J-S02044-24
2024 PA Super 44
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
DERRICK FLOYD : No. 525 EDA 2023
Appeal from the Order Entered January 11, 2023
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0002630-2022
BEFORE: LAZARUS, P.J., MURRAY, J., and STEVENS, P.J.E.*
OPINION BY STEVENS, P.J.E.: FILED MARCH 13, 2024
The Commonwealth/Appellant appeals from the order entered January
11, 2023, in the Court of Common Pleas of Philadelphia County granting a
suppression motion in favor of Defendant/Appellee, Derrick Floyd. After a
careful review, we reverse.
The relevant facts and procedural history are as follows: On September
9, 2021, Philadelphia Police Officer Gary Outterbridge, who is assigned to the
Narcotics Strike Force, was working in his official capacity on a surveillance
operation for the sale of illegal narcotics on the 4500 block of Lancaster Ave.
in the city of Philadelphia. N.T. at 6. Establishments on the street include liquor
stores, Chinese restaurants, and bodegas, and the street is located in a
business district where the sale of narcotics is frequent. N.T. at 17. He was in
his marked police vehicle in full uniform. N.T. at 7. At approximately 5:42 PM,
____________________________________________
* Former Justice specially assigned to the Superior Court.
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he observed a black male, later identified as Defendant, Derrick Floyd, engage
in a brief conversation with an unknown black female. N.T. at 8. The officer
was using binoculars and was approximately thirty feet away. N.T. at 19. The
unknown female handed Defendant United States currency. N.T. at 8.
Defendant walked around to the passenger side of a white Dodge Ram pickup
truck with a Pennsylvania plate with the last four digits 6336. Defendant
entered the passenger side of his pickup truck and briefly sat in his vehicle.
N.T. at 8. When Defendant emerged from his vehicle, he handed the unknown
female small objects. N.T. at 9. Another team on the strike force was sent to
apprehend the female, but she was lost in the area. About four minutes later,
at approximately 5:46 PM, Defendant engaged in a conversation with the
second black female, later identified as Myra Buchanan. Ms. Buchanan handed
Defendant an undetermined amount of U.S. currency. In the same manner as
before, he entered the passenger seat of his white Dodge Ram truck, returned
into view, and handed Ms. Buchanan small objects. N.T. at 9. Ms. Buchanan
was stopped by another officer who recovered two green flip top containers
containing crack cocaine. N.T. at 9-10.
About four minutes later, at 5:50 PM, Defendant entered the driver's
seat of his truck and an officer stopped his vehicle. On Defendant’s person,
$36 of United States currency was recovered. N.T. at 10. The officer who
effectuated the arrest handed the key to Defendant’s Dodge Ram to Officer
Anthony Woltman, another member of the strike force assigned to the
operation on 4500 Lancaster Ave. N.T. at 27. Officer Woltman placed the
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truck on a Philadelphia property receipt, entered the vehicle, and transported
it to 4298 Macalester Street, a secure police facility, pending the approval of
a search warrant. N.T. at 24.
At 9:27 PM, Officer Outterbridge served a warrant on Defendant’s
vehicle and observed while it was searched by Officer Wright and Officer
Zukauskas at the secure police facility, 4298 Macalester Street. N.T. at 11.
Recovered from the vehicle was $725 U.S. currency, a black .45 caliber
handgun with an obliterated serial number that was loaded with ten live
rounds, an Arizona tea can with a false bottom containing two and a half grams
of bulk cocaine and seventy-two green flip top containers containing crack
cocaine, thirty-three clear flip top containers containing crack cocaine, and
two clear jars of marijuana. N.T. at 12-14. All of these items were recorded
on a Philadelphia property receipt. N.T. at 14.
On November 30, 2022, a suppression hearing was held at which Officer
Outterbridge and Officer Woltman testified to the above facts, and Ms.
