Commonwealth v. Winkle

Pennsylvania, COMMONWEALTH of

Appellee WINKLE, Appellant.

Kenneth VAN

Superior Pennsylvania. Court

Argued Dec. Aug. 8,

Filed Jr., K Kerrigan, Langhorne,

John appellant. Harris, District

Stephen B. Assistant Commonwealth, Attorney, Warrington, for appellee. McCAFFERY, JJ„ BOWES,

Before: McEWEN, and P.J.E. BOWES, BY

OPINION J.: appeals Winkle from Kenneth Van judgment of the June sentence imprisonment years three to six nonju- imposed at a after was convicted ry possession of two counts of controlled and one count each substance pos- intent to deliver and possession with drug paraphernalia. We affirm. session the facts found 2 We examine suppression announced suppression bench at the conclusion 9, 2003, at hearing. approx- November On on-duty Town- imately p.m., 9:55 Bensalem Stephen Clark noticed ship Police Officer on Bucks Ford Taurus Street Road County. passenger Appellant was Taurus, being operated which was Ford followed Jonathan Diaz. Officer Clark period vehicle for a brief before Diaz’s initiating stop, a traffic and Mr. the road. quickly pulled to the side of stop, initiating the traffic Prior the vehicle’s license processed Clark had utilizing Pennsylvania Department plate records that he accessed Transportation car. in his computer with a terminal the license records revealed Those to Mr. Diaz’s vehicle plate attached registered to a different vehicle. initiating discovered, After ter the contraband approaching Mr. Diaz’s Officer handcuffed Mr. Diaz immediately recognized odor transported them to the station. marijuana emanating from the vehicle and ¶ Appellant was arrested and sitting observed in Appellant passen- the convicted of the aforementioned offenses. ger side his cupped against with left hand followed, appeal This wherein Appellant the left side his leg. of Officer Clark could raises the following issues: not determine what Appellant holding. Whether the probable officer lacked point, At some Officer Clark asked Mr. cause to believe the vehicle was in viola- Diaz to exit the vehicle and walk back to tion of the Motor if Vehicle Code the the vehicle to wait for additional officer lacked sufficient time to check officers to standing arrive. While near the initiating license number before Officer Clark and Diaz Mr. traffic stop and did not observe discrepancy discussed the with the vehi- motor vehicle violations before the registration, cle’s the counterfeit insurance possessed, card that Mr. Diaz and Mr. discovered, Whether evidence fol- [sic] marijuana Diaz’s to smoking admission lowing per- a seizure in day. earlier Mr. Diaz son if suppressed be should the officer’s in placed during handcuffs this conversa- conducting reason for the seizure was tion; Mr. Diaz was not handcuffed the appellant’s furtive movements. until after Officer Clark discovered contra- Whether the officer exceeded the band under passenger seat of Mr. scope Terry of a pat by searching down Diaz’s vehicle. appellant’s pockets knowing ap- After two officers arrived to pellant possess did not a weapon and if interdiction, assist Officer Clark so, should fruits that search be proached Appellant, who remained in the suppressed? passenger seat Mr. Diaz’s Offi- Whether evidence discovered Clark again cer that Appellant, observed warrantless search aof vehicle should expressionless who was unresponsive suppressed been when had an questions, cupped object his occupants conducted after the left hand. The officer was able to detect in police custody vehicle were and no object plastic bag was a exigent ... circumstances existed plastic bags. contained smaller Ap- After conduct a warrantless search ... ? pellant to tell refused Officer Clark what Appellant’s brief at 4. holding, he was him Clark ordered Our in addressing standard review from the vehicle. Officer Clark watched to a challenge trial court’s denial of a Appellant furtively as leaned forward and suppress motion to is limited to deter object passenger secreted under the mining findings whether the factual are seat as he exited the Clark vehicle. Officer supported by the record and whether weapons, for frisked discovered $3,385.00 legal conclusions drawn from those pants pockets, and directed . facts correct him to are Commonwealth v. stand with the two officers who (Pa.Su LaMonte, remained Mr. point, Diaz. At this per.2004). prosecution pre Because the proceeded to search the vehi- court, thirty suppression may cle and vailed in the approximately discovered grams only prose cocaine and a small amount of consider the evidence of the marijuana passenger under the Af- cution seat. and so much of the evidence corroborating testimony Diaz’s remains uncontradicted defense as the interdiction. How- account of when in the context of the record Clark’s read ever, LaMonte, contrary findings, court’s as a whole. testify that Officer Clark supports the factual Mr. Diaz Where record regis- faulty Diaz’s suppression we are addressed Mr. immediately upon approaching the may those reverse tration bound facts Instead, only if the from vehicle. testified legal conclusions drawn regis- informed them are Id. error. only after he had improper tration was Bell, 267, 271 registration taking doc- returned (Pa.Super.2005). Al- police back to the vehicle. umentation ¶ First, Appellant challenges reject the court’s though must finding trial that court’s Officer Clark testimony, to that we nev- relating of fact probable cause to believe that Mr. Diaz probable the trial ertheless affirm court’s violated the Motor Vehicle Code. Accord cause determination. See ing to Appellant, record demonstrates Bell, Super 2005 PA 871 A.2d 267 that Officer Clark did not that the know (en banc) not (although sup- record did displayed plate vehicle an incorrect license port findings, of trial court’s we are all until he stop. Appellant after initiated the by findings sup- bound that record did argues that Officer Clark lacked sufficient port). light In of the fact that the trial prior time to traffic to contact the testimony in court credited Officer Clark’s Pennsylvania Transporta Department of entirety, that court its we believe tion and check the vehicle’s num license accepted would have Officer Clark’s testi- Instead, Appellant posits ber. that Officer if it was that Mr. Diaz’s mony even aware not Clark did receive the relevant informa testimony not Officer Clark’s bolster processed tion until he Mr. Diaz’s license Accordingly, we account. hold and registration approaching after Mr. supports probable the trial court’s record Diaz’s disagree. vehicle. We notwithstanding the determination cause supports The record the trial court’s upon its misapprehension court’s reliance finding Mr. testimony. of Mr. Diaz’s forming probable- Diaz’s vehicle after ¶ Next, Appellant’s we address cause belief that the vehicle was licensed exigent contention that circumstances did illegally. During suppression hearing, to war support exist Officer Clark’s unequivocally Officer Clark testified Ap of Mr. Diaz’s vehicle. rantless search prior initiating pro- stop, Diaz pellant argues that he and Mr. were plates utilizing cessed the vehicle’s license occurred, custody at the time the search Pennsylvania Department Transporta- therefore, pair risk that the no existed a com- using tion records that he accessed the officers or de pose could threat puter terminal in his car. He then stroy determined contained vehi plate evidence license attached cle. registered Diaz’s to a to Mr. vehicle was

