Com. v. Torres, K. ( 2023 )

J-S04021-23
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT OP 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
KOURY TORRES :
:
Appellant : No. 2592 EDA 2021
Appeal from the Judgment of Sentence Entered October 7, 2021
In the Court of Common Pleas of Lehigh County
Criminal Division at No(s): CP-39-CR-0003469-2020
BEFORE: MURRAY, J., KING, J., and PELLEGRINI, J.*
MEMORANDUM BY KING, J.: FILED JUNE 29, 2023
Appellant, Koury Torres, appeals from the judgment of sentence entered
in the Lehigh County Court of Common Pleas, following his jury trial
convictions of two counts of possession of a controlled substance and one
count of possession of drug paraphernalia, and his bench trial conviction of
the summary offense of driving without a license.1 We affirm.
The trial court set forth the relevant facts and procedural history of this
case as follows:
Beginning around the end of March 2020, Detective David
M. Howells, III, of the Allentown Police Department was
conducting a drug investigation involving [Appellant].
Detective Howells was advised by the Lehigh County
Department of Adult Probation and Parole that there was an
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* Retired Senior Judge assigned to the Superior Court.
1 35 P.S. §§ 780-113(16) and (32); 75 Pa.C.S.A. § 1501(a).
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outstanding warrant for [Appellant], but that they would not
detain him due to the circumstances surrounding the Covid-
19 pandemic. However, as Covid restrictions began to
change in the spring, Detective Howells was informed by the
Lehigh County Department of Adult Probation and Parole
that they would detain Appellant on his active warrant.
On the evening of June 5, 2020, Detective Howells was
conducting surveillance at the Super 8 Motel located at 1033
Airport Road, Allentown, Lehigh County, Pennsylvania. At
that time, Detective Howells observed [Appellant] wearing
a black fanny pack around his chest in the front parking lot
of the motel going into and out of a black Jeep Liberty
parked in the front lot. To confirm [Appellant’s] identity,
Detective Howells drove through the parking lot and passed
within a few feet of [Appellant].
Detective Howells again confirmed that [Appellant] had an
active Lehigh County Probation and Parole warrant, as well
as verified that [Appellant] did not possess a valid driver’s
license. When [Appellant] entered the black Jeep Liberty
and drove away from the Super 8 Motel, Detective Howells
radioed uniformed officers in marked vehicles and directed
them to effectuate a traffic stop of [Appellant]. Detective
Howells provided a description of the subject vehicle, as well
as related to the other officers that [Appellant] had an
outstanding warrant and did not possess a valid driver’s
license. Detective Howells followed the Jeep Liberty until a
marked unit located the vehicle and activated its lights and
sirens. Detective Howells was not directly involved in the
traffic stop of the vehicle.
At approximately 6:30 P.M., Officer Zachary Wittman of the
Allentown Police Department, in full uniform and driving a
marked police vehicle, conducted the traffic stop of the
subject Jeep Liberty in the area of Bradford Street and
American Parkway, Allentown, Lehigh County,
Pennsylvania. When Officer Wittman activated the police
cruiser’s lights and sirens, the driver of the Jeep Liberty
pulled off of the road towards the left, which resulted in the
vehicle facing north in a southbound lane. The position of
the vehicle was blocking a lane of travel, thereby impeding
the flow of oncoming traffic on a highly travelled roadway
and creating a traffic hazard.
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Officer Wittman approached the driver side of the vehicle
and made contact with the operator of the Jeep Liberty.
Officer Wittman requested that the driver furnish him with
an identification card. However, the driver indicated that he
did not have any identification on his person. Consequently,
Officer Wittman asked for the operator’s name. The name
that was initially provided could not be confirmed through
electronic records, and therefore Officer Wittman
reapproached the vehicle and again asked the operator for
his name. At this time, the driver provided his actual name,
Koury Torres. When Officer Wittman reviewed [Appellant’s]
name through his vehicle’s criminal information system,
Officer Wittman confirmed that [Appellant] did not possess
a valid driver’s license. Consequently, in light of the vehicle
blocking traffic and being a hindrance during rush hour, as
well as [Appellant’s] failure to possess a valid driver’s
license, it was determined that the vehicle needed to be
towed and impounded by A-1 Towing.
While Officer Wittman was verifying [Appellant’s]
information, Officer Jason Kesack of the Allentown Police
Department arrived on scene for assistance. Officer Kesack
was aware of Detective Howell’s drug investigation involving
[Appellant], as well as the fact that he had an outstanding
warrant and did not possess a valid driver’s license as a
result of the radio communications that had been exchanged
among him, Officer Wittman, and Detective Howells. When
Officer Kesack approached the Jeep Liberty, he observed
open containers in the center console of the vehicle and
smelled the odor of alcohol emanating from them.
Therefore, Officer Kesack asked [Appellant] to exit the
vehicle. Officer Kesack handcuffed [Appellant] and placed
[Appellant] into custody.
