Com. v. Coke, G. ( 2022 )

J-S23042-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
GARY J. COKE : No. 183 MDA 2022
Appeal from the Order Entered January 6, 2022
In the Court of Common Pleas of Dauphin County
Criminal Division at No(s): CP-22-CR-0002168-2021
BEFORE: STABILE, J., McLAUGHLIN, J., and COLINS, J.
MEMORANDUM BY COLINS, J.: FILED NOVEMBER 09, 2022
The Commonwealth appeals from the order that granted Gary J. Coke’s
Omnibus Pretrial Motion to Suppress, which had the effect of suppressing “[a]ll
evidence obtained from the unconstitutional Terry frisk of [Coke] and the
illegal search of [his] vehicle[.]” Order, dated January 5, 2022. On appeal, the
Commonwealth solely contends that the lower court erred in granting this
motion because, in addition to Coke giving police officers consent to perform
a search of his person and his automobile, those same officers acted with the
requisite amount of probable cause and/or reasonable suspicion at all relevant
points. We vacate the order granting suppression and remand for further
proceedings.
Replicated in full from the suppression court:
____________________________________________
 Retired Senior Judge assigned to the Superior Court.
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On March 17, 2021, Officer Scott Gibson (hereinafter
“Officer Gibson”) of the Swatara Township Police Department was
in full uniform and parked in a fully marked K9 vehicle in the
parking lot of Leeds Restaurant and Lounge on Eisenhower
Boulevard when he received a call from Detective Day. Detective
Day is a member of the Drug Task Force and stated that she was
conducting surveillance in the parking lot of the Sleep In, which is
caddy corner from Leeds Restaurant. She further informed Officer
Gibson that she was watching an individual she knew as ‘Gary
Coke’ (later identified as [d]efendant) who was driving a 2009
Lincoln MKS with dark tint. Detective Day observed someone
“come to the vehicle and then leave in a short time.”
A few minutes later, Officer Gibson saw [Coke’s] vehicle
leave the Sleep Inn parking lot and travel north on Eisenhower
Boulevard. Officer Gibson followed the vehicle for a short period
and then conducted a traffic stop for a tint violation because he
could not see the driver through the window. He approached the
vehicle on the passenger side, asked the driver to roll down the
window and informed [Coke] that the stop was for a tint violation.
However, Officer Gibson did not issue [Coke] a citation for the
illegal tint, nor did he measure the level of tint on the vehicle.
Officer Gibson testified that he immediately smelled an odor
of marijuana from inside the vehicle, but did not “make a big deal
about it at that point.” Based on the odor alone, Officer Gibson
asked [Coke] to step out of the vehicle, and “hang out” with
Detective Patrick Corkle (hereinafter “Detective Corkle”) while he
ran [Coke’s] information. Officer Gibson testified that [Coke] was
“not free to go, by any means” at that point.
In the thirty … seconds to a minute that it took Officer
Gibson to run [Coke’s] information, Detective Corkle had placed
[Coke] in handcuffs. Officer Gibson testified that he was “kind of
surprised [Coke] was in handcuffs already.” Detective Corkle is
also a member of the Drug Task Force and testified that he was
conducting surveillance in plain clothes in an unmarked police
vehicle. He further testified that he was listening to the radio
traffic of a team conducting surveillance on [Coke] at the Sleep
Inn. The Swatara Township Police Department has responded to
a large amount of drug calls at the Sleep Inn, but it is not as
prevalent as other hotels in the area, such as the Rodeway Inn,
which shares a parking lot with the Sleep Inn. Detective Corkle
overheard on the radio that Officer Gibson had stopped [Coke’s]
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vehicle and decided to head to the scene and assist.