different vehicle. ¶ reasons, we con- following 10 For the addressing exigent that in circumstances existed observe clude We issue, misinterpreted of Mr. Diaz’s court Mr. conduct warrantless search exigent have held that cir- testimony relating Diaz’s course of vehicle. We the initial a warrantless following events traffic cumstances is im- action interpreted prompt police Mr. search where Specifically, the court perative place either because the evidence was did not Diaz Mr. into custody likely destroyed to be or because threat until after the contraband was discovered physical existed of harm to police officers in his Accordingly, the record or other innocent individuals. Common- Appellant’s position belies that an exigent (Pa.Su- Casanova, wealth v. 748 A.2d 207 circumstance did not In exist. per.2000). police only placed Diaz Mr. into custody they because Appellant’s discovered con- issue This concerns whether Initially, traband. Clark had been arrested before Officer merely going to detain Mr. Diaz pending Clark searched the vehicle. If Mr. Diaz the issuance of a traffic citation. custody juncture, was in formal at that exigent testified in relation circumstances would not exist be- issue as cause the would have had sufficient follows: opportunity obtain a search warrant. Q. Was Mr. Diaz under arrest at that However, if custody Mr. Diaz was time? period, exigent the relevant cir- No. [Officer Clark]. cumstance would exist that after receiv- Q. Was he to free leave? ing citation, Mr. Diaz could have I—he was going [Officer Clark]. to be left the and potentially destroyed scene a issued citation. He was not free to any incriminating evidence. time, at that leave because he was going ¶ 12 The determination whether of to be issued a traffic citation. Mr. in custody Diaz on depends was the Hearing, 5/5/04, Suppression N.T. at 15. totality of surrounding the circumstances court recognized The trial this fact stating, the interdiction. Commonwealth v. Diaz, fact, only was issued a (Pa.Su 1089, Dupre, citation for possessing counterfeit in- per.2005) (person custody physi when my surance card. And it is belief that cally of deprived any significant freedom in Officer Clark could have-—issued a much way placed or in situation in which he against more serious criminal violation reasonably believes that of action freedom Clark, Mr. Diaz. But Officer nonethe- or movement is by interroga restricted less, And, decided do that. not to tion). fact, indicated that Mr. was not Among the factors the court utilizes in and, any presum- under arrest at time the-totality determining, under ably, permitted he [would been] to circumstances, police whether detention go free after he was issued a citation. coercive

