Appeal from the Judgment of Sentence of December 5, 2012 In the Court of Common Pleas of Somerset County Criminal Division at No(s): CP-56-CR-0000778-2008
BEFORE: PANELLA, OLSON and MUSMANNO, JJ.
Appellant, Khalid-Ibn Abdullah Kareem, appeals from the judgment of sentence entered on December 5, 2012. We affirm.
On appeal, Appellant claims that the lower court erred when it denied his pre-trial motion to suppress. In reviewing such a challenge, this Court "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 as a whole." Commonwealth v. Eichinger, 915 A.2d 1122, 1134 (Pa. 2007) (internal citations omitted). Based on the suppression hearing testimony of Pennsylvania State Police Trooper Anthony F. DeLuca (hereinafter "Trooper DeLuca"), the relevant facts are as follows.
On November 13, 2008, Trooper DeLuca was working the interdiction shift on the Pennsylvania Turnpike. N.T. Suppression Hearing, 5/ 31/ 11, at 31. At approximately 11: 30 p.m. that night, Trooper DeLuca was in full uniform and was operating a stationary, unmarked police vehicle that was positioned "on the east side of the Allegheny Tunnel[, allowing the Trooper to] observ[ e] westbound traffic." Id. According to Trooper DeLuca, it was at this time that he observed a silver Chevrolet Tahoe with "pitch black" tinted windows pass his position. Id. at 33. Trooper DeLuca testified that the windows had such dark tinting that "you could not see into the vehicle at all. I mean, it was like pitch black. Nothing, couldn't see into it." Id. I n Pennsylvania, it is a violation of the Vehicle Code for any person to "drive any motor vehicle with any sun screening device or other material which does not permit a person to see or view the inside of the vehicle through the windshield, side wing or side window of the vehicle." 75 Pa.C.S.A. § 4524(e)(1).
Because of the apparent Vehicle Code violation, Trooper DeLuca pursued the vehicle, activated his lights and siren, pulled the vehicle over to the side of the road, and parked his police car behind the vehicle. N.T. Suppression Hearing, 5/ 31/ 11, at 33-34. At the time Trooper DeLuca pulled the vehicle over, Trooper DeLuca was alone and had not yet called for backup officers to assist him . Id. at 34.
Trooper DeLuca approached the passenger side of the vehicle and, when the front-seat passenger rolled down the window, the Trooper noticed "an overwhelm ing citrus smell . . . that [ ] permeated the whole car as though an orange had been just broken open." Id. at 60. The odor originated from the 12 air fresheners and the three air sanitizers that were within the vehicle. Id. at 90-91. Moreover, Trooper DeLuca testified that – even as he stood next to the vehicle – the windows were so heavily tinted that he " could not see at all in[ side] th[ e] vehicle." Id. at 38.
Trooper DeLuca looked through the open, passenger-side window and initially believed that there were only two people in the car: the driver, who was later identified as Dorian McKinley, and the front-seat passenger, who was later identified as Jarrell Saunders. Id. at 35. Trooper DeLuca thus informed the individuals that "the reason why they were stopped[ was because of] the tinted windows." Id. at 37. Trooper DeLuca then requested Mr. McKinley's driver's license and registration, as well as some type of identification from Mr. Saunders. Id. at 35. Trooper DeLuca testified that, at this point, the individuals began to act suspiciously:
I believe . . . Mr. Saunders opened up the glove compartment that was directly in front of him, looked, and then shut it. Mr. McKinley then opened up the center console; and as soon as he opened it up, there was a – I observed a yellow plastic bag. He immediately put his arm down on the console.
Id. at 35- 36.
Trooper DeLuca testified that, after Mr. McKinley shut the center console, Mr. McKinley strangely "would not move his hand off that center console. . . . Not even to reach to grab anything. He maintained his arm on top of that center console, like pushing it down." Id. at 85.
Mr. McKinley handed Trooper DeLuca a Pennsylvania identification card and an expired Pennsylvania driver's license – but no vehicle ownership information. Id. at 36 and 72. Mr. Saunders supplied Trooper DeLuca with either his driver's license or his personal identification card. Id. at 37-38.
Trooper DeLuca testified that he then heard "some conversations going back." Id. at 36. Since he could not see into the vehicle, Trooper DeLuca opened the rear vehicle door and discovered that there were two other people in the vehicle. Id. These individuals – who were later identified as Appellant and Charles Coleman – were discovered lying down on the back two rows of seats. Id. Trooper DeLuca requested identification from Appellant and Mr. Coleman and they provided him with their "driver's license and any I .D. cards if they had photo I .D." Id. at 37.
Trooper DeLuca returned to his police car and ran a records check on the vehicle, the driver, and the three passengers. The search revealed that the vehicle was owned by an Ohioan named Jamie Louk. Id. at 39 and 42. With respect to the criminal records check, the Trooper testified:
Everyone came back with everything from Act 64 possession with the intent to deliver charges to, I believe[, ] there was Mr. Coleman had some shootings on his involving guns. Mr. Saunders also. The only one that really didn't have any type of criminal history was I believe Mr. McKinley. I believe he had [ a] minor possession charge. The rest had a large amount of criminal histories.
Id. at 38- 39.
