Com. v. Pineda-Pita, E. ( 2017 )


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  • J-S37029-17
    NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
    COMMONWEALTH OF PENNSYLVANIA                           IN THE SUPERIOR COURT
    OF
    PENNSYLVANIA
    Appellee
    v.
    EDGAR PINEDA-PITA
    Appellant                    No. 1333 MDA 2016
    Appeal from the Judgment of Sentence July 26, 2016
    In the Court of Common Pleas of Centre County
    Criminal Division at No(s): CP-14-CR-0000212-2015
    BEFORE: STABILE, J., MOULTON, J., and MUSMANNO, J.
    MEMORANDUM BY MOULTON, J.:                        FILED NOVEMBER 20, 2017
    Edgar Pineda-Pita appeals from the July 26, 2016 judgment of sentence
    entered in the Centre County Court of Common Pleas following his convictions
    for possession with intent to deliver (“PWID”), possession of a controlled
    substance, and possession of drug paraphernalia.1 We affirm.
    The trial court set forth the following facts:
    1. At approximately 11:13 a.m. on January 23, 2015,
    Corporal Reed Grenci was doing drug interdiction work on
    Interstate 80 near mile marker 151, at which time he
    observed a white Ford Explorer traveling east with what he
    descri[b]ed as having heavily tinted, aftermarket sun
    screening material.
    2. Corporal Grenci initiated a traffic stop on the Ford
    Explorer near mile marker 154 eastbound.
    ____________________________________________
    1   35 P.S. § 780-113(a)(30), (a)(16), and (a)(32), respectively.
    J-S37029-17
    3. Corporal Grenci approached the passenger side of the
    vehicle and made contact with the occupants, at which time
    he requested identification from the driver and each of the
    passengers.
    4. The driver was identified as Frank Garcia by his Florida
    identification card. The front passenger, Edgar Pineda-Pita,
    was identified through his Michigan license as the owner of
    the vehicle, and the rear seat passenger, who was asleep at
    the time of the stop, was identified as Diego Contreras
    through his Michigan license.
    5. Corporal Grenci identified Michigan and Florida as
    common source areas for drugs, specifically Michigan
    because it is a medical marijuana state, and the combination
    was suspicious based on his training and experience.
    6. Corporal Grenci testified that upon interaction with the
    occupants of the vehicle, they were overly friendly, often an
    indicator of suspicious activity.
    7. After obtaining identification, Corporal Grenci returned to
    his patrol vehicle and ran a criminal record check on the
    driver, Frank J. Garcia, at which time it was discovered that
    Mr. Garcia had an active warrant in Pennsylvania for felony
    drug trafficking violations.
    8. Corporal Grenci called for backup and several other
    members of the Pennsylvania State Police arrived at the
    scene.
    9. About twenty to thirty minutes later, Corporal Grenci then
    removed Mr. Garcia from the vehicle and took him into
    custody pursuant to the outstanding warrant.
    10. At this time, Mr. Pineda-Pita got out of the vehicle and
    walked back toward the police car. Trooper Jeremy Hoy
    ordered him to get back inside the vehicle.
    11. After securing Mr. Garcia, Corporal Grenci asked Mr.
    Pineda-Pita to exit the vehicle. The Corporal explained to
    him what was going on with Mr. Garcia and why [Mr. Garcia]
    was taken into custody.
    12. Corporal Grenci then asked about Mr. Pineda-Pita’s
    travel plans. Mr. Pineda-Pita paused with an “uhhhh,” and
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    seemed unsure but stated the group was heading to Union
    City, New Jersey for Mr. Contrera[s’] cousin’s wedding.
    13. Corporal Grenci then asked Mr. Pineda-Pita if he could
    search the vehicle. Mr. Pineda-Pita again responded with
    “uhhhh,” and in what the Trooper described as a deflated
    tone asked “Really?”
    14. Mr. Pineda-Pita continued to stall the conversation and
    then looked under the rear of the vehicle where the spare
    tire is located and uttered the word “shit.” This stood out to
    the Corporal as an indicator of criminal activity and that Mr.
    Pineda-Pita knew exactly what was located under the
    vehicle.
    15. Mr. Pineda-Pita then asked the Corporal how long the
    search would take. Corporal Grenci told him the search
    could happen right now, it wouldn’t take very long, and if
    everything was fine they could follow him back to the
    station.
