled:
[We] 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. The suppression court’s findings of fact
bind an appellate court if the record supports those findings.
The suppression court’s conclusions of law, however, are not
binding on an appellate court, whose duty is to determine if
the suppression court properly applied the law to the facts.
Our standard of review is restricted to establishing whether
the record supports the suppression court’s factual findings;
however, we maintain de novo review over the suppression
court’s legal conclusions.
Commonwealth v. Korn, 139 A.3d 249, 252-53 (Pa.Super. 2016), appeal
denied, 639 Pa. 157, 159 A.3d 933 (2016) (internal citations and quotation
marks omitted). “It is within the suppression court’s sole province as
factfinder to pass on the credibility of witnesses and the weight to be given to
their testimony. The suppression court is free to believe all, some or none of
the evidence presented at the suppression hearing.” Commonwealth v.
Elmobdy, 823 A.2d 180, 183 (Pa.Super. 2003), appeal denied, 577 Pa. 701,
847 A.2d 58 (2004) (internal citations omitted).
“Both 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.” Heidelberg, supra at
502 (quoting Commonwealth v. Newsome, 170 A.3d 1151, 1154
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(Pa.Super. 2017)). “As a general rule, ‘a warrant stating probable cause is
required before a police officer may search for or seize evidence.’” Id.(quoting Commonwealth v. Anderson, 40 A.3d 1245, 1248 (Pa.Super.
2012)). Regarding automobiles, “Article I, Section 8 affords greater protection
to our citizens than the Fourth Amendment, and … the Pennsylvania
Constitution requires both a showing of probable cause and exigent
circumstances to justify a warrantless search of an automobile.” Alexander,
supra at ___, 243 A.3d at 181.
“Absent the application of one of a few clearly delineated exceptions, a
warrantless search or seizure is presumptively unreasonable.” Heidelberg,
supra at 502 (quoting Commonwealth v. Whitlock, 69 A.3d 635, 637
(Pa.Super. 2013)). One of these exceptions to the warrant requirement is the
inevitable discovery doctrine, which provides:
[E]vidence which would have been discovered was
sufficiently purged of the original illegality to allow
admission of the evidence…. [I]mplicit in this doctrine is the
fact that the evidence would have been discovered despite
the initial illegality.
If the prosecution can establish by a preponderance of the
evidence that the illegally obtained evidence ultimately or
inevitably would have been discovered by lawful means, the
evidence is admissible. The purpose of the inevitable
discovery rule is to block setting aside convictions that
would have been obtained without police misconduct.
Commonwealth v. King, 259 A.3d 511, 522 (Pa.Super. 2021) (quoting
Commonwealth v. Bailey, 986 A.2d 860, 862 (Pa.Super. 2009), appeal
denied, 606 Pa. 660, 995 A.2d 350 (2010)).
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“[T]he inevitable discovery doctrine is not a substitute for the warrant
requirement. Police must demonstrate that the evidence would have been
discovered absent the police misconduct, not simply that they somehow could
have lawfully discovered it.” Commonwealth v. Perel, 107 A.3d 185, 196
(Pa.Super. 2014), appeal denied, 633 Pa. 749, 124 A.3d 309 (2015)
(emphasis in original). “To hold that courts simply may make a post-hoc
determination that sufficient probable cause existed at the time of an
otherwise illegal search would be to eliminate the key safeguard that
‘delineat[es] the dignity of the individual living in a free society.’” Id. (quoting
Commonwealth v. Edmunds, 526 Pa. 374, 398, 586 A.2d 887, 899 (1991)).
Instantly, Trooper Hope testified at Appellee’s second suppression
hearing. The trooper confirmed that he did not obtain a warrant before
searching Appellee’s vehicle. (See N.T. Second Suppression Hearing at 10).
Trooper Hope explained, “From 2014 until late in 2020, we just did probable
cause searches of vehicles on the side of the road. Whether it was me seeing
or smelling some type of drugs or drug paraphernalia, I would do a probable
cause search.” (Id. at 9-10). The trooper added that if this stop had occurred
today, he would have obtained a warrant. (Id. at 10).
Following Trooper Hope’s testimony, the court received argument from
the Commonwealth. At that time, the Assistant District Attorney admitted
that he was not making an argument regarding the existence of exigent
circumstances. (Id. at 17). Rather, he attempted to apply the inevitable
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discovery doctrine to the facts of the instant case:
My argument, Your Honor, really is that in this case this is
really an alternative basis kind of argument, and I
understand—I see that in Pennsylvania that there is no good
faith exception.
But the argument is, Your Honor, that it is really inevitable
discovery. I think based on the [c]ourt’s findings of what
we had before, and there’s ample testimony and ample
evidence that’s in your decision from the [first suppression
motion], was certainly that, you know, the dog sniff, you
had determined on that. I would argue that I don’t think
there’s a question that that would create [probable cause],
and that he could have got a warrant had the laws perhaps
been different.
(Id. at 18).
The court subsequently rejected this argument:
[A]s set forth in Perel, an assertion that Trooper Hope could
have obtained a warrant will not satisfy the inevitable
discovery doctrine.
* * *
At the time of Trooper Hope’s search of the Kia, the Gary
standard was in effect. Trooper Hope acted in accordance
with applicable law when he performed a warrantless search
of the Kia based solely on probable cause. However,
[Appellee] is entitled to the benefit from the change in law
pursuant to Alexander, supra. See Commonwealth v.
Gaston, 239 A.3d 135, 140 (Pa.Super. 2020)[.]
(Second Findings of Fact and Conclusions of Law at 9).
Based upon the applicable standard of review, the suppression court
properly applied the law to the facts. See Korn, supra. We emphasize that
the Commonwealth’s argument in favor of applying the inevitable discovery
doctrine—that Trooper Hope could have lawfully discovered the contraband if
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he had applied for a warrant—is exactly the type of argument that this Court
disapproved of in Perel. Absent more, the Commonwealth did not establish
that the illegally obtained evidence in the trunk of the Kia ultimately or
inevitably would have been discovered by lawful means. See King, supra.
The Commonwealth now asks this Court to recognize an exception to
the exclusionary rule, but “Article I, Section 8 of the Pennsylvania Constitution
does not incorporate a ‘good faith’ exception to the exclusionary rule.”
Edmunds, supra at 411, 586 A.2d at 905-06. See also Commonwealth v.
Johnson, 624 Pa. 325, 86 A.3d 182 (2014) (declining to adopt good faith
exception to exclusionary rule for purpose of admitting physical evidence
seized by police incident to arrest based solely on expired arrest warrant, even
if arresting officer believed warrant was valid). Accordingly, we affirm the
order granting Appellee’s second motion for suppression of the evidence
obtained as a result of the illegal vehicle search.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/20/2022
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