J-S18024-23
2023 PA Super 190
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
CHRISTIAN OCHOA :
:
Appellant : No. 1216 EDA 2022
Appeal from the Judgment of Sentence Entered March 29, 2022
In the Court of Common Pleas of Bucks County Criminal Division at
No(s): CP-09-CR-0001788-2021
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
CHRISTIAN OCHOA :
:
Appellant : No. 1217 EDA 2022
Appeal from the Judgment of Sentence Entered March 29, 2022
In the Court of Common Pleas of Bucks County Criminal Division at
No(s): CP-09-CR-0001793-2021
BEFORE: PANELLA, P.J., DUBOW, J., and STEVENS, P.J.E.*
OPINION BY DUBOW, J.: FILED SEPTEMBER 29, 2023
Appellant, Christian Ochoa, appeals from the March 29, 2022 Judgment
of Sentence entered in the Bucks County Court of Common Pleas following his
conviction of two counts of Possession with Intent to Deliver (“PWID”) and
related charges.1 Appellant challenges the denial of his pre-trial motion to
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* Former Justice specially assigned to the Superior Court.
1 35 Pa.C.S. §780-113(A)(30).
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suppress evidence. After careful review, we are constrained to vacate the
judgment of sentence and remand for new trial consistent with this opinion.
The relevant facts and procedural history are as follows. In late January
2021, Appellant, a cross-country truck driver, drove a tractor trailer from
California to Pennsylvania. On January 29, 2021, Appellant parked the tractor
trailer at a truck stop in Allentown. He subsequently rented a white Jeep
Wrangler (“Jeep”) and drove to Philadelphia to pick up Edith Rodriguez-
Cardenas (“Co-Defendant”).2
At approximately 11:30 PM that evening, Appellant and Co-Defendant
drove past Bedminster Township Police Officer James Zukow and Dublin
Borough Police Officer Nicholas Swinehart, who were parked in separate patrol
vehicles monitoring traffic on Route 313 exiting Dublin Borough into
Bedminster Township. Officer Zukow began to follow the Jeep, and Officer
Swinehart followed Officer Zukow. The record does not indicate why the
officers chose to follow the Jeep.
Officer Zukow observed the Jeep’s speed repeatedly fluctuate from the
posted speed limit of 55 MPH to approximately 40 MPH. Officer Zukow further
observed the driver side tires of the Jeep cross the double yellow lines several
times and the passenger side tires pass over the white fog line on several
occasions.
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2 This Court affirmed Co-Defendant’s Judgment of Sentence on August 21,
2023, at Docket Number 1731 EDA 2022. While the relevant facts largely
overlap, the appellants raised distinct issues on appeal. Accordingly, we
addressed the appeals separately.
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After following the Jeep for approximately one to two miles, Officer
Zukow activated his overhead lights and sirens and pulled the Jeep over for
suspicion of driving under the influence (“DUI”). Officer Swinehart also
stopped his vehicle, and his body camera recorded the traffic stop from the
time he exited his vehicle until the officers’ search of the Jeep.
The officers approached the Jeep and requested Appellant’s license,
which he provided. Officer Zukow retained possession of the license for the
duration of the traffic stop. Based upon the speed fluctuations, swerving, and
Officer Zukow’s interactions with Appellant, Officer Zukow suspected that
Appellant was impaired and requested that Appellant exit the vehicle to
perform field sobriety tests, which Appellant completed successfully. After
concluding that Appellant was not impaired, the officer informed Appellant
that he had passed the tests. Notably, Officer Zukow did not return
Appellant’s driver’s license, and there is no indication that Officer Zukow told
Appellant that he was free to leave.3
Instead, the officer questioned Appellant, inquiring if he had any illegal
substances in the Jeep, and Appellant responded that he did not. Officer
Zukow asked Appellant for his consent to search the Jeep. Appellant
consented, both orally and by signing the Bedminster Township Search and
Seizure Consent Form. The form indicated that Appellant had been informed
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3Indeed, Officer Zukow subsequently testified that he did not believe that
Appellant was free to leave the scene after Appellant passed the sobriety tests.
