J-A09026-16
2016 PA Super 253
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
JASON ROBERT RANDOLPH
Appellant No. 1246 MDA 2015
Appeal from the Judgment of Sentence July 14, 2015
In the Court of Common Pleas of Centre County
Criminal Division at No(s): CP-14-CR-0000594-2013
BEFORE: FORD ELLIOTT, P.J.E., JENKINS, J., and PLATT, J.*
OPINION BY JENKINS, J.: FILED NOVEMBER 16, 2016
Jason Randolph appeals from his aggregate judgment of sentence of
5½-11 years’ imprisonment for possession with intent to deliver a controlled
substance, possession of a controlled substance, possession of drug
paraphernalia and possession of an instrument of crime.1 Randolph
contends that the trial court erred in denying his motion to suppress all
evidence that Corporal Brett Hanlon of the State Police seized from a box
welded to his motor vehicle following a traffic stop on Interstate 80.
Although Corporal Hanlon obtained valid consent from Randolph to
search the vehicle at the scene of the traffic stop, and although the corporal
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*
Retired Senior Judge assigned to the Superior Court.
1
35 P.S. § 780-113(a)(30), (a)(16) and (a)(32), and 18 Pa.C.S. § 907(a),
respectively.
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correctly decided to apply for a warrant to search the box, the application
failed to establish probable cause that the box would contain contraband or
evidence of crime. Therefore, we vacate Randolph’s judgment of sentence
and remand for further proceedings consistent with this opinion.
On March 7, 2013, Randolph was arrested following a traffic stop on
Interstate 80 and the execution of the search warrant for the box welded to
his motor vehicle. The trial court held a suppression hearing and
subsequently entered an order denying Randolph’s motion to suppress. The
case proceeded to trial, and a jury found Randolph guilty of all charges.
On June 14, 2015, the trial court imposed sentence. On June 20,
2015, Randolph filed a notice of appeal. Both Randolph and the trial court
complied with Pa.R.A.P. 1925.
Randolph raises three issues in this appeal:
1. Did the suppression court err in holding that the
Commonwealth presented sufficient evidence that [Randolph’s]
consent to search was not the product of duress and coercion?
2. Did the suppression court err in finding that the search
warrant for [Randolph’s] vehicle contained sufficient probable
cause to justify its issuance?
3. Did the trial court err in permitting the Commonwealth to
present hearsay testimony from a trooper in testifying about
reports from other troopers that discussed the fingerprint and
cell phone analysis?
Brief For Appellant, at 4.
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Preliminarily, we address a jurisdictional issue. On June 24, 2015 --
after Randolph filed his notice of appeal but within ten days after imposition
of sentence -- the Commonwealth filed a motion to modify Randolph’s
sentence. On September 18, 2015, the trial court denied the
Commonwealth’s motion. In this Court, the Commonwealth has moved to
quash Randolph’s appeal as premature due to the filing of the
Commonwealth’s motion to modify sentence within ten days after imposition
of sentence.
We deny the Commonwealth’s motion to quash. Pa.R.A.P. 905(a)(5)
provides: “A notice of appeal filed after the announcement of a
determination but before the entry of an appealable order shall be treated as
filed after such entry and on the day thereof.” Rule 905(a)(5) applies where
a criminal defendant files an appeal followed by the Commonwealth’s filing
of a timely motion to modify sentence. Comment, Pa.R.Crim.P. 720;
Darlington, Pennsylvania Appellate Practice, § 905:3. Pursuant to Rule
905(a)(5), we treat Randolph’s appeal as timely filed after entry of the order
denying the Commonwealth’s motion to modify.
In his first two arguments on appeal, Randolph objects to the denial of
his motion to suppress. In an appeal from the denial of a motion to
suppress,
[our] standard of review … is limited to determining whether the
suppression court’s factual findings are supported by the record
and whether the legal conclusions drawn from those facts are
correct. Because the Commonwealth prevailed before the
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suppression court, we may consider only the evidence of the
Commonwealth 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 suppression court’s factual findings are
supported by the record, [the appellate court is] bound by
[those] findings and may reverse only if the court’s legal
conclusions are erroneous. Where … the appeal of the
determination of the suppression court turns on allegations of
legal error, the suppression court’s legal conclusions are not
binding on an appellate court, whose duty it is to determine if
the suppression court properly applied the law to the facts.
Thus, the conclusions of law of the courts below are subject to []
plenary review.
Commonwealth v. Jones, 988 A.2d 649, 654 (Pa.2010).
Corporal Hanlon was the lone witness at Randolph’s suppression
hearing, and the Commonwealth also submitted a videotape of the traffic
stop into evidence. The trial court’s findings of fact are consistent with
Corporal Hanlon’s testimony and the videotape.