Buchanan testified on behalf of Defendant. She stated that on September 9,
2021, she interacted with Defendant on Lancaster Ave. and briefly spoke with
him because he is a family friend. N.T. at 29-30. She admitted that she was
stopped by police several minutes later and was found to have crack cocaine
but denied having purchased it from Defendant during their interaction. N.T.
at 28-29. At the conclusion of the suppression hearing, the trial court held the
matter under advisement and directed the parties to file briefs in support of
their arguments. On January 11, 2023, the trial court granted Defendant’s
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motion to suppress the evidence recovered from his vehicle because of Officer
Woltman’s warrantless entry of the vehicle. The Commonwealth timely
appealed. Tr. Ct. Op. at 1.
The Commonwealth raises one question for our review: “Did the lower
court err by suppressing evidence seized pursuant to a valid search warrant
from a car on the ground that, following defendant’s lawful arrest, an officer
drove the car from a public street to a police lot pending approval of the
warrant?” Appellant’s Br. at 3.
Our standard of review in addressing a challenge to the 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 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, 252-53 (Pa. Super. 2016), appeal
denied,
159 A.3d 933 (2016). Here, Defendant was arrested without a
warrant.
This Court has previously noted:
It is axiomatic that the validity of a warrantless arrest is
determined by considering “whether, at the moment the arrest
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was made, the officer had probable cause to make it,” Beck v.
Ohio, 379 U.S. 89,
85 S. Ct. 223, 225,
13 L. Ed. 2d 142, (1964),
and the person arrested is believed to be the guilty party.
Commonwealth v. Mallory, 614 A.2d 1174, 1176 (Pa. Super. 1992), appeal
denied,
621 A.2d 578 (Pa. 1993). Probable cause to effectuate a warrantless
arrest exists when:
“the facts and circumstances within the knowledge of the arresting
officer are reasonably trustworthy and sufficient to justify a person
of reasonable caution in believing that the arrestee has committed
an offense.” Commonwealth v. Romero, 449 Pa. Super. 194,
673 A.2d 374, 376 (Pa. Super. 1996). In making this
determination, this Court has held that “[p]robable cause for a
warrantless arrest requires only the probability, and not a prima
facie showing, of criminal activity.” Id. at 377 (citing
Commonwealth v. Quiles, 422 Pa. Super. 153,
619 A.2d 291,
298 (Pa. Super. 1993) (en banc)).
Commonwealth v. Rickabaugh,
706 A.2d 826, 835-36 (Pa. Super. 1997)
(some formatting added).
Here, Defendant was arrested without a warrant after the officers
obtained probable cause through their observations to believe he was engaged
in narcotic transactions, or a violation of 35 P.S. § 780-113. Instantly,
Defendant argues that his arrest was not supported by probable cause
because the officers failed to establish a nexus between their extensive
experience and their observations. Appellee’s Br. at 12-13. Defendant cites
Commonwealth v. Dunlap, 941 A.2d 671 (Pa. 2007) and Commonwealth
v. Thompson,
985 A.2d 928 (Pa. 2009) for the proposition that the
Commonwealth must establish a nexus between an officer’s experience and
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the specific circumstances of the incident. Appellee’s Br. at 13. However, this
Court has noted:
First, Thompson involved a single hand-to-hand transaction. It
was under those limited circumstances (as was also the case in
Dunlap) that the value of police experience became critical to the
probable cause determination. Because the officer's observation
of the lone transaction, by itself, did not create probable cause,
the police officer's experience was necessary to determine
whether probable cause existed. Per Thompson, that experience
has value only if the officer can demonstrate a nexus between the
experience and the observed behavior. However, the necessity of
establishing that nexus diminishes if probable cause exists based
solely upon the behavior that the officer observed.
Commonwealth v. Delvalle, 74 A.3d 1081, 1085-86 (Pa. Super. 2013).
Viewing the totality of the circumstances, probable cause existed for the
officers to stop and arrest Defendant, and a nexus was established between
their experience and their observation. Thompson and Dunlap pertain to
single hand-to-hand transactions. Here, the officers observed Defendant
receive money from another individual, enter his vehicle, return to the
individual, and hand over small objects. N.T. at 8-9. This sequence of events
occurred twice in under ten minutes in the same exact manner. The second
individual with whom Defendant engaged was stopped minutes later by police
and two green flip-top containers of crack cocaine were found. N.T. at 9-10.
