from the Order April 24, 2017 In the Court of Common Pleas of
Westmoreland County Criminal Division at No(s):
BEFORE: BOWES, J., RANSOM, J., and STEVENS [*] , P.J.E.
Commonwealth appeals from the order entered in the Court of
Common Pleas of Westmoreland County granting the pre-trial
suppression motion filed by Appellee Tatiahna Africa Harris.
After a careful review, we reverse and remand for further
relevant facts and procedural history are as follows:
Appellee was arrested, and he was charged with receiving
stolen property, criminal use of a communication facility,
firearms not to be carried without a license, possession with
the intent to deliver a controlled substance, and possession
of drug paraphernalia. On February 24, 2017, Appellee filed a
counseled, pre-trial motion seeking to suppress the physical
evidence seized by the police from his vehicle and person.
Specifically, Appellee averred a police officer improperly
stopped his vehicle based solely on unreliable allegations
made to the officer from a confidential informant
("CI"). Further, Appellee averred that, prior to a
K-9 sniff of his car, the police officer arrested Appellee
without probable cause. Accordingly, Appellee contended that
all physical evidence seized by the police should be
suppressed as "fruit of the poisonous tree."
April 24, 2017, the matter proceeded to a suppression hearing
at which the sole testifying witness was Greensburg Police
Officer Garret McNamara. Specifically, Officer McNamara
testified that he has been a police officer with the
Greensburg Police Department for three years and, throughout
this time, a certain CI has provided information to the
police department with regard to illegal drugs. N.T.,
4/24/17, at 5. Officer McNamara indicated that he has
personally received information from the CI in five other
cases, four of which have led to convictions and one of which
was pending. Id. at 5-6.
November 5, 2016, during the afternoon, Officer McNamara
received information from the CI indicating that, later in
the day, a black male in a white sedan would be coming from a
gym to sell crack cocaine at a residence on Euclid Avenue and
then returning to Jeanette. Id. at 6-7. The officer
knew the CI frequently stayed at the residence on Euclid
Avenue, and the CI told him he was currently staying at the
residence. Id. at 7. Officer McNamara also knew the
CI, as well as other people who resided at the residence on
Euclid Avenue, "to be user[s] of crack cocaine[.]"
Id. at 8.
indicated that he would be willing to provide additional
information with regard to the sale of the crack cocaine;
however, he was concerned someone in the house might overhear
him on the telephone. Id. at 8-9. Accordingly,
Officer McNamara and the CI agreed that when the male dealer
"would be leaving the residence, [the CI] was going to
call dispatch and hang-up and dispatch would know the phone
number and they would inform [Officer McNamara] that meant
that the male, [who] was selling the crack cocaine, was
leaving the residence." Id.
that day, Officer McNamara, who was in the area of Euclid
Avenue, received a dispatch informing him that the awaited
for "hang-up phone call had come in[.]"
Id. at 9. Officer McNamara testified that, less than
30 seconds later, he saw a white sedan matching the
description provided to him by the CI leaving Euclid Avenue
and travelling towards Jeannette. Id. at 9-10. In
response, Officer McNamara provided the plate number to the
police dispatch, who replied that the vehicle was registered
to "Destiny Wise out of Herminie." Id. at
10, 17-18. Based on his training, Officer McNamara was aware
that "it is common for individuals selling drugs to use
other people's vehicles[.]" Id. at 18.
McNamara indicated that, as he followed the vehicle, he
"observed window tint on the vehicle and [he] initiated
a traffic stop." Id. at 10. He testified the
window tint, which covered all of the vehicle's side
windows, was "extremely dark" and, as a result, he
could not see inside of the vehicle through the passenger
side of the vehicle. Id. He noted that, when looking
through the passenger-side window, he could not determine
whether a male or female was driving the vehicle.
McNamara effectuated a traffic stop of the vehicle "just
outside of the city, " and identified the sole occupant,
Appellee, who was driving the vehicle. Id. at 10-11.
Appellee informed him that "he was coming from the gym
and he was going to go back home towards Jeannette."