became so as to the constitute equivalent Hence, functional although of arrest are: Id. at 96. police eventu- detention; location; basis for the ally transported Mr. Diaz to suspect station, whether transported they this occurred after discovered will; against far, why; his how contraband his vehicle and arrested Ap- used; show, whether restraints were pellant drug stemming offenses threat, force; or use and the methods discovery. from that of investigation used or dispel to confirm ¶ 14 As the record demonstrates that suspicions. placed custody Mr. Diaz was not into until Id. (quoting DiStefano, after the his searched we 574, (Pa.Super.2001)). 579-80 that exigent conclude circumstances exist- Otherwise, 13 As recitation ed for the search. foregoing noted once Mr. citation, of the trial court’s the Diaz received his traffic he could that the traffic juncture, we conclude have driven the vehicle from scene a search war- before the obtained ongoing when Officer Clark rant. Appellant asked exit vehicle. ¶ Next, Appellant’s we address Appel Finally, address rea claim that Officer Clark did not have pat- argument lant’s that Officer Clark’s suspicion Appellant alight sonable to ask person exceeded down search investiga from the vehicle to conduct an frisk scope weapons pur of a permissible reasons, following tive detention. For the Ohio, 1, Terry 88 S.Ct. suant U.S. this claim lacks merit. (1968), the cur 20 L.Ed.2d 889 precaution, 16 As a matter rency as result of the search discovered occupants police officer entitled ask fruit of an suppressed should be step vehicle to from illegal Appellant search. contends that Freeman, traffic demonstrates that Officer the record (2000) Pa. (citing pat Clark’s down was tantamount Mimms, Pennsylvania v. 434 U.S. evidentiary Specifically, Appellant search. (1977)). Hence, 54 L.Ed.2d 331 S.Ct. a bulge that after Officer Clark felt asserts Officer Clark did not need level of pocket Appellant’s confirmed suspicion to ask either or Mr. contin bulge currency, a roll of Indeed, alight Diaz to Appellant, seizing object ued recognizing apparently shortcomings if to determine was contraband se there his argument, Appellant asserts the money. creted inside the stop traffic concluded before asked Appellant According to exit the to ¶ issue, In confronting 19 Appellant, stop the initial traffic ended court concluded that Officer Clark was when Officer Clark concluded his conver justified seizing money Appellant’s sation with Mr. Diaz him and informed However, to search incident arrest. we that he going was to receive a citation for that since Officer testified observe Clark registration Again, violation. dis that he the frisk before he dis conducted agree. Appellant hid covered the contraband ¶ Generally, 17 a traffic concludes stop vehicle, in Mr. Diaz’s the record does after the officer addresses the motor vehi- Nevertheless, this conclusion. cle violation. See Commonwealth Free- validly mindful that contraband man, (2000) (once Pa. and that the seized from Mr. Diaz’s vehicle accomplished purpose stop, officer currency on would have been discovered right away); was within to drive defendant Appellant’s person incident to his arrest By, seizure, based on that we conclude that the (where (Pa.Super.2002) purpose initial currency within the falls inevitable-discov stop person traffic and ends reasonable Ingram, ery exception. leave, reasonably feel to sub- does not free (evidence (Pa.Super.2002) A.2d 264 by police is sequent questioning round of inevitably have discovered that would been detention). Herein, investigative Officer despite Miranda viola was admissible yet had not issued a motor vehicle Clark tions). Therefore, basis, we affirm on leaving Mr. Diaz citation to before to evidence trial court’s decision admit ap- officers and back-up with the currency during trial. See Com proaching Appellant. Since the motor ve- (Pa.Su- Voss, resolved at monwealth v. hicle violation had been per.2003) (Superior may Court affirm to low- tions. Diaz admitted Officer Clark that marijuana er on he had smoked earlier in ground). court’s decision day, but was not carrying claimed he mari- ¶ 20 