Com. v. Carroll, V., Sr. ( 2023 )

J-S08022-23
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT OP 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
VINCENT JEROME CARROLL, SR. :
:
Appellant : No. 1104 MDA 2022
Appeal from the Judgment of Sentence Entered July 22, 2022
In the Court of Common Pleas of Dauphin County Criminal Division at
No(s): CP-22-CR-0002803-2021
BEFORE: OLSON, J., McCAFFERY, J., and COLINS, J.*
MEMORANDUM BY McCAFFERY, J.: FILED: JUNE 6, 2023
Vincent Jerome Carroll, Sr. (Appellant), appeals from the judgment of
sentence imposed in the Dauphin County Court of Common Pleas following his
stipulated, non-jury convictions of firearms and drug offenses. On appeal, he
challenges the trial court’s denial of his motion to suppress evidence recovered
from a search of his vehicle. Specifically, he contends the encounter was not
supported by reasonable suspicion or probable cause, his consent to search
the vehicle was invalid, and the warrantless search of his vehicle violated
Commonwealth v. Alexander, 243 A.3d 177 (Pa. 2020). For the reasons
below, we affirm.
The trial court aptly summarized the relevant facts developed during the
suppression hearing as follows:
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* Retired Senior Judge assigned to the Superior Court.
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On April 24, 2021, Officer Patrick Walsh (hereinafter “Officer
Walsh”) and Detective Patrick Corkle (hereinafter “Detective
Corkle”) of the Swatara Township Police Department were
members of the High Enforcement Action Team (“HEAT”)
monitoring several hotels in a high-crime, high-drug area within
the municipality. Officer Walsh explained HEAT as plain-clothes
detectives or officers monitoring a hotel and when they see
something suspicious, will radio to one of the marked “stop”
vehicles to conduct a traffic stop on a vehicle of interest.
Detective Corkle was parked in the Domino’s parking lot on
Eisenhower Boulevard conducting surveillance on the south end of
the Howard Johnson parking lot. At some point, his attention was
drawn to a black Ford Expedition that entered and parked in the
Howard Johnson parking lot. The male driver, subsequently
identified as [Appellant], exited the vehicle, walked to the sliding
glass door of one of the hotel rooms (later determined to be Room
107) and was handed something from a female inside. Detective
Corkle could not identify what the item was, but noted that it was
a smaller item that fit in the palm of the female’s hand.
At that point, Detective Corkle testified that he intended to
have one of the marked “stop” vehicles use the dark tinted
windows on [Appellant’s] vehicle as a pretext to stop it as it left
the Howard Johnson parking lot. Unfortunately, there were no
marked “stop” vehicles available at that time. Approximately ten
(10) minutes later, Detective Corkle observed the black Ford
Expedition return to the Howard Johnson and park in a spot close
to where it had parked previously. Again, [Appellant] exited the
vehicle, walked to the sliding glass doors of Room 107 and handed
something to the female inside. [Appellant] returned to the
vehicle and backed out of the parking space. Detective Corkle
testified that he again intended to stop the vehicle for the dark
tinted windows as a pretext for a drug investigation.
Instead, the Ford Expedition did a U-turn before exiting onto
Eisenhower Boulevard and pulled into and parked in the fire lane
near Room 107. Detective Corkle continued to watch the vehicle
and observed a silhouette of [Appellant] “reach into the backseat
several times and pull a bag to his lap and eventually place[ ] the
bag back into the backseat.” Since it was toward the end of the
HEAT detail, Detective Corkle determined there was enough to
“blow it up” a/k/a expose the undercover officers and conduct a
traffic stop of the vehicle in the parking lot.
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Once he heard the command from Detective Corkle, Officer
Walsh parked in the Lancaster Brewing Company parking lot and
walked next door to the Howard Johnson where [Appellant’s]
vehicle was parked. As he was walking, Officer Walsh could see
inside the front windshield of [Appellant’s] vehicle[ and] made eye
contact with [Appellant,] who immediately opened the center
console and threw something inside. Officer Walsh knocked on
[Appellant’s] passenger side window and when [Appellant] rolled
the window down, he immediately smelled the odor of marijuana.
Based upon his observations of [Appellant] throwing something
into the center console, the smell of marijuana and for officer
safety, Officer Walsh asked [Appellant] to step out of the
vehicle.[1]
Officer Walsh was wearing a body camera during this
incident, and portions of it were played during the suppression
hearing. . . . Once [Appellant get out of] the vehicle, there were
at least two (2) police vehicles parked behind [Appellant’s] vehicle
and three (3) other officers standing outside. Officer Walsh
immediately questioned [Appellant] about what he put in the
center console. [Appellant] responded that it was a blunt and
produced his [Pennsylvania] medical marijuana card. After a brief
conversation about how long [Appellant] was staying at the
Howard Johnson, Officer Walsh requested to see his license, which
[Appellant] provided, as well as a temporary license for Kentucky
where he recently moved.
While still in possession of [Appellant’s] documents, Officer
Walsh asked [Appellant] for consent to search his vehicle.
