Com. v. DeLeon Gonzalez, J. ( 2023 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
JOSE M. DE LEON GONZALEZ : No. 932 WDA 2022
Appeal from the Suppression Order Entered June 30, 2022
In the Court of Common Pleas of Somerset County
Criminal Division at No(s): CP-56-CR-0000087-2021
BEFORE: PANELLA, P.J., BENDER, P.J.E., and PELLEGRINI, J.*
MEMORANDUM BY PANELLA, P.J.: FILED: AUGUST 7, 2023
The Commonwealth of Pennsylvania appeals from the Somerset County
Court of Common Pleas’ order granting Jose De Leon Gonzalez’s motion to
suppress evidence obtained pursuant to a warrantless search of the truck he
was driving following a traffic stop. After careful review, we affirm on the basis
of the well-reasoned opinion of the trial court.
The Commonwealth filed a criminal complaint charging Gonzalez with
intent to deliver and possession of a controlled substance after 770 bricks of
heroin/fentanyl were found in the vehicle he was driving during a traffic stop.
Gonzalez filed an omnibus pretrial motion seeking to suppress evidence
recovered from the warrantless search.
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* Retired Senior Judge assigned to the Superior Court.
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On June 28, 2022, the trial court held a suppression hearing. The court
heard testimony from Pennsylvania State Trooper Glenn Adams who
conducted the traffic stop. Following the hearing, the court granted the
suppression motion.1 The Commonwealth filed a notice of appeal, certifying
that the court’s suppression order would substantially handicap the
prosecution of its case pursuant to Pa.R.A.P. 311(d). The Commonwealth also
complied with the trial court’s directive to file a Pa.R.A.P. 1925(b) statement
of errors complained of on appeal.
In response, the trial court filed a Pa.R.A.P. 1925(a) opinion. In its
opinion, the trial court summarized the relevant facts leading to the court’s
decision to grant the suppression motion as follows:
On January 5, 2021, at approximately 8:00 p.m., Pennsylvania
State Trooper Glenn Adams conducted a traffic stop of [Gonzalez]
for traveling in the passing lane on I-76 west, in violation of the
Pennsylvania Vehicle Code. Trooper Adams eventually conducted
a search of Gonzalez's van which revealed 770 bricks of
heroin/fentanyl. The majority of the interactions between Trooper
Adams and Gonzalez during the stop were captured on a motor
vehicle recording ("MVR") from either a dashboard or passenger
window camera viewpoint.
…
Once Gonzalez pulled off to the shoulder of the interstate, Trooper
Adams approached the van and asked Gonzalez for his
identification, registration, and proof of insurance. Gonzalez
handed an identification card from the Dominican Republic to
Trooper Adams, while the insurance and registration was under a
third person. Trooper Adams then asked [Gonzalez] to "[p]lease
____________________________________________
1 The trial court entered the order on June 28, 2022. However, the order was
not docketed as filed until June 30, 2022.
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come on with me and bring your jacket. I'm going to get you a
warning, OK? We will just conduct this stop [at] my vehicle. It's
safer for me, OK? I'll tell you why I stopped you. Come on back."
Gonzalez exited the van, Trooper Adams patted him down and told
Gonzalez "You can stay by my passenger side window, OK?" Once
Trooper Adams entered his patrol car, he began to ask Gonzalez
questions. Gonzalez was standing outside of the patrol car, looking
inside through the passenger window. Trooper Adams testified, "it
was slightly raining. It was cold."
Trooper Adams asked a series of questions while he
simultaneously investigated the validity of the identification and
registration by using his computer. Trooper Adams asked "[i]s
that [van] yours? ... What's his name? ... Where are you coming
from?" Gonzalez answered these questions in English, but usually
after stating "ah?" as to prompt Trooper Adams to repeat his
question. It is not clear whether the noise of the interstate, a
language barrier, or a combination of both, caused this response
from Gonzalez. Trooper Adams then asked "Where are you going?
... A donde? ... Where do you live? … Donde vive?" The Spanish
version of the questions appeared to assist Gonzalez's
comprehension because he answered quicker. Gonzalez answered
"I have the address right now... Me? ... Reading, [Pennsylvania]."
A few minutes later Trooper Adams asked "How long are you going
to be in, hmm, in Pittsburgh ... how long?" Gonzalez, with a
confused look on his face, did not respond. Trooper Adams
rephrased, “Cuanto tiempo en Pittsburgh?" Again, the Spanish
version of the question got a quick response from Gonzalez, "Me?
... I'm going to pick [up] and come back."
