J-S47025-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                        Appellant

                   v.

MATTHEW NICHOLAS DE LA ROSA

                        Appellee                   No. 2063 MDA 2015


            Appeal from the Order Entered October 26, 2015
              In the Court of Common Pleas of Berks County
           Criminal Division at No(s): CP-06-CR-0002218-2015


BEFORE: SHOGAN, J., LAZARUS, J., and JENKINS, J.

MEMORANDUM BY JENKINS, J.:                   FILED SEPTEMBER 14, 2016

     The Commonwealth of Pennsylvania appeals from the order of the

Berks County Court of Common Pleas granting the motion to suppress

evidence filed by Appellee Matthew Nicholas De La Rosa.      We reverse the

order granting Appellee’s suppression motion and remand for further

proceedings.

     The trial court summarized the factual history as follows:

        On April 12, 2015 at 2:55 am, Officer Bryan Cilento was on
        patrol in Mt. Penn Borough, in uniform, in a marked police
        vehicle. He saw a Mazda 6 run a stop sign; he then
        activated his lights and siren and initiated a traffic stop.
        [Appellee] was in the front passenger seat of the stopped
        vehicle. The driver was the only other occupant of the
        vehicle. When the officer approached the driver side of the
        vehicle, he smelled the strong odor of burnt marijuana
        coming from the vehicle.      [When he approached the
        vehicle, he informed the passengers that he smelled
        marijuana. Appellant responded that they had smoked
        earlier in the day and showed the officer the marijuana
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          wrappings in the cup holder area.1 N.T., 8/27/2016, at 9,
          12, 14. Officer Cilento] had the driver get out of the
          vehicle. He next asked the passenger, [Appellee], to exit
          the vehicle as well. Officer Cilento asked the defendant if
          he had any weapons on him; he was going to do a pat
          down for safety reasons. The officer then asked him if he
          had anything else on his person other than marijuana and
          was told yes.      The officer asked him where[,] and
          [Appellee] pointed toward his right front pant pocket. The
          officer then asked [Appellee] if he could retrieve what was
          in there, was told yes, and he did so.           The officer
          recovered several small glassine baggies with gray
          powdery substance that was suspected heroin. [Appellee]
          was handcuffed, placed under arrest and put in the back of
          the patrol car. Then Officer Cilento searched the vehicle
          and found 2 boxes of empty glassine packets used to
          package narcotics. (Notes of Testimony, 8/27/15, pp. 3-
          11).

          [Appellee] was charged by [c]riminal [i]nformation with
          one count of [d]elivery of a [c]ontrolled [s]ubstance, in
          violation of 35 P.S. § 780- 113(a)(30), a felony.

Trial Court Opinion, filed 2/3/2016, at 1-2. On July 9, 2015, Appellee filed

an omnibus pre-trial motion.          On August 27, 2015, the trial court held a

hearing. The parties filed supplemental briefs.             On October 26, 2015, the

trial court granted Appellee’s motion to suppress statements and physical

evidence.

       On November 25, 2015, the Commonwealth filed a timely notice of

appeal to the Superior Court, certifying that this ruling terminated or

substantially    handicapped      the    prosecution   of    the   case.   Both   the
____________________________________________


1
  The officer testified that during the search, he located the cigar wrapping
“that had the marijuana in it, initially, from what they had smoked, but there
wasn’t really any marijuana. It was just the wrapping in the cup holder
area.” N.T., 8/27/2015, at 8.



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Commonwealth and the trial court complied with Pennsylvania Rule of

Appellate Procedure 1925.

      The Commonwealth raises the following issue on appeal:

         Did the trial court err in suppressing statements and
         evidence flowing from a lawful traffic stop, consensual
         search, and custodial interview of [Appellee], who was the
         passenger of the vehicle?

Appellant’s Brief at 4.

      This Court’s standard of review of a denial of a motion to suppress

evidence is as follows:

         An appellate court’s 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, the appellate court is bound by
         those findings and may reverse only if the court’s legal
         conclusions are erroneous.       Where 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 plenary review.