[Appellant] granted the consent. During the entire interaction, an
officer was standing to the left and behind [Appellant]. A search
of the vehicle discovered an unsmoked marijuana blunt on the
center console, and a partially smoked marijuana blunt inside the
center console. Additionally, a Coach bookbag in the backseat
was searched and a large amount of individually wrapped
marijuana bags, clear plastic bags and a scale were found inside.
The marijuana was not packaged consistently with medical
marijuana sold in Pennsylvania.
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1The officer later told Appellant that he was investigating a “noise violation,”
which was not truthful. See N.T., 2/17/22, at 34-35.
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While [Appellant’s] vehicle was being searched, other
officers went to Room 107 and made contact with the female
inside. They learned that Room 107 was rented to [Appellant]
and his girlfriend. As soon as officers made contact, they smelled
marijuana emanating from Room 107. At around 00:08:14 on the
[body cam] video, Officer Walsh read [Appellant] his Miranda[2]
rights and [said] that he [was] not under arrest, but detained as
part of a drug investigation. Thereafter, [Appellant] informed
Officer Walsh that he had his girlfriend’s firearm on him. Officer
Walsh removed it from [Appellant’s] waistband.[3] After learning
that [Appellant] was a person not to possess, Officer Walsh placed
him under arrest.
Trial Ct. Op., 5/13/22, at 2-5 (record citations & footnote omitted).
Appellant was charged with persons not to possess a firearm, possession
with intent to deliver a controlled substance (PWID), and possession of drug
paraphernalia.4 On September 1, 2021, Appellant filed a motion to suppress
the physical evidence recovered during the search, asserting the police had
no reasonable suspicion or probable cause to detain him, his consent to search
the vehicle was invalid, and the subsequent warrantless search was violative
of Alexander. See Appellant’s Motion to Suppress Physical Evidence, 9/2/21,
at 1-2 (unpaginated). The court conducted a suppression hearing on February
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2 Miranda v. Arizona, 384 U.S. 436 (1966).
3 Appellant told the officer that his girlfriend had a gun license, and that he
had intended to put the gun in their room before he was stopped. See
Commonwealth’s Exhibit 1 (Body Cam Footage) at 19:05-19:17; see also
N.T., 7/22/22, at 16. Although Appellant did not testify at the suppression
hearing, at the time of sentencing, the trial court indicated that it accepted
Appellant’s explanation for his possession of the firearm ─ i.e., that he
intended only to move it from the vehicle to the hotel room ─ at “face value[.]”
See N.T., 7/22/22, at 29.
4 18 Pa.C.S. § 6105(a)(1); 35 P.S. § 780-113(a)(30), (32).
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17, 2022, at which time the Commonwealth presented the testimony of Officer
Walsh and Detective Corkle. Appellant did not present any evidence or
testimony. After requesting post-hearing memoranda from both parties, the
trial court entered an order on May 13, 2022, denying Appellant’s motion to
suppress. See Order, 5/13/22.
Appellant proceeded to a stipulated bench trial and sentencing hearing
conducted on July 22, 2022. Although Appellant’s counsel argued that the
marijuana removed from the vehicle was for personal use,5 and therefore,
there was reasonable doubt as to the charges of PWID and possession of
paraphernalia, the trial court disagreed, and convicted Appellant of all three
charges. Appellant waived his right to a presentence investigation report and
proceeded immediately to sentencing. See N.T., 7/22/22, at 11. After
considering argument by Appellant’s counsel, and Appellant’s own statement,
the trial court imposed a sentence of two to four years’ imprisonment followed
by four years’ probation on the charge of persons not to possess firearms,6
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5 After Appellant admitted to Officer Walsh that he put his “blunt” in the center
console, he provided the officer with his Pennsylvania medical marijuana card.
See Body Cam Footage at 1:00-1:34. He explained that he recently moved
to Kentucky and was back in Pennsylvania for a friend’s funeral. See id.
Because marijuana use is not legalized in Kentucky, Appellant told the officer
he wanted to “load up” before returning to Kentucky. See id. at 16:25-16:37.
He insisted that he purchased the marijuana at a dispensary, and was told he
should repackage it himself. See id. at 11:03-11:16, 15:25-16:11.
6The sentence imposed on the firearms offense fell below the mitigated range
of the sentencing guidelines. See N.T., 7/22/22, at 12 (standard range was
72 to 90 months, with a mitigated range of 60 months).
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and a concurrent term of one to two years’ imprisonment on the charge of
PWID. Appellant filed a post-sentence motion, which the trial court denied on
July 28, 2022. This timely appeal follows.7
Appellant raises one issue on appeal:
Whether the trial court erred by denying Appellant’s pre-trial
motion to suppress?
Appellant’s Brief at 3 (some capitalization omitted).8 Specifically, Appellant
contends: (1) Officer Walsh had no reasonable suspicion to conduct an
investigative detention when he ordered Appellant out of his vehicle; (2)
Appellant’s subsequent consent to the search of his vehicle was involuntary;
and (3) the warrantless search of Appellant’s vehicle was violative of
Alexander. See id. at 18-34. We conclude Appellant is entitled to no relief.
