J-S29036-21
2021 PA Super 218
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
DAVID GALLOWAY : No. 2202 EDA 2020
Appeal from the Order Entered October 16, 2020
In the Court of Common Pleas of Delaware County Criminal Division at
No(s): CP-23-CR-0003594-2019
BEFORE: PANELLA, P.J., KUNSELMAN, J., and STEVENS, P.J.E.*
OPINION BY STEVENS, P.J.E.: FILED NOVEMBER 2, 2021
The Commonwealth appeals1 from the October 16, 2020 order granting
the pre-trial suppression motion filed by Appellee, David Galloway. After
careful review, we reverse the suppression order and remand for proceedings
consistent with this opinion.
The suppression court summarized the relevant facts of this case as
follows:
On the evening of December 24, 2018, Trooper Luke
McIlvaine of the Pennsylvania State Police (“PSP”),
while working highway patrol on Interstate 95
Southbound, pulled over a Black Honda Civic bearing
Delaware license number 541852 for traveling 64 mph
____________________________________________
* Former Justice specially assigned to the Superior Court.
1 The Commonwealth certified, pursuant to Pa.R.A.P. 311(d), that the
suppression court’s October 16, 2020 order will terminate or substantially
handicap the prosecution.
J-S29036-21
in a 55 mph zone. The Trooper was working as part
of a holiday evening enforcement unit, during which
troopers stop many vehicles for traffic violations
during busy holiday travel times to create a visible
presence on the highway as a message to motorists.
While Trooper McIlvaine was conducting the traffic
stop, the dashcam video picked up a car in the left
bound passing lane passing the trooper and
[Appellee’s] vehicles at a high rate of speed, and the
trooper did not pull over that vehicle. Because of the
location of the stop, Trooper McIlvaine approached the
passenger side window of the vehicle so that he was
not dangerously close to traffic. As Trooper McIlvaine
approached, he noticed two occupants in the vehicle,
a driver, John DeFebo, and Appellee sitting in the
passenger seat. Trooper McIlvaine noticed that
Appellee appeared nervous, as [Appellee] was not
making eye contact with him, allowing ash from the
cigarette he was smoking to fall on him, and
[Appellee] was sweating profusely. [T]rooper
[McIlvaine] testified that Appellee sweating was
suspicious because it was a very cold December
evening. Trooper McIlvaine notified the driver of the
reason for the stop and took the driver’s license,
registration, and proof of insurance. The trooper also
asked for Appellee’s identification, which Appellee said
he did not have on him. Trooper McIlvaine asked for
Appellee’s name, date of birth, and social security
number, to ascertain his identification. The check of
the driver’s information showed that he was the
proper owner of the vehicle, his license was not
suspended, and he did not have any outstanding
warrants. Trooper McIlvaine informed the driver that
he would be letting the driver off with a warning on
the speeding violation and that he would be free to
leave shortly. Notably, however, Trooper McIlvaine
never returned the driver’s license, registration, nor
proof of insurance. The trooper continued to question
the driver and [Appellee] over where they were
driving from, what they were doing, and the reason
that [Appellee] was sweating so much. Both the
driver and [Appellee] told the trooper that they had
just come from Philadelphia, where they got
cheesesteaks at Ishkabibble’s on South Street. The
-2-
J-S29036-21
trooper testified that in his experience, Philadelphia is
a hub for narcotics distribution, with many drug
dealers buying heroin there, since it is better quality
heroin, and then driving the heroin to another area to
sell it for a profit. Trooper McIlvaine testified that he
believed he had a reasonable suspicion of criminal
activity and intended to request a dog sniff, though he
never followed up with the request. He asked
[Appellee] to step out of the car, and when [Appellee]
did so, the trooper noticed a marijuana bowl in the
center console of the car in plain view. Trooper
McIlvaine then conducted a vehicle search and found
1,575 bags of suspected heroin/fentanyl in an Oreo
cookie box on the floor of the passenger side. The
trooper arrested the driver and [Appellee] and read
them Miranda[2] warnings.
Suppression court opinion, 1/25/21 at 1-3 (citations to notes of testimony and
footnote omitted).
