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[U] Commonwealth v. Herens

Superior Court of Pennsylvania

March 11, 2014



Appeal from the Judgment of Sentence March 19, 2013 in the Court of Common Pleas of Delaware County Criminal Division at No(s): CP-23-CR-0003529-2012




Ian Patrick Herens (Appellant) appeals from the judgment of sentence entered March 19, 2013, after he was found guilty of possession of a controlled substance, possession with intent to deliver a controlled substance (PWID), and possession of drug paraphernalia.[1] We affirm.

On March 22, 2012, Pennsylvania State Trooper Sergio Colon conducted a traffic stop of Appellant's vehicle. Trooper Colon stopped Appellant's vehicle because he observed Appellant make a "sudden abrupt move" while driving, and because Appellant was speeding. N.T., 8/8/2012, at 20-21. Once Appellant was stopped, Trooper Colon informed Appellant that he would just be giving him a warning.

As Trooper Colon interacted with Appellant, he became concerned that "[m]aybe criminal activity may have been afoot." Id. at 57. The trooper observed that Appellant appeared nervous while interacting with him and, after returning to his police vehicle, noticed Appellant looking back at him in his rearview mirror and making "subtle furtive movements" with his hands. Id. at 25-31. Trooper Colon looked up Appellant's criminal history and discovered that Appellant had "a rap sheet which included an extensive criminal history [related] to distribution of marijuana. Also, the possession of an illegal firearm." Id. at 33-34.

Trooper Colon requested that Appellant step out of his vehicle, and Appellant complied. Trooper Colon asked Appellant if he could perform a pat down, and Appellant stated that he could. During the pat down of Appellant's waistband, an orange pill bottle fell out of Appellant's pants. Upon seeing that the label on the bottle had been ripped off, Trooper Colon arrested Appellant and placed him in the rear of the police vehicle. The trooper then performed an inventory search of Appellant's vehicle. Trooper Colon located a "manila folder full of … 107 empty glassine wax bags commonly used and known for heroin packaging." Id. at 42-43. The trooper also discovered "three bundles of heroin, … 34 total bags" and approximately "26 … small baggies of marijuana." Id. at 43. The pill bottle that prompted Trooper Colon's search was later found to contain "Percocet 30's." Id. at 44.

On June 21, 2012, Appellant filed a motion to suppress the drugs and drug paraphernalia recovered from his person and his vehicle. A suppression hearing was held on August 8, 2012. Appellant's motion to suppress was denied, and Appellant proceeded to a bench trial on March 19, 2013. Appellant was found guilty of the aforementioned offenses and sentenced to 27 to 120 months of incarceration followed by four years of probation. Appellant timely filed a notice of appeal. The trial court ordered Appellant to file a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925, and Appellant timely complied.

Appellant now raises the following issues on appeal.

[1.] Whether the trial court erred in denying [Appellant's] Motion to Suppress when subsequent to a lawful stop by law enforcement for a motor vehicle violation and subsequent issuance and delivery of a warning by law enforcement to the [A]ppellant, [A]ppellant was unlawfully seized[, ] detained[, ] and searched by law enforcement in violation of his constitutional rights?
[2.] Did [the] trial court err in denying [Appellant's] Motion to Suppress when upon completion of a motor vehicle stop, [A]ppellant was unlawfully directed out of his motor vehicle which was unlawful and [an] illegal seizure and detention of [A]ppellant and therefore any subsequent action of the law enforcement including a search, consensual or otherwise, would be a violation of [Appellant's] constitutional rights?
[3.] Did [the] trial court err in denying [Appellant's] Motion to Suppress when after an illegal and unlawful seizure and detention of [A]ppellant, Appellant was searched?

Appellant's Brief at 3.

We have discussed our review of suppression claims as follows.

When considering the denial of a suppression motion, this Court's review is limited to determining whether the [suppression] court's factual findings are supported by the record and whether the legal conclusions drawn from those facts are correct. Because the Commonwealth prevailed in the suppression court, we consider only the Commonwealth's evidence and so much of the appellant's evidence as is uncontradicted when read in the context of the record as a whole. Where the record supports the suppression court's factual findings, we are bound by those facts and may reverse only if the legal conclusions drawn from them are erroneous.

Commonwealth v. West, 937 A.2d 516, 527 (Pa. Super. 2007) (internal citations omitted).

Instantly, while Appellant lists three claims for our review, he presents all three as a single issue in the argument section of his brief. Appellant concedes that Trooper Colon conducted a valid traffic stop of Appellant's vehicle. Appellant's Brief at 10. However, Appellant argues that Trooper Colon had no valid basis to order him out of his car once he was stopped, and that the subsequent pat down of Appellant was therefore a violation of Appellant's constitutional rights. Id. at 7-15. Accordingly, Appellant contends that the trial court erred by failing to suppress the drugs and paraphernalia discovered by Trooper Colon. Id.

The trial court explains that it denied Appellant's motion to suppress because, inter alia, Trooper Colon was permitted to order Appellant out of his car during the traffic stop, and because Appellant consented to the pat down search which ultimately produced the incriminating pill bottle. Trial Court Opinion, 6/3/2013, at 4-7 (unnumbered pages). We agree.