Our review of a trial court’s denial of a suppression motion is guided by
the following:
[O]ur standard of review . . . is limited to determining whether
the factual findings are supported by the record and whether the
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7Appellant complied with the trial court’s directive to file a Pa.R.A.P. 1925(b)
concise statement of errors complained of on appeal.
8 The Commonwealth suggests that Appellant’s claim is waived because his
Pa.R.A.P. 1925(b) statement ─ which presents the same general claim as in
his brief ─ was not “sufficiently specif[ic.]” See Commonwealth’s Brief at 8;
Appellant’s Statement of Matters Complained of on Appellant Pursuant to
Pa.R.A.P. 1925(b), 8/30/22. See also Pa.R.A.P. 1925(b)(4)(ii) (“The
Statement shall concisely identify each error that the appellant intends to
assert with sufficient detail to identify the issue to be raised for the judge.”).
While we agree Appellant should have specified the factual or legal errors he
believes the trial court made in denying his motion to suppress, the trial court
was able to respond to Appellant’s claim. Thus, we decline to find it waived.
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legal conclusions drawn from those facts are correct. We are
bound by the suppression court’s factual findings so long as they
are supported by the record; our standard of review on questions
of law is de novo. Where, as here, the defendant is appealing the
ruling of the suppression court, we may consider only the evidence
of the Commonwealth and so much of the evidence for the defense
as remains uncontradicted. Our scope of review of suppression
rulings includes only the suppression hearing record[.]
Commonwealth v. Yandamuri, 159 A.3d 503, 516 (Pa. 2017) (citations
omitted).
We begin by recognizing there are three types of interactions between
law enforcement and private citizens:
The first is a mere encounter, sometimes referred to as a
consensual encounter, which does not require the officer to have
any suspicion that the citizen is or has been engaged in criminal
activity. This interaction also does not compel the citizen to stop
or respond to the officer. A mere encounter does not constitute a
seizure, as the citizen is free to choose whether to engage with
the officer and comply with any requests made or, conversely, to
ignore the officer and continue on his or her way.
The second type of interaction, an investigative detention, is a
temporary detention of a citizen. This interaction constitutes a
seizure of a person, and to be constitutionally valid[,] police must
have a reasonable suspicion that criminal activity is afoot.
The third, a custodial detention, is the functional equivalent of an
arrest and must be supported by probable cause. A custodial
detention also constitutes a seizure.
No bright lines separate these types of encounters, but the United
States Supreme Court has established an objective test by which
courts may ascertain whether a seizure has occurred to elevate
the interaction beyond a mere encounter. The test, often referred
to as the “free to leave test,” requires the court to determine
whether, taking into account all of the circumstances surrounding
the encounter, the police would have communicated to a
reasonable person that he was not at liberty to ignore the police
presence and go about his business. Whenever a police officer
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accosts an individual and restrains his freedom to walk away, he
has seized that person.
Commonwealth v. Anderson, 276 A.3d 282, 293–94 (Pa. Super. 2022) (en
banc) (citation omitted & some paragraph breaks added).
Here, the trial court determined that “the initial interaction of Officer
Walsh knocking on the passenger-side window and [Appellant] rolling it down
was a mere encounter.” Trial Ct. Op. at 8. Nevertheless, the court found:
[W]hen Officer Walsh asked [Appellant] to step out of the vehicle,
in combination with a marked police vehicle with its emergency
lights activated parked behind [Appellant’s] vehicle, the
interaction immediately escalated to an investigative detention.
Id. (footnote omitted). In other words, when Officer Walsh directed Appellant
to exit his vehicle, Appellant was no longer “free to leave.” See Anderson,
276 A.3d at 294. We agree.9
Therefore, our focus is on the second type of interaction, an
investigative detention:
To maintain constitutional validity, an investigative detention
must be supported by a reasonable and articulable suspicion that
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9 Appellant appears to be under the misapprehension that the court did not
conclude Officer Walsh’s interaction with him evolved into an investigative
detention when the officer directed him to exit his vehicle. See Appellant’s
Brief at 14 (“[T]he [t]rial [c]ourt abused its discretion [in finding] that the
mere encounter did not evolve into an investigative detention when Appellant
was ordered out of his vehicle, requiring a showing of reasonable suspicion
and/or probable cause to do so.”). This is simply incorrect. Moreover,
Appellant agrees that Officer Walsh’s initial contact began as a mere
encounter when the officer knocked on the passenger window. See id.
Accordingly, we need not consider Appellant’s contention that the encounter
quickly developed into an investigative detention because the trial court
concluded that it did. See id. at 14-18.
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the person seized is engaged in criminal activity and may continue
only so long as is necessary to confirm or dispel such suspicion.
The asserted grounds for an investigative detention must be
evaluated under the totality of the circumstances. So long as the
initial detention is lawful, nothing precludes a police officer from
acting upon the fortuitous discovery of evidence suggesting a
different crime than that initially suspected[.] However, an
unjustified seizure immediately violates the Fourth Amendment
rights of the suspect, taints the evidence recovered thereby, and
subjects that evidence to the exclusionary rule.
