In the Interest of: J.S.Z., a Minor ( 2018 )

J. S12035/18
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: : IN THE SUPERIOR COURT OF
J.S.Z., A MINOR : PENNSYLVANIA
:
APPEAL OF: : No. 1673 MDA 2017
COMMONWEALTH OF PENNSYLVANIA :
Appeal from the Order Entered October 12, 2017,
in the Court of Common Pleas of Lycoming County
Criminal Division at No. CP-41-JV-0000195-2017
BEFORE: LAZARUS, J., KUNSELMAN, J., AND FORD ELLIOTT, P.J.E.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED SEPTEMBER 04, 2018
This case returns to us from the Court of Common Pleas of Lycoming
County. The Commonwealth filed its concise statement of errors complained
of on appeal pursuant to Pa.R.A.P. 1925(b) nunc pro tunc, and the trial court
filed a supplemental opinion pursuant to Pa.R.A.P. 1925(a), in which it
incorporated the contents of its October 12, 2017 order. We shall now
consider the Commonwealth’s appeal of the trial court’s October 12, 2017
order granting appellee’s motion to suppress on its merits.1 After careful
1 The Commonwealth may appeal an interlocutory order suppressing evidence
when it provides a certification with its notice of appeal that the order
terminates or substantially handicaps the prosecution. Commonwealth v.
Whitlock, 69 A.3d 635, 636 n.2 (Pa.Super. 2013), citing Pa.R.A.P. 311(d).
In Commonwealth v. Gordon, 673 A.2d 866, 869 (Pa. 1996), our supreme
court held that the Commonwealth may appeal the grant of a defense motion
in limine that excludes Commonwealth evidence and has the effect of
substantially handicapping the prosecution. As the trial court ruling excludes
Commonwealth evidence, and the Commonwealth has certified that the effect
of the ruling substantially handicaps the prosecution, we find that this appeal
is properly before this court.
J. S12035/18
review, we reverse the trial court’s October 12, 2017 order and remand for
further proceedings.
The trial court summarized the factual and procedural history as follows:
On July 25, 2017, a Petition alleging Delinquency was
filed charging [J.S.Z. (“appellee”)] with one count of
Driving Under the Influence pursuant to 75 Pa.C.S.
§3802 and one count of Purchase, Consumption,
Possession or Transportation of Alcohol pursuant to
18 Pa.C.S. §6308. These allegations stem from an
incident on June 6, 2017, at approximately 7:15 p.m.,
at which time Patrolman Tyler Bierly
[(“Officer Bierly”)] of the Tiadaghton Valley Regional
Police Department was investigating a harassment
case involving a group of juveniles who had driven
past the alleged victim several times shouting
obscenities and giving her the finger. It was alleged
that [appellee] . . . was driving the vehicle, and
another juvenile[, B.G.,] who was in the front
passenger seat[,] was the individual who was actually
committing the alleged acts of harassment. There
were no observations or allegations that [appellee]
. . . was participating in any acts of harassment.
Shortly after speaking with the alleged victim and
witnesses, Officer Bierly spotted a vehicle which
matched the description provided by the victim.
Officer Bierly performed a traffic stop on the vehicle
on Allegheny Street in Jersey Shore. According to
Officer Bierly’s Affidavit of Probable Cause and his
testimony, he approached the passenger side of the
vehicle and made contact with [B.G.,] who [was]
alleged to have been shouting obscenities and making
obscene gestures. At this time, Officer Bierly testified
that he smelled a strong odor of burnt marijuana
coming from inside the car. According to the Incident
Report, at this time the Officer made contact with
[appellee] and again detected an odor of burnt
marijuana. Officer Bierly asked [appellee] to step out
of the vehicle and attempted to perform the Lack of
Convergence test but was unable to complete it
because the other juveniles in the vehicle were being
-2-
J. S12035/18
disruptive and required attention. All four juveniles
were eventually removed from the vehicle and a
search of the vehicle yielded an almost full bottle of
Fireball Cinnamon Whiskey under the front passenger
seat.