N.T. Suppression Hr’g, 11/9/21, at 120-21.
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of his constitutional right to refuse the search. Approximately 13 minutes
elapsed between the beginning of the stop and when Appellant signed the
consent form.
Because it was a very cold night, Officer Zukow offered Appellant and
Co-Defendant the opportunity to wait in Officer Swinehart’s patrol vehicle
during the search, and Appellant and Co-Defendant accepted. Officer Zukow
told Appellant and Co-Defendant that they were not under arrest.
Appellant and Co-Defendant remained in Officer Swinehart’s vehicle
while Officer Zukow and other officers, who had arrived on the scene, searched
the Jeep. The search yielded substantial amounts of controlled substances
and U.S. currency.4
Following the search, officers took Appellant to the Bedminster Police
Department headquarters, where Bucks County District Attorney’s Office
Detective Iran Millan interviewed Appellant. Bedminster Township Officer
Stephen Pekach was also present during the interview. Ultimately, Appellant
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4 The parties stipulated that the following items were found in the search of
the Jeep:
A Louis Vuitton purse containing marijuana and a handwritten list
of expenses; a black backpack containing 7,724 grams of
Fentanyl[,] 983 grams of heroin[,] and 1,001 grams of cocaine; a
second smaller black backpack containing 25.96 grams of
methamphetamine and 66 Alprozolam pills; a digital scale; a total
of $9,698 in U.S. currency; six phones[]; and a large hard top red
suitcase with Greyhound bus tags on it.
Tr. Ct. Op., 11/14/22, at 10.
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signed a waiver of his Miranda warnings, after initially invoking his right to
counsel.5
The Commonwealth sought and obtained search warrants for at least
three phones based upon an Affidavit of Probable Cause signed by Detective
Millan and Officer Pekach. Officers also obtained a search warrant for
Appellant’s tractor trailer, which resulted in the recovery of substantial
amounts of controlled substances and related items.6
The Commonwealth charged Appellant with numerous drug offenses at
two dockets. The first docket addressed charges arising from the stop and
search of the Jeep, which overlapped with charges against Co-Defendant. The
charges at the second docket stemmed from the search of the tractor trailer.
On September 29, 2021, Appellant filed an Omnibus Pretrial Motion In
it, he sought to suppress evidence deriving from the initial traffic stop, which
he claimed was not justified, and his consent to search, which he argued was
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5 Miranda v. Arizona, 384 U.S. 436 (1966).
6 The parties stipulated that the search uncovered $34,000 in U.S. currency
and the following items in the tractor trailer:
Marijuana in an amount for personal use; two glass pipes with
methamphetamine residue; 976 counterfeit Percocet pills, which
later tested positive for Fentanyl; 8,901 grams of Fentanyl; a
loaded 45 caliber pistol, which was later found to be operable and
the defendant did not have a license to carry at the time; four
Jesus Malverde [] candles.
Tr. Ct. Op. at 11 (quoting the stipulated facts and describing Jesus Malverde
as the patron saint of drug traffickers).
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not lawful. Appellant also sought to suppress evidence based upon challenges
to his waiver of his right to counsel and the search warrants for the cell
phones.
On November 9, 2021, the trial court held a hearing on Appellant’s
motion to suppress at which Officer Zukow, Officer Swinehart, and Detective
Millan provided testimony consistent with the above facts. On January 24,
2022, the trial court denied Appellant’s motion to suppress.
On March 29, 2022, Appellant waived his right to a jury trial and
proceeded to a stipulated waiver trial. Following its consideration of the
evidence, the court found Appellant guilty on all counts.7 That same day, the
trial court sentenced Appellant to an aggregate term of 7 ½ to 15 years of
incarceration for one count of PWID at each docket, with no additional penalty
for the other counts.