Commonwealth         v.   Jones,   121   A.3d   524,   527   (Pa.Super.2015),


reargument denied (Sept. 30, 2015), appeal denied, 135 A.3d 584




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(Pa.2016) (quoting    Commonwealth v. Jones, 988             A.2d   649, 654


(Pa.2010) (internal brackets omitted)).


      “Moreover, appellate courts are limited to reviewing only the evidence


presented at the suppression hearing when examining a ruling on a pre-trial


motion to suppress.”      Commonwealth v. Stilo, 138 A.3d 33, 35–36


(Pa.Super.2016) (citing In Interest of L.J., 79 A.3d 1073, 1083–87


(Pa.2013)).


      “Interaction between citizens and police officers, under search and


seizure law, is varied and requires different levels of justification depending


upon the nature of the interaction and whether or not the citizen is


detained.”    Commonwealth v. Stevenson, 832 A.2d 1123, 1126-27


(Pa.Super.2003).     Pennsylvania recognizes three types of interactions


between police officers and citizens.    Id.


      The first category, a mere encounter or request for information,
      does not need to be supported by any level of suspicion, and
      does not carry any official compulsion to stop or respond. The
      second category, an investigative detention, derives from Terry
      v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)[,]
      and its progeny: such a detention is lawful if supported by
      reasonable suspicion because, although it subjects a suspect to a
      stop and a period of detention, it does not involve such coercive
      conditions as to constitute the functional equivalent of an arrest.
      The final category, the arrest or custodial detention, must be
      supported by probable cause.

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Commonwealth v. Gonzalez, 979 A.2d 879, 884 (Pa.Super.2009) (quoting

Commonwealth v. Moyer, 954 A.2d 659, 663 (Pa.Super.2008) (en banc)

(quoting Commonwealth v. Smith, 836 A.2d 5, 10 (Pa.2003))).

      This Court has explained the distinction between the categories of

detention as follows:

         A “mere encounter” can be any formal or informal
         interaction between an officer and a citizen, but will
         normally be an inquiry by the officer of a citizen. The
         hallmark of this interaction is that it carries no official
         compulsion to stop or respond.

         In contrast, an “investigative detention,” by implication,
         carries an official compulsion to stop and respond, but the
         detention is temporary, unless it results in the formation of
         probable cause for arrest, and does not possess the
         coercive conditions consistent with a formal arrest. Since
         this interaction has elements of official compulsion it
         requires “reasonable suspicion” of unlawful activity. In
         further contrast, a custodial detention occurs when the
         nature, duration and conditions of an investigative
         detention become so coercive as to be, practically
         speaking, the functional equivalent of an arrest.

Stevenson, 832 A.2d at 1127-29.

      “The key difference between an investigative detention and a custodial

one is that the latter ‘involve[s] such coercive conditions as to constitute the

functional equivalent of an arrest.’” Commonwealth v. Pakacki, 901 A.2d

983, 987 (Pa.2006) (quoting Commonwealth v. Ellis, 662 A.2d 1043, 104

(Pa.1995)). To determine whether an encounter with the police is custodial,

the court considers the totality of the circumstances and applies an objective

standard “with due consideration given to the reasonable impression

conveyed to the person interrogated rather than the strictly subjective view

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of the troopers or the person being seized.” Id. (quoting Commonwealth

v. Edmiston, 634 A.2d 1078, 1085–86 (Pa.1993)).

        The police are required to provide Miranda2 warnings only when a

suspect is in custody. See, e.g., Pakacki, 901 A.2d at 987. The Supreme

Court of Pennsylvania has found that “[a] person is in custody for Miranda

purposes only when he ‘is physically denied his freedom of action in any

significant way or is placed in a situation in which he reasonably believes

that his freedom of action or movement is restricted by the interrogation.’”

Id. at 987-88 (quoting Commonwealth v. Johnson, 727 A.2d 1089, 1100

(Pa.1999)). The Supreme Court of the United States has stated that to

determine “whether an individual was in custody, the ‘ultimate inquiry is . . .

whether there [was] a formal arrest or restraint on freedom of movement of

the degree associated with a formal arrest.’”     Id. (quoting Stansbury v.

