COMMONWEALTH of Pennsylvania, Appellee v. Levi A. GREEN, Appellant
No. 1171 MDA 2016
Superior Court of Pennsylvania.
Submitted March 6, 2017. Filed July 25, 2017
180, 181, 182, 183, 184, 185, 186, 187
Stefanie J. Salavantis, Assistant District Attorney, Wilkes-Barre, for Commonwealth, appellee.
BEFORE: SHOGAN, J., MOULTON, J., and PLATT, J.*
OPINION BY MOULTON, J.:
Levi A. Green appeals from the July 1, 2016 judgment of sentence entered in the Luzerne County Court of Common Pleas following his convictions for possession with intent to deliver a controlled substance (“PWID“), possession of a controlled substance, and possession of drug paraphernalia.1 We affirm.
On August 4, 2014, at approximately 4:00 p.m., Pennsylvania State Police Trooper Mark Conrad was conducting radar enforcement on State Route 115 in Bear Creek Township, Luzerne County, which had a speed limit of 45 miles per hour. Trooper Conrad is assigned to the Northwest K-9 Unit and had Astor, a Pennsylvania State Police canine, with him.2 Trooper Conrad‘s vehicle was “positioned across from the Bear Creek Charter School near [an] access ramp to the [Pennsylvania] Turnpike.” Trial Ct. Op., 10/24/16, at 2 (“1925(a) Op.“).
Trooper Conrad measured the speed of a tan-colored Dodge sedan and obtained a reading of 62 miles per hour. He then activated his emergency lights and stopped the vehicle. When Trooper Conrad ap-
Trooper Conrad recognized Green and the vehicle from two prior traffic stops.4 In the first, Green was an occupant in a different vehicle traveling from Philadelphia. During that stop, Trooper Conrad recovered cocaine and marijuana hidden in the vehicle‘s engine compartment. In the second, Trooper Conrad stopped the same tan Dodge sedan driven by its owner almost three months before the current stop, and found a hypodermic needle in the vehicle.
While at the window of the vehicle,5 Trooper Conrad asked Green for the registration and insurance documents for the vehicle. Green replied that he did not own the car and it was not registered to him. Trooper Conrad then asked Green about his travel plans. Green stated that he was returning from Philadelphia, where he had dropped off his son at approximately 9:00 a.m. Trooper Conrad returned to his vehicle and ran a criminal history check on Green, which showed that Green had a “lengthy criminal history for assault and drug offenses.” 1925(a) Op. at 3. Trooper Conrad called for backup, returned to the vehicle, and asked Green to step out.
Suspicious that Green may have been trafficking drugs, Trooper Conrad asked Green to consent to a search of the vehicle.6 When Green declined, Trooper Conrad deployed Astor. Astor alerted to the odor of narcotics on both the driver and passenger sides of the vehicle. Trooper Conrad then searched the vehicle and found a folded black bag in the engine compartment next to the air filter, located on the passenger side of the vehicle. Inside the black bag, Trooper Conrad discovered three sleeves of heroin, containing 525 packets total.
On August 17, 2015, Green filed a motion to suppress, arguing that (1) Trooper Conrad had no reasonable suspicion to detain him or to deploy Astor to sniff the vehicle, and (2) Trooper Conrad lacked probable cause to search the vehicle.
On October 13, 2015, the trial court held a suppression hearing. Trooper Conrad testified on behalf of the Commonwealth, noting that, along with the factual information above, he had been employed by the
On December 23, 2015, the trial court denied Green‘s motion to suppress. Green proceeded to a jury trial. On May 26, 2016, the jury convicted Green of the aforementioned charges. On July 1, 2016, the trial court sentenced Green to an aggregate term of 1 to 2 years’ incarceration followed by 2 years’ probation. On July 7, 2016, Green timely filed a notice of appeal.
Green raises three issues on appeal:
- Whether Trooper Conrad exceeded the scope of the predicate traffic stop of [Green], for allegedly speeding, and then subjected [Green] to an illegal detention that was wholly unsupported by reasonable suspicion that [Green] was engaged in criminal activity or articulable suspicion that [Green] was armed and dangerous?