Corporal Hanlon, a state trooper for 18 years, was assigned to the
Bureau of Emergency Special Operations in the K-9 unit. On the morning of
March 7, 2013, Corporal Hanlon’s patrol vehicle was parked on I-80. A K-9
dog, Draco, accompanied the corporal in his patrol vehicle. Suppression
Hearing (“SH”), at 11-12.
At approximately 10:30 a.m., Randolph drove his Chrysler Town &
Country minivan past the corporal’s parked patrol cruiser on I-80. Corporal
Hanlon initiated a traffic stop because the minivan’s windows contained an
illegal tint and because he could not see the registration on the license plate.
The driver parked the vehicle very close to the fog line. Corporal Hanlon
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referred to this as “white lining”, a technique he has observed drug
traffickers use to expedite the traffic stop by discouraging the police officer
from approaching the driver side of the vehicle.
Randolph was driving the van along with one passenger. Corporal
Hanlon requested Randolph’s license, registration, and insurance and
returned to his patrol cruiser with these documents. SH, at 14-18.
Corporal Hanlon ran Randolph’s information and found that he had a
prior drug trafficking conviction. After about twenty minutes, the corporal
returned to Randolph’s vehicle and directed him to exit the van. The
corporal observed that there were no rear seats in the van. While he
explained the Vehicle Code violations to Randolph, a second trooper, Trooper
Rowland, operating a marked patrol cruiser, arrived on scene and joined the
conversation. Corporal Hanlon advised Randolph that he was issuing a
written warning and told Randolph that he was free to leave. SH, at 19, 22.
Moments later, however, Corporal Hanlon asked whether he could ask
Randolph additional questions about his trip. The corporal did not tell
Randolph that he did not have to answer any further questions. Randolph
told the corporal that he and his wife had just moved from South Carolina to
New Jersey, which was why there were no seats in his van. He said that she
had just had a baby, and that he was travelling from Newark, New Jersey to
Columbus, Ohio to visit a family member in the hospital. He added that his
aunt’s grandmother was in a car accident and was hospitalized with a broken
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leg. When he repeated his account, however, he said that that he was going
to visit his aunt instead of his aunt’s grandmother. Randolph stated he had
no luggage in the van and did not plan on staying the night in Columbus,
even though it was a 16-hour round trip. When asked, Randolph could not
name the hospital in Columbus that he was visiting. Trooper Hanlon found it
strange that Randolph was traveling far away from home without his wife or
their baby. Randolph admitted that he had a prior drug-related conviction.
Trooper SH, at 23-28.
During this conversation, Trooper Rowland approached the passenger
in the minivan and questioned him. The passenger claimed to be from New
York, which Corporal Hanlon found strange because Randolph was from
South Carolina. SH, at 23-28.
Corporal Hanlon asked Randolph for consent to search the minivan,
and Randolph consented. Both Defendant and the passenger were patted
down and asked to stand in front of the vehicle. The K-9, Draco, searched
the vehicle but did not alert to anything. Corporal Hanlon and Trooper
Rowland then searched the vehicle. Corporal Hanlon saw no luggage in the
minivan, but he heard multiple cell phones ringing and seized the cell
phones. When he checked between the driver and passenger seats, he
observed a steel box extending downward from the floor that was welded to
the vehicle. The box did not match the remainder of the undercarriage.
Suspecting that the box contained drugs, Trooper Hanlon questioned
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Randolph about the box, and Randolph’s demeanor immediately became
defensive. The corporal impounded the vehicle and obtained a warrant to
search the compartment. SH, at 28-35.
It took considerable effort to open the compartment, which was only
accessible through a door underneath the passenger seat of the minivan.
The door was battery powered and could only be opened by removing the
passenger door and applying power through wires connected to the door.
The corporal managed to open the compartment by attaching alligator clips
to the door and applying power. Inside the compartment were 550 grams of
cocaine and a digital scale. SH, at 35-39.
Preliminarily, Randolph does not dispute that the initial traffic stop was
legal. Nor could he, because the evidence demonstrates that Corporal
Hanlon had probable cause to believe that Randolph violated the Vehicle
Code by driving with tinted windows. See 75 Pa.C.S. § 4524(e)(1) (“no
person shall drive any motor vehicle with any sun screening device or other
material which does not permit a person to see or view the inside of the
vehicle through the windshield, side wing or side window of the vehicle”).
We conclude that Randolph’s consent to search his vehicle was valid,
because the traffic stop had become a mere encounter by the time Corporal
Hanlon obtained Randolph’s consent, and because Randolph’s consent was
voluntary.
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Mere encounter. The Fourth Amendment to the United States
Constitution and Article I, Section 8 of the Pennsylvania Constitution both
protect against unreasonable searches and seizures. U.S. Const. amend. IV;
Pa. Const. art. I, § 8; Schneckloth v. Bustamonte, 412 U.S. 218, 219
(1973); Commonwealth v. Cleckley,
738 A.2d 427, 433 (Pa.1999). A
search conducted without a warrant is constitutionally impermissible unless
an established exception applies. Commonwealth v. Slaton,
608 A.2d 5,
8–9 (Pa.1992). A consensual search is one such exception, and the central
inquiries in consensual search cases entail assessment of the constitutional
validity of the citizen/police encounter giving rise to the consent, and the
voluntariness of the consent given. Cleckley,
738 A.2d at 433. To establish
a valid consensual search, the Commonwealth must first prove that the
individual consented during a legal police interaction. Commonwealth v.