Our Supreme Court has recognized expressly that an officer conducting a valid traffic stop may order the occupants of a vehicle to alight to assure his own safety. Once the primary traffic stop has concluded, however, the officer's authority to order either driver or occupant from the car is extinguished. Thus, if subsequently the officer directs or requests the occupants to exit the vehicle, his show of authority may constitute an investigatory detention subject to a renewed showing of reasonable suspicion.
The matter of when a traffic stop has concluded or otherwise given way to a new interaction does not lend itself to a "brightline" definition.

In re J.N., 878 A.2d 82, 85 (Pa. Super. 2005) (quoting Commonwealth v. Reppert, 814 A.2d 1196, 1202 (Pa. Super. 2002) (en banc)).

We find instructive this Court's decision in Reppert. In that case, the Court held that an additional showing of reasonable suspicion was necessary where a police officer ordered Reppert out of his friend's vehicle "based on suspicion of his head and shoulder movements prior to the stop and his nervous appearance during the stop." 814 A.2d at 1199. Reppert was then ordered to empty his pockets, which were found to contain "$51 in cash, forty-one grams of marijuana in a baggie, multiple smaller baggies, and a small scale." Id. This Court reasoned as follows.

[W]e conclude that the prior traffic stop in this case gave way to a new interaction when [the police officer] directed Reppert to exit [his friend's] car. The record establishes, initially, that [the police officer] effected the traffic stop for one purpose; i.e. to address the infraction of the Motor Vehicle Code posed by the car's expired inspection and registration stickers. When the [police officer] effected the stop he questioned [Reppert's friend], accepted his explanation, and interacted with [Reppert's friend] no further. Hence, the traffic stop had concluded. Although the record does not establish that [the police officer] apprised [Reppert's friend] of a clear end to the stop, we do not find this discrepancy controlling. The [police officer] had realized the purpose for the stop and had no further reason to detain the driver of the vehicle or its occupants under the guise of the original traffic infraction. [The police officer's] subsequent direction to Reppert to exit the car was unrelated to any traffic infraction and was not a necessary element of the prior traffic stop. Consequently, we conclude, based on the acknowledged limitations of the traffic stop and the [police officer's] redirection of his inquiries to a person other than the driver, for purposes unrelated to the documented traffic infraction, that the [police officer's] direction to Reppert to exit the car constituted a new interaction.

Id. at 1202-1203 (citations omitted). The Court went on to determine that the police officer had seized Reppert without reasonable suspicion, and that the items recovered from his pockets should have been suppressed. Id. at 1206.

In contrast, Trooper Colon indicated in the present matter that he had not yet given Appellant the written warning that he had prepared at the time Appellant was ordered out of his car. N.T., 8/8/2012, at 37-38, 54-56, 68. The trooper testified that he wanted Appellant to exit the vehicle so that he could provide the warning and answer any questions Appellant might have without fear that Appellant might retrieve a weapon, or that one or both of them might be struck by oncoming traffic. Id. at 36-39, 54-56, 59, 68-72, 75. Therefore, unlike in Reppert, Trooper Colon's act of ordering Appellant out of his vehicle was merely part of the ongoing traffic stop, and not a "new interaction" requiring a renewed showing of reasonable suspicion.

Moreover, the record supports the trial court's determination that Appellant provided a valid consent to Trooper Colon's request to conduct a pat down.

[T]he Commonwealth bears the burden of establishing that a consent is the product of an essentially free and unconstrained choice-not the result of duress or coercion, express or implied, or a will overborne-under the totality of the circumstances. The inquiry is ultimately objective, and employs a reasonable person test presupposing an innocent person. The test for the validity of a consent to search is the same for both the Fourth Amendment [of the United States Constitution] and Article I, Section 8 [of the Pennsylvania Constitution], i.e., that the consent is given voluntarily.
In reviewing the totality of the circumstances, Pennsylvania courts have considered a variety of factors to assess the voluntariness of the consent, including the length and location of the detention; whether there were any police abuses, physical contact, or use of physical restraints; any aggressive behavior or any use of language or tone by the officer that were not commensurate with the circumstances; whether the questioning was repetitive and prolonged; whether the person was advised that he or she was free to leave; and whether the person was advised of his or her right to refuse to consent. No one factor in the voluntariness inquiry is controlling.

Commonwealth v. Caban, 60 A.3d 120, 130-31 (Pa. Super. 2012) (quotation marks and citations omitted).

Here, Trooper Colon testified that he merely "asked [Appellant] for my safety and his if it was okay for me to pa[t] him down. He then said, yes." N.T., 8/8/2012, at 38-39. The trooper stated that he used "[n]ormal conversation tone" while interacting with Appellant, that he did not draw his weapon or threaten Appellant, and that Appellant complied without hesitation. Id. at 40. Because Appellant provided a valid consent, the fruits of the pat down need not be suppressed.

We therefore conclude that the trial court did not err by denying Appellant's motion to suppress, and that Appellant is not entitled to relief.

Judgment of sentence affirmed.

Judgment Entered.

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