Com. v. Carmenates, V. ( 2021 )


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  • J-E02004-21
    
    2021 PA Super 244
    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
    :        PENNSYLVANIA
    Appellant               :
    :
    :
    v.                             :
    :
    :
    VISMANI CANALES CARMENATES                 :   No. 1045 MDA 2019
    Appeal from the Suppression Order Entered June 25, 2019
    In the Court of Common Pleas of Clinton County Criminal Division at
    No(s): CP-18-CR-0000623-2018
    BEFORE: PANELLA, P.J., BENDER, P.J.E., BOWES, J., LAZARUS, J., OLSON,
    J., DUBOW, J., KUNSELMAN, J., MURRAY, J., and McCAFFERY, J.
    OPINION BY DUBOW, J.:                              FILED: DECEMBER 14, 2021
    The Commonwealth of Pennsylvania appeals from the June 25, 2019
    Order granting the Motion to Suppress filed by Vismani Canales Carmenates
    (“Carmenates”). The Commonwealth argues that the suppression court erred
    in relying on waived arguments, making factual findings that contradicted the
    testimony, and granting Carmenates’ Motion to Suppress.            After careful
    review, we conclude that Carmenates did not knowingly, intelligently, or
    voluntarily consent to the search of his vehicle. Thus, we affirm the Order
    granting Carmenates’ Motion to Suppress.
    Following a traffic stop, the Commonwealth charged Carmenates with
    Possession With Intent to Deliver a Controlled Substance and Possession of
    Drug Paraphernalia.1 Carmenates filed an Omnibus Pre-Trial Motion, including
    ____________________________________________
    1   35 P.S. §§ 780-113(a)(3) and 780-113(a)(32), respectively.
    J-E02004-21
    a Motion to Suppress, contending that the traffic stop was illegal and his
    consent to search the vehicle was not knowing, intelligent, or voluntary and/or
    was invalid because it was the product of an unconstitutional detention.
    The suppression court held a hearing on the Motion to Suppress, at
    which Pennsylvania State Trooper Jeremy Hoy and Carmenates testified.2 The
    court also viewed and admitted into evidence the DVD recording of Trooper
    Hoy’s and Carmenates’ interaction produced by the mobile video recording
    (“MVR”) unit on Trooper Hoy’s patrol vehicle, and a photograph of items
    hanging from the rearview mirror of Carmenates’ vehicle. From the evidence
    submitted, the suppression court found the following facts.
    On December 12, 2018, Trooper Hoy was working in the Bureau of
    Criminal Investigation, Drug Law Enforcement, Central SHIELD Unit.3 He was
    on stationary patrol near the Lamar exit of Interstate 80 when he observed
    Carmenates’ vehicle following a tractor-trailer at what Trooper Hoy considered
    an unsafe distance and at a speed slower than the flow of traffic.
    Trooper Hoy pulled over Carmenates’ car using lights and a siren.
    Trooper Hoy exited his patrol vehicle. As he approached the passenger side
    ____________________________________________
    2 The suppression court qualified Trooper Hoy to testify as an expert in the
    field of criminal interdiction.
    3 The SHIELD unit is a “criminal interdiction unit assigned primarily to work
    the interstates and highways in Pennsylvania[]” by “conducting traffic stops,
    attempting to ferret out criminal activity to help slow down the flow of illegal
    activities in the Commonwealth of Pennsylvania.” N.T. Suppression, 5/3/19,
    at 6-7.
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    window of Carmenates’ vehicle4 he noticed in the back of the vehicle several
    large duffel bags and a suitcase, covered by a tan sheet and a large stuffed
    toy bear. He also observed numerous fast food and snack items, a fast food
    drink and water in the cup holders, two air freshener spray bottles, and
    “religious paraphernalia” hanging from his rearview mirror.      Trooper Hoy
    testified that these items could be indicators of criminality.5 Trooper Hoy did
    not smell any odor of marijuana or observe any drugs or drug paraphernalia,
    cash, weapons, or contraband of any type, nor did he observe Carmenates
    attempt to conceal anything or make any furtive movements.