Strickler,
757 A.2d 884, 889 (Pa.2000). Where the interaction is lawful, the
voluntariness of the consent becomes the exclusive focus. Id.;
Commonwealth v. Acosta,
815 A.2d 1078, 1083 (Pa.Super.2003) (en
banc ).
Pennsylvania case law recognizes three categories of interaction
between police officers and citizens. The first is a “mere encounter,” which
need not be supported by any level of suspicion. Acosta, 815 A.2d at 1082.
The second is an “investigative detention,” which must be supported by
reasonable suspicion.
Id. This interaction “subjects a suspect to a stop and
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a period of detention, but does not involve such coercive conditions as to
constitute the functional equivalent of an arrest.” Commonwealth v.
Phinn, 761 A.2d 176, 181 (Pa.Super.2000). The third category, a “custodial
detention,” must be supported by probable cause.
Id. “The police have
probable cause where the facts and circumstances within the officer’s
knowledge are sufficient to warrant a person of reasonable caution in the
belief that an offense has been or is being committed.” Commonwealth v.
Hernandez,
935 A.2d 1275, 1284 (Pa.2007).
In Commonwealth v. Strickler, 757 A.2d 884 (2000), our Supreme
Court analyzed when a police interdiction can devolve into a mere encounter
following a traffic stop where police continue to question an individual after
the reason for the traffic stop has concluded. The Court ruled that after
police finish processing a traffic infraction, the determination of whether a
continuing interdiction constitutes a mere encounter or a constitutional
seizure centers upon whether the individual would objectively believe that he
was free to end the encounter and refuse a request to answer questions.
The Court adopted a totality-of-the-circumstances approach and articulated
a non-exclusive list of factors to be used in making this assessment. These
factors include 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
and time of the interdiction; 6) the content of the questions and statements;
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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,” Id. at 898; and 9) whether there was an
express admonition to the effect that the citizen-subject is free to depart,
which “is a potent, objective factor.”
Id. at 899. With regard to the last two
factors, Strickler observed:
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, is a pertinent
factor … ‘[F]ew motorists would feel free ... to leave the scene of
a traffic stop without being told they might do so.’ While
recognizing … that the admonition to a motorist that he is free to
leave is not a constitutional imperative, the presence or absence
of such a clear, identified endpoint to the lawful seizure remains
a significant, salient factor in the totality assessment.
Id. at 898-99.
In this case, the trial court held that the traffic stop had devolved into
a mere encounter when Corporal Hanlon told Randolph that he was free to
leave. Corporal Hanlon’s questions to Randolph after telling him that he
was free to leave took place during a mere encounter, not a detention. The
trial court reasoned:
The interaction occurred in the mid-morning. Corporal Hanlon
did not have sirens on his vehicle. The initial investigative
detention described by Corporal Hanlon was not coercive in
nature and the interaction between the Corporal and [Randolph]
was calm and cordial. There was no physical contact prior to
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consent for the search being given and [Randolph’s] movements
were minimally directed in that he was asked to step out of the
vehicle to the rear to receive the warning. [Randolph] was given
a written warning and told that he was free to leave. It was only
after both were headed toward their vehicles that Corporal
Hanlon again spoke to [Randolph].
Pa.R.A.P. 1925 Opinion, at 5. We agree with this analysis. See
Commonwealth v. By, 812 A.2d 1250, 1258 (Pa.Super.2002) (following
valid traffic stop at night, and after telling defendant he was free to leave,
officer’s continued questioning took place during mere encounter, where
officer spoke casually and non-threateningly to passengers, stood on the
passenger's side of the vehicle instead of near driver's door or in front of the
vehicle, and had no contact with defendant before telling him that he was
free to leave).2
____________________________________________
2
Had the interaction between Corporal Hanlon and Randolph not devolved
into a mere encounter, Corporal Hanlon would have needed reasonable
suspicion to continue questioning Randolph after telling him that he was free
to leave. We note, by way of dicta, that the circumstances of this case
provided Trooper Hanlon with reasonable suspicion to continue questioning
Randolph.
During a traffic stop, an officer may develop reasonable suspicion to detain
the vehicle occupants for further investigation. We have defined “reasonable
suspicion” as follows:
[T]he officer must articulate specific observations which, in
conjunction with reasonable inferences derived from these
observations, led him reasonably to conclude, in light of his
experience, that criminal activity was afoot … In order to
determine whether the police officer had reasonable suspicion,
the totality of the circumstances must be considered. In making
(Footnote Continued Next Page)
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_______________________
(Footnote Continued)
this determination, we must give due weight … to the specific
reasonable inferences [the police officer] is entitled to draw from
the facts in light of his experience. Also, the totality of the
circumstances test does not limit our inquiry to an examination
of only those facts that clearly indicate criminal conduct. Rather,
even a combination of innocent facts, when taken together, may
warrant further investigation by the police officer.