- Whether Trooper Conrad conducted an illegal canine sniff of [Green]‘s vehicle after the conclusion of the predicate traffic stop and without the requisite reasonable suspicion that [Green] was engaged in criminal activity?
- Whether Trooper Conrad conducted an illegal warrantless search of [Green]‘s car after the conclusion of the predicate traffic stop and without the requisite probable cause to conclude that [Green] was engaged in criminal activity?
Green‘s Br. at 4 (suggested answers omitted).
In reviewing the denial of a suppression motion, we must determine 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. Where, as here, the appeal of the determination of the suppression court turns on allegations of legal error, the suppression court‘s legal conclusions are not binding on an appellate court, whose duty it is to determine if the suppression court properly applied the law to the facts. Thus, the conclusions of law of the courts below are subject to our plenary review. Commonwealth v. Jones, 605 Pa. 188, 988 A.2d 649, 654 (2010) (internal quotations and citations omitted).
First, Green argues that Trooper Conrad lacked reasonable suspicion to detain Green. Green asserts that Trooper Conrad‘s traffic stop was limited to issuing Green a citation for the speeding infraction and, therefore, Trooper Conrad illegally detained him “after the conclusion of the predicate traffic stop.” Green‘s Br. at 10. Further, Green contends that Trooper
Green asserts that Trooper Conrad subjected him to an investigative detention. The Commonwealth does not argue otherwise and we agree. See Commonwealth v. By, 812 A.2d 1250, 1255-56 (Pa.Super. 2002) (“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.“).
Because an investigative 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 Trooper Conrad had reasonable suspicion to detain Green independent of the traffic stop. “To constitute a valid investigative detention, the seizure must be justified by an articulable, reasonable suspicion that [Green] may have been engaged in criminal activity independent of that supporting h[is] initial lawful detention.” Commonwealth v. Freeman, 563 Pa. 82, 757 A.2d 903, 908 (2000). This Court has stated the following regarding reasonable suspicion:
[T]o establish grounds for reasonable suspicion, the officer must articulate specific observations which, in conjunction with reasonable inferences derived from those observations, led him reasonably to conclude, in light of his experience, that criminal activity was afoot and that the person he stopped was involved in that activity. The question of whether reasonable suspicion existed at the time [the officer conducted the stop] must be answered by examining the totality of the circumstances to determine whether the officer who initiated the stop had a particularized and objective basis for suspecting the individual stopped. Therefore, the fundamental inquiry of a reviewing court must be an objective one, namely, whether the facts available to the officer at the moment of the [stop] warrant a man of reasonable caution in the belief that the action taken was appropriate.
Commonwealth v. Basinger, 982 A.2d 121, 125 (Pa.Super. 2009) (internal citations and quotation marks omitted; alterations in original).
We conclude that Trooper Conrad possessed reasonable suspicion to detain Green on suspicion that he was trafficking drugs. When Trooper Conrad approached the vehicle and made contact with Green, he immediately noticed that Green was “overly nervous just for being stopped for a traffic violation,” as Green‘s carotid artery was pulsating and “his lips and face
Green argues that his case is controlled by our decision in Dales. There, an officer stopped a vehicle for a suspected illegal tint and during that stop noticed a number of air fresheners in the vehicle and some type of “mediciney” scent in the vehicle, but not a scent that was attached, in that officer‘s experience, to any particular controlled substance. Dales, 820 A.2d at 809-10. After the officer checked the driver‘s information and determined that the driver was properly licensed and the vehicle registered and insured, the officer explained the nature of the window tint violation to the driver and that if the driver removed the tint, he would be in compliance the Vehicle Code. Id. The officer then began asking questions about travel plans and asked the driver whether there was anything illegal in the vehicle. Id. at 811. The driver responded in the negative and the officer asked to search the vehicle. Id. The driver consented to a search and the officer recovered approximately one pound of crack cocaine from the trunk of the vehicle. Id. On the driver‘s motion, the trial court suppressed the crack cocaine found by the officer. Id.