When Defendant’s vehicle was later searched pursuant to a valid search
warrant, seventy-two green flip-top containers of crack cocaine were found,
inter alia. N.T. at 13. Lancaster Avenue was a place where narcotics are
regularly sold. N.T. at 14. Officer Outterbridge has been a police officer for
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sixteen years with thirteen years in narcotics. N.T. at 15. He had training in
terms of packaging, distribution, and surveillance techniques, and had
conducted at least three or four surveillances of 4500 Lancaster Ave., the
specific location where Defendant was observed. N.T. at 15-16. Those
surveillances led to arrests. N.T. at 16. Officer Outterbridge testified that the
drug trade in the city of Philadelphia is central to establishments that sell
alcohol, Chinese stores, stop-and-go delis, and bodegas. N.T. at 17.
Relating that experience to the specific facts of the instant case, Officer
Outterbridge testified that these types of establishments were present at
location. Id. His testimony formed a nexus between his experience and the
facts of the arrest. Dunlap, 941 a.2d at 676. Given the nature and location of
the transactions, and the frequency and repetitiveness of the transaction, we
are unpersuaded by Defendant’s argument that the lower court’s finding that
probable cause existed to arrest him was based entirely on Officer
Outterbridge’s years of experience as a police officer.
We are also not persuaded by Defendant’s argument that because the
lower court did not state its credibility determination on the record, that we
cannot consider the testimony of Officer Outterbridge which Defendant claims
contradicts Ms. Buchanan’s testimony. Appellee’s Br. at 11 (“The trial court
made no credibility findings between Ms. Buchanan and Officer Outterbridge.
The law is clear however, this Court is not at liberty to consider Officer
Outterbridge’s testimony where it is contradicted by that of Appellee’s witness,
Ms. Buchanan.”). Defendant admits that the “trial court determined that
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probable cause to arrest Appellee existed based on Officer Outterbridge’s
testimony describing his observations.” Appellee’s Br. at 9. Additionally, the
trial court referred to Ms. Buchanan as Defendant’s “second buyer.” N.T. at
39. Thus, it is facially apparent that the trial court found Officer Outterbridge’s
testimony credible and found that Ms. Buchanan’s testimony that she did not
make a drug purchase not credible.
Nonetheless, the contradictions between the testimonies are not
abundantly clear—while Ms. Buchanan denied purchasing narcotics from
Defendant, the Officer’s testimony is not that he definitively saw Defendant
sell narcotics to Ms. Buchanan. He stated that he observed two transactions
with Defendant and another of unidentified small objects in exchange for U.S.
currency, and Ms. Buchanan never testified that she did not hand Defendant
money or take any object. Thus, the officer’s testimony of the interaction
between Defendant and Ms. Buchanan stands uncontradicted, and in
combination with the additional facts above, provides ample evidence for a
finding of probable cause for arrest.
Next, we must address the issue at hand: if the evidence recovered from
Defendant’s vehicle after a valid search warrant was executed must
nonetheless be suppressed because of the Officer’s driving of Defendant’s
vehicle to the impound lot. The Commonwealth argues that it is reasonable
for constitutional purposes for police to seize and hold a car until a search
warrant can be obtained in circumstances such as this. Appellee’s Br. at 10.
Even if the police officer moving the vehicle was improper, the vehicle was not
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searched during the relocation of the car and thus the evidence recovered
could not be the fruit of any putative police conduct requiring suppression. Id.
at 13. The Commonwealth cites Commonwealth v. Holzer, 389 A.2d 101
(Pa. Super. 1978), for the proposition that:
It is reasonable, therefore, for constitutional purposes, for police
to seize and hold a car until a search warrant can be obtained,
where the seizure occurs after the user or owner has been placed
into custody, where the vehicle is located on public property, and
where there exists probable cause to believe that evidence of the
commission of a crime will be obtained from the vehicle.