As Detective Corkle approached the vehicle, he heard Officer
Gibson ask [Coke] to step out of the vehicle. Officer Gibson
advised Detective Corkle that he was going to run [Coke’s]
information and asked Detective Corkle to “watch” [Coke]. In the
thirty … seconds to a minute that it took Officer Gibson to run
[Coke’s] information, Detective Corkle testified that he engaged
[Coke] in a conversation, informed [Coke] that his activity at the
Sleep Inn was suspicious and believed he was involved in drug
activity ([Coke] denied any involvement); told [Coke] he was
familiar with him and believed him to have narcotics on his person,
that [Coke] denied it and said ‘check me’ so Detective Corkle
patted down the outside of [Coke’s] clothes with an open hand
and felt what he immediately believed to be marijuana, placed
[Coke] under arrest, and finally removed the marijuana, as well
as a pill bottle, from [Coke’s] pocket. Detective Corkle did not
Mirandize [Coke] nor did he inform [Coke] that he was under
arrest before he was handcuffed, or at any time thereafter.
Officer Gibson saw [Coke] in handcuffs when he returned to
the vehicle and immediately Mirandized him. He testified that
[Coke] was very cooperative and polite throughout the
interaction. While handcuffed, Officer Gibson asked [Coke] for
consent to search his vehicle, to which [Coke] granted. However,
Detective Corkle testified that Officer Gibson first asked [Coke] if
there were any other drugs in the vehicle, but could not recall
whether Officer Gibson asked for consent to search or whether
[Coke] said to “check his car.” A search of [Coke’s] vehicle
revealed THC wax and money.
Suppression Court Opinion, dated 1/5/22, at 1-4 (footnotes and citations to
the record omitted) (parentheticals in original).
After Coke’s arrest, he was charged with various drug-related offenses,
namely possession with intent to deliver. See 35 P.S. § 780-113(a)(30).
Eventually, Coke filed a motion to suppress the evidence recovered from this
interaction with police officers, asserting primarily that Detective Corkle had
no legal basis to perform a frisk of his person pursuant to Terry v. Ohio. See
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392 U.S. 1 (1968). In addition, Coke averred that, to the extent he consented
to a body or vehicular search, such agreement was not voluntary. The
resultant suppression hearing led to the court’s conclusion that “the
Commonwealth has failed to prove that the Terry frisk of [Coke] was lawful,
and that [Coke] voluntarily consented to a search of his person and vehicle.”
Suppression Court Opinion, dated 1/5/22, at 11. The Commonwealth timely
appealed from this determination.1
On appeal, the Commonwealth questions:
1. Whether the trial court erred in granting [Coke’s] suppression
motion where police possessed probable cause to initiate a
traffic stop and secure the occupants of the vehicle, reasonable
suspicion to continue to detain [Coke], valid consent to search
[Coke’s] person, and valid consent and probable cause to
search [Coke’s] vehicle?
Commonwealth’s Brief, at 4.
When reviewing a Commonwealth appeal from an order granting a
suppression motion,
[this Court] follow[s] a clearly defined standard of review and
consider[s] only the evidence from the defendant's witnesses
together with the evidence of the prosecution that, when read in
the context of the entire record, remains uncontradicted. The
suppression court's findings of facts bind an appellate court if the
record supports these findings. The suppression court's
conclusions of law, however, are not binding on an appellate court,
whose duty is to determine if the suppression court properly
applied the law to the facts.
Commonwealth v. Deck, 954 A.2d 603, 606 (Pa. Super. 2008) (citation
____________________________________________
1 Although this appeal is interlocutory, the Commonwealth, in its notice of
appeal, certified that the lower court’s decision will terminate or substantially
handicap the prosecution. See Pa.R.A.P. 311(d).
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omitted).
The Commonwealth presents a tripartite argument, wherein it contends
that there was: (1) probable cause to both initiate a traffic stop and secure
Coke, as an occupant of the “seized” vehicle; (2) reasonable suspicion to
continue to detain Coke; and (3) valid consent from Coke to search both his
person and his vehicle, with there being probable cause, too, to search the
vehicle. See Commonwealth’s Brief, at 9.