Commonwealth v. Smith, 917 A.2d 848, 852 (Pa.Super.2007) (citations
omitted). The officer “may ask the detainee a moderate number of
questions” during a traffic stop “to determine his identity and to try to obtain
information confirming or dispelling the officer’s suspicions.” Berkemer v.
McCarthy,
468 U.S. 420, 439 (1984). “[I]f there is a legitimate stop for a
traffic violation … additional suspicion may arise before the initial stop’s
purpose has been fulfilled; then, detention may be permissible to investigate
the new suspicions.” Commonwealth v. Chase,
960 A.2d 108, 115 n.5
(Pa.2008). Even innocent factors, viewed together, may create reasonable
suspicion that criminal activity is afoot. See Commonwealth v. Caban,
60
A.3d 120, 129-30 (Pa.Super.2012) (following valid traffic stop for speeding,
officer had reasonable suspicion of criminal activity to justify continued
detention of driver and passenger; driver acted nervously, car was owned by
third party not present in vehicle, answers provided by driver and passenger
to basic questions regarding their destination were inconsistent, and various
masking agents, including air fresheners, canisters of perfume, and bottle of
odor eliminator, were present in vehicle).
Corporal Hanlon observed several factors that gave him reasonable suspicion
to believe that criminal activity was afoot. Randolph parked very close to
the fog line, which Corporal Hanlon testified was a technique used by drug
traffickers to discourage officers from approaching the driver side of the
vehicle. Although Randolph was driving from Newark to Columbus, there
were no suitcases or back seats in the vehicle, an odd circumstance for such
a long trip. In addition, Randolph had a prior drug trafficking conviction.
This combination of factors provided reasonable suspicion to detain Randolph
and continue an investigation into possible criminal wrongdoing. See
Caban,
60 A.3d at 129-30.
We also note that decisions from other jurisdictions indicate that a prior
conviction, by itself, does not create reasonable suspicion. See, e.g.,
United States v. Foster,
634 F.3d 243 (4th Cir.2011) (defendant's
“criminal record” not sufficient basis for stop, even with generalized
(Footnote Continued Next Page)
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Consent.3 The Commonwealth bears the burden of proving that the
defendant consented to a warrantless search. See Commonwealth v.
Acosta, 815 A.2d 1078, 1083 (Pa.Super.2003) (en banc). To establish a
voluntary consensual search, the Commonwealth must prove “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.” Strickler,
757 A.2d at 901.
There is no shortage of decisions relating to consent. A convenient
starting point is two decisions issued on the same date by our Supreme
Court: Strickler and Commonwealth v. Freeman, 757 A.2d 903
(Pa.2000).
In Strickler, a police officer observed a car parked along a country
road. Two men were standing near the car and appeared to be urinating.
After questioning the men and verifying the documentation for the vehicle
and the driver, the officer returned the documents to the driver. At that
_______________________
(Footnote Continued)
conclusory assertion defendant presently “under investigation”). Here,
however, there were other suspicious details in addition to Randolph’s prior
conviction.
3
As a threshold matter, when, as here, the defendant is accused of a
possessory crime, he must establish a legally cognizable expectation of
privacy in the area searched. Caban, 60 A.3d at 126. In this case, the
record demonstrates that Randolph was the registered owner of the vehicle
that was the subject of the search. Accordingly, Randolph had a reasonable
expectation of privacy in the areas of the vehicle that Corporal Hanlon and
Trooper Rowland searched.
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time, the officer informed Strickler that it was not appropriate to stop along
the road and urinate on someone’s property. The officer began walking back
to his cruiser when he turned and asked Strickler if there was anything
illegal in the vehicle. When Strickler stated that there was not, the officer
requested Strickler’s consent to search the vehicle. The officer told Strickler
that he was free to withhold his consent. Strickler consented to the search,
which disclosed a marijuana smoking pipe.
Applying the nine-factor test delineated above, our Supreme Court
held that Strickler’s consent was voluntary, even though the officer never
expressly told Strickler that he was free to leave following the initial lawful
detention. Strickler, 757 A.2d at 900. The Court opined: “[T]he officer did
not touch Strickler or direct his movements; there is no evidence of any use
of coercive language or tone by the officer. We also deem significant the
arresting officer’s admonition to Strickler that he was not required to
consent to the search.”
Id. at 900 (emphasis added). Thus, the officer’s
admonition that Strickler could refuse consent outweighed the officer’s
failure to expressly advise the defendant that he was free to leave following
the initial detention.
Id. at 901-02.