[Appellee] was transported to Jersey Shore Hospital
by Officer Bierly and was read the DL-26 Chemical
Test warnings. According to the Officer’s incident
report, [appellee] at that time did admit to smoking
marijuana the previous day and consented to a blood
draw, after which [appellee] was taken back to police
headquarters. [Appellee] was read his Miranda[2]
rights and, after refusing to speak to Officer Bierly
without a lawyer present, was released to his father.
The toxicology report from the lab indicated that
[appellee] had reportable amounts of Amphetamine
(likely from his ADHD medication), 11-Hydroxy
Delta-9 THC, an active metabolite of THC, Delta-9
Carboxy THC, an inactive metabolite of THC, and
Delta-9 THC, the active ingredient in marijuana. As a
result of the traffic stop, [appellee] was charged with
one count of Driving Under the Influence pursuant to
75 Pa.C.S. §3802 and one count of Purchase,
Consumption, Possession or Transportation of Alcohol
pursuant to 18 Pa.C.S. § 6308.
....
[Appellee’s] Motion to Suppress avers that the police
did not assert that they observed [appellee] who was
the operator of the vehicle, commit any violation of
the vehicle code nor did they articulate reasonable
suspicion that [appellee] was engaged in criminal
activity. As a result, [appellee] requests that the
evidence obtained from the vehicle stop be
suppressed.
Trial court order and opinion, 10/12/17 at 1-4.
2 See Miranda v. Arizona, 384 U.S. 436 (1966).
-3-
J. S12035/18
The trial court granted appellee’s suppression motion on October 12,
2017, on the grounds that the Commonwealth did not establish by a
preponderance of the evidence “that the evidence seized from [appellee’s]
person and vehicle was legally obtained.” (Id. at 5.) The Commonwealth
filed a notice of appeal to this court on October 26, 2017. On October 27,
2017, the trial court ordered the Commonwealth to file a concise statement of
errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
The Commonwealth failed to timely file its Rule 1925(b) statement. On
May 25, 2018, we remanded this case for the Commonwealth to file its
Rule 1925(b) statement nunc pro tunc. The Commonwealth filed its
Rule 1925(b) statement on May 30, 2018. The trial court then filed a
supplemental opinion pursuant to Pa.R.A.P. 1925(a) on May 31, 2018.
The Commonwealth raises the following issue on appeal: “Whether the
trial court abused its discretion when it held that the vehicle in question was
stopped without reasonable suspicion[?]” (Commonwealth’s brief at 8.)
Our governing standard of review for Commonwealth appeals of
suppression motions is as follows:
When the Commonwealth appeals a suppression
order, we consider only the evidence from [Appellee’s]
witnesses together with the portion of the
Commonwealth’s evidence which is uncontroverted.
Our standard of review is limited to determining
whether the suppression court’s factual findings are
supported by the record, but we exercise de novo
review over the suppression court’s conclusions of
law. Further, appellate courts are limited to reviewing
only the evidence presented at the suppression
-4-
J. S12035/18
hearing when examining a ruling on a pre-trial motion
to suppress. It is within the suppression court’s sole
province as factfinder to pass on the credibility of
witnesses and the weight to be given their testimony.
Commonwealth v. Harris, 176 A.3d 1009, 1018 (Pa.Super. 2017)
(quotation marks and citations omitted).
This court has held the following when reviewing the legality of a vehicle
stop for criminal activity not related to the Motor Vehicle Code:
The United States Supreme Court in [Terry v. Ohio,
392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968),]
and in Adams v. Williams, 407 U.S. 143, 92 S. Ct.
1921, 32 L. Ed. 2d 612 (1972), has suggested that
even in the absence of probable cause there may be,
under certain circumstances, justification for a limited
intrusion upon the privacy of an individual. Under
these decisions the Court has suggested that a brief
stop of a suspicious individual, in order to determine
his identity or to maintain the status quo momentarily
while obtaining additional information may in fact be
reasonable although the officer at that time did not
possess probable cause that would justify an arrest.