Commonwealth v. Hicks, 208 A.3d 916, 927–28 (Pa. 2019) (citations &
quotation marks omitted). Moreover, when considering whether an
investigating officer possesses the requisite reasonable suspicion, we must
bear in mind that:
Pennsylvania adheres to the vertical approach of the collective
knowledge doctrine, which instructs that an officer with the
requisite level of suspicion may direct another officer to act in his
or her stead. However, where . . . the arresting officer does not
have the requisite knowledge and was not directed to so act, we
hold the seizure is still constitutional where the investigating
officer with probable cause or reasonable suspicion was working
with the officer and would have inevitably and imminently ordered
that the seizure be effectuated. . . .
Commonwealth v. Yong, 177 A.3d 876, 889–90 (Pa. 2018) (citation
omitted).
In the present case, the trial court determined Officer Walsh possessed
the requisite reasonable suspicion to conduct an investigative detention of
Appellant based upon Detective Corkle’s observations:
Officer Walsh was working the HEAT detail with several
other officers, including Detective Corkle, and they were in
constant radio contact. Detective Corkle advised Officer Walsh
that he observed [that Appellant] pull[ed] into the Howard
Johnson, park[ed], exited his vehicle, walked to the sliding door
of Room 107 and was handed an unidentified object from the
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female inside. [Appellant] left in his vehicle and returned a short
time later, parking close to the original spot. He again walked to
the sliding glass door of Room 107 and handed an unidentified
object to the female inside. Instead of leaving the parking lot,
[Appellant] illegally parked in the fire lane near Room 107.
Additionally, Detective Corkle testified that he observed the male
reach into the backseat several times and pull a bag to his lap,
and eventually put the bag in the backseat.
Detective Corkle testified that he has personally made
undercover drug buys and utilized confidential informants. He
further testified that the Howard Johnson hotel is a high-crime,
high-drug area, and is in the top three (3) for illegal drug activity
in Swatara Township. He has personally purchased illegal drugs
as an undercover officer at the Howard Johnson, as well as has
witnessed confidential informants purchase illegal drugs.
Detective Corkle testified that drugs sales at the Howard Johnson
are done in a variety of ways ─ in the room, through the window,
in vehicles parked in the parking lot, and on foot outside of the
hotel. Based upon his experience, he believed [Appellant’s]
actions were consistent with an illegal drug transaction.
Officer Walsh did not personally observe the actions of
[Appellant], but he was directed by Detective Corkle to approach
[Appellant]. Accordingly, this Court finds that Officer Walsh
possessed reasonable suspicion to believe [Appellant] was
involved in illegal drug activity to conduct to subject him to an
investigative detention pursuant to the vertical collective
knowledge doctrine.
Trial Ct. Op. at 8-9.
Appellant insists, however, that Detective Corkle’s observations of him
passing “‘something’ to a female in the Room 107 at the Howard Johnson
Hotel” was insufficient to establish reasonable suspicion that criminal activity
was afoot. See Appellant’s Brief at 22. Rather, relying upon Commonwealth
v. Walton, 63 A.3d 253 (Pa. Super. 2013), and Commonwealth v. Banks,
658 A.2d 752 (Pa. 1995), he maintains “the officer’s observations were
consistent with innocent activity and nothing more than [a] hunch that a drug
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transaction was about to transpire.” Appellant’s Brief at 21 (emphasis
omitted). Appellant emphasizes that Officer Walsh concocted a “fake noise
complaint” to initiate contact with him and maintains that the officer had no
reason to believe he was armed and dangerous; thus, he contends there was
no basis to order him out of the vehicle. See id. at 27-28.
Upon our review, we conclude the trial court properly determined Officer
Walsh possessed the requisite reasonable suspicion to conduct an
investigative detention of Appellant, which included directing him to exit the
vehicle. The trial court aptly summarized the observations of Detective
Corkle, leading him to suspect Appellant was involved in two drug
transactions, ten minutes apart. See Trial Ct. Op. at 8-9; N.T., 2/17/22, at
46. That information supported Officer Walsh’s initial mere encounter with
Appellant. Officer Walsh subsequently developed reasonable suspicion of
criminal activity when ─ armed with Detective Corkle’s observations of the
suspected drug transactions and Appellant’s interactions with the bag in the
backseat ─ he observed Appellant “open the center console[,] throw
something inside and then quickly shut it” immediately after making eye
contact, and he detected “an overwhelming strong odor of marijuana coming
from the vehicle” when Appellant rolled down the passenger window. See
N.T., 2/17/22, at 13-14. Thus, at the time Officer Walsh directed Appellant
to exit his vehicle, he had the following information: (1) he was assigned to
the Howard Johnson hotel as part of a HEAT team because of the “high drug
use and activity there[;]” (2) his experienced team member, Detective Corkle,
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witnessed Appellant drive into the parking lot, approach one of the rooms, and
“receive something from a female” before driving off again; (3) Detective
Corkle witnessed Appellant do the same thing about 10 minutes later, but
after that interaction, Appellant parked his vehicle in the fire lane; (4)
Detective Corkle observed Appellant “reach into the backseat several times
and pull a bag to his lap and eventually place[ ] the bag back into the
backseat[;]” (5) as he approached the vehicle, Officer Walsh made “eye
contact” with Appellant, at which time Appellant immediately “open[ed] the
center console[,] thr[e]w something inside and the quickly shut it[;]” and (6)
when Appellant rolled down his window, Officer Walsh “got an overwhelming
strong odor of marijuana[.]” See id. at 7-10, 12-13, 46-47. We conclude
that, under the totality of the circumstances, Officer Walsh possessed the
requisite reasonable suspicion that Appellant was involved in criminal activity
to support an investigative detention.