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7 Specifically, at Docket Number CP-09-CR0001788-2021, the court found
Appellant guilty of two counts of PWID, and one count each of Conspiracy to
PWID; Use or Possession of Drug Paraphernalia; Deliver/Intent to Deliver Drug
Paraphernalia; and Disregarding Traffic Lanes. 35 Pa.C.S. § 780-
113(a)(30);18 Pa.C.S. § 903; 35 Pa.C.S. §§ 780-113(a)(32), (33); 75 Pa.C.S.
§ 3309(1), respectively.
The court found Appellant guilty at Docket No. CP-09-CR-0001793-2021 of
two counts of PWID; and one count each of Conspiracy to PWID; Dealing in
the Proceeds of Unlawful Activity; Conspiracy to Dealing in the Proceeds of
Unlawful Activity; Firearms not to be Carried Without a License; and
Possession of Weapon. 35 Pa.C.S. § 780-113(a)(30); 18 Pa.C.S. §§ 903,
5111(a)(1), 903; 6106(a)(1); and 907(b), respectively.
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Appellant filed a Notice of Appeal on April 27, 2022. Subsequently,
Appellant and the trial court complied with Pa.R.A.P. 1925. Before this Court,
Appellant raises the following questions:
1. Did the trial court err by denying Appellant’s Motion to Suppress
the initial stop and seizure of the vehicle which appellant was
operating on January 29, 2021?
2. Did the trial court err by denying Appellant’s Motion to Suppress
the search of the vehicle Appellant was driving on January 29,
2021 by ruling that the verbal and written consent was not
coerced and was made knowingly, intelligently, and voluntarily?
3. Did the trial court err by denying Appellant’s Motion to Suppress
the search and seizure of the cell phones belonging to Appellant
and found in his vehicle by ruling that the search warrants
articulated probable cause?
4. Did the trial court err by denying Appellant’s Motion to Suppress
his January 30, 2021 statements to law enforcement in violation
of his rights as protected by Article I, section 8 and 9 of the
Pennsylvania Constitution and the Fourth, Fifth, Sixth, and
Fourteenth Amendments of the United State Constitution?
Appellant’s Br. at 8-9.8
A.
Each of Appellant’s four issues challenge the trial court’s denial of his
suppression motion. Our scope and standard of review of an order denying
suppression are well settled:
[O]ur standard of review for the denial of a suppression motion is
de novo and 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. Our
scope of review is to consider only the evidence of the
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8 This Court, sua sponte, consolidated Appellant’s appeals from his two
dockets.
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Commonwealth and so much of the evidence for the defense as
remains uncontradicted when read in the context of the
suppression record as a whole. When the sole issue on appeal
relates to a suppression ruling, our review includes only the
suppression hearing record and excludes from consideration
evidence elicited at trial.
Commonwealth v. Green, 265 A.3d 541, 550–51 (Pa. 2021) (internal
citations and quotation marks omitted). Moreover, “[i]t is within the
suppression court’s sole province as factfinder to pass on the credibility of
witnesses and the weight to be given their testimony.” Commonwealth v.
Luczki,
212 A.3d 530, 542 (Pa. Super. 2019) (citation omitted).
B.
In his first issue, Appellant challenges the trial court’s denial of his
Motion to Suppress claiming that the initial traffic stop was illegal. It is
axiomatic that if a “detention violates the Fourth Amendment, then any
evidence seized during that stop must be excluded as fruit of an unlawful
detention.” Commonwealth v. Mattis, 252 A.3d 650, 654 (Pa. Super.
2021).
Under the Vehicle Code, a police officer has authority to stop a vehicle
if he or she “has reasonable suspicion” that a Vehicle Code violation “is
occurring or has occurred” for the purpose of, inter alia, “secur[ing] such other
information as the officer may reasonably believe to be necessary to enforce
the provisions of [the Code].” 75 Pa.C.S. § 6308(b). Whether an officer must
possess probable cause or reasonable suspicion for a constitutional traffic stop
depends on the nature of the suspected violation. See Commonwealth v.