Appellee was subsequently charged with possession with intent to
deliver a controlled substance (PWID), possession of a controlled substance,
and possession of drug paraphernalia.3 On February 25, 2020, Appellee filed
a pre-trial motion to suppress the contraband found in the vehicle, arguing
that “[t]he prolonged nature of the detention was illegal in that it went well
beyond the reason for the traffic stop itself . . . and was not supported by a
reasonable suspicion[.]” See Motion to Suppress, 2/25/20 at ¶ 7. On
September 11, 2020, the suppression court conducted a hearing on Appellee’s
motion, during which Trooper McIlvaine testified. Following the hearing, the
____________________________________________
2 Miranda v. Arizona, 384 U.S. 436 (1966).
3 35 P.S. §§ 780-113(a)(30),(a)(16), and (a)(32), respectively.
-3-
J-S29036-21
suppression court granted Appellee’s suppression motion on October 16,
2020. This timely appeal followed.4
The Commonwealth raises the following issues for our review:
1. Did the [suppression] court err by concluding
that the traffic stop ended when Trooper
McIlvaine informed the driver he planned to
issue a warning?
2. Did the [suppression] court err by concluding
that the trooper lacked reasonable suspicion to
conduct an investigative detention beyond the
initial traffic stop?
3. Did the trooper have probable cause and
exigent circumstance to search the vehicle
without a warrant?
4. Alternatively, after he observed the marijuana
bowl in plain view . . . Trooper McIlvaine had
probable cause to obtain a search warrant.
Because he could have obtained a warrant,
would the suppressed evidence have inevitably
been discovered?
Commonwealth’s brief at 2-3.
Our standard of review in addressing a suppression court’s order
granting a suppression motion is well settled.
When the Commonwealth appeals from a suppression
order, we follow a clearly defined standard of review
and consider only the evidence from the defendant’s
witnesses together with the evidence of the
____________________________________________
4 The record reflects that the suppression court ordered the Commonwealth
to file a concise statement of errors complained of on appeal, in accordance
with Pa.R.A.P. 1925(b), on November 19, 2020. The Commonwealth filed its
timely Rule 1925(b) statement on December 3, 2020, and the suppression
court filed its Rule 1925(a) opinion on January 25, 2021.
-4-
J-S29036-21
prosecution that, when read in the context of the
entire record, remains uncontradicted. The
suppression court’s findings of fact bind an appellate
court if the record supports those findings. The
suppression court’s conclusions of law, however, are
not binding on an appellate court, whose duty is to
determine if the suppression court properly applied
the law to the facts.
Our standard of review is restricted to establishing
whether the record supports the suppression court’s
factual findings; however, we maintain de novo
review over the suppression court’s legal conclusions.
Commonwealth v. Korn, 139 A.3d 249, 253-254 (Pa.Super. 2016) (internal
citations and quotation marks omitted), appeal denied,
159 A.3d 933 (Pa.
2016).
“Both the Fourth Amendment of the United States Constitution and
Article 1, Section 8 of the Pennsylvania Constitution guarantee an individual’s
freedom from unreasonable searches and seizures.” Commonwealth v.
Bostick, 958 A.2d 543, 550 (Pa.Super. 2008) (citation and internal quotation
marks omitted), appeal denied,
987 A.2d 158 (Pa. 2009). “To secure the
right of citizens to be free from such intrusions, courts in Pennsylvania require
law enforcement officers to demonstrate ascending levels of suspicion to
justify their interactions with citizens to the extent those interactions
compromise individual liberty.” Commonwealth v. Reppert,
814 A.2d 1196,
1201 (Pa.Super. 2002) (citation omitted). This court has recognized three
types of interactions between members of the public and the police:
The first of these is a “mere encounter” (or request
for information) which need not be supported by any
-5-
J-S29036-21
level of suspicion, but carries no official compulsion to
stop or to respond. The second, an “investigative
detention” must be supported by a reasonable
suspicion; it subjects a suspect to a stop and a period
of detention, but does not involve such coercive
conditions as to constitute the functional equivalent of
an arrest. Finally, an arrest or “custodial detention”
must be supported by probable cause.
