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Commonwealth v. Kemp

November 26, 2008

COMMONWEALTH OF PENNSYLVANIA, APPELLEE
v.
KENNEDY DECATRICK KEMP, APPELLANT



Appeal from the Judgment of Sentence of July 25, 2006, in the Court of Common Pleas of Somerset County, Criminal Division, at No. CP-56-CR-0000313-2005.

The opinion of the court was delivered by: Bowes, J.

BEFORE: FORD ELLIOTT, P.J., MUSMANNO, ORIE MELVIN, LALLY GREEN, TODD,*fn1 BOWES, GANTMAN, McCAFFERY*fn2 and DANIELS,*fn3 JJ.

OPINION

¶ 1 Kennedy Decatrick Kemp appeals from the July 25, 2006 judgment of sentence of six to twenty-three months imprisonment followed by two years probation that was imposed after he was convicted at a nonjury trial of possession of a controlled substance, possession of a controlled substance with intent to deliver, and conspiracy. Appellant challenges the constitutionality of the police interdiction that resulted in the seizure of the controlled substance, marijuana. We conclude that Appellant was subjected to a detention that was supported by the existence of reasonable suspicion that he was in possession of a controlled substance. We also conclude that the consent to search the vehicle in question was not constitutionally infirm. Hence, we affirm.

¶ 2 The facts adduced at the August 3, 2005 suppression hearing follow. In the early morning hours of March 19, 2005, State Trooper Anthony F. DeLuca was monitoring traffic along the Pennsylvania Turnpike near the Allegheny Tunnel. He observed Appellant's vehicle with tinted windows that prevented him from seeing inside the car, and he began to follow it. The windows were tinted on the front, front passenger's side, front driver's side, rear passenger's side, rear driver's side, and rear windows. Such tinting constituted a violation of 75 Pa.C.S. § 4524(e)(1).*fn4 Id. at 9. When Trooper DeLuca stopped the car, Kandice Kyles was driving with Appellant sitting in the passenger seat.

¶ 3 The police officer testified, "The minute that [Kyles] rolled down her window, I got hit by an extremely strong odor of, [its] called masking agent, air fresheners, dryer sheets." Id. at 11. Trooper DeLuca stated that the odor indicated "there could be something in the vehicle." Id.When the trooper asked for documentation, Kyles did not respond and continually looked at Appellant. She appeared "very nervous" and her carotid artery was pulsating, another marker of extreme agitation. Id. at 12. Trooper DeLuca scanned the interior of the vehicle and observed "roughly 12 air fresheners" of various types, including a number of tree-shaped pine air fresheners, a crown air freshener, and an open jar of that substance. Id. at 13.

¶ 4 Kyles produced a New Jersey resident identification card, which appeared to be counterfeit, and Appellant produced a Florida driver's license. Appellant informed Trooper DeLuca that the vehicle was owned by a person whose last name was "Lee." During questioning, Appellant and Kyles were evasive and refused to look at the officer. Finally, while located at the driver's window of the vehicle, Trooper DeLuca could "detect the faint odor of marijuana, raw marijuana... from the inside of the vehicle outward." Id. at 27. Trooper DeLuca detailed the nature of the narcotic scent:

Narcotics, when sitting in a vehicle for a long time, [they] begin to basically what they call burn into the vehicle. If it's locked inside the vehicle, if it's hot out, they have an air, air conditioner on, if they have the heating system on, and there's a narcotic located inside the vehicle, if it's a large amount of narcotics, it's going to bake in a vehicle, bake into their clothing, bake into the seats. And I was getting a faint odor of raw marijuana coming from inside the vehicle.

Id. at 28.

¶ 5 Trooper DeLuca delineated his extensive training in detecting drug trafficking as well as vast experience in such investigations and was qualified to testify as an expert witness. Id. at 15-16, 26. From this training and experience, he knew that drug traffickers often attempt to mask the scent of marijuana with a large number of air fresheners and use third-party vehicles rather than their own vehicles to transport drugs so that they will not lose personal property if the vehicle is seized.

