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Commonwealth v. Benitez

Superior Court of Pennsylvania

September 3, 2019


          Appeal from the Judgment of Sentence March 14, 2018 In the Court of Common Pleas of Bucks County Criminal Division at No(s): CP-09-CR-0004588-2017

          BEFORE: BENDER, P.J.E., NICHOLS, J., and STEVENS, P.J.E. [*]


          NICHOLS, J.

         Appellant Marcos A. Benitez appeals from the judgment of sentence imposed following his convictions for possession of a controlled substance, possession with intent to deliver a controlled substance, and possession of drug paraphernalia.[1] Appellant claims that the trial court erred in denying his motion to suppress evidence obtained after a traffic stop escalated into a drug trafficking investigation and arrest. We affirm.

         The trial court summarized the background of this matter as follows:

On May 9, 2017 at approximately 11:55 pm, Officer Tyson [Mathew[2] initiated a traffic stop of a 2010 silver Honda Accord [(the Honda)] with a suspended registration. The [Honda] in question was traveling southbound on Route One in Bensalem Township, Bucks County. After initiating the stop, Officer [Mathew] approached the passenger side and observed the [Honda] had two occupants: [Appellant] in the driver's seat and a passenger later identified as Victor Matos-Ortiz [(the passenger)]. In the back seat, Officer [Mathew] observed numerous bags of food. Officer Mathew thereafter introduced himself to the [Honda]'s occupants and asked [Appellant] for his driver's license and the [Honda]'s registration. Officer [Mathew] then inquired about who owned the [Honda]. [Appellant] responded that it was owned by a friend but could not remember the friend's name. Upon checking the [Honda]'s registration information, Officer [Mathew] observed that the [Honda] was registered to a "Jose Liriano." The [Honda] was also being operated with a single key in the ignition. Through his training and experience, Officer [Mathew] had learned that a vehicle registered to a third party which is also operated by a single key in the ignition is an indication of narcotics trafficking.
Officer [Mathew] then inquired about the origin and destination of [Appellant's] trip. [Appellant] stated that he was from New York on the way to see his girlfriend who lived in Philadelphia. Officer [Mathew] knew that New York is a known narcotics source area. Given his training and experience, Officer [Mathew] also knew that the location of the traffic stop was along a known drug trafficking corridor.

Order, 1/10/18, at 1-2.

         The record further reveals the following details regarding the initial traffic stop and the subsequent narcotics investigation.[3] Officer Mathew initiated the traffic stop by activating his emergency lights. Ex. 1, Part 1 at 0:30. Appellant pulled the Honda over to the right curb and stopped without incident. Id. at 1:00. There was a large grassy area along the right side of roadway.

         Officer Mathew exited his police vehicle and approached the passenger side of the Honda. Id. at 1:00-1:50. Officer Mathew asked for Appellant's license and the registration and insurance information for the Honda. Id. at 1:50-2:00. Officer Mathew asked, "Whose car is this," and Appellant responded, "My friend's car." Id. at 2:10-2:15. Officer Mathew informed the occupants that he stopped them because the insurance for the Honda was cancelled. Id. at 2:15-2:20.

         Officer Mathew again asked for the registration and insurance cards. Id. at 2:20-2:35. Officer Mathew received the paperwork and while looking down at the documents, the officer asked, "Who is this, who does this car belong to again?" Id. at 2:35-2:45. When Appellant said "my friend," the officer asked, "Who's your friend?" Id. Appellant responded, "Huh?" Id. at 2:45.

         Officer Mathew continued to look down at the paperwork for several seconds, and then indicated that the insurance paperwork Appellant gave him was a "payment thing" and asked whether Appellant had the insurance card for the Honda. Id. at 2:45-2:55. The officer stated, "Let me see that right there," and additional paperwork was passed to the officer. Id. at 2:55-3:00. The officer asked whether a payment was made, and Appellant responded in the affirmative. Id. at 3:05-3:15. The officer told Appellant that a report indicated there was no insurance for the Honda. Id. at 3:15-3:20. The officer asked whether Appellant had a phone number for "him," apparently referring to a name on the paperwork. Id. at 3:15-3:20. The officer again asked, "What's his name?" Id. at 3:20-3:25. There was an inaudible response on the recordings, after which the officer stated, "OK, I got you." Id.

         Officer Mathew looked down at the paperwork that was handed to him and asked, "Where are you guys heading?" Id. at 3:25-3:35. Appellant stated that he was coming from New York and going to see his girlfriend in Philadelphia. Id. at 3:35-3:50.

