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2024 PA Super 249
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
BRANDON ORTIZ :
:
Appellant : No. 2608 EDA 2023
Appeal from the Judgment of Sentence Entered September 6, 2023
In the Court of Common Pleas of Bucks County
Criminal Division at No: CP-09-CR-0006363-2021
BEFORE: STABILE, J., LANE, J., and STEVENS, P.J.E.*
OPINION BY STABILE, J.: FILED OCTOBER 29, 2024
Appellant, Brandon Ortiz, appeals from the Judgment of Sentence
entered on September 6, 2023 in the Bucks County Court of Common Pleas.
Upon review, we affirm.
The suppression court set forth the relevant facts:
On the afternoon of June 9th, 2021, Officer David Clee, a
highly experienced and trained police officer in the area of drug
investigations and drug interdiction, received a tip from a
confidential informant that a red BMW SUV with Massachusetts
plate 3JDC85, would be transporting one kilogram of cocaine in
the area of Emerald and Thayer Streets in Philadelphia. The
confidential informant indicated that a female would be driving the
vehicle. This confidential informant had proven reliable in the past.
His information had led to the seizures of narcotics and multiple
arrests in the past.
Officer Clee found the vehicle exactly matching the vehicle
described by the confidential informant in the area where the
confidential informant said the vehicle would be. Officer Clee
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* Former Justice specially assigned to the Superior Court.
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checked the owner of the vehicle, found him to be [Appellant],
and found him to be under investigation for cocaine trafficking in
Massachusetts. The area where the vehicle was located in
Philadelphia was an area of high drug activity.
Officer Clee followed the vehicle in Philadelphia. While
following the vehicle, the vehicle did stop on at least one occasion,
but Officer Clee did not observe any criminal activity occurring in
Philadelphia, aside from, of course, the description given by the
confidential informant.
Officer Clee then alerted Bensalem Township Police that the
vehicle was heading north in the area of I-95 and requested that
Sergeant Michael Brady of the Bensalem Township Police
Department, an experienced narcotics interdiction officer, stop the
vehicle in Bucks County.
Sergeant Brady observed the vehicle traveling northbound
on I-95 in Bensalem Township in Bucks County, and he stopped
the vehicle in the vicinity of the Street Road Exit on I-95.
At that time, the vehicle had heavily tinted windows which
prevented the Sergeant from seeing the occupants of the vehicle,
and that was given as a reason for the stop.
The vehicle also had a slightly tinted license plate cover on
the back, however, that did not obscure in any meaningful way
the lettering or numbers on the license plate itself.
Sergeant Brady approached the vehicle, the BMW SUV.
[Appellant] was the passenger in the vehicle, he being the owner
of the vehicle, and a female was the driver.
[Appellant] was cooperative with the police, although he did
appear somewhat nervous, often avoided eye contact, and
slouched back in his seat. The officer indicated that he could tell
that [Appellant] had an elevated heartbeat by looking at his- the
outer part of his carotid artery, and indicated that [Appellant’s]
hands shook at times.
Now, after receiving paperwork from the occupants of the
vehicle, Sergeant Brady returned to his police vehicle for a short
time. He then returned to the BMW and asked [Appellant] if he
would consent to a search of his vehicle. [Appellant] refused.
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Sergeant Brady then directed [Appellant] and the driver to exit
the vehicle, which they did.
Corporal Robert Schwarting, an experienced K9 officer, was
called to the scene to have his dog, Bowie, a trained K9, sniff the
vehicle. The K9 search occurred approximately 12 minutes after
the stop. Officer Schwarting took his dog to the front of the
vehicle, and then proceeded counterclockwise around the vehicle
to perform the search. The front doors of the vehicle were partially
open at the time that the search was conducted.
The dog, who was highly trained to detect cocaine and other
drugs, alerted strongly to indicate that there was a controlled
substance in the vehicle. The dog remained on the outside of the
vehicle during the search, although at one point he briefly placed
his front paws on the bottom of the driver’s side door frame, and
he was immediately pulled back from that position to the outside
of the car by Corporal Schwarting.