    When Trooper Hoy attempted to speak with Carmenates, Carmenates
    immediately indicated that he spoke only Spanish.      Trooper Hoy does not
    speak Spanish, but told Carmenates that they “could make it work.”6         To
    “make it work,” Trooper Hoy employed the Google Translate application
    (“Google Translate”) on his cell phone to translate his statements from English
    ____________________________________________
    4Trooper Hoy testified that for safety reasons he always approaches a driver
    during a traffic stop from the passenger side of the vehicle. N.T. at 63.
    5 Suppression Court Opinion (“Opinion”) at 4-5. The “religious paraphernalia”
    consisted of two elephants and a picture of woman hanging from Carmenates’
    rearview mirror. Trooper Hoy could not identify the woman or with which, if
    any, religion these items were associated.         See N.T. at 69-70.    The
    suppression court concluded after reviewing the photograph of Carmenates’
    rearview mirror that the “religious paraphernalia” observed by Trooper Hoy
    was not, in fact, religious paraphernalia and it rejected the Commonwealth’s
    allegation that religious materials generally are an indication of criminal
    activity. See Opinion at 5.
    6   Opinion at 4.
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    to Spanish and Carmenates’ statements from Spanish to English.7 Trooper
    Hoy indicated that he did not have any problems understanding the responses
    he received from Carmenates from the Google Translate application and that
    Carmenates never told Trooper Hoy that he did not understand a question
    Trooper Hoy asked him through Google Translate. Trooper Hoy conceded,
    however, that Google Translate is “not 100 percent accurate at times.”8
    Carmenates provided Trooper Hoy with Carmenates’ drivers’ license,
    insurance card, and registration card.           Trooper Hoy requested that
    Carmenates exit the vehicle. Carmenates complied and Trooper Hoy searched
    him for weapons.9 Trooper Hoy instructed Carmenates to stand outside the
    patrol vehicle’s front passenger window in the cold while Trooper Hoy
    conducted a criminal history check inside his heated patrol vehicle using the
    ____________________________________________
    7To use Google Translate, Trooper Hoy and Carmenates handed Trooper Hoy’s
    phone back and forth, each taking turns recording his voice and waiting for
    the application to translate. If either man interrupted the other, or if one of
    them paused before finishing his sentence, the recorder stopped recording
    and started translating.
    8   N.T. at 79.
    9 Trooper Hoy described Carmenates’ hands as shaking when Carmenates
    handed Trooper Hoy these items and while passing Trooper Hoy’s cell phone
    back and forth.     The suppression court rejected the Commonwealth’s
    suggestion that the court should infer from Carmenates’ shaking hands that
    he was nervous because he was conducting criminal activities. Instead, the
    court inferred that Carmenates—a member of the travelling public who
    Trooper Hoy had placed out in the cold weather without the opportunity to
    retrieve an outercoat—was cold. Opinion at 6.
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    vehicle’s computer.10 Trooper Hoy explained that he remained in his warm
    patrol vehicle because he needed to use his computer to verify Carmenates’
    identity, it was cold out, and it was easier for Trooper Hoy to hear the Google
    Translate translations inside the vehicle.
    Trooper Hoy stated that he intended to issue a warning to Carmenates—
    but before doing so, and before returning Carmenates’ documents to him and
    ending the traffic stop, Trooper Hoy asked him about his travel plans. During
    this portion of the MVR recording, Carmenates is heard giving lengthy
    responses in Spanish to Trooper Hoy’s questions.             However, many of
    Carmenates’ responses were not translated by Google Translate at all and
    Google Translate translated some lengthy responses as short, nonsensical
    English statements, including the statement “you already see the see a bear
    for the girl the suitcase with the coat over coat.” MVR Recording, 12/12/18,
    at 7:39-8:19.