The cases upon which Appellant rely do not compel a different result.
In Walton, a police officer observed a male and female pacing in the parking
lot of a bar, while “on and off their cell phones several times looking around.”
Walton, 63 A.3d at 255 (record citation omitted). The officer found their
actions “suspicious” and similar to those exhibited by drug dealers or users.
See id. When the defendant’s car pulled up to the male and female, the
officer “immediately activated his lights and drove into the parking lot.” Id.(record citation omitted). The male and female fled, and the officer observed
the defendant “putting his hand down his pants . . . in an attempt to conceal
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something.” Id. (record citation & quotations omitted). After the officer
asked the defendant to exit the vehicle, the officer observed the tip of a
sandwich bag in the defendant’s waistband. Id. A subsequent search
revealed the bag contained cocaine; additional baggies and narcotics were
recovered from the defendant’s vehicle. See id.The trial court denied the defendant’s motion to suppress, and a panel
of this Court reversed on appeal. The panel concluded the officer did not have
“reasonable suspicion that [the defendant] was involved in criminal activity”
─ the officer did not witness any type of transaction before activating his lights
and immediately driving into the parking lot, but simply observed two people
pacing and looking at their phone, and “there was no indication that this was
a high crime or drug intensive neighborhood.” Walton, 63 A.3d at 258. Thus,
the panel concluded: “Without more, [the officer’s] observations [were]
consistent with innocent activity and nothing more than a hunch a drug
transaction was to transpire.” Id.Conversely, here, Officer Walsh’s investigative detention of Appellant
was supported by (1) Detective Corkle’s observations of what appeared to be
two drug transactions, as well as, Appellant’s suspicious movements in his
vehicle after parking in the fire lane; (2) his own observation of Appellant
secreting an object in the center console after making eye contact with the
officer; and (3) the overwhelming smell of marijuana emanating from
Appellant’s car. Thus, the facts supporting reasonable suspicion in the present
case are of greater quantity and quality than those presented in Walton.
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Banks is also distinguishable. In that case, a police officer observed
the defendant “reach[ ] into his pocket and hand[ ] an [unidentified] object to
an unknown female who, in turn, gave [the defendant] an undetermined
amount of cash.” Banks, 658 A.2d at 752. When the officer approached in
his patrol car, the defendant fled. See id. After the officer apprehended the
defendant, the officer immediately arrested him and recovered cocaine on his
person. See id. Notably, the Commonwealth “admit[ted] that the stop and
apprehension of [the defendant] was a full arrest search and not a Terry-
type[10] ‘pat down[,]’” so that “[t]he central issue[ was] whether the arrest
was based on probable cause under the Fourth Amendment.” Id. (citation
omitted & emphases added).
On appeal, the Supreme Court concluded that the evidence recovered
from the search should have been suppressed. The Court held that
“movement of an unknown item, or the mere exchange of an unknown item
or items, plus flight, with nothing more, does not establish probable cause
to arrest[.]” Banks, 658 A.2d at 753 (emphasis added). The Court
emphasized: (1) the officer witnessed only one exchange, and did not
observe any drugs or containers commonly used to hold drugs; and (2) the
officer was not responding to a complaint or tip regarding drug transactions.
See id.
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10 Terry v. Ohio, 392 U.S. 1 (1968).
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The present case is readily distinguishable. The question at issue in
Banks was whether the police officer had probable cause to arrest the
defendant, not, as here, whether the officer had reasonable suspicion to
support an investigative detention. Indeed, the officer in Banks arrested the
defendant after witnessing him participate in one suspicious hand-to-hand
transaction and flee the scene when the officer approached. See Banks, 658
A.2d at 752. Here, Officer Walsh simply investigated Appellant after he was
observed: (1) participating in two suspicious transactions in a high drug crime
area; (2) interacting with a bag in the backseat of his vehicle that was parked
in a hotel’s fire zone; and (3) secreting something into the center console
immediately after making eye contact with the officer. Additionally, when
Appellant opened his car window, Officer Walsh recognized an overwhelming
smell of marijuana in the vehicle.11 Thus, Banks is not controlling.