California, 511 U.S. 318, 322, 114 S.Ct. 1526, 128 L.Ed.2d 293 (1994)).

        In Pakacki, a uniformed officer, in a marked patrol car, was given the

appellee’s name and description during an investigation of a shooting.     The

officer saw the appellee and another man walking on the side of the road

and “with the lights on his patrol car flashing, . . . pulled over, got out,

called appellee over, asked him if he had any weapons, drugs, or needles,

and told him that, for the safety of both of them, he was going to pat him


____________________________________________


2
    Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).



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down to ensure he had no weapons.” 901 A.2d at 985. The officer smelled

marijuana and, during the pat down search, felt an object he believed to be

a marijuana pipe. Id. The officer then asked the appellee what was in his

pocket, and the appellee responded that it was a marijuana pipe. Id. The

Supreme Court held that the appellee “was not in custody so as to require

Miranda warnings before the officer asked him about the object in his

pocket.” Id.

       In Pakacki, the Supreme Court distinguished this Court’s finding in

Commonwealth v. Ingram, 814 A.2d 264 (Pa.Super.2002). In Ingram,

this Court found that the investigatory detention and pat-down frisk of the

appellant was proper where the police received a call, from an identified

caller, indicating that the appellant was in possession of the caller’s vehicle,

which had been stolen several weeks earlier.             The caller described the

appellant, identified his location, and stated he observed a gun in the

appellant’s possession.       Id. at 270.3     This Court, however, found that the

appellant should have been provided his Miranda warnings before police
____________________________________________


3
  The Court noted “the officer responded to the complaint and found [the
a]ppellant to be in substantially the same place and wearing the same
garments as described by [the caller].” Ingram, 814 A.2d at 270. This
Court found that “[b]ased on the accuracy of that information, [the police
officer] had reason to believe that [the caller’s] additional statement that
[the a]ppellant possessed a gun was also credible.” Id. The Court also
noted that the officer had been threatened by [the a]ppellant during a
previous arrest. Id. This Court, therefore found, under the totality of the
circumstances, that the investigatory stop and the frisk were justified. Id.




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questioned him.       Id. at 271.      The Court noted that three police vehicles

arrived at the appellant’s location.           Id.     Two officers approached the

appellant and asked to speak to him regarding the unauthorized use of a

vehicle.   Id.    They informed the appellant that one of the officers would

conduct a pat-down search prior to the discussion.              Id.   The affidavit of

probable cause indicated that the appellant complied with the officer’s order

to place his hands on the vehicle and spread his legs for the search.             Id.

The officer located an object in the appellant’s left front pants pocket and

questioned Appellant about the object. Id.             The appellant indicated that it

was “chronic,” a street name for marijuana. Id. This Court found that the

appellant could reasonably have believed that his freedom of action was

restricted and found the appellant was within the custody of the police

officers when questioned and searched.           Id.    This Court further found the

question posed during the search was interrogation, noting the officer should

have known it was likely to lead to an incriminating response.              Id.   This

Court found the admission and the marijuana should have been suppressed

because the officer did not administer Miranda warnings to the appellant.4

Id.
____________________________________________


4
 This Court further found that, although the interrogation was improper, the
drugs would have been located during a lawful search incident to arrest,
which would have occurred because the appellant possessed a gun, without
a license and even though he had a prior conviction. Ingram, 814 A.2d at
272. The evidence therefore was admissible through the inevitable discovery
doctrine. Id.
(Footnote Continued Next Page)


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        Here, the trial court found:

           In this case[,] Officer Cilento conducted a vehicle stop
           based on [a] stop sign violation. During the stop[,] Officer
           Cilento smelled a strong odor of burnt marijuana. Officer
           Cilento asked[5] the two (2) occupants why there was an
           odor of marijuana. The passenger, [Appellee], advised
           Officer Cilento that he smoked marijuana earlier.[6] Officer
           Cilento asked [Appellee] to exit the vehicle and performed
           a pat-down (for safety) which revealed no weapons.
           During the conversation, officer Cilento continued to ask
           [Appellee] if there was anything on his person and in the
           vehicle. [Appellee] responded that “I have some more
           stuff in my pocket[.”] Officer Cilento asked which pocket
           and [Appellee] pointed down to his front right pocket.
           Officer Cilento asked [Appellee] [“]can I retrieve the
           item(s)[,”] and he stated “yes[.”] Officer Cilento removed
           five (5) purple baggies containing heroin. [Appellee] was
           placed under arrest and placed him in the patrol vehicle.