Now, after the K9 exhibited numerous signs that he
detected a controlled substance, [Appellant] and the female driver
were handcuffed, placed in custody, and transported to the police
station. A search warrant, thereafter, was obtained for the vehicle
which revealed a cloth bag within which was a clear plastic bag
containing a kilogram of cocaine.
Suppression Court Opinion, 11/17/22, at 2.
On March 11, 2021, Appellant filed a motion to suppress the physical
evidence due to an illegal traffic stop, canine search, and arrest. The court
heard argument on November 17, 2022 and denied the motion on February
7, 2023. After a two-day waiver trial, the court found Appellant guilty of
possession with intent to deliver (“PWID”) a controlled substance (cocaine).
On September 6, 2023, the trial court imposed a sentence of 27 to 60 months
of incarceration. This instant appeal followed.
On appeal, Appellant presents three issues, which we paraphrase for
clarity: (1) whether the police had reasonable suspicion in support of the
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vehicle stop; (2) whether the roadside detention for the canine sniff was
lawful; and (3) whether police improperly permitted the dog to invade the
interior of the vehicle. Appellant’s Brief at 6.
Our standard of review in addressing a challenge to the denial of a
suppression motion 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. Commonwealth v. Jones, 988 A.2d
649, 654 (Pa. 2010). Where the suppression court’s factual findings are
supported by the record, we are bound by these findings and may reverse
only if the court’s legal conclusions are erroneous.
Id. In reviewing an order
from a suppression court, this Court may not look beyond the suppression
record, and may consider the evidence for the prosecution and any
uncontradicted evidence for the defense. Commonwealth v. Smith,
164
A.3d 1255, 1257 (Pa. Super. 2017).
In support of his first argument—that police lacked reasonable suspicion
in support of the vehicle stop—Appellant cites only to a portion of Whren v.
United States, 517 U.S. 806, 813 (1996), wherein the United States
Supreme Court explains that the constitutional reasonableness of a traffic stop
does not depend on the actual motivations of the police officer. Appellant’s
Brief at 11. Appellant claims the traffic stop in this case was a “pretext for
drug interdiction.”
Id. But Whren actually contradicts Appellant’s argument
insofar as it held that a police officer’s subjective motivation for a stop is not
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relevant to its reasonableness under the Fourth Amendment. Indeed, the
Whren Court cited United States v. Robinson, 414 U.S. 218 (1973), which
held that a traffic violation arrest “would not be rendered invalid by the fact
that it was ‘a mere pretext for a narcotics search.’” Whren, 517 U.S at 813
(quoting Robinson,
414 U.S. at 221).
Because Whren does not support Appellant’s argument, and because
he does not offer any other basis to support his argument that the traffic stop
was invalid, Appellant’s first argument claim fails. In any event, we observe
that police had reasonable suspicion of criminal activity prior to effecting the
traffic stop. The Supreme Court has stated,
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, [e]ven 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) (internal
citations and quotation marks omitted). Here, Ppolice observed excessive
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window tint on Appellant’s vehicle. 1 That, by itself, justified a stop. See
Commonwealth v. Postie, 110 A.3d 1034, 1039-40 (Pa. Super. 2015).
Further, as we discuss below, police already had corroborated many of the
details of a tip from a known, reliable informant before stopping Appellant’s
vehicle.
In his second argument, Appellant claims that the roadside detention
for the canine sniff was impermissible, and therefore his subsequent arrest
was unlawful. Because a roadside detention “constitutes a seizure of a person
and activates the protections of the Fourth Amendment[,]” Commonwealth
v. Baldwin, 147 A.3d 1200, 1203 (Pa. Super. 2016), we must determine
whether the Officer had reasonable suspicion to detain Appellant.