Trying to figure out the van owner's full name and as his questions
got more intricate, Trooper Adams began to use his cell phone as
an English to Spanish translator. Trooper Adams asked through
his cell phone translator "How long have you known him?" The cell
phone articulated Trooper Adams' questions in Spanish. As
Gonzalez began to formulate his response in English, Trooper
Adams asked him to speak "en Espanol" to the phone, so it would
be translated back into English. Each time questions were
translated into Spanish for Gonzalez, he answered without
hesitation. Trooper Adams used his cell phone as a translation
service for approximately three minutes before reverting back to
English. When asked at the suppression hearing about the
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translation service, Trooper Adams explained that he "felt like we
both understood what each other were saying more when we were
speaking in English" and that the cell phone translation "muddied
the waters a little bit."
After reminding Gonzalez that he was only giving him a warning,
Trooper Adams asked if there was anything illegal in the van, to
which Gonzalez responded "I'm sorry?" Trooper Adams clarified
by asking if there were any "drogas", Spanish for drugs, in the
van. Gonzalez responded "No, nothing. You can check it."
Acknowledging at the suppression hearing that there was a "small
language barrier", Trooper Adams attempted to obtain written
consent. Trooper Adams handed Gonzalez a Spanish consent to
search form because "I wanted Mr. De Leon Gonzalez to know
clearly what I was asking and what his options were" and Trooper
Adams "presume[d] that [Spanish] is his first language [and] that
he would be better able to understand." Trooper Adams did not
identify what the form was when he handed the form over to
Gonzalez. When asked at the suppression hearing why he did not
identify the form to Gonzalez, Trooper Adams stated "I think I was
a little bit thrown off when he said -- when he started saying: ‘You
can check it.’ And maybe I -- it slipped my mind."
A translator named Mr. Alejanro Pinzon read the Spanish consent
form into the record at the suppression hearing. Part of the
Spanish consent form translated into English stated "[a]rticles
that will be looked for or confiscated, if found" to which Trooper
Adams handwrote in the words "All contents any contraband" in
English. The form also stated "I understand I have the right to
refuse or deny this petition ... police may not be able to do this
search without authorization." While handing the Spanish consent
form to Gonzalez, Trooper Adams stated "You review it and then
sign it after your read it". After Trooper Adams watched Gonzalez's
"eyes track across the paper", Gonzalez responded "OK", and
handed it back. Gonzalez did not sign the Spanish consent form
prior to handing it back. Trooper Adams replied "I'm going to have
you sign it in a second, OK?"
Between the time of requesting Gonzalez's signature and receiving
it, Trooper Adams was communicating with his back-up through
his computer, waiting for the back-up to arrive to safely conduct
the search, and finishing documents related to the traffic stop.
When Trooper Adams handed the Spanish consent form back to
Gonzalez, he testified that he stated "[w]ith everything on the
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form in mind, if you consent, can you sign the prescribed lines?",
however, the statement according to the MVR was "[w]ith all that
in mind, can you sign top and print in bottom, please". After this
statement, Gonzalez complied and signed the form.
It is not clear when, if at all, Gonzalez was given back his
identification, registration, and insurance documents. In addition,
the MVR was played at the suppression hearing but only until
Gonzalez signed the Spanish consent form and nothing further.
Gonzalez completed his signature at approximately the 21:25
minute mark of the MVR.
Trial Court Opinion, 10/14/22, at 1-5 (citations omitted). The trial court
explained that it granted Gonzalez’s motion to suppress because it found the
Commonwealth was unable to meet its burden with respect to proving the
validity of the roadside consent. See id. at 11; see also Suppression Order,
6/30/22. Further, the court put its reasons for suppression on the record as
follows:
Consent still remains a dangerous area. And when you have a big
fish on the line or if you think you have a big fish on the line, you
better know that you have your consent locked up.
Now, let's walk through the steps of what happened here.
The stop was good. The stop was good. I can see with my own
eyes that the defendant was driving in the left lane for some
period of time. Nothing drives me more crazy than being in a left
lane on the Turnpike and then have somebody going 55 with the
right lane open. The stop was good.
I think that the continued discussion with the defendant along the
roadside developing information that was supported by
reasonable suspicion was good. It was fine.
But what the Trooper developed along the road that evening was
the reasonable suspicion to have a dog called to the scene, who
would have alerted for sure, and then probable cause would have
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been secured by a search warrant or a search warrant would have
been issued as a result of the issue of the probable cause.
The Commonwealth has the burden of establishing that the
consent was knowing, voluntary, freely given, and I don't believe
in this instance, this instance, handing the document to the
defendant and saying " Sign here" was good enough.