    16. At this point, Mr. Pineda-Pita stated, “Go ahead.”
    Corporal Grenci clarified and asked “Are you sure?” Mr.
    Pineda-Pita said “Yeah.” Corporal Grenci clarified again,
    “That’s a yes?” Mr. Pineda-Pita responded “Yeah.”
    17. At no time did Corporal Grenci display his badge, draw
    his weapon, or use any sign of force or aggression.
    18. Corporal Grenci then went to the driver’s side rear door
    to get Mr. Contreras out of the vehicle before starting his
    search.
    19. Upon opening the door, Corporal Grenci immediately
    smelled a very strong odor of fresh marijuana coming from
    the vehicle, as well as on Mr. Contreras as he was patting
    him down.
    20. Corporal Grenci then searched the vehicle. Before
    conducting an interior search, however, the Corporal started
    with the spare tire because of Mr. Pineda-Pita’s previous
    actions.
    21. Corporal Grenci crawled under the vehicle and looked up
    at the spare tire. In plain view through the holes in the
    wheel well he could see black garbage bags wrapped in gray
    duct tape.
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    22. Corporal Grenci was immediately suspicious of the
    materials, recognizing it as consistent with illegal drug
    packaging he has seen in the past.
    23. At this point, Mr. Pineda-Pita and Mr. Contreras were
    taken into custody and Corporal Grenci had the vehicle
    towed to PSP Rockview for the search to be conducted off
    the highway for safety reasons.
    24. The vehicle was searched almost immediately after
    getting to the station. Under the spare tire, troopers found
    four pounds of marijuana inside the black garbage bags.
    25. Upon further search of the vehicle, another four pounds
    of marijuana w[ere] found in a speaker box in the rear cargo
    area, and another three pounds of marijuana laying on the
    floor behind the middle row seat and under the folded down
    third row seat.
    26. Also during the search of the vehicle, Corporal Grenci
    notice[d] multiple air fresheners laying on the dashboard
    close to the windshield where the defrost air vents are
    located. In addition, the sun roof was open despite it being
    January and extremely cold outside.
    27. The black packaging material was then sent out for
    testing. Fingerprint testing confirmed one of Mr. Pineda-
    Pita’s thumbprints was found on one of the packages of
    marijuana.
    Trial Ct. Op., 9/18/15, at 1-5.
    On March 27, 2015, Pineda-Pita filed an omnibus pre-trial motion, which
    included a motion to suppress. Following a hearing, the trial court denied
    Pineda-Pita’s motion to suppress on September 18, 2015. On May 9, 2016,
    following a jury trial, Pineda-Pita was convicted of the aforementioned
    offenses. On July 26, 2016, the trial court sentenced him to 90 days to 23½
    months’ incarceration and a consecutive 1 year of probation. Pineda-Pita did
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    not file a post-sentence motion and, on August 10, 2017, filed a timely notice
    of appeal.
    Pineda-Pita raises the following issues on appeal:
    I.     Whether the trial court erred in denying [Pineda-
    Pita]’s motion to suppress when the search and
    seizure at the heart of the matter occurred in the
    absence of a search warrant and without legally
    sufficient basis.
    II.    Whether the trial court erred in concluding that
    [Pineda-Pita] gave voluntary consent to search his
    vehicle when said consent was not unequivocal and
    purportedly was offered in the midst of an unlawful
    seizure, during which [Pineda-Pita] was not advised
    that he was free to leave or that he could withhold
    consent.
    III.   Whether the trial court erred in extending the holding
    of Commonwealth v. Gary, 
    91 A.3d 102
    (Pa.
    2014)[,] to a situation involving the immobilization of
    a vehicle without knowledge of any contraband, the
    towing of said vehicle to police barracks, and a
    warrantless search and seizure of said vehicle and its
    contents at the barracks.
    Pineda-Pita’s Br. at 4 (full capitalization omitted).
    In reviewing the denial of a suppression motion, we must 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, as here, 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
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    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. Jones, 
    988 A.2d 649
    , 654 (Pa. 2010) (internal quotations
    and citations omitted).
    All of Pineda-Pita’s claims challenge the validity of the vehicle search.
