Opinion
J-S78045-18 No. 1409 EDA 2018
01-29-2019
COMMONWEALTH OF PENNSYLVANIA v. FRANCESCA MERCED Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment of Sentence December 19, 2017
In the Court of Common Pleas of Monroe County Criminal Division at No(s): CP-45-CR-0000092-2017 BEFORE: LAZARUS, J., McLAUGHLIN, J., and STEVENS, P.J.E. MEMORANDUM BY STEVENS, P.J.E.:
Former Justice specially assigned to the Superior Court.
Appellant, Francesca Merced, appeals from the judgment of sentence entered in the Court of Common Pleas of Monroe County following her conviction by a jury on one count of possession with the intent to deliver a controlled substance (heroin), two counts of possession of a controlled substance (heroin and cocaine), and one count of possession of drug paraphernalia, as well as her conviction for the summary offenses of driving while operating privilege is suspended or revoked and no rear lights. After a careful review, we affirm.
35 P.S. §§ 780-113(a)(30), (16), and (32); 75 Pa.C.S.A. §§ 1543(a) and 4303(b), respectively.
The relevant facts and procedural history are as follows: Appellant was arrested, and on February 13, 2017, she filed a counseled, pre-trial motion seeking to suppress the evidence seized following the stop of her motor vehicle. On March 30, 2017, Appellant proceeded to a suppression hearing, at which the Commonwealth presented the testimony of Pennsylvania State Trooper Nicholas Avvisato and Stroud Area Regional Police Officer Robert Breitfeller. Appellant presented the testimony of Jermel McAllister.
Trooper Avvisato testified that, during the mid-afternoon on December 26, 2016, he was sitting in his cruiser in the median on Woodland Road when he observed an SUV, which did not have a functioning registration light. N.T., 3/30/17, at 5, 11, 25. Trooper Avvisato clarified that the registration light is the light that illuminates the license plate at the rear of the vehicle. Id. Trooper Avvisato testified that, because of the non-functioning light, he pulled behind the SUV and activated his cruiser's lights with the intent of stopping the SUV. Id. at 25, 35.
As he pursued the SUV, he "ran" the license plate and discovered the registered owner was "wanted for a parole violation, considered violent, dangerous, a flight risk, [and] known to use drugs and alcohol." Id. at 7, 25. At 3:24 p.m., the SUV pulled into a parking lot, and Trooper Avvisato approached it. Id. at 6-7, 11. A female, later identified as Appellant, was driving the SUV, and a male, later identified as Jermel McAllister, was seated in the front passenger seat. Id.
Trooper Avvisato testified that he first approached the male passenger, who indicated he had no identification; however, the passenger verbally provide his name and date of birth. Id. at 8. The trooper noted he then asked Appellant, who was driving, for her driver's license and she provided him with an Arizona photo identification. Id. Appellant gave the trooper the vehicle's registration and insurance cards. Id.
Trooper Avvisato returned to his cruiser and "ran" Appellant's Arizona photo identification, as well as Mr. McAllister's information. Id. When he "ran" the Arizona photo identification, he discovered that it was not a valid driver's license. Id. When he "ran" Mr. McAllister's information, he discovered there was an outstanding warrant in New Jersey for his failure to appear in court; however, the trooper received confirmation that New Jersey did not "want him picked up for it." Id. at 27, 30. Trooper Avvisato exited his cruiser and re-approached Appellant, who was still seated in the driver's seat of the SUV, and asked her "what was going on with her license." Id. at 8. Appellant gave Trooper Avvisato a New York driver's license, and the trooper returned to his cruiser. Id. When Trooper Avvisato "ran" Appellant's New York driver's license, he discovered the license was suspended. Id.
Trooper Avvisato testified he returned to the SUV, and he asked Mr. McAllister, who was now outside of the SUV, about the pair's travels. Mr. McAllister indicated the pair "had just come from Brooklyn, New York visiting his family for Christmas." Id. at 9. However, when the trooper later asked Appellant the same question, she indicated "they were coming from Long Island visiting her family for Christmas." Id. The trooper noted Mr. McAllister told him that he and Appellant had been dating for four months; however, he was unable to tell the trooper where Appellant lived. Id. at 10. Mr. McAllister "kind of chuckled" and told Trooper Avvisato that he "met [Appellant] on the street." Id. at 9.
Appellant then exited the SUV, and Trooper Avvisato asked Appellant for consent to search the vehicle. Id. at 11, 22. He specifically informed her that she had the right to refuse. Id. Appellant asked what would happen if she did not consent to the police search of her vehicle, and Trooper Avvisato replied that he had sufficient evidence to call out a canine unit to "conduct a perimeter search of the vehicle." Id. at 19, 21. Appellant then signed a consent to search form at 3:55 p.m. Id. at 11, 20. Trooper Avvisato specifically denied that he threatened Appellant, told her the canine would damage the vehicle, or informed her a canine search would prolong the traffic stop. Id. at 20-21.
