Com. v. Linton, L. ( 2016 )

J-A03020-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
LEVICK EDWARD LINTON, JR.
Appellant No. 1200 EDA 2015
Appeal from the Judgment of Sentence March 24, 2015
In the Court of Common Pleas of Delaware County
Criminal Division at No(s): CP-23-CR-0000593-2014
BEFORE: GANTMAN, P.J., MUNDY, J., and DUBOW, J.
MEMORANDUM BY MUNDY, J.: FILED APRIL 18, 2016
Appellant, Levick Edward Linton, Jr., appeals from the March 24, 2015
judgment of sentence of 18 to 36 months’ imprisonment, imposed after he
was found guilty of one count of possession with intent to deliver (PWID).1
After careful review, we affirm.
The trial court summarized the relevant factual history of this case as
follows.
On July 9, 2013, officers of the Tinicum
Township Police Department were dispatched to the
area of the 700 block of Jansen Avenue in the
Essington section of the township for a report of
“possible illegal drug activity.” Upon arriving to the
area, Officer Joseph Marino observed a silver vehicle
that matched the description of the vehicle provided
by dispatch. Following a directive by his
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1
35 P.S. § 780-113(a)(30).
J-A03020-16
commanding officer, Sergeant James Simpkins, Jr.,
Officer Marino effectuated a stop of the observed
vehicle. After Officer Marino made the stop,
Sergeant Simpkins arrived and spoke to the driver of
the vehicle. The driver, [] Appellant [], provided the
officers with a Pennsylvania identification card and
told the officers that he was coming “from” Wawa, a
convenience store in the area.
The officers ran [] Appellant’s name through
PennDOT and confirmed that his driver’s license was
suspended, DUI related. The officers also had
trouble believing [] Appellant’s assertion that he had
just been at the Wawa store because the store was
located ahead of the direction that Appellant had
been driving. Sergeant Simpkins asked [] Appellant
if he could search his vehicle, and [] Appellant said
yes. Nothing was recovered from the vehicle during
the search, and [] Appellant was then told that he
was free to leave and that he would be issued a
citation in the mail. He was also advised that his
vehicle would be towed from the scene.
The following day, July 10, 2013, the Tinicum
Township Police Department received a telephone
call from Lieutenant [Gibney2] of the neighboring
Darby Borough Police Department, who advised that
he had received information from a reliable source
that the vehicle that had been involved in the stop
the previous day contained narcotics. On July 11,
2013, based upon on this information, a canine
search was conducted of the exterior of the vehicle.
The canine indicated the presence of drugs. Based
on this and the information supplied by Lieutenant
[Gibney], a search warrant was prepared. On July
12, 2013, at 3:15 p.m. Magisterial District Judge
Horace Davis approved and signed the search
warrant. With said warrant, a thorough search of
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2
The Commonwealth informs us that the suppression hearing transcript
erroneously refers to the Lieutenant’s name as “Givney.” Commonwealth’s
Brief at 25 n.4.
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the vehicle was done and Sergeant Simpkins
discovered a yellow cloth bag filled with 34 clear
Ziploc bags each containing a blue glassine bag
stamped “Dream House” which contained white
powder. Also recovered was a clear plastic Ziploc
bag containing 140 clear plastic Ziploc bags each
containing a blue glassine bag stamped “Dream
House” which also contained white power. Two
letters and other documents addressed to []
Appellant, and four cellular telephones were also
found in the vehicle. The substances were submitted
to the Lima Regional Laboratory for testing, and the
bags were analyzed and confirmed to contain heroin.
Trial Court Opinion, 7/17/15, at 1-2.
On February 12, 2014, the Commonwealth filed an information,
charging Appellant with one count each of PWID, intentional possession of a
controlled substance, possession of drug paraphernalia, driving with a
suspended license, and driving without a license.3 At some point, Appellant
filed a motion to suppress, on which the trial court conducted a hearing on
July 24, 2014.4 On October 20, 2014, the suppression court entered an
order denying Appellant’s suppression motion. Appellant proceeded to a
stipulated bench trial on February 26, 2015, at the conclusion of which
Appellant was found guilty of one count of PWID. The remaining charges
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3
35 P.S. §§ 780-113(a)(30), 780-113(a)(16), 780-113(a)(32), 75 Pa.C.S.A.
§§ 1543(b)(1), and 1501(a), respectively.
4
Although a copy of the motion is contained within the certified record, it is
neither file-stamped nor docketed. Nevertheless, as the same issues
contained therein were litigated at the suppression hearing, we do not
consider this an impediment to our review.
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were withdrawn. On March 24, 2015, the trial court sentenced Appellant to
18 to 36 months’ imprisonment. Appellant did not file a post-sentence
motion. On April 16, 2015, Appellant filed a timely notice of appeal.5
On appeal, Appellant raises the following issues for our review.
[I.] Whether the trial court erred in denying
Appellant’s suppression [m]otion to [s]uppress
when [] Appellant was stopped and seized by
the Tinicum Township Police Department
without reasonable suspicion?