Id. at 106. The Commonwealth argues that here, Defendant was placed into
custody, after the arrest his vehicle was still on a public street, and there was
probable cause to believe evidence of the drug sales was in the vehicle, and
thus the car was properly moved to a secure location until a search warrant
was obtained. Appellant’s Br. at 11-12; Appellant’s Reply Br. at 6.
The trial court stated on the record at the conclusion of the suppression
hearing, “There was a valid warrant which was executed. That valid warrant
was executed after an illegal seizure. The question is whether the illegal
seizure of the vehicle is grounds for suppression of the evidence.” N.T. at 40.
However, as it is our appellate duty in a suppression case, we must determine
if the court below correctly applied the law to the facts. Korn, supra.
There is statutory authority for the seizure of vehicles at the direction
of police:
(c) Removal to garage or place of safety. — Any police officer may
remove or cause to be removed to the place of business of the
operator of a wrecker or to a nearby garage or other place of
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safety any vehicle found upon a highway under any of the
following circumstances:
(1) Report has been made that the vehicle has been stolen or
taken without the consent of its owner.
(2) The person or persons in charge of the vehicle are physically
unable to provide for the custody or removal of the vehicle.
(3) The person driving or in control of the vehicle is arrested for
an alleged offense for which the officer is required by law to take
the person arrested before an issuing authority without
unnecessary delay.
(4) The vehicle is in violation of section 3353 (relating to
prohibitions in specified places) except for overtime parking.
(5) The vehicle has been abandoned as defined in this title. . . .
75 Pa.C.S. § 3352.
This statutory power is above the traditional caretaking function which
allowed police to remove cars which presented some hazard to the public or
impaired the movement of traffic. Commonwealth v. Bailey, 986 A.2d 860,
863 (Pa. Super. 2009).
Interestingly, despite the fact that this statute has been on the
books since 1976, we have found only one that case has
commented on section (c)(3), Commonwealth v. Hennigan,
2000 PA Super 145, 753 A2d. 245 (Pa. Super. 2000). In that case,
the police impounding the car was improper because the suspect
was not operating or in control of his car at the time of arrest.
Rather, the car was simply legally parked on the side of the road.
In dicta, Hennigan comments that the ability to impound a car is
derived from the traditional care-taking function of the police
which has allowed police to tow cars, prior to statute, in situations
where the cars presented some manner of hazard to the public or
where the car might impact on the movement of traffic.
We note, however, that the statute separately accounts for
the traditional care-taking functions where the police have always
been allowed to tow a vehicle. For example, section (c)(5)
addresses abandoned vehicles. Section (c)(2) addresses
situations where the person or persons in charge of the vehicle
are incapable of providing custody or removal of the vehicle.
Section (c)(4) directs attention to the traditional parking
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situations where the vehicle might pose a hazard or impede the
orderly flow of traffic.
Therefore, it appears that the legislature intended these
situations to be viewed distinctly and separately.
Bailey, 986 A.2d at 863.
In Commonwealth v. Germann, 621 A.2d 589 (Pa. Super. 1993),
police officers stopped a driver with a fraudulent inspection sticker on a vehicle
in very poor condition.
Id. at 592. Believing evidence of more fraudulent
stickers would be found in the car, the officer searched the car and found two
more fraudulent stickers, drugs paraphernalia, and cocaine.
Id. at 591. The
trial court held that there was independent probable cause for a search of the
vehicle, and that the evidence would have been inevitably discovered through
a search when the police moved the car pursuant to section 3352. On appeal,
this Court found that the vehicle could not have been subject to removal by
police pursuant to any enumerated subsection of section 3352 because the
defendant would only have been issued a summary citation based on the
exterior fraudulent stickers, so he still had the right to custody of his vehicle.
Id. at 594.