    Trooper Hoy had copies of a written “consent to search” form already
    translated into Spanish in his vehicle.          Nevertheless, approximately 12
    minutes into the traffic stop, Trooper Hoy chose to use Google Translate to
    obtain Carmenates’ consent to “see” his luggage.11 Trooper Hoy never offered
    ____________________________________________
    10 Carmenates, who was not wearing a jacket, told Trooper Hoy that he was
    cold. In response, and because “[i]t was a little chilly,” Trooper Hoy pointed
    the police car’s heat vents toward Carmenates as he stood outside to “warm
    his hands, stay warm throughout the encounter.” N.T. at 32.
    11   Opinion at 7.
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    Carmenates the opportunity to review the Spanish-language consent form.
    While still standing jacketless outside the police vehicle in the cold,
    Carmenates replied “si” to the question of whether Trooper Hoy could “see”
    Carmenates’ luggage.         Carmenates then proceeded to walk towards his
    vehicle.
    Trooper Hoy then exited his vehicle and followed Carmenates to
    Carmenates’ vehicle.       Carmenates opened the rear door of his vehicle and
    retrieved a suitcase. Trooper Hoy, however, using gestures rather than words,
    directed Carmenates to a black duffel bag located under the tan bed sheet and
    large stuffed toy bear.         Carmenates retrieved the black duffel bag and
    complied with Trooper Hoy’s non-verbal direction to open it.12 The black duffel
    bag contained a large amount of marijuana packaged and vacuum sealed in
    plastic bags.    Trooper Hoy then handcuffed Carmenates and searched the
    remaining duffel bags. In the bags, Trooper Hoy discovered approximately 39
    pounds of marijuana.
    The testimony and MVR recording indicated that Trooper Hoy never
    informed Carmenates that Carmenates was free to leave or to refuse consent
    to search his vehicle or personal effects or of his Miranda13 rights.        In
    addition, Trooper Hoy still had possession of Carmenates’ license, registration,
    ____________________________________________
    12 Trooper Hoy conceded that he did not ask Carmenates if Trooper Hoy could
    look inside or examine Carmenates’ luggage or duffel bags or search
    Carmenates’ vehicle or personal effects. N.T. at 84.
    13   Miranda v. Arizona, 
    384 U.S. 436
     (1966).
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    and proof of insurance at the time Trooper Hoy requested to see Carmenates’
    luggage, including the black duffel bag.
    Carmenates testified through a translator at the suppression hearing.
    He stated that he spoke just a few words of English. N.T. at 97. He also
    testified that he understood Trooper Hoy’s request to see Carmenates’ luggage
    as meaning that Trooper Hoy simply wanted to “see” it. 
    Id.
     Carmenates also
    testified that Trooper Hoy pointed at the bags because Trooper Hoy “did not
    have a translator there.” Id. at 97-98. He further testified that if Trooper
    Hoy pointed, Carmenates “would follow his orders” because he “didn’t think
    that [he] had the option to say no, so I just followed what he told me to do.”
    Id. at 98. Importantly, Carmenates testified that Trooper Hoy “wasn’t talking
    to me and he didn’t use” Google Translate; rather, he “kept pointing[.]” Id.
    at 99.
    Following the hearing and after considering the parties’ briefs, the
    suppression court granted Carmenates’ Motion to Suppress, concluding that
    the Commonwealth had failed to establish that Carmenates voluntarily,
    knowingly, and intelligently consented to the search of his vehicle and
    luggage, finding, inter alia, that “a substantial language barrier existed
    between [Carmenates] and Trooper Hoy and [Carmenates] did not fully
    comprehend Trooper Hoy’s request and/or statements.” Opinion at 8, 15.
    The Commonwealth timely appealed, and, on September 1, 2020, this
    Court published an Opinion reversing the suppression court’s Order granting
    Carmenates’ Motion to Suppress, finding that Carmenates knowingly,
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    intelligently, and voluntarily consented to Trooper Hoy’s request to search.
