Com. v. Engelbert, D. ( 2016 )

J-S37018-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
DOUGLAS ENGELBERT,
Appellant No. 1248 WDA 2015
Appeal from the Judgment of Sentence July 15, 2015
In the Court of Common Pleas of Erie County
Criminal Division at No(s): CP-25-CR-0001764-2014
BEFORE: GANTMAN, P.J., SHOGAN and LAZARUS, JJ.
MEMORANDUM BY SHOGAN, J.: FILED JUNE 17, 2016
Appellant, Douglas Engelbert, appeals from the judgment of sentence
entered on July 15, 2015, in the Erie County Court of Common Pleas.
We affirm.
Prior to trial, Appellant filed a motion to suppress evidence. The
suppression court provided the following factual background:
On June 6, 2014 at approximately 1:45 p.m., Corporal
Reed Grenci and Trooper Scott McLean of the Pennsylvania State
Police were on patrol at mile marker 17, Interstate 90, Fairview
Township, Erie County, Pennsylvania. Corporal Grenci has
extensive experience and training in drug and/or contraband
Interdiction cases (10 years). He has approximately 200 hours
of training and has served as an instructor. He participated in
twenty major seizures and has been qualified as an expert
witness in that area. He also is trained as a canine handler.
On this particular day, he and Trooper McLean were on an
interdiction patrol monitoring the eastbound traffic on Interstate
90. At the time in question, they observed a large diesel truck
J-S37018-16
with heavily tinted windows. He was only able to recognize the
silhouette of the driver. As this is a violation of 75 Pa.C.S.A.
§ 4524(e)(1), he followed the truck and overtook it. As he was
passing it, the driver waived [sic] to him, a movement that
Grenci found unusual. He stopped the vehicle and determined
that [Appellant] was driving. The vehicle was registered in the
State of Utah. Based upon his training and experience, he found
it odd that this vehicle would be traveling such a long distance
with no apparent load. He ran the plates and determined that
the owner was Joel Orton. He also observed that there were no
Department of Transportation markings. Having stopped the
truck, he approached the driver’s side. Trooper McLean
approached the passenger side. They noted that [Appellant] was
the only occupant. Initially, [Appellant] indicated that the tinting
was legal in Utah. However, Corporal Grenci determined
otherwise.
Grenci asked [Appellant] about the trip. [Appellant] said he
was on his way to Buffalo, New York to pick up a hot tub which
he Intended to transport to Utah for his cousin. The trooper
found this unlikely given the financial cost of such a trip in this
type of vehicle. [Appellant] also appeared overly nervous. He
was shaky and wanted the encounter to end. When Grenci
asked [Appellant] for his cousin’s name, [Appellant] paused for
an inordinate period of time and asked the trooper why he
wanted to know. Grenci responded because he was a police
officer and that’s what he did (ask questions). [Appellant] gave
the trooper a name, but Grenci didn’t believe him. At this point,
Grenci believed that [Appellant’s] behavior was consistent with
others whom he had experienced in other interdiction cases. He
also knew that most drugs, especially marijuana, originate from
the western United States. Marijuana is grown in northern
California, among other places. He also noted that the truck’s
registration was not in [Appellant’s] name. He found this
significant because drug dealers often use third party vehicles
which allows the driver to claim ignorance of the contents, and
permits the owners to thwart asset forfeiture (through an
innocent owner defense). There was only a gym bag located in
the truck. This was significant because the lack of luggage is
unusual for the length of the trip. (Grenci estimated that a one-
way trip from Utah to Buffalo would take, at a minimum, three
days). After returning to his vehicle Grenci found that
[Appellant] had prior arrests including convictions for drug
possession and delivery. Considering the circumstances, he
-2-
J-S37018-16
wrote out a warning. However, by that time he had decided that
he was going to conduct a canine search of the exterior of the
vehicle. He returned to the truck and asked [Appellant] to exit,
which he did. He gave him a warning and returned the vehicle
documents to him. At that time [Appellant] asked: “Am I free to
go?”
Given the totality of the circumstances, and the use of the
term “free to go” which Grenci interpreted as confirmation of
[Appellant’s] prior contact in these kinds of circumstances, he
believed that he had reasonable suspicion to detain the vehicle
to conduct a canine search for drugs. A canine search was
conducted and the dog alerted to the passenger side of the
vehicle. At that point, Grenci believed he had probable cause to
search the vehicle and conducted a preliminary search of the
undercarriage. He found a compartment. He was able to place
his hands in the compartment and felt bags. [Appellant] was
arrested and the truck was impounded and taken to the
Pennsylvania Police Barracks where it was searched. A
compartment had been installed on the undercarriage of the
vehicle which contained 65 packages of marijuana all weighing
approximately one pound per package. At the time of his arrest,
the [Appellant] told Grenci that he needed to be taken out of
there because he thought he was being trailed. This, too, was
significant to Grenci because in these types of drug courier
situations a trail vehicle is often used to insure that the drugs
end up at the appointed location and also to determine if the
vehicle had been interdicted.