Trooper Avvisato searched the vehicle and found 598 unused glassine baggies in a cardboard box, which was wrapped in a black plastic bag, behind the driver's seat in the rear passenger seat area. Id. at 13-14. The trooper testified that, based on his training and experience, glassine baggies are commonly used for packaging heroin. Id. at 14. He also discovered an empty folded-up piece of paper stamped with the word "Beast" in the back compartment. Id. at 15. He testified that such packaging is commonly used for heroin. Id.
Based on his discovery of the drug paraphernalia, Trooper Avvisato arrested Appellant, and a female trooper then searched Appellant incident to the arrest. Id. at 16. The female trooper seized 6.23 grams of crack cocaine and 5.19 grams of heroin from Appellant's bra. Id. at 16-17.
On cross-examination, Trooper Avvisato confirmed that he was the first officer to approach the SUV; however, two other officers responded to the scene. Id. at 27. He further confirmed that, when he stopped Appellant, he parked his police cruiser directly behind Appellant's SUV such that she "probably" could not have left the parking lot. Id. at 28. The trooper testified as follows as to why he asked Appellant for consent to search the vehicle:
The passenger told me that they were coming from Brooklyn visiting his family. [Appellant] told me they were coming from Long Island visiting her family. He was a wanted individual. She had two IDs that she had given me, an Arizona [identification card] and a New York suspended license. And it was also a third party vehicle.Id. at 30-31, 33.
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The fact that the registered owner of the vehicle too was wanted, dangerous for drugs and stuff. . . .[Appellant] is driving around in a vehicle that is registered to someone who is considered armed and dangerous, known to abuse drugs and alcohol; kind of sends a red flag to me.
Trooper Avvisato confirmed that, after he stopped the SUV, he discovered that the registered owner of the vehicle was neither the driver nor an occupant of the vehicle. Id. at 34. He noted that he discovered Mr. McAllister had a suspended driver's license. Id. at 35. Thus, he testified that neither Appellant nor Mr. McAllister could have driven the SUV from the scene as both had suspended driver's license. Id. He confirmed that he retained Appellant's Arizona photo identification card, as well as her suspended New York driver's license. Id. at 36.
On redirect examination, Trooper Avvisato testified that, based on his experience and information from other troopers, "Brooklyn is a common area known for drugs[.]" Id.
Police Officer Robert Breitfeller, a sixteen-year police veteran offered by the Commonwealth as an expert in the field of narcotics and drug distribution investigations, testified that he is involved with narcotics interdiction for the Stroud Regional Police Department and has worked with the Monroe County Drug Task Force. Id. at 39. He noted that, from 2009 to 2015, he was a liaison with the Drug Enforcement Administration. Id. at 39-40. Officer Breitfeller testified he received extensive training with respect to the identification, distribution, and packaging of heroin. Id. at 40.
Appellant did not object to Officer Breitfeller testifying as an expert, and the trial court accepted him as an expert in the field. Id. at 41.
Officer Breitfeller, who reviewed the lab reports related to the instant matter, opined that Appellant possessed the 5.19 grams of heroin for resale, as opposed to her own personal use. Id. at 41. He noted the 5.19 grams of heroin, if not cut with a cutting agent, would yield 250 individual baggies. Id. at 42. He further noted that, if the heroin was cut with a cutting agent, it would yield approximately 500 baggies of heroin, which was consistent with the number of glassine bags found in the SUV. Id. He also noted that people who use heroin do not "usually carry around" empty packaging. Id. at 46.
With regard to the crack cocaine seized from Appellant, Officer Breitfeller noted the crack cocaine was not as "potent" as the heroin, and thus, it could be used one gram at a time. Id. at 50. He opined the 6.23 grams of crack cocaine, which was seized from Appellant's person, was consistent with her possession for personal use. Id. at 44.
Appellant offered the testimony of Jermel McAllister, who confirmed that he was a front seat passenger in the SUV when Trooper Avvisato stopped it. Id. at 56. The following relevant exchange occurred between Appellant's counsel and Mr. McAllister on direct-examination:
Q. Did [the trooper] talk to you at all about a canine search?
A. Yes, he did.
Q. What did he say?
A. Well, he mentioned about the search that they wanted to bring a canine unit, they couldn't get a hold of a canine unit. That's when they started talking about detaining and things of that nature.
Q. Okay. So how long did they—did he say that it would take to get the canine unit?
A. Well, he said it could take hours, it could take time.
Q. Okay.
A. That's why they wanted to detain—we was being detained, not under arrest, because they couldn't get a dog.
Q. Okay.
A. So we was just going to be brought down to the station.
Q. Okay. And did he say anything else about the canine unit or what would happen if a canine unit came out?
A. I mean, he just said that, you know, they couldn't get a hold of it. They brought it down. They wanted a dog to search the car. That's it.Id. at 57-58.