Judgment sentence affirmed. juana, Officer and also told Clark that appellant acquaintance was an whose car Dissenting 21 P.J.E. McEWEN files a had broken and to whom down he was Opinion. giving During a ride. Officer Clark’s dis- BY DISSENTING OPINION cussion with Diaz it was determined that McEWEN, P.J.E.: card, Diaz had a fraudulent insurance ¶ 1 majority expression While the re- in fact had no on insurance the vehicle. analysis presents veals a careful ¶ Eventually, additional officers ar- perceptive expression of rationale for its scene, rived on at which time Officer ruling decision to affirm the of the trial supervision, Clark entrusted Diaz to their court, I am obliged dissent. speak and then proceeded appellant. Appellant was still the car genesis This case had its in a when the traffic and, questioning began according on to Offi- occurred November Clark, cer maintaining still his cupped approximately p.m., 10:00 when Officer against hand When leg. appellant his Stephen Clark of the Bensalem Township not respond questions Clark’s Officer pulled Police over 1996 Ford Taurus on hand, about what in his Officer Clark County, Street in Bucks Pennsylva- Road appellant ordered of the car. out As he nia. passenger vehicle, emerged from appellant at- Ford being Taurus that was driven tempted place the contents of his hand Jonathon Diaz. When under the front seat. window, proached the driver’s side window, rolled down his Once was out of the vehi- marijuana. detected the odor burnt He cle, into Clark went then asked Diaz for his license and vehicle searched front under seat and re- registration. Clark returned trieved a and a green plastic bag. vial vehicle, driver, spoke with the and asked Subsequent testing established that the him to exit Appellant his vehicle.1 was not green approximately vial contained nine asked to exit vehicle but the remained in gram marijuana, tenths of a of and the vehicle, the passenger front seat of the plastic bag approximately contained with, Clark, Officer according to his hand grams pre-packaged of cocaine in smaller “cupped” leg next if plastic to as he was bags. appellant’s per- A holding something. When Diaz exited the “bulge” son a of currency, uncovered accompanied $3,385.00. vehicle he Officer which Appellant Clark to totaled the rear ques- of the vehicle and answered Diaz were then arrested.2 point, tively 1. At stop question some between the time of the answers this its statement of facts, of the the moment vehicle and when Officer places the the time when it of Officer out Clark ordered Diaz of the acquisition knowledge Clark's of such as plate informed Diaz license "[p]rior initiating stop.” to Com that the was affixed to vehicle did not match VanWinkle, monwealth v. car, registration the for the and that this (Pa.Super.2005). discrepancy was the reason for the traffic arrested, hereafter, Although appellant was and there- stop. exactly discussed As will be offenses, drug prosecuted after for Mr. Diaz discrepancy when Officer Clark learned of the was released sup- was the crux of motion for from the station after the Majority, pression. preemp- driving a The issued to him citation for ¶ evidentiary no basis for the suppress a to that there is Appellant filed motion which stop, finding the evidence seized was the trial court that Officer Clark evidentiary following hearing. an denied initi- discrepancy prior knew this to about ensued, nonjury appellant A trial was ating of the stop the vehicle.5 guilty the referenced found above at the conclusion The appellant thereafter crimes. When was hearing, rendered suppression a imprisonment sentenced serve term of with Pa.R.Crim.P. of facts accordance years years, to six of from three 581(1),6and, justifi- on the critical issue of peal followed. cation, following “findings”: rendered the first claims that ... [prior I do find that the vehicle had no valid basis which to upon officer Clark, stop] had reason stop traveling, the vehicle which he was plate license was believe that, therefore, all evidence obtained ... issued to this vehicle plate same stop a of this have as result should been that he provided testified