Salter, 121 A.3d 987, 993 (Pa. Super. 2015). In the case of DUI, an officer
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may stop a vehicle if he or she has reasonable suspicion that the driver is
operating the vehicle under the influence of alcohol or controlled substances
to “provide the officer the needed opportunity to investigate further[.]”9 Id.
Appellant claims that the officers subjected him to an unlawful
investigatory detention because they did not have reasonable suspicion to
suspect him of DUI. Appellant’s Br. at 17-21. After careful review of the
record, we disagree and instead conclude that the record supports the
suppression court’s determination that the officers had reasonable suspicion
that Appellant was DUI.
We initially defer to the trial court’s finding that the officers were credible
and the court’s recognition that Officer Zukow had specific training in DUI
detection and enforcement. Tr. Ct. Op. at 14. Based upon the evidence
presented by the Commonwealth, the record amply supports the court’s
conclusion that Officer Zukow had reasonable suspicion that Appellant was
DUI based upon his observations of Appellant’s speed fluctuations and his
swerving over the double yellow and white fog lines, even if the vehicle did
not swerve as significantly as in some of the cases cited by Appellant. Tr. Ct.
Op. at 13-15. Accordingly, we conclude that the initial traffic stop did not
violate constitutional protections and that the trial court did not err in denying
suppression on this basis.
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9 In contrast, “[i]f it is not necessary to stop the vehicle to establish that a
violation of the Vehicle Code has occurred, [such as in the case of speeding,]
an officer must possess probable cause to stop the vehicle.” Id.
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C.
Appellant next challenges the suppression court’s conclusion that he
voluntarily consented to the search of the Jeep. Appellant’s Br. at 21-26. It
is undisputed that the Fourth Amendment to the United States Constitution
and Article I, Section 8 of the Pennsylvania Constitution protect individuals
from “unreasonable searches and seizures.” U.S. CONST. amend. IV; PA.
CONST. art. I, § 8. While a warrant is generally required for a search, “[o]ne
of the limited exceptions to the warrant requirement is a consensual search.”
Commonwealth v. Valdivia, 195 A.3d 855, 861 (Pa. 2018). To determine
the legality of a consensual search, we apply a two-prong assessment in which
we first determine “the constitutional validity of the citizen/police encounter
giving rise to the consent” and then consider the voluntariness of the consent.
Mattis, 252 A.3d at 654.
In regard to the first prong relating to the validity of the citizen/police
encounter, “[w]here a consensual search has been preceded by an unlawful
detention, the exclusionary rule requires suppression of the evidence.” Id.
at 655. Courts evaluate the lawfulness of a citizen/police encounter by first
determining whether the individual is “free to leave” or whether the situation
involves an investigatory detention or an arrest.10 Commonwealth v.
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10 Each of the three categories of citizen/police encounters requires an officer
to have a different level of suspicion that the individual has engaged in criminal
activity. Specifically, (1) mere encounters, where the individual is free to
leave, require no suspicion; (2) investigative detentions require reasonable
(Footnote Continued Next Page)
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Strickler, 757 A.2d 884, 889 (Pa. 2000). “[T]he ‘free-to-leave’ standard
presents the central inquiry of whether, considering the totality of the
circumstances, the relevant police conduct would have communicated to a
reasonable person that he was not at liberty to ignore the police presence and
go about his business.” Commonwealth v. Cost,
224 A.3d 641, 650 (Pa.
2020) (citation and quotation marks omitted).
“Thus, in the context of a traffic or similar stop, once the purpose for
the [initial] stop has been completed, the question arises: Does the individual
have objective reasons to believe that he is (or is not) free to end the
police/citizen encounter?” Strickler, 757 A.2d at 891. If the individual is free
to leave, “the police are free to ask questions appropriate to a mere encounter,
including a request for permission to search the vehicle.” Mattis, 252 A.3d
at 655. In contrast, “where the purpose of an initial traffic stop has ended
and a reasonable person would not have believed that he was free to leave,
the law characterizes a subsequent round of questioning by the police as an
investigative detention or arrest[.]” Id. In such cases, the officers must
possess reasonable suspicion or probable cause, respectively, of criminal
activity to support the additional questioning and investigation.