    See Commonwealth v. Carmenates, No 1045 MDA 2019 (Pa. Super. filed
    Sept. 1, 2020). Carmenates subsequently filed an Application for Reargument
    En Banc.   On November 9, 2020, we issued a per curiam Order granting
    reargument and withdrawing the panel’s September 1, 2020 decision.
    Pursuant to this Order, the Commonwealth filed a substituted Brief, raising
    the following six issues:
    1. Whether the suppression court committed an error of
    law/abuse of discretion in determining that [Carmenates’]
    consent to search his vehicle and its contents was not
    voluntary?
    2. Whether the suppression court committed an error of
    law/abuse of discretion in concluding that [Carmenates] was
    the subject of an unconstitutional detention?
    3. Whether the suppression court committed an error or
    law/abuse of discretion in failing to find that [Carmenates]
    waived various issues by failing to present them in his Omnibus
    Pretrial Motion?
    4. Whether the suppression court committed an error of
    law/abuse of discretion in making factual findings outside the
    record of the suppression hearing?
    5. Whether the suppression court committed an error of
    law/abuse of discretion in making factual findings contrary to
    the uncontroverted testimony of the Commonwealth’s witness
    at the suppression hearing, PSP Trooper Hoy?
    6. Whether the suppression court committed an error of
    law/abuse of discretion in failing to give due weight to the
    opinions and observations of Trooper Hoy based upon his
    knowledge, experience, and training in the field of narcotics
    investigations?
    Commonwealth’s Brief at 4-5.
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    Standard of Review
    “When reviewing the grant of a suppression motion, we must determine
    whether the record supports the trial court’s factual findings and whether the
    legal conclusions drawn from those facts are correct.” Commonwealth v.
    McCleary, 
    193 A.3d 387
    , 390 (Pa. Super. 2018) (citation omitted). “We may
    only consider evidence presented at the suppression hearing.” 
    Id.
     (citation
    omitted).     “[B]ecause the defendant prevailed on this issue before the
    suppression court, we consider only the defendant’s evidence and so much of
    the Commonwealth’s evidence as remains uncontradicted when read in the
    context of the [suppression] record as a whole.” 
    Id.
     (citation omitted).
    We are highly deferential to the suppression court’s factual findings and
    credibility determination. Commonwealth v. Batista, 
    219 A.3d 1199
    , 1206
    (Pa. Super. 2019).      “It is within the suppression court’s sole province as
    factfinder to pass on the credibility of witnesses and the weight to be given to
    their testimony. The suppression court is free to believe all, some or none of
    the evidence presented at the suppression hearing.”         Commonwealth v.
    Elmobdy, 
    823 A.2d 180
    , 183 (Pa. Super. 2003) (citations omitted). If the
    record supports the suppression court’s findings, we may not substitute our
    own findings. Bastista, 219 A.3d at 1206. However, we give no deference
    to the suppression court’s legal conclusions and review them de novo. Id.
    I.      Whether Consent was Knowing, Intelligent, and Voluntary
    In its first and second issues, the Commonwealth asserts that the
    suppression court erred in concluding that Carmenates’ consent was not
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    knowing, intelligent, and voluntary.14 Commonwealth’s Brief at 20-23. The
    Commonwealth claims that the suppression court incorrectly applied
    Commonwealth v. Strickler, 
    757 A.2d 884
     (Pa. 2000), to conclude that the
    search violated Carmenates’ rights.15 The Commonwealth, emphasizing the
    facts favorable only to its assertion that the search of Carmenates’ luggage
    was consensual, argues that the court erred in placing significance on the fact
    that Trooper Hoy did not advise Carmenates of his Miranda rights or his right
    ____________________________________________
    14  The Commonwealth purports that it combined its argument in support of
    issues one and two into one section. Our review of the Commonwealth’s Brief
    indicates, however, that the Commonwealth has, in fact, only presented
    argument in support of its first issue, i.e., that it did not prove that
    Carmenates’ consent was knowing, intelligent, and voluntary. We, therefore,
    conclude that the Commonwealth abandoned its second issue—that the
    suppression court erred in finding that Carmenates was the subject of an
    illegal detention. Nevertheless, we observe that Carmenates raised as a basis
    to support suppression of the marijuana found in his vehicle that the traffic
    stop was illegal and the consent to search was proceeded by an
    unconstitutional detention. The suppression court, however, declined to
    address this claim after finding that Carmenates’ consent to search was not
    knowing, intelligent, or voluntary. Accordingly, even if the Commonwealth
    had not abandoned this issue, it would fail as the suppression court did not
    make the legal conclusion challenged by the Commonwealth.