         Officer Mathew then asked whether the passenger was also from New York and requested the passenger's identification. Id. at 3:50-4:05. Appellant suggested that the passenger did not speak English. Id.

         After this initial discussion, Officer Mathew walked around the front of the Honda, past the driver side of the Honda, and back to his police vehicle. Id. at 4:25-5:10. While walking around the Honda, the officer told Appellant that the Honda's inspection sticker was also expired. Id. at 4:45. The officer joked about the Honda being a friend's car. Id. at 4:45-5:10. Approximately four minutes elapsed between the time Appellant stopped the Honda and Officer Mathew returned to his vehicle. See id. at 1:00-5:10.

         Once Officer Mathew returned to his vehicle, he waited for approximately two minutes for his backup.[4] Officer Bailey[5] arrived at the scene, and Officer Mathew stated, "I think I have something." See N.T., 11/15/17, at 46; Ex. 1, Part 1 at 7:20.

         Officer Mathew indicated that: (1) the Honda came off of the turnpike; (2) the Honda had an expired registration, insurance, and inspection; (3) Appellant had a New York license and the passenger had a Pennsylvania identification; (4) the Honda was registered to someone in Pennsylvania; (5) the Honda was "a third-party car" with a "new tag;" (6) Appellant was not able to identify the owner of the Honda; and (7) Appellant did not identify his specific destination in Philadelphia. See Ex. 1, Part 1 at 7:20-8:20; see also N.T. at 46. Throughout his conversation with Officer Bailey, Officer Mathew stated that he wanted to call the El Paso Intelligence Center (EPIC) to conduct background checks and obtain consent to search the Honda. See Ex.1, Part 1 at 7:20-8:20.

         Officer Mathew then asked Officer Bailey to have a conversation with Appellant and the passenger. See N.T. at 48; Ex. 1, Part 1 at 8:40-8:50. At the suppression hearing, Officer Mathew explained that although he found some "indicators" of drug trafficking, Officer Bailey was more experienced and might "pick[] up on any other indicators." N.T. at 48.

         Officer Bailey approached the Honda on the passenger side and interacted with the occupants through the front passenger side window.[6] See Ex. 1, Part 1 at 9:10-10:30. Meanwhile, Officer Mathew, who was still in his vehicle, reported his suspicions by phone to another unidentified officer.

         Officer Bailey walked back to Officer Mathew's vehicle and stated that there was a "single key too" and that one of occupants was "shaking his knee." Id. at 10:50. Officer Mathew relayed the fact that there was only a single ignition key for the Honda over the phone.[7] Id. at 10:55.

         Approximately thirteen minutes after initiating the traffic stop, Officer Mathew exited his vehicle to separate the occupants of the Honda. Ex. 1, Part 1 at 14:00-14:30. Officer Mathew walked up to the driver's window of the Honda, began talking to Appellant, and then asked Appellant to talk "outside." Id. at 14:30-14:40. Appellant exited the Honda, and Officer Mathew walked Appellant back to the curb on the right side of the road by Officer Mathew's vehicle. Officer Mathew asked the passenger to turn off the Honda.

         While standing by Officer Mathew's police vehicle, Officer Mathew asked Appellant if he had any weapons on him and whether Appellant "minded" if the officer frisked him. Id. at 14:50-15:00. In response, Appellant raised his hands, and Officer Mathew frisked Appellant, while continuing to ask where in New York Appellant was coming from and why Appellant was driving to Pennsylvania. Id. at 15:00-15:25. During this exchange, Appellant indicated that he was coming from the Bronx to see his girlfriend, who lived at "Unruh and Tyson." Id. at 15:20.

         After completing the frisk, Officer Mathew then asked Appellant to "hang tight" because the information for the Honda was coming back as expired. Id. at 15:25. Officer Mathew returned to his police vehicle, and Officer Bailey appeared to engage Appellant in further conversation outside the police vehicle. Officer Bailey and Appellant moved to the grassy area on the side of the roadway, beyond the view of the dash cam. Id. at 15:55.

         Approximately fifteen minutes after stopping the Honda, Officer Mathew contacted EPIC and provided information regarding the Honda, Appellant, and the passenger. See id. at 16:15-24:25. Officer Mathew received information that there was an open investigation of Appellant. N.T. at 19. Officer Mathew's initial call to EPIC lasted approximately eight minutes. See Ex. 1, Part 1 at 16:15-24:25.