In Freeman, a state trooper stopped Freeman for making improper
lane changes in what appeared to be a “cat and mouse” game with another
car on the highway. Freeman denied having any problem with the other car.
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The trooper gave Freeman a written warning and advised that she was free
to leave, but the events that followed
were inconsistent with [the trooper’s] statement to Freeman that
she was free to leave …: [the trooper] returned to Freeman’s
vehicle; questioned her about the second vehicle; pointed out
the inconsistent statements from the vehicle’s occupants when
she denied traveling with that vehicle; and, ultimately and most
significantly, asked her to step out of the vehicle prior to the
request for consent. Such directive constituted a greater show of
authority than had previously been made (other than the
physical stop of Freeman’s vehicle itself).
Id. at 907. The Supreme Court held that these events constituted an invalid
seizure, because the trooper had no reasonable suspicion of criminal
activity: “Even if Freeman’s answer to the trooper’s question, contradicting
as it did the information given by the occupants of the other car, could
arguably be viewed as evasive behavior,” the trooper had no more than an
“unparticularized suspicion or ‘hunch’ of criminal activity.”
Id. at 908.
As a result, Freeman’s consent was invalid, mandating suppression of
the fruits of the resulting search:
The detention that preceded Freeman’s consent to search was
unlawful, and Freeman’s consent, even if voluntarily given, will
not justify the otherwise illegal search unless the Commonwealth
can demonstrate that Freeman’s consent was an independent act
of free will and not the product of the illegal detention … Here,
although we do not view the trooper’s actions as flagrant, the
record does not establish the necessary break in the sequence of
events that would isolate Freeman’s consent from the prior
coercive interaction. To the contrary, the evidence supports the
conclusion that the trooper’s initiation of a second seizure and
receipt of Freeman’s consent were integrally connected.
Id. at 909.
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In the wake of Strickler and Freeman, this Court has issued many
decisions relating to the issue of consent during traffic stops. In some, we
held that the totality of circumstances proved voluntary consent;4 in others,
we determined that consent was involuntary.5
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4
See Caban, 60 A.3d at 131-32 (vehicle passenger’s consent to search of
vehicle that was owned by his father and driven by his friend was voluntary,
where there was no evidence of police abuses, aggressive tactics, physical
contact, or use of physical restraints any time during the detention,
passenger was advised that he was free to leave, passenger initially refused
consent to search, and officer accepted refusal without argument but merely
explained that passenger could either consent or wait for drug-sniffing dog
to arrive); Commonwealth v. Kemp,
961 A.2d 1247, 1261
(Pa.Super.2008) (following valid investigatory stop, defendant voluntarily
consented to search of vehicle, even though investigating officer did not
inform defendant that he could refuse to consent to search; there was no
excessive police conduct, no physical contact occurred between police and
defendant, officer did not display his weapon, officer’s order to defendant’s
companion to exit car was necessitated by fact that companion was not
licensed driver and had to move out of driver’s seat, defendant did not lack
maturity or sophistication and was not intellectually incapable of exercising
free will, and character of initial investigative detention, the traffic stop, was
routine); Commonwealth v. Bell,
871 A.2d 267, 274 (Pa.Super.2005) (en
banc) (defendant voluntarily consented to warrantless search of vehicle,
where defendant understood all of his rights, detective informed defendant
that police knew he was there to deliver drugs and that officer observed
defendant put package on floor of car, detective invited defendant to
cooperate, detective did not coerce defendant into making statement with
threats or actions, defendant, having waived his right to remain silent and to
an attorney, admitted having an ounce of cocaine for delivery to female at
particular location, defendant signed consent form that detective read to him
while defendant appeared to read along, and before signing consent form,
defendant confirmed that he spoke English and was not under influence of
drugs or alcohol); By,
812 A.2d at 1258 (following valid traffic stop at night,
officer obtained defendant’s consent to search vehicle through non-coercive
means; although two other officers were present, officer spoke casually and
non-threateningly, told defendant he was free to leave, did not restrain
defendant’s movement by use or threat of force, asked defendant if he could
(Footnote Continued Next Page)
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(Footnote Continued)
search vehicle, and reminded defendant that he was free to leave prior to
obtaining consent); cf. Commonwealth v. Reid, 811 A.2d 530, 548
(Pa.2002) (defendant’s consent to search his jacket, boots, motel room, and
truck, during consensual encounter at police barracks that involved
questioning about deaths of defendant’s estranged wife and stepdaughter,
was voluntary, where, inter alia, trooper read consent form to defendant
explaining his right to refuse search and defendant signed form).