We look to the totality of the circumstances in considering whether a
reasonable person would feel free to leave a traffic stop, “with no single factor
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suspicion; and (3) custodial detentions or arrests require probable cause.
Commonwealth v. Collins, 950 A.2d 1041, 1046 (Pa. Super. 2008) (en
banc).
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dictating the ultimate conclusion as to whether a seizure has occurred.”
Strickler, 757 A.2d at 890. Courts have identified numerous relevant factors
in assessing whether a person is free to leave.11 One “potent, objective factor”
is whether the officer expressly informed the individual that they were free to
leave. Id. at 899. Another significant factor is whether the officer has
retained possession of the driver’s license. See Mattis, 252 A.3d at 656;
Commonwealth v. Lopez, 609 A.2d 177 (Pa. Super. 1992); cf. Cost, 224
A.3d at 651 (observing in regard to a non-traffic stop “that the retention by
police of an identification card to conduct a warrant check will generally be a
material and substantial escalating factor within the totality assessment”).
In Mattis and Lopez, as in the instant case, officers engaged in an
initial lawful traffic stop. After addressing the purpose of the initial stop, the
officers retained the drivers’ licenses and questioned the drivers regarding
issues unrelated to the initial stop and for which the officers did not have
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11 A non-exclusive list includes: the “existence of the prior, lawful detention
[which engrafts] a degree of coercion on the encounter[;]” “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[;]” the
“show of weapons, unusual commands[, or] aggressive behavior” by police[;]”
and other “temporal and geographic elements of the interaction[.]” Strickler,
757 A.2d at 898-900. Courts have also recognized that the existence of a
police vehicle positioned behind or beside the individual’s vehicle with
emergency lights activated favors the conclusion that the individual is not free
to leave. See Commonwealth v. Livingstone, 174 A.3d 609, 619 (Pa.
2017) (Todd, J., setting forth the Opinion of the Court as to Part II(B)).
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reasonable suspicion of criminal activity.12 The officers, then, requested and
received the drivers’ consent to search the vehicles. This Court ultimately
concluded that the drivers were not “free to leave” while the officers retained
their licenses and subjected them to additional investigation beyond the
purpose of the traffic stop.13 Mattis, 252 A.3d at 656. We held that, because
the investigative detentions were not supported by reasonable suspicion of
criminal activity, they were unlawful, which, in turn, “tainted” the consents to
search and rendered them invalid. Lopez, 609 A.2d at 182; Mattis, 252 A.3d
at 656. Accordingly, we remanded for new trials, holding that the searches
were unconstitutional.
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12 Specifically, in Mattis, the officer lawfully stopped Mattis for a speeding
violation. The officer then requested that Mattis step out of the vehicle to
determine why he “was so nervous[,]” and questioned Mattis whether he had
anything illegal in the vehicle. Mattis, 252 A.3d at 656. This Court concluded
that nervousness alone “does not provide reasonable suspicion for an
investigative detention.” Id. at 655.
In Lopez, the officer stopped the driver for a Vehicle Code violation related to
the tow chains between the rental truck and the towed vehicle. Lopez,
609
A.2d at 179. The officer validly ordered the driver out of the vehicle to address
the violation but then began questioning Lopez, inter alia, as to whether he
had anything illegal in either vehicle, without having reasonable suspicion that
Lopez had engaged in any violations beyond the tow chain.
Id. at 180-81.
13 The Dissent argues that “unlike Mattis and Lopez, where the defendants
were found not ‘free to leave’ while the officers retained their licenses, the
trial court in this matter specifically found that a reasonable person in
Appellant’s circumstances would have realized that they were free to
terminate the interaction and leave.” Dissenting Opinion at 2. We respectfully
disagree with the Dissent’s conclusion. A reasonable person would not realize
that he was free to leave the traffic stop when the police still held his driver’s
license under the totality of circumstances in this case, as described infra.