Now, I'm going to change the facts a little bit. Had Trooper Adams
said: This is a consent form. If you sign it, it will give me the right
to search your vehicle and all of its contents. You understand that
you are not obligated to sign this.
Those extra words would have secured the consent, but there's
too much left to doubt in terms of the Commonwealth's burden
here for the Court to find that this consent meets the legal
standard required of our constitution.
I say out loud that I have no objection to aggressive drug
interdiction along our highways. If nothing else, an awful lot of
drugs were taken off the street that night and they don't have to
be returned. But if you want to go the next step and secure
prosecutions and convictions, you have to be more careful.
N.T., 6/28/22, at 65-67.
On appeal, the Commonwealth argues the suppression court erred in
concluding Gonzalez’s consent was not knowing, intelligent and voluntary.
When this Court reviews a Commonwealth appeal from an order
granting suppression, as we are tasked to do here, we may only consider the
evidence produced at the suppression hearing and then, only that evidence
which comes from the defendant’s witnesses, along with the Commonwealth’s
evidence which remains uncontradicted. Commonwealth v. Barr, 266 A.3d
25, 29 (Pa. 2021). We must determine, in the first instance, whether the
suppression court’s factual findings are supported by the record and if they
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are, we are bound to those findings. See id. We must always keep in mind
that the suppression court, as fact-finder, has the exclusive ability to pass on
the credibility of witnesses. See Commonwealth v. Fudge, 213 A.3d 321,
326 (Pa. Super. 2019). Therefore, we will not disturb a suppression court’s
credibility determinations absent a clear and manifest error. See id. at 326-
327.
We must also determine whether the legal conclusions the suppression
court drew from its factual findings are correct. See Barr, 266 A.3d at 39.
Unlike the deference we give to the suppression court’s factual findings, we
have de novo review over the suppression court’s legal conclusions. See
Commonwealth v. Brown, 996 A.2d 473, 476 (Pa. 2010).
It is well-settled that a search conducted without a warrant is
unreasonable and unconstitutional unless an established
exception to the warrant requirement applies. One such exception
is consent[.]
To establish a valid consensual search, the Commonwealth must
first prove that the consent was given during a legal police
interaction. Next, the Commonwealth must prove the consent was
given voluntarily. To be considered valid, the consent must be the
product of an essentially free and unrestrained choice — not the
result of duress or coercion, express or implied, or a will
overbourne — under the totality of the circumstances.
Commonwealth v. Carmenates, 266 A.3d 1117, 1124 (Pa. Super. 2021)
(en banc) (citations and internal quotation marks omitted). Here, the legality
of the police interaction is not disputed. Accordingly, we direct our analysis to
the second part of the test only - whether the consent was valid.
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To determine whether a consent is valid when provided close in time to
a traffic stop, courts consider the following factors:
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 its degree of coerciveness; 8)
“the degree to which the transition between the traffic
stop/investigative detention and the subsequent encounter can be
viewed as seamless, ... thus suggesting to a citizen that his
movements may remain subject to police restraint,”; 9) the
“presence of an express admonition to the effect that the citizen-
subject is free to depart is a potent, objective factor;” and 10)
whether the citizen has been informed that he is not required to
consent to the search.
Id. (citation omitted).
After a thorough review of the record, the briefs of the parties, the
applicable law, and the well-reasoned opinion of the trial court we conclude
the Commonwealth is due no relief. Following our review of the totality of the
circumstances, we can find no error in the trial court’s analysis and conclusion
that Gonzalez’s consent was not knowing, intelligent, and voluntary. The trial
court opinion properly addresses the suppression claim, and we adopt it as
our own. See Trial Court Opinion, 10/14/22, at 6-7 (thoroughly addressing
the 10 factors for assessing consent, and finding that factors 2, 3, 7, 8, 9, and
10 weighed against a finding that Gonzalez consented to the search); see
also id. at 7-11 (thoroughly addressing the similarities between this case and
Carmenates, and highlighting that: neither Gonzalez nor Trooper Adams
used the word “search;” Trooper Adams did not ask Gonzalez if he could read
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or understand the Spanish language consent form; Trooper Adams did not
explain what the Spanish language consent form was when he handed it to
Gonzalez, and Trooper Adams did not offer a reason for this failure; Trooper
Adams never informed Gonzalez that he could refuse to sign the Spanish
language consent form, and in fact directed Gonzalez to sign it.). Accordingly,
the trial court properly suppressed the evidence seized pursuant to the search.
Order affirmed. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/7/2023
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