Trooper DeLuca testified that, because of the gun charges, he called on-duty Pennsylvania State Trooper RoyceCapehart for backup; moreover, Trooper DeLuca also called Pennsylvania State Trooper Westley Berkebile, at Trooper Berkebile's personal residence, and asked him to come to the scene with his drug-sniffing canine partner, Bosko. Id. at 39. Trooper DeLuca then stayed in his vehicle for the " three to five minutes" that it took Trooper Capehart to arrive on scene. Id.
After Trooper Capehart arrived, Trooper DeLuca exited his police car, approached the Tahoe, and asked the driver (Mr. McKinley) to step out of the vehicle. Id. Trooper DeLuca testified:
I handed [ Mr. McKinley] all of his [ and the occupants'] cards back and . . . explained that his license was suspended. And he said he had a dispute over his license because he said he had – he got them back a few weeks ago. I told him looks like he doesn't have a fine paid. From 2008 didn't have a fine paid, and might not have paid his restitution.
Trooper DeLuca testified that he gave Mr. McKinley a written warning for the suspended license and the illegal window tinting and asked Mr. McKinley to explain their travel plans. Mr. McKinley told the Trooper that they were driving from Harrisburg to Pittsburgh. Id. at 41.
Trooper DeLuca then shook Mr. McKinley's hand, told Mr. McKinley to "have a nice day, " and watched as Mr. McKinley turned and walked back to the Tahoe to drive away. Id. at 39 and 42. However, Trooper DeLuca testified that – subjectively – he knew that he was not going to allow Mr. McKinley to simply drive away, as Mr. McKinley did not have a valid driver's license. Id. at 76- 77.
As Trooper DeLuca testified, while Mr. McKinley was walking away, the Trooper attempted to re-engage Mr. McKinley, and said "Mr. McKinley, can I ask you a question?" Id. at 42. Mr. McKinley walked back towards the Trooper and they began to speak. According to Trooper DeLuca:
I told him that we had a big problem with individuals trafficking things on the Pennsylvania Turnpike, such as drugs, guns, and money; and asked if there was anything in the vehicle that night. Mr. McKinley never lost eye contact. I asked Mr. McKinley if he would give consent to search that evening. Immediately he broke eye contact and looked at the rear of the vehicle. And then . . . Mr. McKinley said: [ i] t's fine with m e. . . . Then Mr. McKinley said: [ w] ell, it's not my car, not my vehicle.
Id. at 42.
As Trooper DeLuca testified, he told Mr. McKinley that he was aware the vehicle belonged to a person named Jamie Louk and asked whether Jamie Louk supplied the vehicle. I n response, Mr. McKinley stated: "I just got in the vehicle. I don't know who . . . he gave the vehicle to." Id.
Trooper DeLuca then "patted down Mr. McKinley for [ officer] safety and . . . walked up to the [ front seat passenger, Mr. Saunders, ] and asked [ Mr. Saunders] to step out" of the vehicle. Id. at 43. Trooper DeLuca asked Mr. Saunders whether the owner of the vehicle had given Mr. Saunders permission to drive the vehicle. Id. After Mr. Saunders responded in the affirmative, the Trooper asked Mr. Saunders whether he "had anything on him." Id. The Trooper then conducted a pat-down search of Mr. Saunders. Id.
Trooper DeLuca asked whether Mr. Saunders would consent to a search of the vehicle. Id. The Trooper testified:
Mr. Saunders says: [ i] t's not my vehicle. I then told Saunders that I understood that. Saunders then asked: [ s] o who's supposed to give you consent[ ?] I asked Saunders: [ s] o who had permission to have the vehicle? Do you have permission to have the vehicle? Saunders replied: [ a] ll of us did. I then asked him again: [ s] o who will give me consent to search the vehicle[ ?] Mr. Saunders stated I should speak to [ Mr. McKinley] about that. I told Saunders, I talked to McKinley and he told me to speak to him about that, about the consent. And Saunders stated he was not operating the vehicle. Saunders stated he is not a licensed driver, and that he wanted me to ask McKinley again.
Id. at 44- 45.
Trooper DeLuca again asked Mr. McKinley for permission to search the vehicle, and Mr. McKinley consented. Mr. McKinley also signed a written waiver of rights and consent to search form . Id. at 45.
When Mr. McKinley signed the waiver of rights and consent to search form, the only officers on scene were Trooper DeLuca and Trooper Capehart – Trooper Berkebile and his canine partner, Bosko, had not yet reached the location. Therefore, everyone waited in their respective vehicles for Trooper Berkebile and the canine to arrive. Id. at 45-46.
When Trooper Berkebile and the canine arrived on scene, the Troopers removed the occupants from the Tahoe and patted all of the occupants down for officer safety. Id. at 46. Following the pat-down searches, Trooper Berkebile deployed the canine on the vehicle, the canine indicated that drugs were present in the vehicle, and – after a search of the vehicle – the Troopers discovered a yellow plastic bag, containing 40 bricks of heroin, in the vehicle's spare tire compartment. Id. at 48-50. The heroin weighed 78 and 6/ 10th grams and was divided into 2, 000 glassine packets, with each packet labeled " Ed Hardy." Id. at 51. Appellant's fingerprints were later discovered on the yellow plastic bag. Id. at 53.
The four individuals were arrested and taken to the police station, where they were strip-searched. As Trooper DeLuca testified, during his strip search of Appellant, a baggie of marijuana dropped from Appellant's anal crack. Id. at 50. When the baggie of marijuana fell from Appellant's anus, Appellant stated that he "didn't know ...