Having determined that Officer Walsh possessed the requisite
reasonable suspicion to investigate Appellant, we now turn to Appellant’s claim
challenging the officer’s decision to remove him from the vehicle. See
Appellant’s Brief at 24-25, 27-28. Specifically, he insists that Officer Walsh
had no reason to believe he was “armed and dangerous” to support a Terry
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11 We note Officer Walsh’s investigation was not precluded by
Commonwealth v. Barr, 266 A.3d 25 (Pa. 2021). In that case, the Supreme
Court held that “the odor of marijuana alone does not amount to probable
cause to conduct a warrantless search of a vehicle, but, rather, may be
considered a factor in examining the totality of the circumstances.” Id. at 44
(emphasis added). Here, the odor of marijuana was but one factor supporting
Officer Walsh’s reasonable suspicion to investigate Appellant.
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stop. See id. Appellant’s argument is misplaced. Here, Officer Walsh did not
order Appellant out of the vehicle so that he could frisk him. Rather, he did
so for his own safety, based on the fact that he observed Appellant secrete
something in the center console. See N.T., 2/17/22, at 14.
Our Supreme Court has recognized expressly that an officer
conducting a valid traffic stop may order the occupants of a vehicle
to alight to assure his own safety. This is true even absent a
reasonable suspicion that criminal activity is afoot.
Commonwealth v. Palmer, 145 A.3d 170, 173 (Pa. Super. 2016) (citations
& quotation marks omitted). Because he did not direct Appellant to exit the
vehicle so he could conduct a pat-down search, Officer Walsh was not required
to possess reasonable suspicion that Appellant was armed and dangerous.
Thus, this claim fails.
Appellant next challenges the voluntariness of his consent to search the
vehicle.12 He insists he had no choice but to agree to the search after he was
ordered out of the vehicle by Officer Walsh “accompanied by at least three . .
. other armed, and uniformed members of the HEAT detail[.]” Appellant’s
Brief at 31. Indeed, Appellant questions what other response would have
been appropriate:
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12 To the extent Appellant relies upon argument and caselaw involving a
consent to search provided after a defendant has been “unlawfully detained,”
we emphasize our conclusion, supra, that Appellant was not unlawfully
detained by Officer Walsh. See Appellant’s Brief at 29-30. Rather, the officer
possessed the requisite reasonable suspicion to investigate and briefly detain
him.
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Perhaps a defendant should respond in the negative, thereby
further jeopardizing officer safety by escalating the use of force
continuum to effectuate the search? Imaginably, the defendant
should simply flee to avoid apprehension or search, thereby
endangering not only law enforcement officials but also the
community at large. Unsurprisingly, the correct course of action
is acquiescence to the instructions of law enforcement and pray a
[c]ourt recognizes the readily apparent; that Appellant felt he had
no choice but to acquiesce to the requests of law enforcement
under the circumstances.
Id. at 31-32 (emphasis omitted). He emphasizes that he was stopped “for a
fake, pretextual noise complaint, was surrounded by four . . . additional armed
uniformed officers, and was never advised of his absolute, constitutional right
to refuse consent to search his vehicle.” Id. at 32. Under these
circumstances, Appellant argues that he had no choice but to consent to the
search. See id.
In considering the validity of a defendant’s consent to search, we begin
with the premise that “[w]here the underlying encounter is found to be lawful,
voluntariness [of the consent] becomes the exclusive focus.”
Commonwealth v. Strickler, 757 A.2d 884, 888-89 (Pa. 2000).
[T]he Commonwealth bears the burden of establishing that a
consent is the product of an essentially free and unconstrained
choice — not the result of duress or coercion, express or implied,
or a will overborne — under the totality of the circumstances.
[W]hile knowledge of the right to refuse to consent to the search
is a factor to be taken into account, the Commonwealth is not
required to demonstrate such knowledge as a prerequisite to
establishing a voluntary consent. Additionally, although the
inquiry is an objective one, the maturity, sophistication and
mental or emotional state of the defendant (including age,
intelligence and capacity to exercise free will), are to be taken into
account. . . .
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Id. at 901 (citations omitted). This Court has considered the following factors
relevant in determining whether a defendant’s consent was valid:
1) the presence or absence of police excesses; 2) whether there
was physical contact; 3) whether police directed the citizen’s
movements; 4) police demeanor and manner of expression; 5)
the location of the interdiction; 6) the content of the questions
and statements; 7) the existence and character of the initial
investigative detention, including the degree of coerciveness; 8)
whether the person has been told that he is free to leave; and 9)
whether the citizen has been informed that he is not required to
consent to the search.
Commonwealth v. Benitez, 218 A.3d 460, 480 (Pa. Super. 2019) (citation
omitted).
In concluding Appellant’s consent to search was voluntary, the trial court
opined:
The interaction was recorded on Officer Walsh’s body camera. The
video depicts [Appellant] standing at the rear of his vehicle,
Officer Walsh standing in front of him having a conversation, and
another uniformed officer standing to the left and slightly behind
[Appellant]. Officer Walsh asked [Appellant] what he threw into
the center console, and [Appellant] said it was his blunt.
[Appellant] then produced his medical marijuana card for Officer
Walsh and explained he had just moved to Kentucky.
Officer Walsh asked [Appellant] for his driver’s license,
which he produced, along with a temporary license from Kentucky.