Officer Clark The trial court held that the suppressed. information PENNDOT [the relevant] justified stop upon was based computer a which is in his car through bearing belief that the Clark’s vehicle operates which a Internet on Verizon agree all illegal plate. Although an license line, supported satellite. which justified factor would have such And the re- although sometimes actually had stop had sponse very quick, is not that on knowledge discrepancy time response question, evening stop,3 appellant contends that Offi- instantaneous, giving reason to be- cer Clark did not—indeed could not— that, indicated, tag I lieve plate know of the fact that the license that was and the car did not match. And not match the vehicle4 until after he had his stop. reason initiated the and until stop, after Inter- of whether or issue opportunity process through Penn- net connection was made raised sylvania Department of Transportation da- biggest perhaps the And tabase information he had received defense. Thus, regard argues I with from the driver. factor that considered Rather, prose- of the fraudulent insurance card. See: N.T. actual p. merely that a recites the obvious fact cution licensing violation is violation 6308(b), § 3. See: Pa.C.S. justified Vehicle Code that would have Motor Slonaker, (Pa.Su- suppression The issue before denied, per.2002), appeal Pa. was whether information (2002). knowledge within of Officer was in fact stopped actually the vehicle. plate on the Ford Taurus in 4. license before originally riding was which had Toyota Mr. been issued to a under Diaz’ 6.Although trial filed statement court explained to Clark that 1925(a), name. Diaz “find- with Pa.R.A.P. accordance recently purchased Ford Taurus he had were ings in this statement fact” contained tag pro- Diaz and transferred the thereto. compiled “without benefit the Notes “pink appropriate sheet’’ duced PennDot Opinion, p. n. 2. Testimony.” Trial Court verify registration. the new Thus, view, an- my that were in accordance nounced from bench that the Commonwealth It bears mention 581(1), reliably reflect more Pa.R.Crim.P. respond claim its brief does not judge’s of the evidence. evaluation stopping justification that the officer’s for subsequent in time vehicle occurred Clark, testimony by was [DIAZ]: No. After that when he testimony by offered Mr. Diaz. Mr. work, grabbed my I think he walked credibly testified that when he back to his car. stopped by was—when he was THE COURT: got So when he the li- Clark, he was told cense, registration, he walked back to beiny that he was because the his police car? tay vehicle and the did not match. I believe so. I guess, [DIAZ]: Like run For Mr. Diaz to offer that credible my license or see if it good. was testimony, he must have received it obviously at the time from Officer THE COURT: And when he came back essentially Clark. And since it was you, how much time passed? the ftrst words out of Officer Clark’s itWas like real fast? it aWas minute? provide mouth other than to documen- Five minutes? vehicle, tation for the I find it credible I can’t I’m sorry. [DIAZ]: remember. Clark, that Officer had that right Like there. information on which he based his stop of the vehicle. THE right. COURT: That’s all ... 5, 2004, N.T. May However, pp. 91-92. up you When he came back what appellant convincingly argues that say you? did he next to characterization of Diaz’ testimony by the plates He [DIAZ]: said these are to a inaccurate, trial court is and hence the Toyota. I think —I don’t know if that “biggest factor” judge’s said, was things one of the first that he finding on this issue is not borne out know, but that he saying you I the record. Appellant’s argument pulled you over plates because these grounded in following excerpt of Mr. belong to a I Toyota. telling And was Diaz’ testimony: him, yeah, my that is old car. I think— Now, THE COURT: you this is—before I that, don’t know what he said after but finish, go let me over the initial conver- I know soon after he told me can I step you sation had with the officer. to the back of the car [sic]. pulled up you, When he what was the May N.T. pp. (emphasis 72-75