Commonwealth v. Way, 238 A.3d 515, 518 (Pa.Super. 2020) (citation
omitted). Thus, pursuant to the Fourth Amendment, a person may not be
lawfully seized, either by means of an investigative detention or a custodial
detention, unless the police possess the requisite level of suspicion.
In the instant matter, the suppression court found that Trooper
McIlvaine lacked reasonable suspicion to continue to detain Appellee following
the initial traffic stop. Suppression court opinion, 1/25/21 at 5-6. The
suppression court concluded that “at the moment Trooper McIlvaine told the
occupants he would give them a warning, the traffic stop ended and [his]
initial suspicion d[id] not justify the prolonged questioning and detention of
[Appellee].” Id. The suppression court further opined:
This was a simple, low level speeding offense that was
not investigable outside the initial stop, license check,
and either the issuing of a ticket or giving of a
warning. This Court believes that Trooper McIlvaine
was not presented with sufficient particularized facts
to constitute the reasonable suspicion required to
continue detaining [the driver] and [Appellee] passed
the point of writing a speeding ticket or issuing a
warning.
Id. at 10.
-6-
J-S29036-21
The Commonwealth contends that the suppression court erred in
concluding that Trooper McIlvaine’s interaction with Appellee during the traffic
stop transitioned into an unlawful investigative detention. Commonwealth’s
brief at 10-14. The Commonwealth maintains that “[u]p until Trooper
McIlvaine removed [Appellee] from the vehicle to request a dog sniff, Trooper
McIlvaine was reasonably investigating a traffic stop after witness[ing] the
vehicle speeding[,]” and developed the requisite level of suspicion, based on
the totality of the circumstances, “to extend the stop further to investigate
criminal activity.” Id. at 15.
It is well settled in this Commonwealth that,
[a] police officer may detain an individual in order to
conduct an investigation if that officer reasonably
suspects that the individual is engaging in criminal
conduct. This standard, less stringent than probable
cause, is commonly known as reasonable suspicion.
In order to determine whether the police officer had
reasonable suspicion, the totality of the circumstances
must be considered. In making 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. Rogers, 849 A.2d 1185, 1189 (Pa. 2004).
In Rodriguez v. United States, 575 U.S. 348 (2015), the United
States Supreme Court examined the permissible scope of an officer’s
investigation during a traffic stop. The Rodriguez Court reasoned:
-7-
J-S29036-21
A seizure for a traffic violation justifies a police
investigation of that violation. A relatively brief
encounter, a routine traffic stop is more analogous to
a so-called Terry [v. Ohio, 392 U.S. 1 (1968)] stop
... than to a formal arrest. Like a Terry stop, the
tolerable duration of police inquiries in the traffic-stop
context is determined by the seizure’s mission — to
address the traffic violation that warranted the stop
and attend to related safety concerns. Because
addressing the infraction is the purpose of the stop, it
may last no longer than is necessary to effectuate
th[at] purpose. Authority for the seizure thus ends
when tasks tied to the traffic infraction are — or
reasonably should have been — completed.
Rodriguez, 575 U.S. at 354 (citations and internal quotation marks omitted).
The Rodriguez Court recognized that police officers may conduct
certain unrelated checks during an otherwise lawful traffic stop, provided they
“not do so in a way that prolongs the stop, absent the reasonable suspicion
ordinarily demanded to justify detaining an individual.” Id. at 372.
More recently, the Pennsylvania Supreme Court recognized in In
Interest of A.A., 195 A.3d 896 (Pa. 2018), that a police officer may use
information gathered during an initial traffic stop to justify a second
investigatory detention, regardless of whether the officer has indicated at
some point during the initial stop that the subject is free to leave.
Id. at 898.
In reaching this conclusion, the A.A. Court reaffirmed this court’s decision in
Commonwealth v. Kemp,
961 A.2d 1247 (Pa.Super. 2008) (en banc),
noting that the “totality of the circumstances approach allows the court to
consider all facts at the officer’s disposal and does not require the court to
-8-
J-S29036-21
disregard those adduced during a valid … traffic stop.” A.A., 195 A.3d at 907
(citation omitted). The A.A. Court further explained that:
[T]he totality of the circumstances test, by its very
definition, requires that the whole picture be
considered when determining whether the police
possessed the requisite cause to stop appellant.
