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COMMONWEALTH PENNSYLVANIA v. STEPHEN DOUGLAS ELLIOTT AND TROY LANCY RAY (04/05/88)

submitted: April 5, 1988.

COMMONWEALTH OF PENNSYLVANIA, APPELLANT,
v.
STEPHEN DOUGLAS ELLIOTT AND TROY LANCY RAY, APPELLEES



Appeal from the Order of the Court of Common Pleas of Fulton County, Criminal at No. 44 of 1986 and No. 50 of 1986.

COUNSEL

James M. Schall, District Attorney, McConnellsburg, for Com., appellant.

David S. Keller, Waynesboro, for Elliott, appellee.

Patrick J. Redding, Chambersburg, for Ray, appellee.

Brosky, Montemuro and Johnson, JJ. Johnson, J., files a dissenting opinion.

Author: Montemuro

[ 376 Pa. Super. Page 540]

This is an appeal by the Commonwealth from an order of the Court of Common Pleas of Fulton County suppressing various items of contraband seized from Stephen D. Elliot and Troy Lancy Ray. The seizure of these items occurred following a stop of the vehicle in which the two were traveling for a Motor Vehicle Code violation. We reverse.

The uncontroverted testimony at the suppression hearing depicted the following events leading up to the present appeal. In the late afternoon hours on March 26, 1986, Trooper Darryl E. Heckman of the Pennsylvania State Police began to follow a 1977 Oldsmobile Coupe owned and operated by Stephen Elliot. Accompanying Elliot was one Troy Lancy Ray. Trooper Heckman observed an object hanging from the inside rearview mirror of the Elliot vehicle. Believing that the object might materially obstruct the driver's view through the windshield, a violation of Section 4524(c) of the Motor Vehicle Code, Trooper Heckman pulled the vehicle over. When he arrived at the driver's side window and requested to see Elliot's operator's license and registration card, Trooper Heckman observed a bag of ice with beer in it located behind the passenger's seat where Ray was sitting. He also noticed a strong odor of alcohol emanating from the vehicle and several empty beer bottles strewn throughout the interior of the vehicle.

[ 376 Pa. Super. Page 541]

Trooper Heckman ascertained that Elliot was 21 years of age but suspected that Ray was under the legal age for consumption of alcoholic beverages. With this in mind he proceeded to the passenger's side window and asked Ray to produce identification. Ray had no identification, but informed the officer that he was 19 years old. Trooper Heckman then requested Ray to step outside the vehicle. As Ray proceeded to open the door and exit the vehicle, an open bottle of beer, which was apparently wedged between the door and Ray's leg, spilled out onto the road. As Trooper Heckman bent down to pick up the fallen bottle, he observed a clear plastic baggie containing what appeared to be marijuana protruding from under the passenger's seat. He seized the bag, and after confirming his suspicion that the bag contained marijuana, he attempted to ascertain whether he could detect alcohol on Ray's breath. Detecting the odor of beer on Ray's breath, Trooper Heckman ordered both Ray and Elliot to go and place their hands on the police cruiser. He patted down Ray and found a folding knife in Ray's back pocket. Trooper Heckman's pat down of Elliot uncovered a "stash kit"*fn1 in Elliot's right front pocket and a bag of marijuana in his left front pocket. After reading both Elliot and Ray their Miranda rights, Trooper Heckman called Trooper Good for assistance. While waiting for Trooper Good to arrive, both Elliot and Ray admitted to Trooper Heckman that more drugs were in the vehicle. Upon Trooper Good's arrival, Elliot was asked to consent to a search of his vehicle. Although hesitant at first, Elliot signed a written consent form when Trooper Good confronted him with the fact that there was sufficient basis to obtain a search warrant in the event that he refused to consent. The subsequent search of the car uncovered numerous items of contraband, including: packets of hashish, hallucinogenic mushrooms, 280 hits of LSD, a bag of marijuana, cigarette rolling papers, a pair of ten inch forceps, and $1100 in cash. Based on the items seized, Trooper

[ 376 Pa. Super. Page 542]

Good filed a complaint charging both Elliot and Ray with various violations of the Controlled Substance, Drug, Device, and Cosmetic Act.*fn2 In addition, he charged Elliot with a violation of Section 4524(a) of the Motor Vehicle Code.*fn3 Both parties filed a motion to suppress the evidence alleging that the evidence was the fruit of an unconstitutional search and seizure in violation of the United States and Pennsylvania Constitutions. The suppression court concluded that while the initial stop of the vehicle was permissible, it was unlawful for the Trooper to order Ray, the passenger, out of the vehicle in the absence of a reasonable suspicion that Ray was armed and dangerous. As a result, the trial court suppressed all evidence obtained after Ray was ordered from the vehicle as "fruit of the poisonous tree". This timely appeal by the Commonwealth followed.

Before addressing the merits of the Commonwealth's appeal, we must determine whether the order appealed from is final. In Commonwealth v. Dugger, 506 Pa. 537, 486 A.2d 382 (1985), our supreme court discussed the circumstances under which the Commonwealth may appeal an unfavorable suppression order. The court stated:

[t]he Commonwealth's appeal of a suppression order is proper as an appeal from a final order when the Commonwealth certifies in good faith that the suppression order terminates or substantially handicaps the prosecution. Such certification is required as a means of preventing frivolous appeals and appeals intended solely for delay.

Id., 506 Pa. at 456-457, 486 A.2d at 386 (emphasis added). As Dugger indicates, the Commonwealth's right to appeal an unfavorable suppression order is not absolute, but rather is a qualified right. To accord a suppression order the attribute of finality necessary to 'justify the grant of the right of appeal to the Commonwealth . . . .', the Commonwealth

[ 376 Pa. Super. Page 543]

    must certify in good faith that the suppression order substantially handicaps or terminates the prosecution. Id.; See also Commonwealth v. Conway, 368 Pa. Super. 488, 534 A.2d 541 (1987). The failure to comply with the certification requirement renders the suppression order interlocutory and subject to being quashed. See Commonwealth v. Duncan, 514 Pa. 395, 410, 525 A.2d 1177, 1184 (1987) (Hutchinson, J., dissenting); Commonwealth v. Hoffman, 367 Pa. Super. 79, 532 A.2d 463 (1987) (Statement that suppression order substantially handicapped the prosecution properly invoked the jurisdiction of the court from an otherwise interlocutory order); Commonwealth v. Goodman, 347 Pa. Super. 403, 408 n. 3, 500 A.2d 1117, 1120 n. 3 (en banc) (1985). Because the Commonwealth has complied with the certification requirement, the suppression order is final order and this appeal is properly before us.

The question presented in this case is whether a police officer who has lawfully stopped a vehicle for a suspected Motor Vehicle Code violation may, consistent with the Fourth Amendment, order a passenger to exit the vehicle when the passenger is suspected of committing a crime, and, if so, whether the trial court erred in excluding the fruits of the warrantless searches that followed.

We note that in reviewing the the propriety of a suppression order:

[we are] limited primarily to questions of law [,and] are bound by the suppression court's findings of fact, if those facts are supported by the record. In determining whether the findings of fact are supported by the record, we are to consider only the evidence of appellee and so much of the evidence of the appellant which, as read in the context of the record as a whole, remains uncontradicted. It is for the suppression court as the trier of fact, rather than the reviewing court, to determine credibility.

Commonwealth v. White, 358 Pa. Super. 120, 123, 516 A.2d 1211, 1212 (1986) (citations omitted).

The Fourth Amendment of the United States Constitution provides that "the right of the ...


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