    15 The Commonwealth also asserts that the suppression court misapplied the
    holding in United States v. Lopez, 
    817 F. Supp. 2d 918
     (S.D. Miss. 2011),
    which the Commonwealth characterizes as “factually distinguishable from the
    present matter to the extent that its application constitutes an error of law by
    the suppression court.” The Commonwealth does not, however, explain how
    the facts in Lopez are distinguishable from the instant facts. Furthermore,
    we note that the suppression court conceded that Lopez is not binding on
    Pennsylvania courts, it did not rely exclusively on Lopez granting Carmenates’
    Motion to Suppress, and, our review of Lopez, belies the Commonwealth’s
    claim that its facts are so dissimilar from the instant facts as to render the
    suppression court’s reference to it legal error. Accordingly, we find no merit
    to this claim.
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    to refuse to consent to the search.16 Id. at 21. The Commonwealth avers
    that the encounter was cordial, and Trooper Hoy did not demand to see the
    contents of Carmenates’ vehicle’s rear compartment, but merely asked to see
    the luggage and Carmenates willingly opened the bag after Trooper Hoy
    pointed at it. Id. at 20, 22-23.
    It is well-settled that a search conducted without a warrant is
    unreasonable and unconstitutional unless an established exception to the
    warrant requirement applies.            Strickler, 757 A.2d at 888. “One such
    exception is consent[.]” Id.
    “To establish a valid consensual search, the Commonwealth must first
    prove that the consent was given during a legal police interaction.”
    Commonwealth v. Bell, 
    871 A.2d 267
    , 273 (Pa. Super. 2005). Next, the
    Commonwealth must prove the consent was given voluntarily. 
    Id.
     “To be
    considered valid, the consent must be the product of an essentially free and
    unrestrained choice—not the result of duress or coercion, express or implied,
    or   a     will   overbourne—under        the      totality   of   the   circumstances.”
    Commonwealth v. Quiles, 
    166 A.3d 387
    , 391 (Pa. Super. 2017) (citations
    and internal quotation marks omitted).
    The Pennsylvania Supreme Court has also noted that because “both the
    tests for voluntariness [of consent] and for seizure centrally entail an
    ____________________________________________
    16The Commonwealth also repeats its averment that the suppression court
    exaggerated other factors, such as the cold weather and language barrier.
    See Commonwealth’s Brief at 12.
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    examination of the objective circumstances surrounding the police/citizen
    encounter to determine whether there was a show of authority that would
    impact upon a reasonable citizen-subject’s perspective, there is a substantial,
    necessary overlap in the analyses.” Strickler, 757 A.2d at 901-02.
    Thus, to determine whether a consent is valid when provided close in
    time to a traffic stop, courts consider the following factors:
    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 its degree of coerciveness; 8)
    “the degree to which the transition between the traffic
    stop/investigative detention and the subsequent encounter can be
    viewed as seamless, ... thus suggesting to a citizen that his
    movements may remain subject to police restraint,”; 9) the
    “presence of an express admonition to the effect that the citizen-
    subject is free to depart is a potent, objective factor;” and 10)
    whether the citizen has been informed that he is not required to
    consent to the search.
    Commonwealth v. Moyer, 
    954 A.2d 659
    , 665 (Pa. Super. 2008) (en banc)
    (citations omitted).