¶ 6 Specifically, Trooper DeLuca testified that he was trained in drug courier detection techniques, and looked for the following indicia of such activity: 1) either third-party ownership of vehicles or third-party rentals, where the third party is not present in the car; 2) the "presence of masking agents such as crown air freshener" or what police refer to as "felony forests where the people just throw a bunch of those Christmas trees in their vehicle to try to get rid of an odor;" 3) whether the car is coming from a source city, such as New York, Allentown, Lancaster, Reading, Philadelphia, Pittsburgh, or Harrisburg; 4) nervous reactions by the car's occupants, including sweatiness, refusal to make eye contact, hand wringing, a pulsating carotid artery, and the inability to give clarifying answers to questions; and 5) the presence of counterfeit documents. Id. at 21. The trooper also stated that people who are not attempting to mask the scent of a controlled substance normally would have one or two air fresheners.

¶ 7 The officer returned to his car and conducted a check of Kyles and the car. Kyles was not a licensed driver, and the car was not owned by a person whose last name was Lee but by Lanika Paolucci. Id. at 29. After Trooper DeLuca issued a warning for the improperly-tinted windows and the license violation, he asked Kyles to exit the car, showed her the warnings, explained that Appellant would have to drive, and told her "to have a nice day." Id. at 34. When Kyles started to walk away, Trooper DeLuca reinitiated contact by asking if he "could speak to her a minute." Id. at 35.

¶ 8 Kyles agreed, and in response to his question about the location of her origin and destination, stated that she was traveling from Allentown to Pittsburgh. She was asked a number of details about why she went to Allentown and what she did while there. Trooper DeLuca told Kyles that she was free to go and instructed her to tell Appellant, who was standing outside the vehicle, that he would have to drive.

¶ 9 When Appellant returned to the vehicle, Trooper DeLuca gave Appellant his driver's license, shook his hand, and told him "to have a nice day." Id. at 37. As Appellant reached the driver's side door, Trooper DeLuca re-initiated contact with him by asking "if [he] could speak to him for a minute." Id. Appellant walked back toward Trooper DeLuca.

Trooper DeLuca questioned Appellant about details of his travel and then asked Appellant if there were any "guns, drugs, or money" inside the vehicle. Id. at 40. Appellant immediately broke eye contact with the officer and responded negatively. Then, Trooper DeLuca asked Appellant if he "could look inside the vehicle, and [Appellant] stated: Sure, I'll pop the trunk." Id. at 41. Trooper DeLuca immediately saw a plastic bag. He "grabbed the bag, and [his] plain feel of the bag" made him realize that "the bag was full of marijuana." Id. At that point, Appellant was arrested. Another officer at the scene arrested Kyles.*fn5

¶ 10 Based on this evidence, the suppression court refused to suppress the fruits of the vehicular search. On May 15, 2006, the case proceeded to a nonjury trial where the Commonwealth established that there were nearly twenty-three pounds of marijuana in the car. On May 16, 2006, Appellant was found guilty of possession of a controlled substance, possession of a controlled substance with intent to deliver, and conspiracy. On July 25, 2006, he was sentenced to six to twenty-three months imprisonment followed by two years probation. This appeal followed.

¶ 11 Appellant raises this contention for our review:

The lower court erred in denying Appellant's suppression motion because, even though the initial traffic stop in this case may have been proper, the prolonged seizure after the Sergeant had achieved the purpose of the vehicle stop required reasonable suspicion to support the continuation of the stop and questioning of Appellant.

Appellant's brief at i.

¶ 12 Initially, we outline our standard of review:

When reviewing the propriety of a suppression order, an appellate court is required to determine whether the record supports the suppression court's factual findings and whether the inferences and legal conclusions drawn by the suppression court from those findings are appropriate. Commonwealth v. Davis, 491 Pa. 363, 421 A.2d 179 (1980).... Where the record supports the factual 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. Bomar, 573 Pa. 426, 826 A.2d 831, 842 (2003). However, where the appeal of the determination of the suppression court turns on allegations of legal error, "the suppression court's conclusions of law are not binding on an appellate court, whose duty it is to determine if the suppression court properly applied the law to the facts." Commonwealth v. Nester, 551 Pa. 157, 709 A.2d 879, 881 (1998).

Commonwealth v. Mistler, 912 A.2d 1265, 1269-70 (Pa. 2006).

ΒΆ 13 In the present case, the suppression court concluded that the traffic stop became a mere encounter once Trooper DeLuca returned the documents to Appellant and told him to have a nice day. The court held that Appellant's consent to search was not procured as the result of a ...


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