Preliminarily, we note that Coke does not contest whether the initial
traffic stop, related to the alleged dark window tint of his vehicle, see 75
Pa.C.S.A. § 4524(e), was predicated on probable cause. See Appellee’s Brief,
at 16 (“Officer Gibson had probable cause to initiate a stop and detain …
Coke[.]”). To that point, based on the conceded legality of that stop, it was
then permissible for Officer Gibson to order Coke out of his vehicle. See
Commonwealth v. Pratt, 930 A.2d 561, 564 (Pa. Super. 2007) (“[F]ollowing
a lawful traffic stop, an officer may order … the driver … of a vehicle to exit
the vehicle until the traffic stop is completed, even absent a reasonable
suspicion that criminal activity is afoot.”).
However, it is immediately beyond this juncture where the
Commonwealth and Coke disagree. The Commonwealth avers that after
Officer Gibson obtained Coke’s driver’s license and departed a short distance
to run Coke’s information in his patrol vehicle, effectively leaving Detective
Corkle and Coke alone together, Detective Corkle acted upon a specific
suspicion when he proceeded to pat down Coke and resultantly discover
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contraband. In particular, Detective Corkle’s testimony established that he
suspected, based on some level of prior knowledge, that Coke was involved in
drug activity and, too, that Coke was seen in an area of hotels that were rife
with drug transactions. See Commonwealth’s Brief, at 12.
Even going beyond this purported reasonable suspicion to perform a pat
down, the Commonwealth argues that Coke consented to a search of his
person. Specifically, the conversation between Detective Corkle and Coke,
while Coke was not under arrest, was conversational. After Detective Corkle
indicated that Coke was believed to be involved with drugs, Coke freely offered
permission to Detective Corkle to perform some sort of body search.
Conversely, Coke argues that there was no legally sufficient basis for
Detective Corkle to pat him down, notwithstanding the invitational language
he used to the Detective, and that Coke’s agreeance to “check” him was the
product of duress, given various aspects of the situation as it had unfolded,.
Pursuant to Terry v. Ohio, an identified police officer who “observes
unusual conduct which leads him reasonably to conclude in light of his
experience that criminal activity may be afoot and that the persons with whom
he is dealing may be armed and presently dangerous,” 392 U.S. 1, 30 (1968),
is permitted to, when nothing else dispels this safety-based fear, “conduct a
carefully limited search of the outer clothing of such persons in an attempt to
discover weapons which might be used to assault him.” Id. Such an action is
known as a Terry frisk. Our Supreme Court has further clarified:
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[A] protective search cannot be justified under Terry unless the
officer can articulate facts that establish an individualized,
objective basis for perceiving a threat of armed violence. . . . [A]n
individual’s location, standing alone, does not provide sufficient
grounds for a Terry search. . . . Furthermore, … courts cannot
abandon the totality-of-the-circumstances test and rely
exclusively upon the preconceived notion that certain types of
criminals regularly carry weapons.
Commonwealth v. Grahame, 7 A.3d 810 (Pa. 2010) (internal citations and
parenthetical omitted).
Based on his testimony, Detective Corkle knew that Coke’s name had
come up “several times for cocaine investigations.” Suppression Hearing,
11/17/21, at 25. While the Detective had been told, at an undefined point,
that Coke had prior convictions for drug activity, he “wasn’t directly familiar”
with Coke’s criminal record. Id.When Detective Corkle was present with Coke, he conveyed to Coke
that his initial location, being at a particular hotel, and corresponding activity
were both suspicious. See id., at 26. Accordingly, Detective Corkle made it
known to Coke that he was suspected to be involved in drug activity. See id.
Coke denied this allegation and stated to the Detective: “[y]ou can check me,”
id., which then led to the search on the outside of his clothing. Even after the
pat down had been performed, Detective Corkle remarked that Coke was “very
cooperative” and his demeanor was “very calm” and “chatty.” Id., at 28-29.
Later, Detective Corkle relayed that he had been concerned about
weapons possibly being on Coke. See id., at 33. Of note, Detective Corkle
stated that “anyone involved in drug activity, it’s a high probability that they
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carry a weapon.” Id.