    First, he claims that he was unlawfully detained, that he should have been
    allowed to drive away because he had a valid driver’s license and was the
    owner of the vehicle, and that there was no probable cause to search the
    vehicle. Next, Pineda-Pita argues that the consent was invalid because it was
    obtained during an illegal seizure, the consent was not unequivocal, and he
    was not notified that he was free to leave. Pineda-Pita also claims that if we
    conclude that the consent was valid, then towing the vehicle to police barracks
    to conduct the search exceeded the scope of the consent. Finally, Pineda-Pita
    claims that Gary2 does not extend to a situation where the vehicle is towed
    and searched at state police barracks.
    ____________________________________________
    2Gary was decided by a six-justice Supreme Court. The opinion
    announcing the judgment of the Court adopted the federal automobile
    exception for warrantless vehicle searches – “[t]he prerequisite for a
    warrantless search of a motor vehicle is probable cause to search; no exigency
    beyond the inherent mobility of a motor vehicle is 
    required.” 91 A.3d at 138
    .
    Justice Saylor authored a concurrence, joining the lead opinion insofar as it
    adopted the federal rule. Justice Saylor, however, expressed concerns with
    adopting a bright-line rule.    
    Id. at 139.
    This Court recently decided
    Commonwealth v. Green, wherein we held that “[p]olice may search an
    automobile without a warrant so long as they have probable cause to do so,
    as an automobile search ‘does not require any exigency beyond the inherent
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    This Court has explained that when conducting a traffic stop, “[a] police
    officer has the authority to stop a vehicle when he or she has reasonable
    suspicion that a violation of the vehicle code has taken place, for the purpose
    of obtaining necessary information to enforce the provisions of the code.”
    Commonwealth v. Brown, 
    64 A.3d 1101
    , 1105 (Pa.Super. 2013) (emphasis
    omitted).    If, however, “the violation is such that it requires no additional
    investigation, the officer must have probable cause to initiate the stop.” 
    Id. (emphasis omitted).
    Put another way, if the officer has a legitimate expectation
    of investigatory results, the existence of reasonable
    suspicion will allow the stop—if the officer has no such
    expectations of learning additional relevant information
    concerning the suspected criminal activity, the stop cannot
    be constitutionally permitted on the basis of mere suspicion.
    
    Id. (quoting Commonwealth
    v. Chase, 
    960 A.2d 108
    , 115 (Pa. 2008)).
    Initially, we note that Pineda-Pita does not dispute the legality of the
    traffic stop.    Corporal Grenci testified that he saw the vehicle traveling
    eastbound and “all the windows were completely tinted, completely dark. I
    couldn’t see anything inside the vehicle.” N.T., 5/18/15, at 10-11. This was
    sufficient to establish probable cause3 of a violation of section 4524(e)(1) of
    ____________________________________________
    mobility of a motor vehicle.’” 
    168 A.3d 180
    , 186 (Pa.Super. 2017) (quoting
    
    Gary, 91 A.3d at 104
    ).
    In determining the validity of the traffic stop, the trial court applied a
    3
    reasonable suspicion standard. However, a traffic stop due to a vehicle having
    heavily tinted windows must be supported by probable cause.                  See
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    the Vehicle Code, 75 Pa.C.S. § 4524(e)(1).                       See Commonwealth v.
    Randolph, 
    151 A.3d 170
    , 176 (Pa.Super. 2016), app. denied, 
    168 A.3d 1284
    (Pa. 2017).
    Pineda-Pita argues that his continued seizure, following the seizure of
    Garcia, was not supported by probable cause and therefore was unlawful.
    “The matter of when a traffic stop has concluded or otherwise given way to a
    new    interaction    does    not   lend       itself   to   a   ‘bright[-]line’   definition.”
    Commonwealth v. Reppert, 
    814 A.2d 1196
    , 1202 (Pa.Super. 2002).                              In
    Commonwealth v. Strickler, 
    757 A.2d 884
    (Pa. 2000), the Pennsylvania
    Supreme Court “analyzed under what circumstances a police interdiction can
    devolve into a mere encounter following a traffic stop when police continue to
    question the person after the reason for the traffic stop has concluded.”
    Commonwealth v. Kemp, 
    961 A.2d 1247
    , 1253 (Pa.Super. 2008) (en banc).
    The Strickler Court “ruled that after police finish processing a traffic
    infraction, the determination of whether a continuing interdiction constitutes
    a mere encounter or a constitutional seizure centers upon whether an
    individual would objectively believe that he was free to end the encounter and
    ____________________________________________
    Commonwealth v. Randolph, 
    151 A.3d 170
    , 176 (Pa.Super. 2016), app.
    denied, 
    168 A.3d 1284
    (Pa. 2017). While the trial court applied the wrong
    standard, we conclude this error was harmless because the record shows the
    traffic stop was supported by probable cause. See Commonwealth v.