...
[W]e confirm that ‘all relevant facts’ and the ‘whole
picture’ necessarily includes any information learned
by a police officer during an initial lawful traffic stop,
irrespective of whether or not the officer suggests at
some point during that stop that the subject of the
stop is free to leave or tells him or her to ‘have a good
night.’
Id. at 909-910 (citation and internal quotation marks omitted; emphasis in
original).
Likewise, in Rogers, our Supreme Court held that a trooper had
reasonable suspicion to continue to detain a defendant beyond the initial traffic
stop, where the defendant, inter alia, was extremely nervous and shaking;
gave vague answers to the trooper’s questions; and his vehicle contained
supplies which the trooper knew from experience were used in the packaging
and distribution of narcotics. Rogers, 849 A.2d at 1189–1190. The Rogers
Court acknowledged that although there could be innocent explanations for
these circumstances, “reasonable suspicion does not require that the activity
in question must be unquestionably criminal before an officer may investigate
further[, but rather] requires a suspicion of criminal conduct that is reasonable
based upon the facts of the matter.” Id. at 1190 (emphasis omitted).
-9-
J-S29036-21
Similarly, in the instant matter, our review of the record does not
support the suppression court’s conclusion that Appellee was subjected to an
unlawful investigative detention when Trooper McIlvaine continued to question
Appellee after informing the driver that he planned to issue him a warning and
he could leave shortly. Viewing the totality of the circumstances, we conclude
that Trooper McIlvaine possessed the requisite reasonable suspicion to extend
the traffic stop to investigate his concerns that Appellee and the driver were
engaged in criminal activity.
The record reflects that the evening of December 24, 2018, Appellee
was a passenger in a vehicle stopped by Trooper McIlvaine for traveling 64
m.p.h. in a 55-m.p.h. zone on the I-95 corridor between Delaware and
Philadelphia. Notes of Testimony, 9/11/20 at 10, 35. Trooper McIlvaine
testified that upon approaching the vehicle, he notified the driver of the reason
for the stop and requested his license, registration, and proof of insurance.
Id. at 15-16, 38. Trooper McIlvaine also requested Appellee’s identification,
but Appellee indicated he did not have it in his possession. Id. at 16-17, 40-
41. Thereafter, Trooper McIlvaine took Appellee’s name, date of birth, and
social security number to properly identify him. Id. at 40.
Trooper McIlvaine testified that when the driver handed over his
documentation, “his hand was trembling and he could barely give [him] the
information.” Id. at 16. Trooper McIlvaine also testified that Appellee
appeared “extremely nervous” during this encounter, “was closed, away from
- 10 -
J-S29036-21
me” with “his head down,” and was “sweating profusely.” Id. at 16, 24, 40-
41. Trooper McIlvaine opined that he found Appellee’s profuse sweating
suspicious because it was a very cold, December evening. Id. at 23-24.
Trooper McIlvaine further noted that Appellee would not make eye contact
with him and allowed the ash from the cigarette he was smoking to fall on his
lap, instead of out the window. Id. at 16, 24.
Trooper McIlvaine also informed the driver at the time that they were
conducting holiday enforcement and he planned to issue him a warning for
speeding and that they would be free to leave shortly. Id. at 38-39.
Trooper McIlvaine testified that at this point, he requested the driver
exit his vehicle and sit on the guardrail near the passenger side window of the
patrol cruiser, while Trooper McIlvaine sat in the driver seat and processed his
documentation. Id. at 17-18, 44-45. Trooper McIlvaine stated that he
conducts traffic stops in this manner for his own safety and so that he can
hear over the loud highway. Id. Appellee, in turn, remained in the passenger
seat of the driver’s vehicle. Id. at 18. Trooper McIlvaine’s subsequent check
of the driver’s documentation revealed that he was the proper owner of the
vehicle, his license was not suspended, and he did not have any outstanding
warrants. Id. at 20, 39. Trooper McIlvaine also testified that after running
Appellee’s information, he learned that his license was suspended and he “had
a lengthy criminal history involving drug dealing, [PWID] out of the state of
Delaware.” Id. at 21, 23.