In the Terry, supra and Adams, supra decisions,
the Court was required to struggle with the balancing
of the right of society and the right of an individual in
street encounters. Because a motorist’s extreme
mobility may otherwise allow him to avoid police
confrontation, the State has an equally strong interest
in these cases in stopping a moving vehicle to freeze
momentarily a situation of suspected criminality.
However, these decisions have made it clear that to
justify the intrusion the police officer must be able to
point to specific and articulable facts which taken
together with rational inferences from those facts
reasonably warranted the intrusion. See Adams v.
[Williams], supra; Terry v. Ohio, supra. Thus, it
is also clear that an investigative stop of a moving
vehicle[,] to be valid[,] must be based upon objective
facts creating a reasonable suspicion that the detained
motorist is presently involved in criminal activity.
-5-
J. S12035/18
Commonwealth v. Feczko, 10 A.3d 1285, 1288 (Pa.Super. 2010), appeal
denied, 25 A.3d 327 (Pa. 2011), quoting Commonwealth v. Murray, 331
A.2d 414, 418 (Pa. 1975) (some brackets in original).
When an identified third party provides information to
the police, we must examine the specificity and
reliability of the information provided. The
information supplied by the informant must be specific
enough to support reasonable suspicion that criminal
activity is occurring. To determine whether the
information provided is sufficient, we assess the
information under the totality of the circumstances.
The informer’s reliability, veracity, and basis of
knowledge are all relevant factors in this analysis.
Commonwealth v. Barber, 889 A.2d 587, 593-594 (Pa.Super. 2005),
quoting Commonwealth v. Korenkiewicz, 743 A.2d 958, 964 (Pa.Super.
1999) (en banc) (citations omitted).
In the instant appeal, the specific facts articulated by Officer Bierly
warranted a stop of appellee’s vehicle, as the record indicates that
Officer Bierly was provided with specific and reliable information to support a
reasonable suspicion that criminal activity was occurring. During the
suppression hearing, Officer Bierly provided the following testimony:
Q Who did you make contact with?
A I made contact with [A.S.] who told me that
he[r] sister was being harassed, and then made
contact with [R.] who told me that her
ex-boyfriend, [B.G.], was riding around with his
friends. Kept riding by the house and shouting
obscenities and giving the finger.
-6-
J. S12035/18
Q And did [A.S.] identify anybody else in the
motor vehicle besides [B.G.]?
A Um, they identified [B.G.] and they weren’t
positive on the other individuals in the car.
Q Okay. And were -- did they ask you to do
something as a result of this activity?
A Yeah, they asked me to make contact with
[B.G.] and get him to stop harassing them or
driving by the house.
....
Q Before I ask you the next question I want to
back up a little bit. Did they provide you with a
description of the automobile in question?
A Yeah, a silver or gold sedan.
Q Okay. And . . . did you see a vehicle close to
that description go by your location?[3]
A Yeah, I saw a silver Toyota sedan and I could
see [B.G.] seated in the passenger seat.
Q And I take it you had prior contact with [B.G.]
that’s how you know him?
A Yes.
Q As a result of that car passing by you what did
you do, Officer?
A I performed a traffic stop on the vehicle. The
driver of the vehicle pulled the vehicle into --
there’s a lane in front of the YMCA.
Q Okay. What was the basis of you activating your
overhead lights and initiating a traffic stop?
3Officer Bierly had left the S.’s house and was in the area of Allegheny Street
and Wylie Street in Jersey Shore. (See notes of testimony, 9/28/17 at 14.)
-7-
J. S12035/18
A The basis was that I was notified of a
harassment issue and it matched the
description. Four individuals in the car. I
wanted to stop the vehicle to try to end this
misconduct.
Q Okay. And what -- I take it you approached the
vehicle; is that correct?
A Yes, I did.
Q And if I did ask you that question, I apologize.
What -- where was [B.G.] in the vehicle?
A He was in the front passenger seat.
Q And was this the information provided by the
[S.] ladies as to his location?
A Yes.
Notes of testimony, 9/28/17 at 13-15.