5
See Commonwealth v. Tam Thanh Nguyen, 116 A.3d 657, 669
(Pa.Super.2015) (driver’s consent to search vehicle vitiated by taint of illegal
continued investigatory detention of driver and defendant following
conclusion of traffic stop that was not justified by reasonable suspicion of
criminal activity; driver consented to search only moments after state
trooper re-initiated contact with defendant after advising that driver was free
to leave, no intervening circumstances diminished coercive atmosphere of
illegal detention or otherwise justified search, and at time of consent, vehicle
was surrounded by two troopers and trooper had just repeated questions
regarding driver’s excessive nervous and apologetic demeanor);
Commonwealth v. Moyer,
954 A.2d 659, 668-69 (Pa.Super.2008) (en
banc) (defendant’s consent held involuntary following investigatory stop that
itself was not justified by reasonable suspicion; officer reintroduced
questioning after returning defendant’s documents and telling him he was
free, defendant walked from rear of car to car door when officer stopped him
again, there was no precise end to traffic stop, two armed and uniformed
police officers stood near defendant, who was alone and isolated outside car
at night on rural, unlit road when he was asked if he would answer
questions, police had activated flashing lights and directed bright white
police spotlight at car, defendant was not informed that he did not have to
answer further questions, officer told defendant results of his criminal history
check and accused him of past drug activity, and defendant was asked if
there were controlled substances or paraphernalia in his car or on his
person); Commonwealth v. Acosta,
815 A.2d 1078, 1085-87
(Pa.Super.2003) (en banc) (consent held involuntary despite prior valid stop
for suspended license plate, where officer withheld defendant’s vehicular
documentation, other officers and marked police cars were present with
flashing lights in close proximity to defendant, and officer never expressly
informed defendant that he was free to leave or that he was free not to
consent to search of vehicle).
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Relying on Freeman, Nyugen and Moyer, Randolph argues that it
was improper for Corporal Hanlon to re-initiate questioning after advising
Randolph that he was free to leave. Each of these decisions held that the
defendant’s consent was invalid, because the officer continued to question
the defendant despite lacking reasonable suspicion to detain the defendant
further and despite advising the defendant that he was free to leave.
In Freeman, Nyugen and Moyer, the interactions between the
defendants and officers did not transform into mere encounters. As a result,
the officers needed (but lacked) reasonable suspicion to continue
questioning the defendants. Here, in contrast, Corporal Hanlon’s interaction
with Randolph had become a mere encounter, making further questioning
permissible. The evidence demonstrates that during this mere encounter,
Randolph gave voluntary consent to search his vehicle. The encounter took
place in an open location on a public highway in broad daylight. The
questioning was not exceedingly long, and the corporal’s questioning was
not repetitive or deceptive in any way. There were no police abuses or
aggressive tactics. Nor did the officers use threatening demeanor, physical
contact or physical restraints anytime during the detention.
For these reasons, Randolph’s first argument is devoid of merit.
In his second issue on appeal, Randolph argues that Corporal Hanlon’s
search warrant application failed to establish probable cause to search the
box welded to the undercarriage of Randolph’s vehicle. We agree.
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The Fourth Amendment and Article I, Section 8 of the Pennsylvania
Constitution each require that search warrants be supported by probable
cause. Commonwealth v. Edmunds, 586 A.2d 887, 899 (Pa.1991)
“Probable cause exists where the facts and circumstances within the affiant’s
knowledge and of which he has reasonably trustworthy information are
sufficient in themselves to warrant a man of reasonable caution in the belief
that a search should be conducted.” Commonwealth v. Thomas,
292 A.2d
352, 357 (Pa.1972).
In Illinois v. Gates, 462 U.S. 213 (1983), the United States Supreme
Court established the “totality of the circumstances” test for determining
whether a request for a search warrant under the Fourth Amendment is
supported by probable cause. In Commonwealth v. Gray,
503 A.2d 921
(Pa.1986), our Supreme Court adopted the totality of the circumstances test
for purposes of making and reviewing probable cause determinations under
Article I, Section 8. Gray described this test as follows:
Pursuant to the ‘totality of the circumstances’ test set forth by
the United States Supreme Court in Gates, the task of an
issuing authority is simply to make a practical, common-sense
decision whether, given all of the circumstances set forth in the
affidavit before him, including the veracity and basis of
knowledge of persons supplying hearsay information, there is a
fair probability that contraband or evidence of a crime will be
found in a particular place.... It is the duty of a court reviewing
an issuing authority’s probable cause determination to ensure
that the magistrate had a substantial basis for concluding that
probable cause existed. In so doing, the reviewing court must
accord deference to the issuing authority’s probable cause
determination, and must view the information offered to
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establish probable cause in a common-sense, non-technical
manner.
…
[Further,] a reviewing court [is] not to conduct a de novo review
of the issuing authority’s probable cause determination, but [is]
simply to determine whether or not there is substantial evidence
in the record supporting the decision to issue the warrant.