- 11 -
J-S29036-21
We acknowledge that at this point in the interaction Trooper McIlvaine
had accomplished the “seizure’s mission” in addressing the traffic violation
that had warranted the initial stop. See Rodriguez, 575 U.S. at 354.
Nonetheless, we conclude that this interaction seamlessly transitioned into a
second, investigative detention whereby Trooper McIlvaine sought to ask
additional questions of Appellee on account of his reasonable suspicion “[t]hat
there’s probably some type of criminal activity going on.” Notes of Testimony,
9/11/20 at 24. Here, when Trooper McIlvaine extended the traffic stop by
approaching Appellee to question him, he was aware of the following relevant
facts:
Trooper McIlvaine testified that he has conducted over a 1,000 traffic
stops on the I-95 corridor and has personally made over 175 narcotics-related
arrests. Id. at 8. Trooper McIlvaine acknowledged that this stretch of I-95
was well known to be used for narcotics trafficking, whereby individuals
purchase high-quality narcotics in Philadelphia that can be sold at significantly
higher costs out of state. Id. at 30-32.
As discussed, Trooper McIlvaine also personally observed Appellee’s
extremely nervous and evasive behavior during the initial stop, see id. at 16,
23-24, 40-41, and was aware of “his lengthy criminal history involving [PWID]
narcotics” in Delaware. Id. at 19. Trooper McIlvaine testified that the driver’s
and Appellee’s behavior was “completely out of the norm from what [he]
see[s] on normal traffic stops.” Id. at 24. Trooper McIlvaine stated:
- 12 -
J-S29036-21
I’ve never -- I’ve never seen people that nervous
before and they’ve had large amount of drugs. So, a
passenger in the vehicle should never be that
nervous. He’s not in trouble for anything. You know
what I mean? The guy was stopped for speeding. I
told him he was going to get a warning. Normally, a
person who’s going to get a warning, they become
less nervous. Like, oh, I don’t have to pay a ticket,
thank God. Both occupants were nervous the whole
traffic stop, which is way out of the ordinary.
Id. at 32
Moreover, Trooper McIlvaine had been provided dubious answers as to
why Appellee and the driver had travelled to Philadelphia. The record reflects
that while Trooper McIlvaine was verifying the driver’s information, the driver
told him that he and Appellee had traveled from Delaware to Philadelphia to
get cheesesteaks. Id. at 19, 45-46. Trooper McIlvaine further testified that
the driver stated that he could not afford a speeding ticket. Id. at 19, 47.
Trooper McIlvaine opined that he found it unusual for someone who is
struggling financially to drive from Delaware to Philadelphia, pay for parking,
and purchase a cheesesteak on Christmas Eve. Id. at 19, 32. Appellee, in
turn, initially told Trooper McIlvaine that they went to Philadelphia to
Christmas shop, and did not say anything about cheesesteaks until after
Trooper McIlvaine observed the driver on his cell phone as he was speaking
with Appellee, which led him to infer that the occupants were communicating
to get their stories straight. Id. at 21-24, 32.
It is well settled in this Commonwealth that that Trooper McIlvaine was
warranted to use information gathered during his initial traffic stop to justify
- 13 -
J-S29036-21
a second investigatory detention, irrespective of the fact that he informed the
occupants of the vehicle that they would be free to leave shortly. See A.A.,
195 A.3d at 909-910; see also Rogers,
849 A.2d at 1190.
Based on the foregoing facts of record, we conclude that Trooper
McIlvaine had reasonable suspicion that Appellee was engaged in criminal
activity sufficient to warrant a second, investigative detention.5
Accordingly, we find that the suppression court erred in granting
Appellee’s pre-trial suppression motion, reverse the suppression court’s
October 16, 2020 order, and remand this case for trial.
Order reversed. Case remanded for trial. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/02/2021
____________________________________________
5 Considering our disposition, we need not address the Commonwealth’s
remaining claims.
- 14 -