    “[K]nowledge of the right to refuse to consent to the search is a factor
    to be taken into account, [but] the Commonwealth is not required to
    demonstrate such knowledge as a prerequisite to establishing voluntary
    consent.” Strickler, 757 A.2d at 901. Further, “the maturity, sophistication
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    and mental or emotional state of the defendant (including age, intelligence
    and capacity to exercise free will), are to be taken into account.” 17 Id.
    Here, the suppression court granted Carmenates’ Motion to Suppress
    because it found that Carmenates’ consent was “without any question”
    involuntary, observing that a “substantial language barrier” between Trooper
    Hoy and Carmenates prevented Carmenates from fully understanding Trooper
    Hoy’s requests and statements.18 Opinion at 8, 11, 15.
    Following our review of the totality of the circumstances, we agree that
    Carmenates’ consent was not knowing, intelligent, and voluntary. The record
    reflects that Carmenates spoke only a few words of English and that Trooper
    Hoy does not speak Spanish. Thus, throughout their encounter, Trooper Hoy
    and Carmenates used Google Translate to facilitate their conversation.
    Trooper Hoy conceded that Google Translate is “not 100 percent accurate at
    times” and the record evidence of some of the inaccurate and nonsensical
    translations provided by Google Translate supports this testimony.
    ____________________________________________
    17The Commonwealth did not present any evidence at the suppression hearing
    regarding Carmenates’ maturity, sophistication, or mental or emotional state
    at the time Trooper Hoy obtained Carmenates’ consent to search.
    18 In determining that the consent to search obtained by Trooper Hoy from
    Carmenates was invalid, the trial court also considered relevant that: (1)
    Trooper Hoy neglected to inform Carmenates that he could refuse to consent
    to the search or of his Miranda rights; (2) the traffic stop had been an
    extended stop; (3) Trooper Hoy exerted pressure on Carmenates by directing
    him to stand in the cold weather while Trooper Hoy remained in his own warm
    vehicle; and (4) Trooper Hoy directed Carmenates’ actions. Opinion at 11,
    15.
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    Moreover, and critically, despite Trooper Hoy’s knowledge that the
    translations provided by Google Translate were not always accurate, he chose
    not to provide Carmenates with a copy of the Pennsylvania State Police
    Spanish-language consent to search form that he kept in his patrol vehicle
    and instead orally requested Carmenates’ consent. To obtain Carmenates’
    consent, Trooper Hoy chose to use the less precise word “see” rather than a
    more precise term such as “search, “examine,” or “look inside,” thereby
    imbuing the request for consent with inherent, yet avoidable, ambiguity.
    Furthermore, Trooper Hoy acknowledged the substantial language barrier
    towards the end of the encounter by ceasing to communicate with Carmenates
    verbally, and, instead, merely pointing and gesturing at the items that Trooper
    Hoy wanted to search. Given these facts, the trial court reasonably concluded
    that there was a “substantial language barrier” between Carmenates and
    Trooper Hoy that precluded Carmenates from fully comprehending Trooper
    Hoy’s questions and statements and from providing a valid consent to search.
    In light of the foregoing, we conclude that Carmenates did not
    knowingly, intelligently, and voluntarily consent to the search of his vehicle
    and belongings. Accordingly, the suppression court properly suppressed the
    evidence seized pursuant to the search.
    II.     Waiver
    In its third issue, the Commonwealth asserts that, in granting
    Carmenates’ Motion to Suppress, the suppression court erroneously relied on
    grounds     Carmenates   had   withdrawn     from   the   court’s   consideration.
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    Commonwealth’s Brief at 11. In particular, the Commonwealth claims that
    Carmenates waived consideration of the reliability of the Google Translate by
    withdrawing his “hearsay objection related to the admissibly [sic] of the
    Google Translate application.”19 Id. at 12 (quoting Carmenates’ Memorandum
    in Support of Omnibus Pretrial Motion, 6/5/19, at Section II.E.).          The
    Commonwealth asserts that, notwithstanding that Carmenates withdrew his
    objection, Google Translate’s reliability “improperly colored” the suppression
    court’s decision. Id. The Commonwealth avers that the suppression court
    should have restricted its analysis to the two issues on which Carmenates
    focused his Motion: (1) whether his initial stop was legal; and (2) whether his
    consent to search his vehicle was knowing, intelligent, and voluntary. Id. at
    13.