Q. Okay. So he just said that it could take a long period of time, like three to four hours, and they wanted a dog to search the car. He didn't say anything else?
A. No. That's it. He said because they couldn't get a hold of a canine unit—you know, it was cold and it was raining that day. We was outside. He said he wanted to detain us. That we were not under arrest. Because they can't get a dog, they [are] just going to take us to the precinct and maybe they could get a dog to search the vehicle over there.
Q. Okay. Thank you, sir. No further questions.
On cross-examination, Mr. McAllister clarified the trooper did not specify that it would take "three to four hours" to get a canine unit to respond to the scene; but rather, the trooper indicated that it would take "some time" because it was the day after Christmas and canine unit availability was limited. Id. at 59. Mr. McAllister admitted he had an outstanding warrant in New Jersey related to a domestic dispute. Id. at 60.
With regard to Mr. McAllister's conversation with Trooper Avvisato regarding the canine unit, Mr. McAllister indicated he conversed with the trooper while standing at the rear of the SUV. Id. at 61-63. During the conversation, Appellant was still seated inside the SUV. Id. Mr. McAllister admitted Appellant was not part of the conversation regarding the canine unit; however, he opined that Appellant "could have heard" the conversation. Id. at 62-63. The following relevant exchange occurred between the assistant district attorney and Mr. McAllister:
Q. I'm [] asking about what occurred while [Appellant] was present. All right? Because you said that she was in the front seat of the vehicle itself and, obviously, you were at the rear; so she wasn't part of that conversation, right?Id. at 63-64.
A. No.
Q. All right.
A. No.
Q. And she signed the consent to search at the State Police vehicle while you were still at the rear of the SUV, right?
A. Yes.
Q. So you weren't part of that conversation?
A. Not at all.
Q. Okay.
By order entered on July 12, 2017, the trial court denied Appellant's pre-trial suppression motion, and following a trial, Appellant was convicted of the offenses indicated supra. On December 20, 2017, the trial court imposed an aggregate sentence of six months to twenty-six months in prison, to be followed by two years of probation. Appellant filed a timely, counseled post-sentence motion, which the trial court denied on May 4, 2018. This timely, counseled appeal followed. The trial court directed Appellant to file a statement pursuant to Pa.R.A.P. 1925(b), Appellant timely complied, and the trial court filed an opinion pursuant to Pa.R.A.P. 1925(a).
On December 22, 2017, Appellant filed a counseled post-sentence motion seeking an extension of time to file a supplemental motion. The trial court filed an order directing Appellant to file a supplemental post-sentence motion no later than January 9, 2018. On January 5, 2018, counsel filed on behalf of Appellant a supplemental post-sentence motion.
On appeal, citing to Rodriguez v. United States , ___ U.S. ___, 135 S.Ct. 1609 (2015), Appellant contends the trial court erred in failing to grant her motion to suppress the physical evidence seized by the police following the stop of the SUV. Specifically, she contends the police improperly prolonged the traffic stop beyond the time reasonably required to complete the mission of issuing her a ticket in order to facilitate her consent to search the SUV, thus subjecting her to an illegal investigative detention. See Appellant's Brief at 22-23. She contends the trooper lacked a reasonable basis for the continued detention such that her consent to the search of the SUV is rendered invalid, as was the police's search of Appellant's person incident to the arrest. See Appellant's Brief at 22.
Our well-settled standard of review in an appeal from an order denying a motion to suppress is as follows:
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. Because the Commonwealth prevailed before the suppression court, we may consider only the evidence of the Commonwealth and so much of the evidence for the defense as remains uncontradicted when read in the context of the record as a whole. Where the suppression court's factual findings are supported by the record, we are bound by these findings and may reverse only if the court's legal conclusions are erroneous.Commonwealth v. Jones , 605 Pa. 188, 988 A.2d 649, 654 (2010) (citation omitted).
Here, Appellant does not dispute the legitimacy of the initial stop of the SUV. However, a seizure that is lawful at its start can later violate the Fourth Amendment. Illinois v. Caballes , 543 U.S. 405, 125 S.Ct. 834 (2005). A traffic stop is generally a relatively brief encounter and a seizure for such a violation justifies a police investigation of that particular violation. Rodriguez , 135 S.Ct. at 1614. The permissible duration of a traffic stop is determined by the seizure's "mission, [which is to generally] address the traffic violation that warranted the stop." Id. Because of this purpose, the stop may not last longer than necessary to accomplish that purpose. Id.