Based on the record, we agree with the lower court that “Detective
Corkle lacked the requisite individualized reasonable suspicion to conduct a
Terry frisk.” Suppression Court Opinion, dated 1/5/22, at 7. Of note, while
Coke had been seen in a hotel area that had been the subject of other drug-
related interactions with police officers, Coke evidenced no behavior, either in
words or in action, that could reasonably be seen as a threat to Detective
Corkle. In fact, he was cooperative throughout the entire interaction.
Moreover, Detective Corkle did not state that he had seen any sort of
suspicious bulge in Coke’s clothing prior to the pat down.
Without anything discrete mentioned that would tie Coke to potentially
having a weapon, Detective Corkle’s supposition that Coke was armed did not
go further than the insufficient “generalization [absent anything more] that
firearms are commonly found in close proximity to illegal drugs.” Grahame,
7 A.3d at 401. In the absence of any particularized facts that could support
an objectively reasonable belief that Coke possessed a weapon, Detective
Corkle was not permitted to perform a Terry frisk on that basis.
To the extent that the Commonwealth argues, in the alternative, that
Detective Corkle obtained Coke’s consent prior to the pat down, therefore
extinguishing any need to obtain reasonable suspicion, we find that further
development is necessary.
We agree with the lower court that voluntary consent can act as an
exception to the United States Constitution’s Fourth Amendment’s warrant
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requirement. See Suppression Court Opinion, dated 1/5/22, at 7; see also
Commonwealth v. Acosta, 815 A.2d 1078, 1083 (Pa. Super. 2003) (en
banc) (remarking that the Fourth Amendment and Article I, Section 8 of the
Pennsylvania Constitution provide, in total, protections against unreasonable
searches and seizures as well as a heightened level of personal privacy).
However, consent must be unequivocal and specific. See Acosta, 815 A.2d
at 1083 (citation omitted). Therefore, the Commonwealth must show that
consent was given during a legal police interaction and, too, that it was the
product of “an essentially free and unconstrained choice–not the result of
duress or coercion, express or implied, or will overborne–under the totality of
the circumstances.” Id. (citation omitted). Voluntariness is “a question of
fact[.]” Commonwealth v. Hawkins, 257 A.3d 1, 11 (Pa. Super. 2020).
The totality of the circumstances approach involves consideration of
myriad factors. See, e.g., Commonwealth v. Cleckley, 738 A.2d 427, 433
n.7 (Pa. 1999) (deeming the defendant’s custodial status, police officer’s use
of duress or coercive tactics, the individual’s knowledge of his right to refuse
consent, the individual’s education and intelligence to be instructive);
Commonwealth v. Kemp, 961 A.2d 1247, 1261 (Pa. Super. 2008) (en banc)
(outlining the Commonwealth v. Strickler, 757 A.2d 884 (Pa. 2000),
factors, which include, e.g., (1) the presence of police excesses; (2) whether
there was physical contact; (3) location of the interdiction; (4) whether the
individual has been told he is free to leave; (5) police demeanor/manner of
expression; and (6) the existence/character of the initial investigative
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detention, with an emphasis on its degree of coerciveness); Acosta, 815 A.2d
at 1085, 1087 (providing even more considerations as to voluntariness). While
there is no per se rule that police officers must indicate that a subject is free
not to consent to a search, see Cleckley, 738 A.2d at 528, that nondisclosure
has been “deemed significant” in prior cases. Acosta, 815 A.2d at 1087 (citing
to, inter alia, Strickler, supra).
As has been defined by this Court in a recent case and replicated in the
suppression court’s opinion:
The Fourth Amendment analysis in consent cases entails a two-
prong assessment: first, the constitutional validity of the
citizen/police encounter giving rise to the consent and, second,
the voluntariness of said consent. ...