    Prior to trial, a defendant may file a motion “to suppress any evidence
    alleged to have been obtained in violation of the defendant’s rights.”
    Pa.R.Crim.P. 581(A); see Commonwealth v. Long, 
    753 A.2d 272
    , 279 (Pa.
    Super. 2000). “The motion shall state specifically and with particularity the
    evidence sought to be suppressed, the grounds for suppression, and the facts
    and events in support thereof.” Pa.R.Crim.P. 581(D). “[F]ailure to comply
    with the specificity requirement of Rule 581(D) will result in waiver, as those
    requirements have been held to be mandatory.” Commonwealth v. Dixon,
    
    997 A.2d 368
    , 376 (Pa. Super. 2010).
    ____________________________________________
    19Carmenates had initially objected to “the admissibility of anything that
    Google Translate indicated was said by [him.]” Opinion at 4.
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    The requirement that a defendant raise the grounds for suppression in
    his motion ensures that the Commonwealth is on notice of what evidence it
    must produce at the suppression hearing to satisfy its burden of proving that
    the police obtained the evidence legally. Commonwealth v. Carper, 
    172 A.3d 613
    , 619 (Pa. Super. 2017).
    Our review indicates that, contrary to the Commonwealth’s claims,
    Carmenates’ motion specifically and sufficiently put the Commonwealth on
    notice that Carmenates intended to argue that the traffic stop was illegal and
    that his consent to the search was not knowing, intelligent, and voluntary, at
    least in part as a result of Google Translate’s inaccuracy. In addition, the
    Notes of Testimony from Carmenates’ suppression hearing confirm that the
    Commonwealth understood Carmenates’ issues as it knew to present evidence
    to the contrary.
    Moreover, although Carmenates’ stated in his Memorandum in Support
    of Ominibus Pre-Trial Motion that he withdrew his objection to the admissibility
    of the Google Translate application on hearsay grounds, he also reiterated that
    the court should consider Google Translate’s lack of reliability in the context
    of the coercive nature of the interaction between Trooper Hoy and Carmenates
    and when determining whether the Commonwealth had proven that
    Carmenates’ consent to search was legally obtained. We, thus, disagree with
    the Commonwealth that Carmenates waived all consideration, for any reason,
    of Google Translate’s reliability by the suppression court.
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    Furthermore, the Commonwealth’s assertion that the suppression court
    improperly considered testimony concerning the reliability of Google Translate
    after Carmenates withdrew his objection to its admissibility on hearsay
    grounds conflates the concept of admissibility of evidence with weight of the
    evidence. Here, after the Commonwealth elicited testimony from Trooper Hoy
    that he had no problem understanding Carmenates’ responses to his questions
    as translated by Google Translate and that Carmenates never indicated that
    he did not understand a question translated by Google Translate, Trooper Hoy
    conceded on cross-examination, without objection, that Google Translate “is
    not 100 percent accurate at times.” Id. at 36-37, 79. The court weighed this
    testimony along with the other evidence of the translations and found that
    “the translation offered by Google Translate was not clear or precise, and
    [was] sometimes inaccurate.” Opinion at 4 ¶ 14. The record supports this
    conclusion. Thus, there is no merit to the Commonwealth’s claim that the
    court erred in considering the reliability of Google Translate because Appellant
    had withdrawn his objection to the admissibility of the evidence.