We affirmed the trial court‘s ruling that the officer lacked reasonable suspicion to detain the driver beyond the initial traffic stop. Id. at 815. Specifically, we found that the officer continued with a second round of questioning after citing the driver for the violation, which required reasonable suspicion of criminal activity beyond the tint violation. Because the officer “only observed [that]: (1) there was a smell of bactine emanating from the [driver]‘s vehicle; (2) [there] were several air fresheners in the vehicle, and (3) the [driver] appeared nervous[,]” we concluded that the facts available to the officer supported no more than a hunch of criminal activity and, as such, the officer lacked reasonable suspicion to detain the driver. Id. at 814-15. Here, in contrast, the facts and circumstances available to Trooper Conrad, independent of the speeding violation for which Trooper Conrad stopped Green, provided reasonable suspicion that Green was trafficking drugs.
Next, Green argues that Trooper Conrad lacked reasonable suspicion to deploy Astor and conduct a canine sniff. For the reasons set forth above, we disagree.
A canine sniff is a search pursuant to Article I, Section 8 of the Pennsylvania Constitution. Commonwealth v. Rogers, 578 Pa. 127, 849 A.2d 1185, 1190 (2004).8 However, because “this type of
In light of our conclusion that Trooper Conrad possessed reasonable suspicion that Green was trafficking drugs, we similarly conclude that Trooper Conrad had reasonable suspicion to believe that narcotics would be found in the vehicle. Accordingly, Trooper Conrad was entitled to deploy Astor and conduct a canine sniff of Green‘s vehicle.
Next, Green argues that Trooper Conrad lacked the requisite probable cause to search the vehicle after Astor indicated the presence of drug odors. Green argues that “Trooper Conrad based his illegal warrantless search on the illegal canine sniff of [Green‘]‘s car[,]” and that “[a] reading of [Trooper Conrad‘s] suppression hearing testimony indicates no independent factors that would have provided Trooper Conrad with the probable cause needed to support a warrantless search of [Green]‘s vehicle. Green‘s Br. at 16. We disagree.
Police may search an automobile without a warrant so long as they have probable cause to do so, as an automobile search “does not require any exigency beyond the inherent mobility of a motor vehicle.” Commonwealth v. Gary, 625 Pa. 183, 91 A.3d 102, 104 (2014).10 Our Supreme Court has concluded that Article I, Section 8 of the Pennsylvania Constitution is co-extensive with the Fourth Amendment to the United States Constitution, which has long supported a warrant exception for automobile searches so long as probable cause to search exists. See id. at 108-13; see also Carroll v. United States, 267 U.S. 132 (1925) (establishing federal automobile exception to warrant requirement under Fourth Amendment). With respect to probable cause to search, our Supreme Court instructs us that
[p]robable cause exists where the facts and circumstances within the officers’ knowledge are sufficient to warrant a
person of reasonable caution in the belief that an offense has been or is being committed. With respect to probable cause, this [C]ourt adopted a “totality of the circumstances” analysis in Commonwealth v. Gray, 509 Pa. 476, 503 A.2d 921, 926 (1985) (relying on Illinois v. Gates, 462 U.S. 213 (1983)). The totality of the circumstances test dictates that we consider all relevant facts, when deciding whether [the officer had] probable cause.
Commonwealth v. Luv, 557 Pa. 570, 735 A.2d 87, 90 (1999) (some citations and quotations omitted).
Astor indicated the presence of narcotics odors on both sides of the vehicle. Astor‘s indication alone was sufficient to raise Trooper Conrad‘s reasonable suspicion to probable cause. See Rogers, 849 A.2d at 1192 (“[The dog] alerted to the driver‘s side door; this indicated to the officers that she had detected narcotics. At that juncture, a person of reasonable caution [would believe] that an offense has been or is being committed, and reasonable suspicion ripened into probable cause.“) (internal quotation omitted; some alterations in original). In light of Trooper Conrad‘s drug interdiction and drug-detection experience and Astor‘s indication, we conclude that the facts and circumstances known to Trooper Conrad were “sufficient to warrant a person of reasonable caution in the belief that” Green was trafficking drugs.
Judgment of sentence affirmed.
MOULTON, J.
JUDGE