[II.] Did the trial court err in denying Appellant’s
suppression [m]otion to [s]uppress on the
grounds that [Section] 6309.2(a)(1) of the
[Motor] Vehicle Code that the vehicle was
towed “in the interest of public safety” when
no risk to the public or public safety was
presented by the vehicle parked legally on the
street?
[III.] Did the trial court err in denying Appellant’s
suppression [m]otion to [s]uppress on the
grounds that Appellant lacked a privacy
interest in the vehicle, as it belonged to
Appellant’s mother?
[IV.] Did the trial court err in denying Appellant’s
suppression [m]otion to [s]uppress by relying
on the independent source doctrine, as the
independent source did not mention the
specific vehicle searched, and the police were
illegally in possession of the vehicle at the time
of the search?
Appellant’s Brief at 4.
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5
Appellant and the trial court have complied with Pennsylvania Rule of
Appellate Procedure 1925.
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As noted above, all of Appellant’s issues pertain to the denial of his
suppression motion. We begin by noting our well-settled standard of review.
In addressing a challenge to a trial court’s
denial of a suppression motion, we are limited to
determining whether the factual findings are
supported by the record and whether the legal
conclusions drawn from those facts are correct.
Since the Commonwealth prevailed in the
suppression court, we may consider only the
evidence of the Commonwealth and so much of the
evidence for the defense as it remains
uncontradicted when read in the context of the
record as a whole. Where the record supports the
factual findings of the trial court, we are bound by
those facts and may reverse only if the legal
conclusions drawn therefrom are in error.
Commonwealth v. Scarborough, 89 A.3d 679, 683 (Pa. Super. 2014)
(citation omitted), appeal denied, 102 A.3d 985 (Pa. 2014). In addition, our
scope of review is confined to the suppression court record. In re L.J., 79
A.3d 1073, 1080 (Pa. 2013).
In his first issue, Appellant avers that the police lacked reasonable
suspicion to initially stop him inside the vehicle in question. Appellant’s Brief
at 8-22. The Commonwealth counters that the police did have reasonable
suspicion based on the tip provided through dispatch. Commonwealth’s
Brief at 16.
The Fourth Amendment of the Federal
Constitution provides, “[t]he right of the
people to be secure in their persons, houses,
papers, and effects, against unreasonable
searches and seizures, shall not be violated ….”
U.S. Const. amend. IV. Likewise, Article I,
Section 8 of the Pennsylvania Constitution
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states, “[t]he people shall be secure in their
persons, houses, papers and possessions from
unreasonable searches and seizures ….” Pa.
Const. Art. I, § 8.
Commonwealth v. Carter, 105 A.3d 765, 768 (Pa.
Super. 2014) (en banc), appeal denied, 117 A.3d
295 (Pa. 2015).
Commonwealth v. Williams, 125 A.3d 425, 432 (Pa. Super. 2015). Our
cases have recognized three levels of police-citizen interactions.
The first is a mere encounter, which requires no level
of suspicion at all. Commonwealth v. Daniel, 999
A.2d 590, 596 (Pa. Super. 2010). The second level
is an investigative detention, which must be
supported by reasonable suspicion. Id. at 596-597.
Finally, the third level is an arrest or custodial
detention, which must be supported by probable
cause. Id. at 597.
Commonwealth v. Walls, 53 A.3d 889, 892-893 (Pa. Super. 2012).
Instantly, the parties agree that this was investigative detention for which
reasonable suspicion was required. Appellant’s Brief at 8; Commonwealth’s
Brief at 12, 16.
It is axiomatic that to establish reasonable
suspicion, an officer “must be able to articulate
something more than an inchoate and
unparticularized suspicion or hunch.” United
States v. Sokolow, 490 U.S. 1, 7 (1989)
(internal quotation marks and citation
omitted). … A suppression court is required to
“take[] into account the totality of the
circumstances—the whole picture.”
Navarette, supra (internal quotation marks
and citation omitted). When conducting a
Terry analysis, it is incumbent on the
suppression court to inquire, based on all of
the circumstances known to the officer ex
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ante, whether an objective basis for the
seizure was present. Adams v. Williams, 407
U.S. 143, 146 (1972).
Carter, supra at 768-769.
Williams, supra. In addition, relevant to this appeal, the Supreme Court
has explained the constitutional distinction between tips from known police
informants and anonymous tips in the following manner.
Unlike a tip from a known informant whose
reputation can be assessed and who can be held
responsible if her allegations turn out to be
fabricated, … an anonymous tip alone seldom
demonstrates the informant’s basis of knowledge or
veracity[.] As we have recognized, however, there
are situations in which an anonymous tip, suitably
corroborated, exhibits sufficient indicia of reliability
to provide reasonable suspicion to make the
investigatory stop.
Florida v. J.L., 529 U.S. 266, 270 (2000) (internal quotation marks and
citations omitted); see also Commonwealth v. Moore, 805 A.2d 616, 621
(Pa. Super. 2002) (stating, “a tip from an informer known to police may
carry enough indicia of reliability for the police to conduct an investigative
stop, even though the same tip from an anonymous informant would likely
not have done so[]”) (citations omitted).