This Court has held that reasonable suspicion can be supported by
information supplied by a known informant where the police can independently
corroborate the informant’s information. Commonwealth v. Ogborne, 599
A.2d 656, 659 (Pa. Super. 1991). Identified informants are more reliable than
anonymous informants due to the risk of prosecution for filing a false claim
charge against known informants. Commonwealth v. Barber,
889 A.2d
587, 593 (Pa. Super. 2005.). “To determine whether the information provided
is sufficient [for reasonable suspicion], we assess the information under the
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1 The Motor Vehicle Code governs the permissible amount of window tint. 75
Pa. C.S.A. § 4524(e)(1), (e)(2)(i)-(ii).
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totality of the circumstances. The [informant]’s reliability, veracity, and basis
of knowledge are all relevant factors in this analysis.” Id. at 594.
Instantly, the informant provided reliable tips in the past, leading to five
arrests. N.T. Suppression Hearing, 11/17/2022, at 17-20. For this case, the
informant provided detailed information about the vehicle in which Appellant
was traveling, including its make, model, color, location, and Massachusetts
license plate number. Police corroborated these details before detaining the
vehicle to investigate the veracity of the informant’s tip that the vehicle was
transporting cocaine. They also observed signs of nervousness in Appellant.
Given the evidence of the informant’s reliability and veracity, and the
corroboration of many details of his tip prior to detaining the vehicle for a
canine sniff, we conclude that the vehicle detention was lawful.
Twelve minutes after the vehicle stop, a trained canine alerted for the
presence of controlled substances in the vehicle. Appellant and the driver of
the vehicle were then handcuffed and taken into custody while the police
applied for a search warrant for the vehicle. Appellant complains in his brief
of the amount of time—approximately five hours—that he spent in custody
pending the search of the vehicle. Appellant’s Brief at 12-13. That delay is
of no moment. Police arrested Appellant just after the dog alerted to the
presence of drugs in the car. At that point, police had probable cause to
believe Appellant committed a felony. Rogers, 849 A.2d at 1192 (noting that
when a dog alerts to the presence of narcotics in a vehicle, the police have
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probable cause to believe an offense is being committed). The arrest,
therefore, was lawful, and the duration of time between Appellant’s lawful
arrest and the search of the vehicle provides no grounds for relief.
Appellant’s third and final argument2 is that the canine sniff was not
performed in a manner consistent with our Constitution because the dog put
its paw on the doorframe at one point. Appellant’s Brief at 14-15. A canine
sniff is considered a search pursuant to Article I, Section 8 of the Pennsylvania
Constitution. Commonwealth v. Johnston, 530 A.2d 74, 79 (Pa. 1987).
The Supreme Court has held “that there need not be probable cause to
conduct a canine search of a place; rather, the police need merely have
reasonable suspicion for believing that narcotics would be found in the place
subject to the canine sniff.” Rogers,
849 A.2d at 1190. The Rogers Court
explained that a canine sniff of a vehicle need only be supported by reasonable
suspicion.
Id. at 1191. The defendant in that case argued, however, that
police should have had probable cause before permitting the dog to jump
through the window and sniff the interior of the car. The Rogers Court did
not answer that question, opining that the interior search was lawful in that
case even if probable cause was required.
Id. at 1192.
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2 Appellant’s statement of questions includes four issues, but his brief only
includes three sections, in violation of Pa.R.A.P. 2119(a) (“The argument shall
be divided into as many parts as there are questions to be argued[.]”).
Regardless, the fourth issue—probable cause in support of Appellant’s arrest—
has been addressed in the main text.
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The record does not support Appellants’ argument here, as it reflects
that the officer immediately pulled the dog back from the doorframe and did
not permit it to search the vehicle’s interior. N.T. Suppression Hearing,
11/17/22, at 127-129. Here, unlike Rogers, the dog did not invade the
vehicle. And, in any event, probable cause existed here, just as it did in
Rogers, because the dog already had alerted outside the vehicle.
For the foregoing reasons, we find no merit to any of Appellant’s
arguments and affirm the judgment of sentence.
Judgment of sentence affirmed.
Date: 10/29/2024
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