         Officer Mathew then contacted a DEA agent, who was referred to as Agent Boyd. Id. at 25:15. Officer Mathew received information from Agent Boyd that the open case involved "the fact that [Appellant] was stopped a year ago in a car with a hidden compartment in it." N.T. at 22. According to Officer Mathew, the DEA agent believed that the open case involved a red Honda. Id. at 63-64; Ex. 1, Part 1 at 28:40-28:50. Officer Mathew stated that the DEA agent was not in the office and was relaying this information to Officer Mathew by memory. N.T. at 63-64.

         While Officer Mathew was in contact with EPIC, Officer Bailey and a third officer, later identified as Sergeant Schwartz, [8] approached the right side of the Honda and appeared to interact with the passenger. See Ex. 1, Part 1 at 18:20-18:50. Sergeant Schwartz continued to interact with the passenger for approximately eight minutes. Id. at 18:50-26:00. Meanwhile, Officer Bailey intermittently walked back and forth between Officer Mathew's vehicle and the Honda. During this time, Officer Bailey also appeared to inspect the outside of the Honda, including the undercarriage and the wheel wells. See id.

         Approximately twenty-six minutes after Appellant was initially stopped, a K-9 unit, led by Detective Tobie, arrived at the scene, and Detective Tobie began talking to Appellant. See id. at 27:15. At about the same time, Officer Bailey and Sergeant Schwartz walked back to the Honda. Officer Bailey opened the front passenger door, had the passenger exit the Honda, frisked him, and directed the passenger walk back toward Officer Mathew's vehicle. Id. at 27:30.

         After removing the passenger, Officer Bailey and Sergeant Schwartz briefly stood in the space between the open passenger door and the body of the Honda. While standing in that space, Officer Bailey leaned forward, peered into the interior the Honda using his flashlight, and then walked away and closed the passenger door. Id. at 27:40.

         After closing the door, Officer Bailey then walked back to Officer Mathew's vehicle. See id. at 28:00. Officer Mathew told Officer Bailey that he received information regarding the open investigation for a hidden compartment. See id. at 28:00-28:50. Officer Bailey indicated that he was looking "down underneath" and saw loose screws. See id. at 28:00-28:50.

         Meanwhile, Detective Tobie appeared to remain in a conversation with Appellant. See id. at 27:15-29:15. The detective asked Appellant "basic questions" such as "[w]here he was coming from, what he was doing, what he believed was in the [Honda, ]" who owned the Honda, and where his girlfriend lived. N.T. at 79. Detective Tobie indicated to Appellant that he was going to conduct a K-9 search of the Honda and asked Appellant if the police could remove bags of food from the Honda. Id. at 81-82, 101-02. Appellant agreed. See id.

         Sergeant Schwartz opened the rear passenger's side door of the Honda, went inside the Honda, and removed two plastic bags. Ex. 1, Part 1 at 29:15-29:40. The sergeant placed the bags on the ground and then closed the door. Id. As Sergeant Schwartz was removing bags from the Honda, Officer Mathew and Detective Tobie walked farther into the grassy area along the side of the road and discussed the indicators leading to the stop. See id. During this conversation, Detective Tobie called Officer Bailey over to his location and asked Officer Bailey to move Appellant, the passenger, and the bags of food farther away from the Honda.

         As Officer Mathew and Detective Tobie walked back toward the Honda, Detective Tobie asked whether anyone asked Appellant for consent. Id. at 31:15. Officer Mathew indicated that he was in contact with EPIC. Id. Detective Tobie, with Sergeant Schwartz and Officer Mathew off to his side, then approached Appellant. The officers were visible on the dash cam recording, but Appellant remained outside the view of the dash cam recorder. Detective Tobie asked if there was anything in the Honda, and then asked if Appellant minded if "these officers" searched the Honda. Id. at 31:30-31:50.

         At the suppression hearing, Detective Tobie described his request for Appellant's consent as follows:

I asked, I asked [Appellant], I said, if, if, if-"Are there drugs in the car that you are aware of?" He said, "No." I said: Can myself and the other officers on scene here search your vehicle, in so many words. I don't know verbatim what I said, but in so many words that's what I say on a consistent basis in these type of operations. He said, "Yes, that's fine." And that's when if you see on the video Sergeant Schwartz and Officer Bailey go over to the vehicle for the search.

N.T. at 82-83. Additionally, Detective Tobie stated that "I advised him that there was going to be a K-9 that I was going to utilize for the car, and in that conversation was that the officers would search and my K-9 partner. There was dialogue with that." Id. at 83. Detective Tobie noted that the audio of the dash cam did not capture that discussion. Id. However, Detective Tobie testified that Appellant responded, "'Yes, that's fine.'" Id. Immediately afterwards, Sergeant Schwartz and Officer Bailey walked back to the Honda, opened the front doors and proceeded to enter and search the interior of the Honda for approximately three minutes. See Ex 1., Part 1 at 31:50-34:15; Ex 1, Part 2 at 0:00-0:15.