In this case, Sergeant Simpkins testified that on July 9, 2013 he
received a radio dispatch based on a tip from a known 911 caller. N.T.,
7/24/14, at 35, 39. Specifically, Sergeant Simpkins testified that this was a
citizen known to him for over 20 years, and that he knew said citizen to be
truthful and law-abiding. Id. at 39-40. The dispatch information revealed
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there was a silver vehicle involved in illegal “drug activity in the rear alley of
the 700 block of Jansen Avenue in Essington.” Id. at 35. Specifically, the
tipster indicated that a silver vehicle was involved. Id. Within one minute
of receiving the information, Sergeant Simpkins went to the area around 700
block of Jansen Avenue. Id. at 40. Sergeant Simpkins observed a silver
vehicle upon making a right-hand turn onto to the 600 block of Jansen
Avenue, traveling in the direction away from the 700 block. Id. at 41.
Sergeant Simpkins radioed to Officer Marino to stop the vehicle. Id. at 42.
Sergeant Simpkins identified the driver of the silver vehicle as Appellant.
Id. at 43-44.
After careful review of the certified record, we conclude Appellant’s
issue lacks merit. As noted above, the police responded based on a known
informant’s tip apprising them of drug activity involving a silver car at a
specific block of a specific street. Upon arriving at said area one minute
later, Sergeant Simpkins observed a silver vehicle driving away from the
block specified in the informant’s tip. Based on these considerations, we
conclude the police had reasonable suspicion and Appellant’s Fourth
Amendment rights were not violated in this regard. See, e.g., Adams v.
Williams, 407 U.S. 143, 146 (1972) (concluding that information from an
informant that “an individual seated in a nearby vehicle was carrying
narcotics and had a gun at his waist” who was “known to [the officer]
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personally and had provided him with information in the past” established
reasonable suspicion).
Appellant next avers that the trial court erred when it concluded that
the police had the authority to tow the vehicle, under Section 6309.2 of the
Motor Vehicle Code, which requires a 24-hour waiting period before a car
may be towed under certain circumstances. Appellant’s Brief at 23-24; see
also generally 75 Pa.C.S.A. § 6309.2. The Commonwealth counters that
the tow was proper under the section because it was admittedly left parked
in a resident only parking zone. Commonwealth’s Brief at 22. Our review of
the pertinent statutes of the Motor Vehicle Code support the
Commonwealth’s position.
Our cases have stated that “[t]he right for the police to tow a car is
derived from 75 Pa.C.S. § 3352.” Commonwealth v. Bailey, 986 A.2d
860, 862 (Pa. Super. 2009), appeal denied, 995 A.2d 350 (Pa. 2010).
Relevant to his case, Section 3352(c) states that “[a]ny police officer may
remove or cause to be removed to the place of business of the operator of a
wrecker or to a nearby garage or other place of safety any vehicle found
upon a highway” if certain conditions apply. Id. § 3352(c). One of those
conditions is where “[t]he vehicle is in violation of section 3353[.]” Id.
§ 3352(c)(4). Section 3353(a)(3)(ii) prohibits parking a vehicle in any place
“where official signs prohibit parking.” 75 Pa.C.S.A. § 3353(a)(3)(ii).
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In this case, Sergeant Simpkins testified that the vehicle in question
was parked in a residents only zone.
Q. Okay. The place that it was parked, is it a
legal parking spot?
A. You have -- it’s resident parking only.
Q. Okay. And for residents parking is there -- is
that something that they get a tag from the
township?
A. They have to get a tag on the back of their car.
Q. Okay. Did the vehicle driven by [Appellant]
have that tag?
A. No.
N.T., 7/24/14, at 54. In addition, Sergeant Simpkins testified that tickets
are issued for violations of the residential parking restrictions. Id. at 78-79.
Therefore, it is apparent that Appellant’s car was parked in a zone that an
“official sign” from the township designated as requiring a residential permit
on the car, which this vehicle did not possess. Therefore, the vehicle was in
violation of Section 3353(a)(3)(ii), and the police were permitted to tow the
vehicle under Section 3352(c)(4). See, e.g., Commonwealth v.
Hennigan, 753 A.2d 245, 259 (Pa. Super. 2000) (stating that a “car [that]
was … parked on a public street [was parked on] a ‘highway’ for purposes of
the Vehicle Code”). As a result, the trial court did not err when it concluded
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that the police lawfully towed the vehicle.6 Because there was no legal
impediment to the tow, we consequently reject Appellant’s argument that
the police were not lawfully present at the car when the canine sniff
occurred.7 See generally Appellant’s Brief at 28.
Based on the foregoing, we conclude Appellant’s issues on appeal are
devoid of merit. Accordingly, the trial court’s March 24, 2015 judgment of
sentence is affirmed.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/18/2016
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6
We note that as an appellate court, we “may affirm [the lower court] for
any reason, including such reasons not considered by the lower court.”
Commonwealth v. Clemens, 66 A.3d 373, 381 n.6 (Pa. Super. 2013)
(citation omitted).
7
In light of our conclusions that the traffic stop, tow, and canine sniff were
constitutional on the merits and the fact that Appellant does not challenge
the subsequent search warrant as lacking probable cause, we need not
address Appellant’s remaining issues on appeal.
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