first thing you? he said to supplied). Thus, say Diaz did not registration. [DIAZ]: License and illegal justification plate license THE registra- COURT: License and “essentially the first words out of tion? Officer Clark’s mouth.” N.T. [DIAZ]: Uh-huh. 2004, p. Rather, he testified that it only stopped, after the vehicle was THE COURT: And what was the—af- paperwork Officer Clark had taken his license, ter the officer registra- asks for back to the that he was told tion- illegal plate license was the reason [DIAZ]: Uh-huh the principal Since THE you produce COURT:—did that at judge’s underpinning finding cannot the window. record, supported by be the I am com- Right [DIAZ]: Yeah. out (indicating). pelled reject finding of and THE stay COURT: And did he that the conclude the Commonwealth failed to you window while talking carry were to him? proof its burden of to demonstrate

1289 Dodge then to a Aries automobile go of founded stop that the vehicle was the plas- suspicion.7 nearby, upon parked reasonable that was remove bumper, tic its remove bag from beneath Moreover, critical facts of this 8 the that bag, give from that and item indistinguishable from the facts case are in Commonwealth Maddrey in- buyer. to this Officer presented Court item to the Casanova, v. (Pa.Super.2000), 748 207 A.2d to arrest backup structed officers denied, 682, appeal A.2d 570 Pa. 808 569 Kennedy, buyer, appel- Kathleen fourth (2002), of held panel wherein this Court backup lant’s other co-defendant. to con- were not authorized Meyers’ her out of officers detained search of a duct warrantless packet of sight and confiscated one by Those were summarized vehicle.8 facts crack cocaine. colleague Judge distinguished our Peter meantime, in In arrived Paul Olszewski: automobile, parked which he Mazda 17, 1996, Philadelphia On October Police Meyers. Meyers near entered the Maz- Maddrey up Officer John set surveil- gave money appellant. da and some of lance of the 3300 block Rand Street Meyers After exited another because the had received several man him handed him approached and complaints drug of traffic in the area. money. Meyers Dodge returned to the surveillance, During the Mad- Aries, bag from underneath removed drey one Reggie Meyers, watched of object removed an from the bumper, co-defendants, in four engage bag, bag replaced the underneath separate drug In transactions. each case, object buyer approach Meyers bumper, gave would away, man give money. Meyers man. As he walked took would Therefore, interesting It is to note that trial I am the conclu- court unable share simply rely did not on Clark’s testimo Majority "the sion of the trial court cred- events, ny regarding sequence but testimony entirety," ited Officer Clark’s in its sought through corroboration of it the testi VanWinkle, supra, at 1283 Commonwealth v. mony accepting Diaz before it true. am, very obliged respectfully, to dissent. We further note that excessive window tint was offered Officer Clark as the reason for Opinion 8. The trial in its to this Court appellant's targeting investiga car for further acknowledge this did not Court’s decision tion, a rather familiar claim members of Casanova, 748 A.2d 207 Commonwealth v. Township Department. the Bensalem Police denied, 682, (Pa.Super.2000), appeal Pa. 570 Dales, e.g.: See 820 A.2d but, (2002) 808 relied on instead (Pa.Super.2003). 807 See also: Common Elliott, 536, Pa.Super. v. 376 Commonwealth Mason, 2004, wealth v. No.2066 EDA denied, (1988), appeal 546 A.2d 654 Pa. (Memorandum 25, January A.2d filed 621, 617, (1989) and 521 Pa. 2005). (1989). Opinion This 557 A.2d Court’s event, specifical- judge In Elliott, part grounded which ly question rule on whether Officer mobility upon a vehicle” for the "inherent tint Clark’s claim excessive window would that a warrantless search was its conclusion stop, perhaps justified because traffic prior Supreme proper, was to the decided presented by photographs of the vehicle White, decision Court’s pellant were established that the windows 45, (1995), holding 543 Pa. May p. tinted. See: N.T. 64. That exception” to there was no “automobile testimony pre- Clark was sworn requirement Pennsylvania. See warrant possibility cludes the for tinted Rosenfelt, 443 Pa.Su- contrived, also: Commonwealth but the claim of tint- windows 1131, (1995), is, nonetheless, appeal per. puzzling. ed windows See: denied, (1996). Pa. 674 A.2d 1070 p. N.T.