         Detective Tobie then approached the Honda with his K-9 partner "Ozzy." Ex. 1, Part 2 at 0:15. Sergeant Schwartz and Officer Bailey exited the Honda, leaving the driver and front passenger doors open. Id. Detective Tobie walked Ozzy around the rear bumper of the car to the front passenger side of the Honda. Ozzy entered the Honda though the front passenger door and began scratching at the center console. Id. at 0:15 to 0:50; N.T. at 86. After Ozzy exited the Honda, Detective Tobie closed the front passenger door and walked Ozzy around the front of the Honda, at which time Ozzy scratched at the front bumper. See N.T. at 87. Ozzy then reentered the Honda through the driver's door and scratched at the center console. Id. at 1:00-1:10; N.T. at 87. Ozzy exited the Honda, and Detective Tobie informed the other officers that Ozzy indicated the presence of narcotics. Ex. 1, Part 2 at 1:20-1:50.

         The trial court summarized the remaining facts as follows:

[Appellant] was informed that Ozzy made a positive identification for the presence of narcotics. Given that the vehicle search was being conducted on a major roadway, law enforcement wanted to remove the [Honda] to the Bensalem Township Police headquarters for safety purposes. Law enforcement then asked [Appellant] if they could remove the [Honda] to headquarters to conduct a more thorough search. [Appellant] consented. At this time, [Appellant] was not placed under arrest and was told he could wait in the lobby of police headquarters while a more thorough search of the [Honda] was being conducted. This further search revealed a concealed compartment within the center console containing a bag which held approximately 4.6 grams of heroin. [Appellant] was then placed under arrest.
While [Appellant] was being fingerprinted and processed, Officer [Christopher] Pennington of the Bensalem Township Police Department asked [Appellant] whether he was willing to provide a buccal DNA swab from the inside of his cheek. [Appellant] consented. [Appellant] then placed the swab into his mouth, swabbed the inside of his cheek, and returned the swab to Officer Pennington. [Appellant] also reviewed the packaging of the buccal swab where [Appellant] signed the packaging indicating his voluntary consent.
Incident to [Appellant]'s arrest, Bensalem police conducted a search of the [Appellant]'s person. This search revealed a key with a label indicating [an address on] Friendship Street, Philadelphia, PA.[] Detective Tobie asked [Appellant] about his residence as part of standard booking procedure. [Appellant] indicated that he lived at the Friendship Street address with his girlfriend. Detective Tobie then asked whether [Appellant] would consent to police searching the Friendship Street premises. [Appellant] declined consent.

Order at 3-4.[9] On July 16, 2017, the Commonwealth filed an information charging Appellant with possession with intent to deliver a controlled substance, possession of drug paraphernalia, and possession of a controlled substance.

         On August 7, 2017, Appellant filed an omnibus pretrial motion to suppress all of the evidence obtained after the traffic stop. Of relevance to this appeal, Appellant asserted that he was subjected to a series of unlawful seizures after the traffic stop, and that the police officers conducted illegal searches of the Honda. The trial court conducted a suppression hearing on November 15, 2017, at which Officer Mathew, Detective Tobie, and Officer Pennington, testified on behalf of the Commonwealth.[10] The parties also played the dash cam recordings.[11] Appellant testified, and his testimony focused on the taking of the buccal swab.

         After receiving briefs from the parties, the trial court denied Appellant's motion as to the evidence recovered from the Honda and the taking of a buccal swab. Order at 1. As indicated above, the trial court granted Appellant's motion to suppress the evidence obtained from the search of the Friendship Street residence. Id.

         Appellant proceeded to a stipulated bench trial. On March 14, 2018, the trial court found him guilty of all charges. That same day, the court sentenced Appellant to six to twenty-three months' imprisonment for possession with intent to deliver, with no further penalty on the remaining counts.

         Appellant timely appealed and filed a Pa.R.A.P. 1925(b) statement challenging the order denying his motion to suppress the evidence recovered from the Honda and the taking of a buccal swab. The trial court filed a responsive opinion. See Trial Ct. Op., 5/23/18, at 9-18.

