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Commonwealth v. Green

Superior Court of Pennsylvania

July 25, 2017

LEVI A. GREEN Appellant

         Appeal from the Judgment of Sentence July 1, 2016 In the Court of Common Pleas of Luzerne County Criminal Division at No(s): CP-40-CR-0000336-2015

          BEFORE: SHOGAN, J., MOULTON, J., and PLATT, J. [*]


          MOULTON, J.

         Levi A. Green appeals from the July 1, 2016 judgment of sentence entered in the Luzerne County Court of Common Pleas following his convictions for possession with intent to deliver a controlled substance ("PWID"), possession of a controlled substance, and possession of drug paraphernalia.[1] We affirm.

         On August 4, 2014, at approximately 4:00 p.m., Pennsylvania State Police Trooper Mark Conrad was conducting radar enforcement on State Route 115 in Bear Creek Township, Luzerne County, which had a speed limit of 45 miles per hour. Trooper Conrad is assigned to the Northwest K-9 Unit and had Astor, a Pennsylvania State Police canine, with him.[2] Trooper Conrad's vehicle was "positioned across from the Bear Creek Charter School near [an] access ramp to the [Pennsylvania] Turnpike." Trial Ct. Op., 10/24/16, at 2 ("1925(a) Op.").

         Trooper Conrad measured the speed of a tan-colored Dodge sedan and obtained a reading of 62 miles per hour. He then activated his emergency lights and stopped the vehicle. When Trooper Conrad approached the vehicle, he noticed that Green, the vehicle's sole occupant, appeared "overly nervous for [a] traffic violation stop, " as Green's "lips and face area around his lips were trembling, and . . . a carotid artery in his neck appeared to be pounding."[3] N.T., 10/13/15, at 10-11.

         Trooper Conrad recognized Green and the vehicle from two prior traffic stops.[4] In the first, Green was an occupant in a different vehicle traveling from Philadelphia. During that stop, Trooper Conrad recovered cocaine and marijuana hidden in the vehicle's engine compartment. In the second, Trooper Conrad stopped the same tan Dodge sedan driven by its owner almost three months before the current stop, and found a hypodermic needle in the vehicle.

         While at the window of the vehicle, [5] Trooper Conrad asked Green for the registration and insurance documents for the vehicle. Green replied that he did not own the car and it was not registered to him. Trooper Conrad then asked Green about his travel plans. Green stated that he was returning from Philadelphia, where he had dropped off his son at approximately 9:00 a.m. Trooper Conrad returned to his vehicle and ran a criminal history check on Green, which showed that Green had a "lengthy criminal history for assault and drug offenses." 1925(a) Op. at 3. Trooper Conrad called for backup, returned to the vehicle, and asked Green to step out.

         Suspicious that Green may have been trafficking drugs, Trooper Conrad asked Green to consent to a search of the vehicle.[6] When Green declined, Trooper Conrad deployed Astor. Astor alerted to the odor of narcotics on both the driver and passenger sides of the vehicle. Trooper Conrad then searched the vehicle and found a folded black bag in the engine compartment next to the air filter, located on the passenger side of the vehicle. Inside the black bag, Trooper Conrad discovered three sleeves of heroin, containing 525 packets total.

         On August 17, 2015, Green filed a motion to suppress, arguing that (1) Trooper Conrad had no reasonable suspicion to detain him or to deploy Astor to sniff the vehicle, and (2) Trooper Conrad lacked probable cause to search the vehicle.

         On October 13, 2015, the trial court held a suppression hearing. Trooper Conrad testified on behalf of the Commonwealth, noting that, along with the factual information above, he had been employed by the Pennsylvania State Police for 10 years, had received specialized training in drug investigation and drug interdiction, had been involved in approximately 1, 000 drug investigations, and had been previously qualified as an expert in drug trafficking and highway interdiction. On the Commonwealth's motion, the trial court accepted Trooper Conrad as an expert in drug trafficking and drug interdiction. Trooper Conrad testified that based on: (1) his experience, (2) his prior contacts with Green and the vehicle, (3) Green's nervousness, (4) Green's return from Philadelphia, which is a drug-source city, and (5) Green's use of a third-party vehicle whose owner was not present, he believed that he had reasonable suspicion to deploy Astor.

         On December 23, 2015, the trial court denied Green's motion to suppress. Green proceeded to a jury trial. On May 26, 2016, the jury convicted Green of the aforementioned charges. On July 1, 2016, the trial court sentenced Green to an aggregate term of 1 to 2 years' incarceration followed by 2 years' probation. On July 7, 2016, Green timely filed a notice of appeal.

Green raises three issues on appeal:

I. Whether Trooper Conrad exceeded the scope of the predicate traffic stop of [Green], for allegedly speeding, and then subjected [Green] to an illegal detention that was wholly unsupported by reasonable suspicion that [Green] was engaged in criminal activity or articulable suspicion that [Green] was armed and dangerous?

II. Whether Trooper Conrad conducted an illegal canine sniff of [Green]'s vehicle after the conclusion of the predicate traffic stop and without the requisite reasonable suspicion that [Green] was engaged in criminal activity?

III. Whether Trooper Conrad conducted an illegal warrantless search of ...

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