    Kennedy, 
    151 A.3d 1117
    , 1127 n.14 (Pa.Super. 2016) (“It is well-settled that
    this Court may affirm a trial court’s ruling on any basis.”).
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    refuse a request to answer questions.” 
    Id. Here, the
    police had not finished processing the traffic infraction.
    Corporal Grenci conducted a traffic stop because of the vehicle’s heavily tinted
    windows.       Upon running Garcia’s identification card,4 Corporal Grenci
    determined that Garcia did not have a valid driver’s license and had an active
    arrest warrant. N.T., 5/18/15, at 13. After Garcia was taken into custody,
    Corporal Grenci returned to the vehicle and explained to Pineda-Pita why
    Garcia had been taken into custody. 
    Id. at 14-15.
    Pineda-Pita argues that
    he should have been allowed to leave at that point because he had a valid
    driver’s license and was the owner of the vehicle. Pineda-Pita’s Br. at 14.
    Pineda-Pita ignores, however, that the traffic stop had not concluded.
    Corporal Grenci had not yet issued a written warning or traffic citation, N.T.,
    5/18/15, at 38, and as long as the traffic stop was still in progress, Corporal
    Grenci had no obligation to permit Pineda-Pita to leave.
    Next, we must determine whether Pineda-Pita’s consent for the search
    of the vehicle was valid. The Commonwealth bears the burden of proving
    “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.” Commonwealth v. Powell, 994
    ____________________________________________
    4 When Corporal Grenci asked Garcia for his driver’s license Garcia
    produced an identification card. N.T., 5/18/15, at 11. Garcia stated that he
    had a license but did not have it with him at the time. 
    Id. -9- J-S37029-17
    A.2d 1096, 1101-02 (Pa.Super. 2010) (quoting 
    Kemp, 961 A.2d at 1261
    ).
    “While knowledge of the right to refuse to consent to the search is a factor to
    be taken into account, the Commonwealth is not required to demonstrate such
    knowledge as a prerequisite to establishing a voluntary consent.”            Id.
    (quoting 
    Kemp, 961 A.2d at 1261
    ). This Court has set forth several factors
    to determine whether a consent is valid:
    1) the presence or absence of police excesses; 2) whether
    there was physical contact; 3) whether police directed the
    citizen’s movements; 4) police demeanor and manner of
    expression; 5) the location of the interdiction; 6) the
    content of the questions and statements; 7) the existence
    and character of the initial investigative detention, including
    the degree of coerciveness; 8) whether the person has been
    told that he is free to leave; and 9) whether the citizen has
    been informed that he is not required to consent to the
    search.
    Id. (quoting 
    Kemp, 961 A.2d at 1261
    ).
    We must determine whether Pineda-Pita’s consent was a free and
    unconstrained choice under the totality of the circumstances.5 See 
    Powell, 994 A.2d at 1101-02
    .
    The trial court found that:
    Corporal Grenci’s testimony established that the questioning
    of [Pineda-Pita] took place in the open, no restraints were
    used, no aggressive behavior was shown, and the questions
    were not confusing or prolonged. [Pineda-Pita] argues that
    after Corporal Grenci asked to search the vehicle, and
    [Pineda-Pita] responded “Go ahead”, the fact that the
    ____________________________________________
    5Because we have concluded the traffic stop was supported by probable
    cause and had not ended at the time Pineda-Pita gave his consent, Pineda-
    Pita’s argument that the consent was invalid because it was obtained during
    an illegal seizure fails.
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    Corporal followed up with “Are you sure?” and “That’s a
    yes?” means that his consent was not unequivocal or
    specific. This Court does not agree and finds Corporal Grenci
    was ensuring he had consent after [Pineda-Pita] initially
    seemed reluctant to permit a search. Despite the fact that
    Corporal Grenci did not specifically advise [Pineda-Pita] that
    he did not have to consent, or that he was free to leave, this
    Court finds that the totality of the circumstances supports
    the conclusion that the [Pineda-Pita]’s consent was
    voluntary.
    Trial Ct. Op., 9/18/15, at 9-10.         We conclude that the trial court’s
    determination that Pineda-Pita’s consent was valid is supported by the record.