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In light of Mattis and Lopez, we are constrained to conclude that the
suppression court erred in applying the law to the facts of this case when it
denied suppression, concluding that “a reasonable person under the
circumstances, would acknowledge their right to terminate the
interaction[.]”14 Tr. Ct. Op. at 17. Although we agree with the trial court that
the initial traffic stop was valid as it was based on reasonable suspicion that
Appellant was DUI and that the investigatory detention of the traffic stop
ended when the officer stated that Appellant was safe to drive and not under
arrest, our agreement ends there. Id. at 17.
In particular, we reject the trial court’s conclusion that Appellant was
free to leave after the police completed the sobriety test. Instead, by retaining
Appellant’s driver’s license, the police created a legal impediment to
Appellant’s ability to leave the scene of the traffic stop. In other words, if
Appellant had driven away from the stop while the police held onto his driver’s
license, Appellant would be violating traffic laws. See 75 Pa.C.S. § 1511(a)
(“Every licensee shall possess a driver’s license issued to the licensee at all
times when driving a motor vehicle[.]”). Thus, by retaining Appellant’s
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14 In so holding, the court emphasized that, based upon its viewing of body
camera video, “the tenor of this entire encounter was not coercive,” as the
“parties were cooperative and respectful to each other.” Id. at 17-18. It also
observed that the interaction was brief, lasting only thirteen minutes between
the initial stop and the signing of the consent. Id. at 17. The court, however,
did not address Officer Zukow’s testimony that he “did not tell [Appellant] that
he was free to leave” nor did the court acknowledge the officer’s testimony
that he did not believe that Appellant “was free to leave” after the officer
determined that Appellant was capable of safe driving. N.T. Suppression Hr’g
at 120-21.
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driver’s license, the police prevented Appellant from legally leaving the scene
of the traffic stop in his vehicle. This is particularly relevant in this case where
the traffic stop was on a rural road on a frigid night, where Appellant could
not easily walk away when the police continued to question him.
Additionally, the record does not indicate that the officers informed
Appellant that he was free to leave following the traffic stop, which our
Supreme Court has noted is a “potent, objective factor.” Strickler, 757 A.2d
at 899. While the suppression court correctly emphasized that no one factor
controls the determination of whether an individual is free to leave an
encounter, the court failed to acknowledge the significance of these two
substantial factors in light of the totality of the circumstances.15
Accordingly, by continuing to question Appellant, the officers subjected
Appellant to a second investigatory detention which was not supported by
reasonable suspicion of any criminal activity other than the previously-
resolved suspicion of DUI. Absent reasonable suspicion, this investigatory
detention was unlawful, and Appellant’s consent was invalid. Accordingly, all
evidence derived from the search, including the evidence seized from the Jeep
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15 Moreover, the officers testified that the encounter occurred late at night in
a rural area, that the officers had parked their police vehicles, with lights
illuminated, in front and behind Appellant’s vehicle, and that multiple
uniformed officers were on the scene. N.T. Suppression Hr’g at 175-76, 124,
130-31. These additionally weigh in favor of concluding that Appellant was
not free to leave, based on the totality of the circumstances. Indeed, as
argued by Appellant’s counsel, “what reasonable human being on this planet
would think that they could walk away from that scene?” Id. at 258-59.
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and the tractor trailer, as well as Appellant’s subsequent statements, should
have been suppressed.16
Accordingly, we vacate the judgment of sentence and remand to the
trial court for a new trial.
Judgment of sentence vacated; case remanded for new trial. Jurisdiction
is relinquished.
President Judge Panella joins the opinion.
President Judge Emeritus Stevens files a dissenting opinion.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/29/2023
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16 As we conclude that Appellant’s consent to search was invalid, we need not
address his challenges to the denial of his Motion to Suppress his statements
and the evidence from the search and seizure of the cell phones, which derived
from the unlawful search of the Jeep.
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