He then asked [Appellant] about what his plans were for the
evening, and then explained that Pennsylvania’s medical
marijuana law does not permit an individual to consume it by
smoking. The two had a brief conversation about medical
marijuana and agreed that the law did not make sense, but Officer
Walsh said it was the law, nonetheless. During this conversation,
a third . . . uniformed officer is standing to the left of Officer Walsh
and in proximity to [Appellant]. Officer Walsh handed
[Appellant’s] driver's license and medical marijuana card to that
officer who went back to his vehicle to presumably run the
information.
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[Appellant] asked why there were so many officers for
someone smoking marijuana, and Officer Walsh said that they
were at Howard Johnson to investigate a noise complaint when he
observed [Appellant] in his vehicle. He then asked [Appellant]
how much marijuana was in the car and [Appellant] responded
that he was “just rolling a blunt.” [Appellant told] Officer Walsh
that he put the blunt in the center console. Thereafter, Officer
Walsh asked [Appellant] if he could search the vehicle while the
other officer ran his information. [Appellant] responded, “go
ahead ─ I don’t got nothing to hide.”
This Court finds no evidence that [Appellant’s] consent was
not voluntarily given. First, there was no excessive or
overwhelming police presence. The body camera footage shows
a total of three . . . uniformed officers and at least one . . . marked
police vehicle directly behind [Appellant’s] vehicle. Second, no
physical contact occurred between [Appellant] and the officers.
[Appellant] was not in custody and remained freely standing in
the parking lot while officers and [Appellant] maintained a cordial
tone. Third, officers did not direct [Appellant’s] movements
beyond asking him to step out of the vehicle. Fourth, with respect
to the officer’s demeanor, they maintained a polite and friendly
conversational tone throughout the entire investigation. In fact,
Officer Walsh can be heard laughing at one point. Fifth, the
investigation occurred in the parking lot of Howard Johnson where
[Appellant’s] vehicle was illegally parked in the fire lane.
As described above with respect to the content of the
questions and statements, Officer Walsh engaged in standard
questioning of [Appellant]. He asked [Appellant] standard
questions about what he was doing, where he was going, and
appropriate follow-up questions based upon [Appellant’s]
answers. [Appellant’s] entire interaction with officers was
conversational and calm. None of the officers raised their voices
at [Appellant] or exerted any physical control over him. There
were no signs of duress or use of any coercive tactics as a means
of inducing consent. Officer Walsh explicitly asked [Appellant] if
he could search his vehicle to confirm that the only marijuana in
the vehicle was the blunt he was about to smoke, and [Appellant]
consented. Lastly, while [Appellant] was never expressly told that
he was free to leave or that he did not have to consent, this Court
finds that based on the totality of the circumstances, such an
omission does not nullify [Appellant’s] consent.
Trial Ct. Op. at 11-13 (record citations omitted).
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Upon our review of the record, including Officer Walsh’s body cam
footage, we detect no basis to disturb the trial court’s ruling. Both Officer
Walsh and Appellant were cordial and respectful of each other.13 Appellant
was cooperative with the officers and candidly acknowledged that he stashed
a rolled blunt in the center console. See Body Cam Footage at 1:00-1:05.
He provided the officer with his Pennsylvania medical marijuana card and
driver’s license, as well as a temporary license from Kentucky where he stated
he had recently moved. See id. at 1:05-1:34. Officer Walsh informed
Appellant that it was not proper to smoke medical marijuana in Pennsylvania,
and both Appellant and another officer joked that the law did not make sense.
See id. at 2:07-3:01. Although there were two or three additional officers
present on the body cam footage, none of them touched Appellant, directed
his movement, or drew their weapons. About four minutes after his initial
approach, Officer Walsh asked Appellant, “How much weed to do you have in
the car?” to which Appellant responded, “I was just rolling a blunt.” Id. at
3:57-4:01. He stated that it was in the middle console, and that he had
“nothing to hide.” Id. at 4:01-4:08. Officer Walsh then stated, “Well if that’s
____________________________________________
13 We reiterate the trial court’s observation that the body cam footage
exemplified how an interaction between police and a citizen should be
conducted. See N.T., 2/17/22, at 64 (“I see a lot of surveillance body cam
videos [and t]his is probably one that ought to be used in . . . training . . . as
to how to conduct an investigation with total courtesy [and] professionalism”),
69 (court commending Appellant on how he “interact[ed] with the police
without having things escalate”); N.T., 7/22/22, at 26 (court noting “how
impressed [it] was with the police officers” during the encounter, and “how
perfectly polite and civilized” Appellant was).
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the case . . . do you mind if I check your car to make sure that’s all you have
in there?” Id. at 4:28-4:32. Appellant gestured toward the car and said, “Go
ahead. I ain’t got nothing to hide.” Id. at 4:32-4:34. At no time did Appellant
appear nervous or under duress, and Officer Walsh’s tone at all times was
conversational.