    We must next determine whether the officers were permitted to
    continue the search of the vehicle at police barracks. In Gary, our Supreme
    Court clarified that “[t]he prerequisite for a warrantless search [or seizure] of
    a motor vehicle is probable cause to search; no exigency beyond the inherent
    mobility of the vehicle is 
    required.” 91 A.3d at 138
    . We have explained:
    “It is only the probability and not a prima facie showing of
    criminal activity that is a standard of probable cause.”
    Commonwealth v. Monaghan, 
    441 A.2d 1318
    (Pa.Super.
    1982) (citation omitted); see also Illinois v. Gates, 
    462 U.S. 213
    , 238 (1983) (holding that probable cause means
    “a fair probability that contraband or evidence of a crime will
    be found.”); Commonwealth v. Lindblom, 
    854 A.2d 604
    ,
    607 (Pa.Super. 2004) (reciting that probable cause exists
    when criminality is one reasonable inference, not
    necessarily even the most likely inference).
    Commonwealth v. Freeman, 
    128 A.3d 1231
    , 1242-43 (Pa.Super. 2015)
    (quoting Commonwealth v. Dommel, 
    885 A.2d 998
    , 1002 (Pa.Super.
    2005)) (alterations omitted).
    In conducting the consent search, Corporal Grenci testified that: as he
    opened the vehicle’s back door to remove the back-seat passenger, Contreras,
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    he smelled fresh marijuana; he also smelled fresh marijuana on Contreras as
    he patted him down; he first searched the spare tire mounted under the car
    because of Pineda-Pita’s actions during the request for consent; “in plain
    view,” through the holes in the wheel well, he saw black garbage bags
    wrapped in gray duct tape; and based on his training and experience, he
    determined the packaging was “illegal contraband, most likely drugs.” N.T.,
    5/18/15, at 17-19.   These observations, along with the evidence that the
    vehicle’s occupants were from common drug source areas; the driver was
    wanted for drug trafficking violations; Pineda-Pita seemed unsure when asked
    about their travel plans; and, when asked for consent to search the vehicle,
    Pineda-Pita looked toward the rear of the vehicle and uttered the word “shit,”
    were more than sufficient to establish probable cause. See Commonwealth
    v. Nobalez, 
    805 A.2d 598
    , 600 (Pa.Super. 2002) (“We do not review the
    evidence   piecemeal,   but   consider   the totality of the circumstances   in
    assessing whether probable cause existed.”); see also Commonwealth v.
    Evans, 
    661 A.2d 881
    , 889 (Pa.Super. 1995) (holding that officer had probable
    cause when appellee opened the car door and officer saw a brick-shaped
    object covered in plastic, the brick-shaped object was partially concealed
    under the driver’s seat, and appellee had nervous demeanor”).     Therefore,
    once Corporal Grenci had probable cause, the search of the vehicle was
    supported by the automobile exception. See 
    Gary, 91 A.3d at 138
    .
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    Further, that the inside of the vehicle was searched after it was removed
    from the highway and towed to a safe location does not alter our conclusion.
    See 
    Gary, 91 A.3d at 110
    (“[W]hile a vehicle’s ready mobility was the original
    justification for the automobile exception to the warrant requirement, the U.S.
    Supreme Court subsequently broadened this justification to encompass those
    situations    where    the   vehicle    was    in   police   custody   and   thus   was
    immobilized.”); see also Michigan v. Thomas, 
    458 U.S. 259
    , 261 (1982)
    (“In Chambers v. Maroney, 
    399 U.S. 42
    , . . . (1970), we held that when
    police officers have probable cause to believe there is contraband inside an
    automobile that has been stopped on the road, the officers may conduct a
    warrantless search of the vehicle, even after it has been impounded and is in
    police custody.”).6
    Accordingly, we conclude that the trial court did not err in denying
    Pineda-Pita’s motion to suppress.7
    Judgment of sentence affirmed.
    ____________________________________________
    6Because we conclude that the automobile exception allowed the
    warrantless search of the vehicle once probable cause was established, we
    need not reach the question of whether Pineda-Pita’s consent to the search of
    the vehicle extended to the towing of the vehicle to police barracks.
    7   See 
    Kennedy, 151 A.3d at 1127
    n.14.
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    Judgment Entered.
    Joseph D. Seletyn, Esq.
    Prothonotary
    Date: 11/20/2017
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