    III. Suppression Court’s         Findings     of   Fact   and    Credibility
    Determinations
    In its fourth and fifth issues, the Commonwealth asserts that the
    suppression court erred in making findings of fact that contradicted Trooper
    Hoy’s testimony.      Commonwealth’s Brief at 14-17.          Specifically, the
    Commonwealth complains that the court erred in “mak[ing] extensive
    reference to[,]” and “sensationalizing the severity of[,] the temperature” on
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    December 12, 2018, to “fit its narrative.” Id. at 14-15. The Commonwealth
    also avers the court erred in concluding that there was a substantial language
    barrier between Trooper Hoy and Carmenates when Trooper Hoy’s testimony
    indicated that neither man had trouble understanding the other and
    Carmenates offered only limited testimony about their ability to communicate.
    Id. at 15-17.
    We defer to the suppression court’s findings of fact because, as the
    finder of fact, it is the suppression court’s prerogative to pass on the credibility
    of   the   witnesses   and   the   weight   to   be   given   to   their   testimony.
    Commonwealth v. Whitlock, 
    69 A.3d 635
    , 637 (Pa. Super. 2013). We may
    not substitute our own findings where the records supports those made by the
    suppression court. Batista, 219 A.3d at 1206.
    Following our review, we conclude that the record supports the
    suppression court’s findings of fact. With respect to the suppression court’s
    findings pertaining to the weather, our review of the record confirms that this
    traffic stop took place in northern Pennsylvania in December, Trooper Hoy was
    using the heat in his patrol vehicle to stay warm, and he directed the vehicle’s
    vents to the outside to provide some heat for Carmenates. That the vehicle’s
    heater was on at all confirms that it was a cold day.          Further, the record
    supports the court’s finding that a language barrier existed. It is undisputed
    that Carmenates did not speak English and Trooper Hoy did not speak
    Spanish. The two men communicated through Google Translate, which even
    Trooper Hoy conceded was not 100 percent accurate.                 In addition, it is
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    J-E02004-21
    undisputed that at the end of the encounter, Trooper Hoy used hand motions,
    rather than words, to direct Carmenates’ actions.
    In its final issue, the Commonwealth complains that the court failed to
    give any weight to Trooper Hoy’s uncontroverted opinions and observations
    that Carmenates’ apparently legal actions were, in fact, indicia of criminal
    behavior and that it was upon those factors that Trooper Hoy based his
    reasonable suspicion that Carmenates was involved in criminal activity.
    Commonwealth’s Brief at 17-19. The Commonwealth specifically notes that
    the court rejected Trooper Hoy’s opinion that religious materials are an
    indication of criminal activity. Id. at 18. The Commonwealth observes that
    Carmenates did not offer an expert to refute Trooper Hoy’s expert opinion.
    Id. at 19.
    As noted above, “[i]t is within the suppression court’s sole province as
    factfinder to pass on the credibility of witnesses and the weight to be given to
    their testimony. The suppression court is free to believe all, some or none of
    the evidence presented at the suppression hearing.” Elmobdy, 
    823 A.2d at 183
     (citations omitted).   We cannot and will not reweigh the evidence or
    substitute our credibility determinations for those of the suppression court.
    We disagree that the suppression court was required to find that
    reasonable suspicion existed merely because Trooper Hoy testified that he
    believed it did.   Commonwealth v. Holmes, 
    14 A.3d 89
    , 96 (Pa. 2011)
    (determination of whether officer had reasonable suspicion is an objective
    determination and “[i]t is the duty of the suppression court to independently
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    J-E02004-21
    evaluate whether, under the particular facts of a case, an objectively
    reasonable officer would have reasonably suspected criminal activity was
    afoot”); Commonwealth v. Walton, 
    63 A.3d 253
    , 256 (Pa. Super. 2013)
    (noting the suppression court determined the credibility of witnesses and the
    weight to be given to their testimony and finding officer lacked reasonable
    suspicion to conduct investigatory stop). Further, the suppression court did
    not determine whether reasonable suspicion existed. Rather, it suppressed
    the evidence because it concluded Carmenates did not knowingly, voluntarily,
    and intelligently consent to the search. This claim, therefore, fails.
    Order affirmed.
    Judgment Entered.
    Joseph D. Seletyn, Esq.
    Prothonotary
    Date: 12/14/2021
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