Commonwealth v. Torres, 764 A.2d 532, 537–38, 540 (Pa.2001). “A
grudging or negative attitude by reviewing courts towards warrants ... is
inconsistent with the Fourth Amendment’s strong preference for searches
conducted pursuant to a warrant; courts should not invalidate warrants by
interpreting affidavits in a hypertechnical, rather than a commonsense,
manner.” Gates,
462 U.S. at 236; see also United States v. Leon,
468
U.S. 897, 914 (1984) (“Reasonable minds frequently may differ on the
question whether a particular affidavit establishes probable cause, and we
have thus concluded that the preference for warrants is most appropriately
effectuated by according ‘great deference’ to a magistrate’s determination”).
“A police officer’s experience may fairly be regarded as a relevant
factor in determining probable cause.” Commonwealth v. Thompson, 985
A.2d 928, 935 (Pa.2009). An officer, however, cannot simply reference
“training and experience abstract from an explanation of their specific
application to the circumstances at hand.”
Id. “A court cannot simply
conclude that probable cause existed based upon nothing more than the
number of years an officer has spent on the force. Rather, the officer must
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demonstrate a nexus between his experience and the search, arrest, or
seizure of evidence.” Id. Indeed, a factor becomes relevant only because it
has some connection to the issue at hand.6
Id.
In this case, after obtaining Randolph’s valid consent to search his
vehicle, Corporal Hanlon searched the vehicle and discovered the box welded
to the undercarriage. Corporal Hanlon then applied for a search warrant to
open the box. His affidavit of probable cause referenced details that we
have discussed above, such as the absence of rear seats, Randolph’s
inconsistent statements about whom he was visiting in the Columbus, Ohio
____________________________________________
6
We also find persuasive Professor LaFave’s analysis that a police officer
must do more to establish his level of experience than make a cursory
assertion of its existence and relevance:
[T]he probable cause determination must ultimately be made by
a judicial officer, who is not an ‘expert’ in matters of law
enforcement, and … consequently it is incumbent upon the
arresting or searching officer to explain the nature of his
expertise or experience and how it bears upon the facts which
prompted the officer to arrest or search. For example, if an
officer at a hearing on a motion to suppress were to say that he
made the arrest because he saw what he as an expert
recognized as a marijuana cigarette, this is not a showing of
probable cause. Under the probable cause standard, it must ‘be
possible to explain and justify the arrest to an objective third
party,’ and this is not accomplished by a general claim of
expertise. On the other hand, if the officer testifies fully
concerning his prior experience with marijuana cigarettes and
explains in detail just how it is possible to distinguish such a
cigarette from other hand-rolled cigarettes, this testimony
cannot be disregarded by the judge simply because it involves
expertise not shared by the judge.
LaFave, 2 Search & Seizure § 3.2(c) (5th ed. 2015).
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hospital, and his inability to name the hospital. The affidavit also included a
detail not mentioned during the suppression hearing: the passenger in the
vehicle told Trooper Rowland that they were going to Cleveland, Ohio, not
Columbus.
Corporal Hanlon then described the search of Randolph’s vehicle as
follows:
I … initiated a canine search of the vehicle with [c]anine ‘Draco’.
During the search, Draco increased his breathing around the
driver’s seat floor area, but did not indicate. I then initiated a
hand search of the vehicle with Tpr. Rowland. During the
search, we located multiple cell phones[,] one of which was
ringing, [but] no luggage to indicate a long trip. I then looked at
the undercarriage of the vehicle and observed an aftermarket
modification between the floor (sic) that did not match the
remainder of the undercarriage. Based on my training and
experience[,] I recognized this modification to be a hidden
compartment commonly used to transport guns, drugs and U.S.
currency. I related this information to Randolph and noticed a
drastic change in attitude … Canine Draco is trained and certified
by the Pennsylvania State Police to detect the odors of cocaine,
heroin, marijuana and methamphetamines.
SH, Commonwealth Exhibit 3.
We recognize that we have a duty to examine search warrant
applications through the lens of common sense and not in the manner of
grudging, hypertechnical perfectionists. But even when construed in this
light, we still conclude that the trooper’s affidavit did not establish probable
cause to search the box.
The Commonwealth asserts that the following factors created probable
cause: (1) the absence of seats and luggage in the vehicle, (2) the discovery
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of multiple cell phones, one of which was ringing, (3) Randolph’s inconsistent
accounts of whom he was visiting in Columbus, (4) his inability to name the
hospital he was driving to in Columbus, (5) the passenger’s claim that they
were driving to Cleveland instead of Columbus, and (6) the hidden
compartment welded to the undercarriage of the vehicle, which Trooper
Hanlon claimed was a common device for transporting drugs, weapons and
money. We cannot fault Corporal Hanlon for finding these facts suspicious,
but they did not give rise to probable cause.