We conclude the facts in the present case are similar to those in
Benitez. In that case, at 11:55 p.m., the officer conducted a traffic stop of
the defendant’s vehicle because it had a suspended registration. Benitez,
218 A.3d at 463. The defendant, who had one passenger, pulled over without
incident. See id. The officer approached the passenger side and asked for
the defendant’s license, registration and insurance, which the defendant
eventually provided. See id. at 463-64. The defendant indicated it was his
friend’s car. See id. Upon questioning, the defendant told the officer he was
coming from New York to Philadelphia to see his girlfriend. See id. at 464.
The officer had requested backup, who arrived approximately six minutes after
the stop. See id.
The two officers discussed the fact that the defendant presented some
“indicators of drug trafficking,” including the fact that the vehicle was being
operated with a single key, had an expired registration and insurance, was
registered to someone in Pennsylvania although the defendant was from New
York, and was a “third party car with a new tag[.]” Benitez, 218 A.3d at 464-
65 (record citations & quotation marks omitted). Approximately 13 minutes
after the stop, an officer asked the defendant to step out of the vehicle and
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walked him to the curb. See id. at 465. He then “asked [the defendant] if
he had any weapons on him and whether [he] minded if the officer frisked
him.” Id. (record citation & quotation marks omitted). The defendant raised
his hands in response, and the officer continued to ask him about his travel
while conducting a pat-down frisk. See id. The officers eventually received
information that there was “an open investigation” of the defendant and that
he had been stopped in the past in a car with a hidden compartment for drugs.
See id. at 465-66.
During the course of the stop, two additional officers arrived, one with
his K-9 unit. See Benitez, 218 A.3d at 466. The K-9 detective spoke with
the defendant and asked if he could remove food bags from the car since he
was going to conduct a K-9 search. See id. at 468. The defendant agreed.
Thereafter, the detective asked if there were any drugs in his car, to which
the defendant responded, “No.” Id. (record citation & quotation marks
omitted). The detective then asked if they could search the car, and the
defendant said “Yes, that’s fine.” Id. (record citation & quotation marks
omitted). The K-9 unit indicated the presence of narcotics, and the officers
subsequently discovered a hidden compartment containing more than 4 grams
of heroin. See id. at 468-69. The request to search was made about 30
minutes after the initial stop. See id. at 467.
The trial court denied the defendant’s pretrial motion to suppress, and
on appeal, the defendant argued, inter alia, that “his consent to a K-9 search
was [not] valid under the circumstances.” See Benitez, 218 A.3d at 478. He
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emphasized: “[T]here were numerous uniformed police officers at the scene,
he was frisked and ordered to remain outside of the car, and [the officer]
retained the paperwork that [the defendant] had passed to [him].” Id.
Moreover, the officers “failed to use a standard consent form to ensure an
informed and voluntary consent[,]” and failed to inform him he had the right
to refuse the search. Id. Additionally, the defendant noted that “it did not
appear [he] had any real choice in the matter since the K-9 search appeared
imminent regardless of what he said.” Id. at 479 (record citation omitted).
Upon review, a panel of this Court affirmed the trial court’s ruling that
the defendant’s consent to search “was a free and unconstrained choice.”
Benitez, 218 A.3d at 483. In finding the consent was voluntary, the trial
court noted: (1) although there were a “handful of . . . officers present at the
scene of the traffic stop[,]” there was not an “excessive or overwhelming
police presence[;]” (2) the defendant was not in custody or physically
restrained; (3) the officers did not “direct [the defendant’s] movement” and
“maintained a polite and conversational tone[;]” (4) “the police engaged in
standard questioning of the” defendant; (5) “[t]here were no signs of duress
or use of any coercive tactics . . . as a means of inducing [the defendant’s]
consent[;]” and (6) although the officers did not inform the defendant of his
right to refuse the search, that “factor did not outweigh the totality of the
circumstances that [his] consent . . . was voluntary.” Id. at 482-83 (record
citation omitted). The Benitez panel determined the record supported the
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trial court’s findings, and therefore rejected the defendant’s challenge to the
voluntariness of his consent. Id. at 483.
The facts in the present case are even more benign than those presented
in Benitez. As in Benitez, both Appellant and the officers were cordial and
spoke in a conversational tone. There is no indication Appellant was under
duress or that the officers coerced him into providing consent to search. In
fact, Appellant agreed to the search less than five minutes after he was
approached. Moreover, when Officer Walsh asked for Appellant’s consent, he
was already aware that Appellant possessed marijuana (a controlled
substance) in the vehicle, and that he was using it in a manner inconsistent
with medical marijuana laws. Thus, Appellant is entitled to no relief.
Lastly, Appellant contends that the search of his vehicle was violative of
Alexander, which requires a showing of both probable cause and exigent
circumstances in order to justify a warrantless search of a vehicle. See
Appellant’s Brief at 33-34. However, Appellant fails to acknowledge that
consent to search is an exception to the warrant requirement. See
Commonwealth v. Knupp, 290 A.3d 759, 769 (Pa. Super. 2023).
Accordingly, here, “Appellant relieved the Commonwealth of any burden to
show . . . probable cause and exigent circumstances for a warrantless
automobile search by consenting to a search.” See id. Because we have
already determined Appellant’s consent was valid, his final challenge to the
trial court’s suppression ruling fails.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/06/2023
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