from the Judgment of Sentence March 14, 2018 In the Court of
Common Pleas of Bucks County Criminal Division at No(s):
BEFORE: BENDER, P.J.E., NICHOLS, J., and STEVENS, P.J.E.
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. 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.
trial court summarized the background of this matter as
On May 9, 2017 at approximately 11:55 pm, Officer Tyson
[Mathew 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.
record further reveals the following details regarding the
initial traffic stop and the subsequent narcotics
investigation. 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.
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.
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.
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.
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.
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.
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.
Officer Mathew returned to his vehicle, he waited for
approximately two minutes for his backup. Officer
Bailey 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.
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.
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.
Bailey approached the Honda on the passenger side and
interacted with the occupants through the front passenger
side window. 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
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. Id. at 10:55.
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.
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.
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.
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.
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.
Officer Mathew was in contact with EPIC, Officer Bailey and a
third officer, later identified as Sergeant Schwartz,
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.
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.
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.
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.
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.
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.
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.
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.
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.
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]
Order at 3-4. 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.
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. The parties also played the dash cam
recordings. Appellant testified, and his testimony
focused on the taking of the buccal swab.
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.
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.
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.
presents the following questions for review:
. 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
. 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?
. 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
. 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).
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.
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.
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
we note that our standard and scope of review requires that
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).
The trial court's findings of fact
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.
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.
United States Supreme Court has outlined the following
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
. . . [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 ...