1290 bag, put lieving person

a in a substance from it has committed Zook, pipe, began smoking Meyers it. the offense.” Commonwealth v. 1, (1992). 79, appellant, walked who 532 Pa. 615 A.2d 6 back to was now Mazda, standing near the and handed Gelineau, v. Commonwealth 696 A.2d money from the third man. At 188, (Pa.Super.1997). Further, 192 “we point, police Mey- officers arrested must focus on the circumstances as seen appellant. ers and The officers removed through eyes of a trained baggie Dodge underneath the from officer, in dealing and remember The bumper. bag Aries’ contained fif- probable cause, with questions of we are A packets bag teen of cocaine. under- certainties, not dealing but gas neath tank the Aries’ cover con- practical factual considerations alprazolam. obtaining tained Without a which every day life on reasonable and warrant, then searched prudent men act.” Commonwealth v. glove Mazda and found com- $290 Johnson, 488, Pa.Super. 444 partment bag containing pack- and a 124 (1995) 178, (citing 179 Commonwealth v. ets of crack between passen- cocaine Dennis, 425, Pa.Super. 417 ger seat center and the console. (1992)). 1014, Here, police 1016 officers Casanova, supra, Upon at 209-210. drug complaints activity received record this Court concluded that the police stakeout, During they the area. a ob- illegal they pro- conducted an search when Meyers exchange packets served ceeded to enter the Mazda vehicle without they money. Upon stopping buyer, one having a The first obtained warrant. the packets discovered that contained expressed Court’s rationale was as follows: They Meyers cocaine. then watched Pennsylvania, automobile [I]n searches give money appellant, even ob- may only be without a conducted war serving Meyers handing money from rant probable “when there exists cause particular buyer directly appellant. a exigent to search and determining circumstances ne We have no trouble cessitating a probable [Commonwealth search.” existed in cause this case. Stewart, (Pa.Su 712, A.2d however, requirement, exigency The omitted) (citations per.1999) turn ]. We poses problem. Certainly more of probable first to whether mobility the mere of the automobile cause to search car. exigency to meet the does not suffice that: It is well-settled requirement. Commonwealth v. See: A,2d 616, Pa.Super. probable necessary Rosenfelt,

“the level of cause (1995) justify (holding search of an that “[a]bsent warrantless apart exigent automobile is same as that re- circumstance quired mobility,” a search warrant.” car’s inherent the officer obtain warrant); Talley, should have obtained Pa.Su- Gelineau, (1993) (cit- per. see also 696 A.2d at 192 n. 2 (“a Pleummer, ing proper requires warrantless search (1992)). exigent circum- Pa.Super. probable 617 A.2d 718 both cause and mobility exists where the facts stances other than inherent “Probable cause vehicle”). Commonwealth, within the knowl- circumstances more than edge reasonably officer are relies on the mobili- of the auto; it ty argues exigent trustworthy and sufficient to warrant here because the person caution in circumstances existed reasonable be-