Officer Kesack conducted an inventory search of the vehicle
pursuant to the Allentown Police Department Inventory
Search Policy. The purpose of the inventory search is to list
all valuable items in an effort to secure and safeguard them
for the owner. According to the Allentown Police
Department Inventory Search Policy, the “inventory
includes any containers in the vehicle, the contents of which
are not visible from the outside.”
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As a result of the inventory search of the vehicle, Officer
Kesack located two (2) black fanny bags in the back seat of
the vehicle. One of the bags contained two (2) knotted bags
with powder substances therein, as well as a container that
held suspected crack cocaine. Also within the same black
fanny bag were two (2) glass smoking pipes and a Brillo
pad. The other black fanny bag contained a lock box which
held a digital scale with white residue on it, United States
currency, and a scooper.
The suspected drugs were sent to the Pennsylvania State
Police Bureau of Forensic Services for analysis. An analysis
revealed that the drugs located in the Jeep Liberty were 2.21
grams of a heroin/fentanyl mixture, as well as 2.1 grams of
cocaine.
When Detective Howells learned that drugs were located
within the vehicle, he returned to the scene. [Appellant]
was transported to the headquarters of the Allentown Police
Department where Detective Howells provided him with his
Miranda[2] warnings prior to interviewing him with
Detective Joseph Graves. In particular, Detective Howells
read the Miranda warnings to [Appellant] from the
Allentown Police Department Rights Warning and Waiver
Form. [Appellant] signed the Form at 8:33 P.M. and agreed
to speak with Detective Howells and Detective Graves.
During the interview, [Appellant] admitted that he both
used and sold the drugs located in the vehicle. He also
stated that he “cooked up” his own crack cocaine.
[Appellant] explained that “cooked up” meant that he would
cut the cocaine with another substance in order to maximize
his profits.
(Trial Court Opinion, 5/10/21, at 2-6) (paragraph numbering and record
citation omitted).
The Commonwealth charged Appellant with possession with intent to
deliver a controlled substance (“PWID”), possession of a controlled substance,
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2 Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
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possession of drug paraphernalia, and driving without a license. Appellant
filed an omnibus pretrial motion on March 1, 2021, which he amended on
March 2, 2021, seeking suppression of the items found during the inventory
search and dismissal of the charge of possession with intent to deliver. The
court conducted a hearing on the pretrial motion on April 6, 2021, during
which the Commonwealth introduced the testimony of Detective Howells,
Officer Wittman, and Officer Kesack. On May 10, 2021, the court issued an
order denying relief.
After the conclusion of trial on August 18, 2021, the jury found Appellant
guilty of two counts of possession of a controlled substance and one count of
possession of drug paraphernalia. The jury acquitted Appellant of PWID. The
court found Appellant guilty of the summary offense of driving without a
license. On October 7, 2021, the court sentenced Appellant to an aggregate
term of 22 months to 4 years of incarceration. Appellant filed a timely post
sentence motion on October 13, 2021, which the court denied on November
15, 2021. Appellant timely filed a notice of appeal on December 13, 2021,
and, in compliance with the court’s order, filed his concise statement of errors
complained of on appeal.
Appellant raises one issue on appeal:
Whether the police, in stopping [Appellant’s] vehicle,
confronting [Appellant], and eventually detaining
[Appellant] had a lawful basis for seizing the drug
paraphernalia and controlled substances found during an
alleged inventory search of [Appellant’s] vehicle?
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(Appellant’s Brief at 5).
“Our standard of review in addressing a challenge to a trial court’s denial
of a suppression motion is limited to determining whether the factual findings
are supported by the record and whether the legal conclusions drawn from
those facts are correct.” Commonwealth v. Williams, 941 A.2d 14, 26
(Pa.Super. 2008) (en banc) (internal citations omitted).
[W]e may consider only the evidence of the prosecution and
so much of the evidence for the defense as remains
uncontradicted when read in the context of the record as a
whole. Where the record supports the findings of the
suppression court, we are bound by those facts and may
reverse only if the court erred in reaching its legal
conclusions based upon the facts.
Id. at 27. If appellate review of the suppression court’s decision “turns on
allegations of legal error,” then the trial court’s legal conclusions are
nonbinding on appeal and subject to plenary review. Commonwealth v.
Jones, 121 A.3d 524, 526-27 (Pa.Super. 2015), appeal denied, 635 Pa. 750,
135 A.3d 584 (2016) (citation omitted).
Appellant argues the officers were prohibited from conducting a
warrantless search of his vehicle without first articulating sufficient probable
cause and exigent circumstances to justify the search. Specifically, Appellant
claims that police conducted the search with an improper motive—namely,
investigating criminal activity—which cannot form the basis for an inventory
search. Appellant insists the search went far beyond that which was necessary
for a reasonable inventory search when the police opened fanny packs and a
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sealed lockbox. Appellant concludes that the “inventory search exception” to
the warrant requirement does not apply under these facts, and the trial court
should have granted his motion to suppress. We disagree.
“Both the Fourth Amendment of the United States Constitution and
Article I, Section 8 of the Pennsylvania Constitution guarantee individuals
freedom from unreasonable searches and seizures.” Commonwealth v.