Where the purpose of an initial, valid traffic stop has ended and a
reasonable person would have believed that he was free to leave,
the law characterizes a subsequent round of questioning by the
officer as a mere encounter. . . . Nevertheless, where the purpose
of an initial traffic stop has ended and a reasonable person would
not have believed that he is free to leave, the law characterizes a
subsequent round of questioning by the police as an investigative
detention or arrest. ... Where a consensual search has been
preceded by an unlawful detention, the exclusionary rule requires
suppression of the evidence.
Commonwealth v. Mattis, 252 A.3d 650, 654-55 (Pa. Super. 2021) (internal
citations and quotation marks omitted).
The lower court found that Coke’s interactions with Detective Corkle
prior to the pat down were beyond that of a “mere encounter,” and were the
functional equivalent of an investigative detention. In reaching this conclusion,
the court found that “in view of all surrounding circumstances, a reasonable
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person would [not] have believed that he was free to leave.” Commonwealth
v. Williams, 73 A.3d 609, 614 (Pa. Super. 2013) (imploring courts to apply
“the totality-of-the-circumstances approach” to ascertain whether the
subject’s movement has been in some way restrained) (citations omitted);
see also Commonwealth v. Cost, 224 A.3d 641, 651 (Pa. 2020) (“[T]he
retention by police of an identification card … will generally be a material and
substantial escalating factor within the totality assessment.”).
Inter alia, the court found that Officer Gibson retained Coke’s driver’s
license and noted that, when Coke had been standing with Detective Corkle
outside of his vehicle, “he was not free to go, by any means.” Suppression
Hearing, 11/17/21, at 15-16, The court additionally emphasized that,
although Officer Gibson’s vehicle was equipped with an operational dashboard
camera, a video of the event, which could have provided further clarity, was
not preserved. See id., at 5, 10-11 (remarking that “[w]ithout the benefit of
the dashboard camera footage, [the lower c]ourt [was] left to speculate what
occurred in the sequence of events leading up to [Coke’s] arrest[]”).
Despite the suppression court’s opinion having a heading titled
“Consent,” which is the legal question this case appears to hinge on, and
containing a concluding sentence stating that the Commonwealth failed to
prove voluntary consent, the suppression court has provided absolutely no
analysis, relying on any of the factors identified, supra, into whether Coke
freely consented to a search of his person. Even though Coke “was subjected
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to an investigative detention when Officer Gibson asked [him] to ‘hang out’
with Detective Corkle,” Suppression Court Opinion, dated 1/5/22, at 9, that
fact does not inherently vitiate one’s ability to consent to a search in that
situation. Similarly, in tracking more of the suppression court’s opinion where
it stated that a reasonable person in Coke’s position would not have felt free
to leave, that determination, standing alone, does not completely eliminate
the ability to consent to a pat down. Freedom of movement and consenting to
a search are separate considerations, albeit the former is generally considered
a factor in determining whether the latter was an unconstrained choice.
The court’s conclusion that Coke’s consent to search was unlawfully
obtained because the Commonwealth “failed to prove that Officer Gibson and
Detective Corkle possessed reasonable suspicion to believe that [Coke] was
engaged in criminal activity,” id., at 10, seems wholly unrelated to a consent
analysis, unless the court is implicitly stating that Coke was, at that point in
time, unlawfully detained. If, in fact, the court found there had been an
unlawful detention, that finding should have been unequivocal and any
evidence obtained correspondingly excluded.
Conversely, assuming there to have been a lawful investigative
detention while Detective Corkle was conversing with Coke and Officer Gibson
possessed Coke’s driver’s license, we instruct the court to determine whether,
under the totality of the circumstances, Coke’s utterance indicating that
Detective Corkle could “check” him was consensual and therefore an exception
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to the Fourth Amendment’s warrant requirement. Given that the voluntariness
of consent is a question of fact, we remand for the court to make explicit
findings as to whether Coke freely gave consent to Detective Corkle prior to
the pat down.
As the subsequent search of Coke’s vehicle was predicated, in large part,
on the contraband recovered from the pat down, any ruling as to the validity
of the vehicular search would be premature at this juncture.
Order vacated. Case remanded with instructions. Jurisdiction
relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/9/2022
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