However, the matter of when a traffic stop has concluded or otherwise given way to a new interaction does not lend itself to a 'bright[-]line' definition." Commonwealth v. Reppert , 814 A.2d 1196, 1202 (Pa.Super. 2002) (en banc). In Rodriguez , the High Court held that a seizure pursuant to a traffic stop ends "when tasks tied to the traffic infraction are—or reasonably should have been—completed." Rodriguez , 135 S.Ct. at 1614. However, the High Court explained that, as part of a "routine traffic stop," an officer is entitled to conduct certain traffic and safety-related checks, such as requesting a driver's license and vehicle registration, and checking driver's information or criminal history records. Id. at 1615-16. The High Court further explained that a police officer may conduct certain unrelated checks, such a as a canine sniff, during a lawful traffic stop. Id. at 1615. However, the officer may not do so in a way that prolongs the traffic stop, absent the reasonable suspicion ordinarily demanded to justify detaining an individual. Id.
With regard to the reasonable suspicion that may justify any alleged prolongation of the traffic stop, our Supreme Court has summarized the reasonable suspicion jurisprudence as follows:
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 , 578 Pa. 127, 849 A.2d 1185, 1189 (2004) (quotations and quotation marks omitted).
As an initial matter, we disagree with Appellant's underlying premise that the police impermissibly prolonged the traffic stop in order to gain her consent to search the SUV. Since neither Appellant nor her passenger possessed a valid driver's license, as Trooper Avvisato testified, they could not drive the SUV from the scene. N.T., 3/30/17, at 35. Accordingly, at a minimum, the traffic stop remained ongoing until Trooper Avvisato determined what to do with the SUV. See Commonwealth v. Lagenella , 623 Pa. 434, 83 A.3d 94, 101 (2013) (noting that "an officer who stops a vehicle operated by a person whose driving privilege is, inter alia, suspended, is faced with two options: immobilize the vehicle in place or, if it poses public safety concerns, have it towed and stored at an impound lot."). Moreover, although approximately thirty-one minutes passed from when the trooper stopped the SUV until Appellant consented to the search, nearly all of that time was spent by Trooper Avvisato "running" Appellant's Arizona identification card, Appellant's New York driver's license, and Mr. McAllister's information. See Rodriguez , supra. Also, during this time, Trooper Avvisato sought confirmation as to whether New Jersey wanted Mr. McAllister to be arrested on the outstanding warrant. Id. Accordingly, the record does not support Appellant's allegation that the trooper impermissibly prolonged the traffic stop.
Further, we conclude Appellant's reliance upon Rodriguez is misplaced. In Rodriguez , the U.S. Supreme Court held that where the police lack reasonable suspicion of criminal activity, the police may not extend a traffic stop beyond its intended purpose in order to conduct a canine sniff of the vehicle. Thus, in Rodriguez , the High Court remanded the case to the District Court to determine if reasonable suspicion justified detaining the driver beyond the purpose of the traffic stop. In the case sub judice, in performing his duties as part of a "routine traffic stop," Trooper Avvisato had reasonable suspicion that drug-related criminal activity was afoot.
For example, after he observed the initial motor vehicle violation (the non-functioning registration light), and he activated his cruiser's lights, the trooper began pursuing the SUV, "ran" the SUV's license plate, and discovered that the registered owner was "wanted for a parole violation, considered violent, dangerous, a flight risk, [and] known to use drugs and alcohol." N.T., 3/30/17, at 7, 25. Appellant initially gave Trooper Avvisato an Arizona photo identification card and then a suspended New York Driver's license. Meanwhile, her passenger, who had no identification, provided his name. The trooper determined that the vehicle did not belong to either Appellant or her passenger, although it belonged to someone "armed, dangerous, and known to use drugs." See Commonwealth v. Kemp , 961 A.2d 1247 (Pa.Super. 2008) (en banc) (holding that operating a third-party vehicle is commonly associated with drug trafficking and it is a factor to be considered in the reasonable suspicion analysis).
Further, the passenger, who had an outstanding warrant, and Appellant gave conflicting information as to from where they had just travelled. While Mr. McAllister informed the trooper they had just come from Brooklyn, New York visiting his family, Appellant informed the trooper the couple had just come from Long Island visiting her family. Moreover, based on his training and experience, Trooper Avvisato testified that "Brooklyn is a common area known for drugs[.]" N.T., 3/30/17, at 36. These factors taken together supported the trooper's reasonable suspicion that criminal activity was afoot, and, thus, warranted further investigation and detention beyond the mission that gave rise to the initial traffic stop. See Rogers , supra. Accordingly, we find no merit to Appellant's claim that she was improperly detained such that her consent to search the SUV, and the subsequent search of her person incident to the arrest, is rendered invalid.
For all of the foregoing reasons, we conclude the trial court properly denied Appellant's motion to suppress, and we affirm her judgment of sentence.
Affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 1/29/19