Heidelberg, 267 A.3d 492, 502 (Pa.Super. 2021) (en banc), appeal denied,
___ Pa. ___, 279 A.3d 38 (2022) (citation omitted). “A warrantless search or
seizure of evidence is…presumptively unreasonable under the Fourth
Amendment and Article I, § 8, subject to a few specifically established, well-
delineated exceptions.” Commonwealth v. Luczki, 212 A.3d 530, 546
(Pa.Super. 2019) (citation and internal quotation marks omitted). These
exceptions include “the consent exception, the plain view exception, the
inventory search exception, the exigent circumstances exception, the
automobile exception, ... the stop and frisk exception, and the search incident
to arrest exception.” Commonwealth v. Smith, 285 A.3d 328, 332
(Pa.Super. 2022) (citation omitted).
This Court has explained:
A warrantless inventory search of an automobile is different
from a warrantless investigatory search of the same. An
inventory search of an automobile is permitted where: (1)
the police have lawfully impounded the automobile; and (2)
the police have acted in accordance with a reasonable,
standard policy of routinely securing and inventorying the
contents of the impounded vehicle. A warrantless
investigatory search of an automobile requires both a
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showing of probable cause to search and exigent
circumstances.
In determining whether a proper inventory search has
occurred, the first inquiry is whether the police have lawfully
impounded the automobile, i.e., have lawful custody of the
automobile. The authority of the police to impound vehicles
derives from the police’s reasonable community care-taking
functions. Such functions include removing disabled or
damaged vehicles from the highway, impounding
automobiles which violate parking ordinances...and
protecting the community’s safety.
The second inquiry is whether the police have conducted a
reasonable inventory search. An inventory search is
reasonable if it is conducted pursuant to reasonable
standard police procedures and in good faith and not for the
sole purpose of investigation.
Commonwealth v. Henley, 909 A.2d 352, 359 (Pa.Super. 2006) (en banc)
(internal citations and quotation marks omitted).3
Instantly, during a drug investigation, Detective Howells observed
Appellant driving a black Jeep. Detective Howells knew that Appellant did not
have a valid driver’s license and had an active arrest warrant for alleged
probation violations. Based on this information, Detective Howells requested
that a marked police car initiate a traffic stop. When Officer Whitman
activated his lights and sirens to conduct the stop, Appellant drove his vehicle
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3 We note that our Supreme Court has reaffirmed that “the Pennsylvania
Constitution requires both a showing of probable cause and exigent
circumstances to justify a warrantless search of an automobile.”
Commonwealth v. Alexander, ___ Pa. ___, ___, 243 A.3d 177, 181 (2020).
Nevertheless, Alexander did not eliminate the inventory search exception to
the warrant requirement as applied to automobiles. See Commonwealth v.
Thompson, 289 A.3d 1104, 1109-10 (Pa.Super. 2023).
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into the opposing lane of traffic and stopped his vehicle facing the wrong
direction in a manner partially blocking traffic. After the arresting officer
confirmed that Appellant did not possess a valid driver’s license, and because
the vehicle was hindering traffic during rush hour, Officer Whitman determined
that the vehicle needed to be towed and impounded. Prior to towing the
vehicle, Officer Kesack conducted an inventory search pursuant to the
Allentown Police Department Inventory Search Policy, which explains that “the
inventory includes any containers in the vehicle, the contents of which are not
visible from the outside.” (Trial Court Opinion, 5/10/21, at 8).
Under these circumstances, the police lawfully impounded the vehicle
because Appellant did not have a valid driver’s license and because his vehicle
was hindering traffic. See Thompson, supra at 1110 (holding that police
lawfully impounded vehicle that was impeding flow of traffic). See also 75
Pa.C.S.A. § 6309.2(a)(1) (providing that if individual operates motor vehicle
without license “the law enforcement officer shall immobilize the vehicle
or…direct that the vehicle be towed”).4
Further, the Allentown Police Department Inventory Search Policy
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4 Although Appellant suggests that it was unreasonable for the officers to
impound the vehicle without first providing him the opportunity to find an
alternative driver, Appellant fails to develop this argument with citations to
any supporting authority. Thus, we deem this challenge waived on appeal.
See Commonwealth v. Gould, 912 A.2d 869 (Pa.Super. 2006) (explaining
that this Court will not become counsel for appellant and will not consider
issues that are not fully developed in his brief).
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provides that every vehicle towed is subject to an inventory which includes
any containers where the contents are not visible from the outside. (See N.T.
Suppression Hearing, 4/6/21, at Com. Ex. C-1, Allentown Police Department
Vehicle Inventory Policy, ¶ 4.3.6). Therefore, the inventory search of
Appellant’s jeep, which included the contents of several containers, complied
with the police department standard procedures. See id. Based upon the
foregoing, the inventory search exception to the warrant requirement applies
in this case, and the trial court properly denied Appellant’s suppression
motion. See Henley, supra. See also Williams, supra. Accordingly, we
affirm.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/29/2023
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