Thus, in order to determine if the seizure of Defendant’s vehicle was in
fact illegal or if it was legally moved, we must determine if the facts of this
case fall into any enumerated subsection of section 3352. Subsection (c)(3)
states that a police officer may remove a vehicle to a place of safety if the
person “in control of the vehicle is arrested for an alleged offense for which
the officer is required by law to take the person arrested before an issuing
authority without unnecessary delay.” 75 Pa.C.S. § 3352(c)(3). Here, the
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record shows that Defendant was in control of the Dodge Ram from which he
conducted transactions and later drove. N.T. at 9. Defendant was stopped
and arrested without a warrant after a perceived violation of 35 P.S. § 780-
113. Pursuant to Pa.R.Crim.P. 519, “when a defendant has been arrested
without a warrant in a court case, a complaint shall be filed against the
defendant and the defendant shall be afforded a preliminary arraignment by
the proper issuing authority without unnecessary delay.” Pa.R.Crim.P.
519(A)(1). Thus, unlike the initial summary violation in Germann,
Defendant’s alleged offense is one “for which the officer is required by law to
take the person arrested before an issuing authority without unnecessary
delay.” 75 Pa.C.S. § 3352(c)(3). Therefore, the requirements of section 3352
have been satisfied and the police had statutory authority to remove
Defendant’s vehicle to the impound lot.
The question remains if the fact that Officer Woltman personally entered
Defendant’s car to remove it to a secure facility while awaiting a search
warrant instead of calling a towing service, was a violation of Defendant’s
constitutional rights. Section 3352 states that a police officer may “remove or
cause to be removed” a vehicle. While the word “remove” is not defined, the
plain language of the statue does not indicate the vehicle always needs to be
towed even if that is the usual method of removal.
In Commonwealth v. Williams, 2 A.3d 611 (Pa. Super. 2010), a case
discussed in each party’s brief, after a defendant was placed under arrest on
probable cause of narcotics dealing while exiting his vehicle outside his home,
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a police officer drove the defendant’s car from his private driveway to the
police station. Id. at 615. The vehicle was not searched during the drive, but
canines alerted the police of the presence of drugs upon the car’s arrival at
the police station. The car was fully searched after a valid warrant was
executed.
Id. at 617. Evidence of drugs, inter alia, was discovered.
Id. at
615. There, citing Commonwealth v. Holzer,
389 A.2d 101 (Pa. Super.
1978), we said,
Our Supreme Court concluded that the towing of the car was not
improper, holding: “It is reasonable . . . for constitutional
purposes for police to seize and hold a car until a search warrant
can be obtained, where the seizure occurs after the user or owner
has been placed into custody, where the vehicle is located on
public property, and where there exists probable cause to believe
that evidence of the commission of crime will be obtained from
the vehicle.” The Court also observed that if the “vehicle is located
on the defendant’s private property (garage or driveway), it
becomes more difficult, although not impossible, to find the police
conduct reasonable, since there has been a greater infringement
upon defendant's expectations of privacy.”
Williams, 2 A.3d at 618 (citations omitted). The issue then became if the
removal of the vehicle from defendant’s private property, as opposed to from
a public location, was still reasonable. Thus, the issue was not the manner of
removal—towing or driving.
To remedy the fact that the car was seized from private property, we
engaged in an analysis of the independent source doctrine, as articulated in
Segura v. United States, 468 U.S. 796, (1984), to determine if the evidence
that was discovered “lawfully, and not as a direct or indirect result of illegal
activity,” was admissible. Id. at 618. We stated,
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The information supporting the canine sniff and the warrant was
not derived to any extent from the singular act of taking
[defendant’s vehicle] from the driveway to the police station to
secure it. Rather, those two searches were based upon facts
learned prior to the act of transporting the vehicle. Thus, the
independent source doctrine, as articulated in Segura, is directly
applicable.
Williams, 2 A.3d at 620-21. Thus, it seems plain that we only engaged in the
independent source analysis in Williams because the defendant’s vehicle was
seized from his private property without a warrant, not because it was
removed by an officer driving it. This would defeat Defendant’s argument that
“the Commonwealth failed to present evidence . . . [to] establish an
independent source.” Appellee’s Br. at 23-24. Nonetheless, here we will
analyze if the evidence discovered in Defendant’s vehicle pursuant to the valid
search warrant had an independent source.