Suppression Court Opinion, 12/1/14, at 1-3.
Appellant filed a motion to suppress which the trial court denied in an
order filed on December 1, 2014. The case proceeded to a bench trial on
May 26, 2015. At the conclusion of the trial, Appellant was found guilty of
possession of a controlled substance with intent to deliver, possession of
marijuana, and possession of drug paraphernalia. On July 15, 2015, the trial
court sentenced Appellant to an aggregate term of eighteen to sixty months
-3-
J-S37018-16
of incarceration. This timely appeal followed. On appeal, Appellant raises
one issue for this Court’s consideration:
Whether the [suppression] court erred in denying Appellant’s
motion to suppress evidence that was obtained following a
warrantless search of the Appellant’s vehicle in violation of the
Appellant’s rights under the 4th Amendment to the United States
Constitution and Article I of the Pennsylvania Constitution.
Appellant’s Brief at 3.
With respect to an appeal from the denial of a motion to suppress, our
Supreme Court has stated the following:
Our standard of review in addressing a challenge to a trial
court’s denial of a suppression motion is whether the factual
findings are supported by the record and whether the legal
conclusions drawn from those facts are correct. When reviewing
the ruling of a suppression court, we must consider only the
evidence of the prosecution and so much of the evidence of the
defense as remains uncontradicted when read in the context of
the record.... Where the record supports the findings of the
suppression court, we are bound by those facts and may reverse
only if the legal conclusions drawn therefrom are in error.
Commonwealth v. Eichinger, 915 A.2d 1122, 1134 (Pa. 2007) (citations
omitted). “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. Gallagher, 896 A.2d 583, 585 (Pa. Super.
2006). Moreover, our scope of review from a suppression ruling is limited to
the evidentiary record that was created at the suppression hearing. In re
L.J., 79 A.3d 1073, 1087 (Pa. 2013).
Here, Appellant concedes that Corporal Grenci and Trooper McLean
lawfully stopped Appellant’s vehicle. Appellant’s Brief at 6. Rather, the
-4-
J-S37018-16
issue is whether the warrantless search of the vehicle through use of a
canine was supported by reasonable suspicion.1 Id. at 7.
It is well settled that there are three levels of interaction between a
citizen and a police officer: a mere encounter, an investigative detention,
and a custodial detention. Commonwealth v. DeHart, 745 A.2d 633, 636
(Pa. Super. 2000).
A mere encounter can be any formal or informal interaction
between an officer and a citizen, but will normally be an inquiry
by the officer of a citizen. The hallmark of this interaction is that
it carries no official compulsion to stop or respond.
In contrast, an investigative detention, by implication, carries an
official compulsion to stop and respond, but the detention is
temporary, unless it results in the formation of probable cause
for arrest, and does not possess the coercive conditions
consistent with a formal arrest. Since this interaction has
elements of official compulsion it requires reasonable suspicion
of unlawful activity. In further contrast, a custodial detention
occurs when the nature, duration and conditions of an
investigative detention become so coercive as to be, practically
speaking, the functional equivalent of an arrest.
Id. (internal citations and quotation marks omitted).
____________________________________________
1
The United States Supreme Court has explained that a police officer may
conduct certain unrelated checks, such a as a canine sniff, during a lawful
traffic stop. Rodriguez v. U.S., 135 S.Ct. 1609, 1615 (2015). However,
the officer may not do so in a way that prolongs the traffic stop, absent the
reasonable suspicion ordinarily demanded to justify detaining an
individual. Id. (emphasis added). As will be discussed below, Corporal
Grenci had reasonable suspicion, apart from the window tint that caused the
initial traffic stop, to believe that Appellant was trafficking a controlled
substance. Accordingly, it was permissible to extend the traffic stop to
conduct the canine sniff.
-5-
J-S37018-16
Accordingly, we must determine whether the officers were able to
point “to specific and articulable facts which, taken together with the
reasonable inferences from those facts, reasonably indicate that criminal
activity might have been afoot.” Commonwealth v. Rogers, 741 A.2d
813, 817 (Pa. Super. 1999) (citations omitted). “Furthermore, whether
reasonable suspicion exists must be based on the totality of the
circumstances.” Id. (citations omitted).
It is not the function of a reviewing court to analyze whether
each individual circumstance gave rise to reasonable suspicion,
but rather to base that determination upon the totality of the
circumstances—the whole picture. The evidence collected must
be seen and weighed not in terms of library analysis by scholars,
but as understood by those versed in the field of law
enforcement.