Corporal Hanlon’s averments relating to the hidden compartment were
insufficient for two reasons. First, the police dog, Draco, did not alert when
it sniffed the area in which Corporal Hanlon subsequently discovered the
compartment. While this alone did not defeat probable cause,7 neither did it
elevate the likelihood that the corporal would find contraband or evidence of
crime in the hidden compartment. Torres, 764 A.2d at 537. Second,
Corporal Hanlon failed to explain how his “training and experience” led him
to recognize that the compartment was “commonly used to transport guns,
drugs and U.S. currency.” He neglected to list what classes he has attended
or certifications he has received on this subject, the number or type of cases
he has participated in where officers discovered hidden compartments
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7
Commonwealth v. Brown,
924 A.2d 1283, 1289 (Pa.Super.2007)
(trained dog’s failure to alert “is but one factor to be considered in adjudging
whether the totality of the circumstances establishes probable cause”).
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containing drugs or weapons, or even how long he has been a law
enforcement officer. Thus, his claim of “knowledge and experience” was an
empty phrase that failed to tilt the scales toward probable cause.
Thompson, 985 A.2d at 935 (officer’s claim of “knowledge and experience”
does not give rise to probable cause without “explanation of their specific
application to the circumstances at hand”).
Nor did discovery of the hidden compartment establish probable cause
when viewed in conjunction with the other five facts observed by Corporal
Hanlon. Collectively, these details indicate that Randolph and the other
vehicle occupant were taking a lengthy road trip without luggage or seats in
the rear of the vehicle, but with multiple cell phones in their possession; that
they gave inconsistent accounts about their travel plans and destination;
and that the vehicle had a hidden compartment -- an unusual set of
circumstances, but not enough for a search warrant, because they did not
create a “fair probability” that contraband or evidence of crime would be
found inside the hidden compartment. Torres, 764 A.2d at 537. Had
Corporal Hanlon augmented these facts by describing his “knowledge and
experience” vis-à-vis hidden vehicle compartments (or other details that he
found suspicious), his affidavit might well have furnished probable cause.
This subject matter, however, was missing from the affidavit, and we must
judge this affidavit by what it includes, not by what potentially helpful
information it omits.
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Judge Platt’s concurring and dissenting statement contends that our
“focus on the level of detail in the recitation of Corporal Hanlon’s training,
knowledge and experience misses the big picture and reweighs the evidence
before the suppression court.” Concurring and Dissenting Statement, at 2.
Judge Platt further asserts that Corporal Hanlon’s experience “may be
regarded as a relevant factor” under Thompson, but that he was not
“required to demonstrate a fact-specific nexus between his experience and
probable cause for the search.” Id. at 3 (emphasis in original).
Judge Platt obviously is correct that Thompson calls experience “a
relevant factor” (as opposed to “the relevant factor” or “the only relevant
factor”). Thompson, 985 A.2d at 935. And because experience is only “a
relevant factor,” there may be occasions where experience is not critical to
the probable cause calculus. For example, had Draco alerted to the area in
which Corporal Hanlon subsequently discovered the compartment, we doubt
that it would have been necessary for Trooper Hanlon to describe his
experience. But Draco did not alert, so in the “big picture” of this case,
Corporal Hanlon’s experience was essential to tip the balance from mere
suspicion to probable cause. What knowledge, training or experience did
Corporal Hanlon have that reasonably indicated that the hidden
compartment was used to store criminal contraband? His affidavit did not
say – and due to this omission, his affidavit only gave rise to suspicion of
criminal activity but not probable cause.
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During oral argument, the Commonwealth suggested that even if the
search warrant was deficient, Corporal Hanlon still had the right to open the
hidden compartment by virtue of Randolph’s verbal consent to search the
vehicle. We do not agree that Randolph’s consent extended this far. We
have held that general consent to search a vehicle extends to closed, but
readily opened, containers discovered inside the car. Commonwealth v.
Yedinak, 676 A.2d 1217, 1220 (Pa.Super.1996). Conceivably, general
consent might also permit opening a closed container by unscrewing several
screws from its cover without causing structural damage. See United
States v. Saucedo,
688 F.3d 863, 866-68 (7th Cir. 2012) (collecting cases).
Conversely, we do not think it reasonable to conclude that Randolph’s
consent extended to a hidden compartment that he kept locked and
concealed from view and which Corporal Hanlon could open only by
removing the passenger door and applying power through wires connected
to the door. Cf. Florida v. Jimeno,
500 U.S. 248, 251-52 (1991) (“it is
very likely unreasonable to think that a suspect, by consenting to the search
of his trunk, has agreed to the breaking open of a locked briefcase within the
trunk”).
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Accordingly, we hold that the trial court erred by denying Randolph’s
motion to suppress.8
Judgment of sentence reversed; case remanded for further
proceedings consistent with this opinion; Commonwealth’s motion to quash
appeal denied; jurisdiction relinquished.
President Judge Emeritus Ford Elliott joins the opinion.
Judge Platt files a concurring/dissenting statement.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/16/2016
____________________________________________
8
In view of this decision, we find it unnecessary to review Randolph’s final
issue on appeal, an argument that the trial court erred in permitting the
Commonwealth to present hearsay testimony from Corporal Hanlon
concerning reports from other troopers relating to forensic analysis of cell
phones seized from Randolph’s vehicle.
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