The “exclusionary rule has traditionally barred from trial physical,
tangible materials obtained either during or as a direct result of an unlawful
invasion.” Wong Sun v. United States, 371 U.S. 471, 485 (1963). The
Wong Sun Court stated that the exclusionary rule does not prevent the
introduction of evidence that is “gained from an independent source,” but
rather applies only to “knowledge gained by the Government's own wrong.”
Id. The Supreme Court further expounded on the concept of the independent
source doctrine in Segura v. United States,
468 U.S. 796 (1984). In
Segura,
drug enforcement officers made an invalid warrantless entry into
the defendant's apartment because there were no exigent
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circumstances permitting such an entry. However, the drug
agents did not conduct a search of the premises with the exception
that they visually inspected each room solely to ensure that no
one was present who posed a threat or would destroy evidence.
The drug officers then secured the apartment in order to preserve
the status quo while a search warrant was procured. Significantly,
the drug enforcement officers did not seize any evidence, even
that in plain view, until the warrant arrived. Additionally, the
government did not use any information that was found due to
the initial entry into the apartment to support issuance of the
warrant.
The Supreme Court held that, even though the initial
warrantless entry into the apartment was illegal, it did not taint
the discovery of the evidence found and seized pursuant to the
warrant. It reasoned that “the evidence discovered during the
subsequent search of the apartment the following day pursuant to
the valid search warrant issued wholly on information known to
the officers before the entry into the apartment need not have
been suppressed as “fruit” of the illegal entry.” Id. at 799. The
Supreme Court concluded that suppression was unnecessary
“because the warrant and the information on which it was based
were unrelated to the entry and therefore constituted an
independent source for the evidence under Silverthorne Lumber
Co. v. United States, 251 U.S. 385,
40 S.Ct. 182,
64 L.Ed. 319,
T.D. 2984, 17 Ohio L. Rep. 514 (1920).” Id. The Supreme Court
noted that the evidence obtained as a result of the valid warrant
did not result to any extent from the original, invalid entry.
Williams, 2 A.3d at 620.
Here, the trial court states multiple policy reasons for justifying
suppression concerning Defendant’s rights:
Despite appellee's arrest, he maintained a reasonable expectation
of privacy along with an ownership interest in his vehicle. By
entering and driving the appellee's vehicle, and using the gasoline
which appellee purchased to fuel his vehicle all without a warrant,
the police infringed upon appellee's property interests and his
privacy rights.
Moreover, allowing the police to transport vehicles by
driving them to various locations throughout the Commonwealth—
as opposed to having the vehicle's towed—police could be
operating unsafe vehicles on public roads and unwittingly
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endangering motorists and pedestrians. Arresting officers should
not be responsible for assessing the safety and roadworthiness of
these vehicles. Certainly, motorists and pedestrians should not
bear the risk of potentially dangerous vehicles being transported
by the police from crime scenes to impound lots.
Tr. Ct. Op. at. 6.
Here, the facts supporting the valid search warrant were not derived to
any extent from the act of Officer Woltman entering Defendant’s vehicle to
drive it to the secure lot or any impressions Officer Woltman made from within
the vehicle. N.T. at 40. Instead, the facts supporting the search warrant
included Officer Outterbridge’s observations of Defendant’s activities on
Lancaster Ave. Id. Those facts were known to Officer Outterbridge before
Officer Woltman’s entry into Defendant’s vehicle and thus need not have been
suppressed as fruit of an illegal seizure. Segura,
468 U.S. at 799.
The trial court erred in failing to address that section 3352 gives
statutory authority to police officers to remove a vehicle “to the place of
business of the operator of a wrecker or to a nearby garage or other place of
safety.” 75 Pa.C.S. § 3352(a). Officers are not authorized to drive the vehicles
of another to any “various locations throughout the Commonwealth” as the
trial court suggests. Thus, since there was probable cause to arrest Defendant
and for the officers to obtain a warrant to search his vehicle, the police had
authority to remove the vehicle, and because the evidence recovered from the
vehicle had an independent source, we reverse.
Order reversed.
Jurisdiction relinquished.
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Date: 3/13/2024
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