Id. (citations omitted).2
Here, Corporal Grenci testified at the suppression hearing that he
focused on Appellant’s vehicle because of the window tint. N.T., 11/24/14,
at 6. Concluding that the window tint was too dark and violated the
Pennsylvania Motor Vehicle Code, 75 Pa.C.S. § 4524(e)(1), Corporal Grenci
and Trooper McLean followed Appellant. Id. at 6-7. When they approached
Appellant’s vehicle on the highway, Appellant waved to them. Id. at 7-8.
Corporal Grenci, a fifteen-year veteran with the Pennsylvania State Police,
____________________________________________
2
We also point out that the use of trained dogs to sniff for the presence of
drugs is a search under Article 1 § 8 of the Pennsylvania Constitution.
Rogers, 741 A.2d at 818 (citation omitted).
-6-
J-S37018-16
testified that he did not recall anyone on the highway ever waving at him,
and he thought this was suspect. Id. at 3, 8-9. Specifically, he believed
Appellant was trying to convey to the police that he was a “good guy” and
not doing anything wrong. Id. at 8. The troopers conducted a traffic stop
based on the suspected illegal window tint and approached the vehicle. Id.
at 9. Corporal Grenci asked Appellant where he was going, and Appellant
informed the corporal that he was driving to Buffalo to retrieve a hot tub
from his cousin. Id. at 11. The corporal did not believe the hot tub story as
it seemed costly and implausible. Id. Moreover, Appellant was initially
unable to provide his cousin’s name and appeared to stall and then make up
a name. Id. at 12. Appellant’s behavior was overly and unusually nervous.
Id. Corporal Grenci also thought it was suspicious that the truck was
registered to a third party because using a vehicle owned by a third party is
common among drug traffickers. Id. at 12-14. Corporal Grenci noted that
drug traffickers use vehicles owned by a third party because, if the vehicle is
impounded, the rightful owner can attempt to avoid forfeiture by claiming he
was unaware of the illicit use. Id. at 14. Additionally, Appellant had no
luggage for this long trip, only a small gym bag. Id. at 15. Corporal Grenci
also determined that Appellant had two marijuana arrests for possession
with intent to deliver in Nebraska and California. Id. at 17. The truck was
very recently registered and insured, which is common with drug traffickers
because traffickers will use a vehicle for a finite amount of time and take it
-7-
J-S37018-16
off the street to avoid attracting attention to that vehicle. Id. at 18-19.
Furthermore, when the corporal handed Appellant back the driver’s license,
registration, and insurance card, Appellant asked if he was free to go before
Corporal Grenci could say anything. Id. at 19. Corporal Grenci stated that
Appellant’s nervousness, impatience, and use of the words “free to go” were
suspicious, because the phrase “free to go” is a term specific to law
enforcement. Id. at 20.
After review, we agree with the suppression court that Corporal
Grenci’s testimony, viewed together under the totality of the circumstances,
supports a reasonable suspicion that criminal activity was afoot, and it
permitted Corporal Grenci to investigate his suspicion. See Rogers, 849
A.2d at 1190-1191 (providing that a canine sniff search of person requires
probable cause but a canine sniff search of the exterior of a vehicle canine
sniff need only be supported by reasonable suspicion). Corporal Grenci and
his dog are a canine team certified to detect marijuana, hashish, cocaine,
methamphetamine, and heroin. N.T., 11/24/14, at 21. The canine sniffed
the exterior of the vehicle Appellant was driving and alerted to an area under
the truck that contained a hidden after-market compartment. Id. at 21-22.
“[O]nce a canine sniff of a vehicle’s exterior triggers a positive indication,
reasonable suspicion of contraband in the vehicle ripens into probable
cause.” Commonwealth v. Hernandez, 935 A.2d 1275, 1285 (Pa. 2007)
(citation omitted). The canine alerting Corporal Grenci to this hidden
-8-
J-S37018-16
compartment caused the corporal to reach his hand into the compartment
where he could feel the bags and the marijuana buds. N.T., 11/24/14, at
22. The compartment was searched and found to contain sixty-five pounds
of marijuana. Id. at 22-23.
While no single factor would necessarily suffice to establish reasonable
suspicion, when Corporal Grenci’s testimony is viewed in its totality, we are
satisfied that the suppression court committed no error in denying
Appellant’s motion to suppress. Accordingly, we affirm Appellant’s judgment
of sentence.
Judgment of sentence affirmed.
P.J. Gantman joins the Memorandum.
Judge Lazarus files a Concurring Statement in which P.J. Gantman
joins.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/17/2016
-9-