1291 driving away the evi- to the stake- dant was with prior officers were unaware involved, case, is dence. The instant that the Mazda was and out very was not appellant a different because thus could have obtained search evidence, driving away but are warrant. We not convinced. have police custody. rather in We us to points The Commonwealth Com “appellant that previously stated where 570, Luv, 735 monwealth v. 557 Pa. A.2d custody there was no already Luv, (1999), position. its 87 danger any within contraband readily distinguishable however is him,” police car could be removed Luv, the case before us. In officers must obtain a warrant. Commonwealth for obtained search warrant defen Haskins, 540, Pa.Super. v. 450 677 A.2d Luv, home. See 735 A.2d at 89. dant’s 328, (1996); Rosenfelt, see 662 331 also then Defendant left his home went (holding A.2d at defen- that where home, girlfriend’s his where custody car was dant was in and the car. parked his id. Officers sus See control, under officers’ the officer drugs that there pected were defen only minimally bur- “would have been get car and attempted dant’s a new warrant”). securing dened in While warrant for car. search defendant’s See may the officers have known so, however, they Before id. could do to the appellant’s prior car was involved away. defendant drove See id. Believ stakeout, this alone does not meet ing way his defendant was on to sell case exigency requirement in this be- car, drugs in the contained the offi Meyers cause were appellant both they could get cers before under arrest before officers warrant. new See id. While “unfore Mazda. was cer- searched the There involving seen circumstances search tainly destroy no chance for coupled of an automobile with the pres vehicle; being he was contraband cause, probable may ence of excuse the Further, no nearby. there is restrained warrant,” requirement for a search posed indication that White, 45, 543 Pa. any pub- to the to the threat officers or (1995) added), (emphasis easily They guarded lic. could must consider facts in this case. vehicle while officer obtained “Exigent arise circumstances where the search We cannot find warrant. prompt is impera need action requirement the exigent circumstances tive, likely either is because evidence has met this case. been destroyed, be ... or because ex there Casanova, (emphasis supra at 211-212 a threat of harm to physical ists omitted). supplied; footnote officers or other individuals.” innocent Casanova, Stewart, case, (quoting 740 A.2d at 717 In present Com Hinkson, only one of Pa.Super. question exigency.9 monwealth (1983)). not, however, consider This was trial court here did relying instead certainly exigency requirement, the case in Luv defen- because (about argue which there 9. "consent” of the driver The Commonwealth does not that this suppression justified by disagreement could be the consent of the driver, rely hearing), did the on a "con- would have been vitiated nor trial court 5, 2005, atmosphere fail- May inherently and the p. See: coercive sent” rationale. N.T. Indeed, Acosta, fully light advise Diaz of ure appeal right to See: N.T. (Pa.Super.2003), de- refuse such consent. nied, (2003), p. 576 Pa. solely that probable on its conclusion cause the search was invalid and the evidence pres- existed. Nor did the Commonwealth suppressed. should have been exigency. ent evidence of circumstances of I Consequently, would vacate the Therefore, a de novo review of the record sentence, judgment of reverse the order of required, compels and such a review the trial court that denied the suppression nothing conclusion that there is to distin- motion, and remand this case the trial Casanova, guish this case from the facts charges.12 court for dismissal for, case, as in that the vehicle here was secured, stopped,10 occupants and both police custody.11

were in cir- Under these

cumstances, Pennsylvania, my the law of

view, requires a warrant for the Therefore,

conduct a search of a vehicle.

since the this case conducted the warrant, having

search without obtained a Contrary permitted to the Commonwealth’s asser- have Mr. Diaz to leave the scene 10. tion, application pend- there is no in the record for its while an for warrant was Moreover, stopped ing. specifically claim that the constituted a tes- traffic hazard. In fact it was on the tified that Mr. Diaz "was not free to leave” highway, prior May shoulder of a commercial and there to the issuance of a citation. N.T. 5, 2004, p. is no evidence it was on restricted 15. Since search occurred highway impeding intervening period, or otherwise the flow of time the Com- 5, 2004, p. exigency traffic. See: N.T. monwealth cannot sustain its lack of argument diaphanous argument. with this argument The Commonwealth’s on the plicability agree Majority v. Casanova is 12.I with the that the remain- grounded upon ing questions view do its that Mr. Diaz "could two raised Maryland very easily away grant driven with the vehicle warrant the of relief. See: Wilson, destroyed or evidence.” Commonwealth’s 519 U.S. 117 S.Ct. Brief, Sierra, (1997); p. Majority accepts 15. The also L.Ed.2d 41 Commonwealth v. view, (1999). opining that Mr. Diaz "could have driv- 555 Pa. 723 A.2d 644 See also: Garvin, po- en the vehicle the scene 448 Pa. before the Commonwealth v. (1972); Ingram, lice obtained a search warrant.” Common- VanWinkle, denied, supra, (Pa.Super.2002), appeal wealth v. It 814 A.2d 264 1284-85. (2003). propose defies reason to would 573 Pa. 821 A.2d 586

Case Details

Case Name: Commonwealth v. Winkle

Court Name: Superior Court of Pennsylvania

Date Published: Aug 8, 2005

Citation: 880 A.2d 1280

Court Abbreviation: Pa. Super. Ct.