Id. at 12. Appellee denied "ever being on
Euclid Avenue." Id. Officer McNamara, who had
just followed Appellee's vehicle from Euclid Avenue,
informed Appellee that he had just seen him on Euclid Avenue;
however, Appellee continued to deny that he had been on
Euclid Avenue. Id.
McNamara requested assistance from the K-9 unit and twice
requested Appellee to exit the vehicle. Id. at 13,
21. Appellee refused, resulting in Officer McNamara opening
the driver's side door, grabbing Appellee's arm, and
removing him from the vehicle. Id. at 21. After
Appellee was out of the vehicle, he was handcuffed and the
K-9 sniffed the exterior of the vehicle, alerting the police
to the front driver's seat and the front headlight.
Id. at 13.
result, Officer McNamara conducted a search of the vehicle,
discovering a handgun under a pile of clothes on the rear
driver's seat, $265.00 in U.S. currency, two cell phones,
and an Altoids container, which the officer believed
contained drug residue. Id. at 14-15. The officer
provided the serial number of the gun to police dispatch, who
responded that the handgun had been reported stolen, and
Officer McNamara determined that Appellee did not have a
valid license to carry a firearm in a vehicle. Id.
point, the officer placed Appellee in the back of the police
cruiser, indicating he was under arrest, and subsequently
conducted an inventory search of Appellee at the police
station. Id. at 17. During this search, the officer
discovered Appellee had crack cocaine inside of his boxer
briefs, as well as additional currency on his person.
Id. Subsequent testing revealed the Altoids
container did not contain drug residue.
cross-examination, Officer McNamara confirmed that he did not
observe the white sedan arrive at the Euclid Avenue address,
but "30 seconds later [he saw] the vehicle, that [he]
believe[d] was described by the [CI], leave the residence in
that area[.]" Id. at 24. Officer McNamara
indicated he followed the sedan for roughly one mile before
effectuating a traffic stop. Id. Officer McNamara
confirmed the sedan had dark window tint and the license
plate information indicated the sedan belonged to Destiny
McNamara clarified that, prior to stopping the sedan, he was
aware that a black male, and not a female, was driving the
sedan. Id. at 25. Specifically, he testified:
Q: But you don't know if Destiny Wise is
driving the car at this point?
A: Well, it was a black male driving that
Q: Well, how do you know that? You
didn't see a black male driving the vehicle, did you?
A: Yes, I did.
Q: And when was that?
A: Whenever he was coming up Euclid, coming
Q: You were able to see through the window
tint and identify a black male?
A: His driver window was down. The passenger
window was the window that was up.
Q: So his driver window was down, and at
that point you're able to see a black male?
A: Yes, sir, at that time.
Q: And that confirms the information you had
received previously, correct?
Id. at 24-25.
on cross-examination, as to the reason he stopped the
vehicle, Officer McNamara testified as follows:
Q: So at some point you do initiate a motor
vehicle stop, but this would be for the window tint that you
have observed, correct?
A: Yes, sir.
Q: Okay. Then, you follow up by approaching
the vehicle, right?
A: Yes, sir.
Q: At that point you observed a black male
driving the car?
Did you inform him why he was being pulled over at that
A: I told him window tint.
Id. at 26-27.
McNamara confirmed that he determined Appellee had a valid
driver's license but asked him to step out of the
vehicle. Id. at 28. Officer McNamara noted Appellee
twice refused, so he assisted him out of the sedan and
handcuffed him as he waited for the K-9 unit. Id. at
29-32. Although Appellee was handcuffed, Officer McNamara
indicated that Appellee was permitted to stand behind the
white sedan and he was not placed in the police cruiser at
this time. Id. at 32. The K-9 sniff occurred
approximately fifteen minutes later. Id. at 29-32.
whether Officer McNamara had evidence that the search of the
sedan would yield contraband, the relevant exchange occurred:
Q: At this point [when you remove Appellee
from the vehicle and handcuff him, ] you have no evidence
that [Appellee] has any drugs on his person, do you?
A: Besides my reliable informant, no, sir.
Q: And you don't see any kind of drugs
in the ...