         Appellant presents the following questions for review:

[1]. Did the [trial] court err by failing to suppress the physical evidence found inside [the Honda] because the officer unreasonably expanded the scope and duration of an ordinary traffic stop by asking questions and making inquiries unrelated to the traffic violation without reasonable suspicion to believe that criminal activity was afoot?
[2]. Did the [trial] court err by failing to suppress the physical evidence found inside [the Honda] because the police unlawfully conducted a second detention and subsequent round of questioning, as well as a K-9 search of [the Honda], without reasonable suspicion to believe that criminal activity was afoot?
[3]. Did the [trial] court err by failing to suppress the physical evidence found inside [the Honda] because the police conducted a warrantless search of the interior of [the Honda] without probable cause and under no valid exception to the warrant requirement?
[4]. Did the [trial] court err by failing to suppress the DNA saliva sample extracted from [Appellant]'s mouth because the police did so without a warrant and under no valid exception to the warrant requirement?

Appellant's Brief at 4 (full capitalization omitted).

         As suggested by his questions presented, Appellant argues that the trial court erred in denying his motion to suppress the heroin recovered from the Honda and the buccal swab taken from him. Id. at 16-17. Appellant concedes that Officer Mathew lawfully stopped him for a traffic violation. Id. at 18. Appellant also acknowledges that he consented to the searches of the Honda and the taking of a buccal swab. Id. at 16-17.

         Appellant, however, claims that his consent to the searches of the Honda and his person were not voluntary because he was subjected to a series of illegal seizures and searches following the initial traffic stop. Id. In support, Appellant claims that the trial court erred in finding reasonable suspicion to detain him beyond the purposes of the traffic stop. Appellant challenges several of the trial court's findings of fact and the trial court's legal conclusion that those facts constituted reasonable suspicion. See id. at 18-33.

         Additionally, Appellant challenges the trial court's determination that the police lawfully searched the Honda. See id. at 33-44. Lastly, he challenges the trial court's finding that he consented to the taking of a buccal swab. See id. at 44-47. We address each challenge in greater detail below.

         Initially, we note that our standard and scope of review requires that we determine

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 before the suppression court, we may consider only the evidence of the Commonwealth and so much of the evidence for the defense as remains uncontradicted when read in the context of the record as a whole. Where the suppression court's factual findings are supported by the record, we are bound by these findings and may reverse only if the court's legal conclusions are erroneous. Where . . . the appeal of the determination of the suppression court turns on allegations of legal error, the suppression court's legal conclusions are not binding on an appellate court, whose duty it is to determine if the suppression court properly applied the law to the facts. Thus, the conclusions of law of the courts below are subject to our plenary review.

Commonwealth v. Green, 168 A.3d 180, 183 (Pa. Super. 2017) (citation omitted).

         1. The trial court's findings of fact

         Appellant first challenges the trial court's findings of fact. See Appellant's Brief at 23-28. Specifically, Appellant claims that the record did not support the trial court's findings that he was unable to remember the name of the owner of the Honda and his girlfriend's address, or appeared nervous. Id. at 24-28. He contends that the record shows that Officer Mathew asked him a confusing series of questions and that his inability to answer the question of who owned the Honda was not indicative of criminal activity. Id. at 25. He also claims that the record indicates that when Officer Mathew asked about his girlfriend's address, he responded with an approximate location. Id. at 25-26. Lastly, he asserts that there were no indications on the dash cam recordings that he was nervous. Id. at 27.

         Appellant also claims that the factors referenced by the trial court were not legally relevant to a determination of reasonable suspicion. See id. at 23-24 (discussing the presence of a single key), 24 (discussing the operation of a vehicle owned by a third party), 26 (asserting that a driver is under no obligation to answer questions unrelated to a traffic stop), 26-27 (characterizing travel from New York as impermissible profiling), 27 (asserting that "nervousness during a traffic stop is not a particularly telling factor"). Appellant emphasizes that the factors did not suggest he was engaged in criminal activity and were equally consistent with innocent behavior. See id.

         The United States Supreme Court has outlined the following relevant principles:

A seizure for a traffic violation justifies a police investigation of that violation. . . . [T]he tolerable duration of police inquiries in the traffic-stop context is determined by the seizure's "mission"-to address the traffic violation that warranted the stop, and attend to related safety concerns. Because addressing the infraction is the purpose of the stop, it may "last no longer than is necessary to effectuate th[at] purpose." Authority for the seizure thus ends when tasks tied to the traffic infraction are-or reasonably should have been-completed.
. . . [A] traffic stop "can become unlawful if it is prolonged beyond the time reasonably required to complete th[e] mission" of issuing a warning ticket. . . . An officer, in other words, may conduct certain unrelated checks during an otherwise lawful traffic stop. But . . . he may not do so in a way that prolongs the stop, absent the ...

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