As noted above, our cases dictate that in order to initiate an
investigative stop of a motor vehicle based on information obtained from a
third party, the information must be specific and reliable enough to justify
reasonable suspicion of criminal activity. Officer Bierly’s testimony reflects
that A.S. and R.S. specifically told him that B.G. was riding around with a
group of his friends in a gold or silver sedan, and that B.G. was engaged in
criminal activity—in this case, harassment. Shortly after speaking with A.S.
and R.S., Officer Bierly observed B.G. riding in the passenger seat of a silver
Toyota sedan in a manner consistent with the information that he was
provided. Accordingly, Officer Bierly possessed the requisite reasonable
-8-
J. S12035/18
suspicion to initiate a traffic stop of appellee’s vehicle. Officer Bierly was
permitted to perform an investigatory detention only for as long as necessary
to dispel the suspicion of criminal activity. Commonwealth v. Strickler, 757
A.2d 884, 889 (Pa. 2000). In this case, the initial purpose of the stop was to
talk to B.G. to give him a warning that if he continued to harass R.S., he would
be cited for harassment. (Notes of testimony, 9/28/17 at 17.)
Appellee argued, and the trial court concluded, that the entire stop was
illegal because Officer Bierly was concerned with suspicious criminal behavior
of the passenger, B.G., not the driver, appellee. (Trial court order and
opinion, 10/12/17 at 4-5.) This distinction is misplaced. An officer can stop
a vehicle based on reasonable suspicion of alleged criminal activity occurring
by anyone in the vehicle, not just the driver. See, e.g., U.S. v. Hensley,
469 U.S. 221, 226-27 (1985); U.S. v. Mathurin, 561 F.3d 170, 173 (3d Cir.
2009). Here, the officer had reasonable suspicion to stop the car to talk with
B.G., a passenger in the vehicle.
The trial court then overlooked the events that occurred after the car
was validly stopped and that supported the subsequent arrest of the driver
and search of the vehicle. As the Commonwealth argued at the suppression
hearing, the strong odor of burnt marijuana that the officer noticed coming
from the car gave the officer an independent basis to question to the driver:
The basis of the officer initiating the traffic stop was
the information provided by the [S.] girls that [B.G.]
was involved [in] harassing activity. It was not until
he encountered [B.G.] that he detected the strong
-9-
J. S12035/18
odor emanating from within the vehicle that he then
effectuated a traffic stop involving the driver.
Without belaboring the point, the officer had
reasonable suspicion that [B.G.] was involved in some
sort of activity, which enabled him to stop the vehicle.
Upon approaching the vehicle is when he then got a
higher level of suspicion of probable cause that
possibly the operator was operating the vehicle under
the influence when he could detect a very strong odor
of marijuana coming from the passenger side that he
asked [appellee] to remove himself from the driver’s
side at which point in time, again, he detected a
strong odor of marijuana.
Notes of testimony, 9/28/17 at 24.
We agree that the strong odor of burnt marijuana coming from inside
the car gave the officer independent reasonable suspicion to question
appellee, as the driver of the vehicle. See Commonwealth v. Kemp, 961
A.3d 657, 668 (Pa. Super. 2015). As Officer Bierly testified, once he detected
the strong odor of marijuana, he “then made contact with the driver”; the
strong odor of marijuana is what caused him to proceed further. (Notes of
testimony, 9/28/17, at 17.) The marijuana smell gave the officer probable
cause to search the vehicle. The search resulted in the discovery of alcohol in
the vehicle, which was followed by the consented blood draw from the driver.
The evidence obtained as a result of the traffic stop is admissible.
Therefore, we find that the trial court abused its discretion when it determined
that the Commonwealth failed to establish “that the evidence seized from
[appellee’s] person and vehicle was legally obtained,” and we remand this
- 10 -
J. S12035/18
case to the trial court for further proceedings. (Trial court opinion and order,
10/12/17 at 5.)
Order reversed. Case remanded for further proceedings consistent with
this memorandum. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 09/04/2018
- 11 -