           No constitutional provision prohibits police officers from
           approaching a citizen in public to make inquiries of them.
           However, if the police action becomes too intrusive, a
           mere encounter may escalate into an investigatory
           detention or seizure[.] Prior to subjecting a citizen to an
           investigatory detention, the police must harbor at least a
           reasonable suspicion that the person seized is then
           engaged in unlawful activity.[] See Commonwealth v.
           Matos, [] 672 A.2d 769 ([Pa.]1996)[.]

                       _______________________
(Footnote Continued)


5
 The testimony indicates that, rather than Appellant responding to a direct
question regarding the strong odor of marijuana, the officer mentioned the
odor and Appellant stated they had smoked earlier and pointed to the
wrappers. N.T., 8/27/2015, at 8, 12 (“what I smelled in the car was
marijuana, and initially on the stop, [Appellant] had pointed out that they
had smoked earlier”); (“Q: And you told him, I smell marijuana?; A: Yes,
Ma’am; . . . Q: And he actually went, Yep, here it is, correct? A: Yes.”).
6
    Appellant also showed the officer cigar wrappings used for marijuana.



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       This Court concludes the incident was not a mere
       encounter and the traffic stop escalated to an
       interrogation. [Appellee] could not have walked away
       after the police smelled the odor of marijuana. In fact,
       Officer Cilento testified that [Appellee] was not free to
       leave when he smelled the marijuana. There were two
       police officers surrounding [Appellee] with the overhead
       lights activated. This type of interaction is clearly intrusive
       and was an investigatory detention (seizure).           Officer
       Cilento did not have probable cause to arrest the suspect
       “before” [Appellee] made any statements and did not
       conduct any further investigation. “Whether reasonable
       suspicion existed at time of [an] investigatory detention
       must be answered by examining the totality of
       circumstances     to    determine    whether      there    was
       particularized and objective basis for suspecting the
       individual    stopped    of   criminal    activity.”       See
       Commonwealth v. Beasley, 761 A.2d 621, 624
       [Pa.Super.2000].

       The test for determining whether an individual has been
       “seized” is, if, in view of all of the circumstances
       surrounding the incident, a reasonable person would have
       believed he or she was not free to leave. When [Appellee]
       was asked to exit the vehicle, he was not free to leave.
       Officer Cilento began to question [Appellee] without first
       reading his Miranda warnings.         In this situation a
       reasonable person would have believed he or she was not
       free to leave. United States v. Mendenhall, 446 U.S.
       544, 555, 100 S. Ct. 1870, 1877, 64 L. Ed. 2d 497 (1980).

       Officer Cilento knew or should have known that the
       Miranda warnings are called for when the police
       questioning constitutes interrogation; that is, likely or
       expected to elicit a confession or other incriminating
       statements. See Commonwealth v. Bracey. 461 A.2d
       775, 780 (Pa.1983). This [c]ourt finds that the questions
       asked by the officer constitute custodial interrogation.
       Since no Miranda warnings had been given at that time,
       this [c]ourt holds that the questioning on the part of the
       officer was a violation of [Appellee’s] Fifth Amendment
       rights.

       Accordingly, [Appellee’s] statements are inadmissible as
       evidence and the seizure of the contraband found in the

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          center console and items found on [Appellee] did occur in
          violation of [Appellee’s] constitutional rights (Article I,
          Section 8 of the Pennsylvania Constitution.) However,
          since the 100 purple paper “empty” baggies on the front
          passenger side floor was observed in plain view, that
          evidence is admitted.

Opinion, 10/26/2015, at 5-6.

       The trial court erred in finding Miranda warnings were required prior

to the officer’s question as to whether there was anything on Appellant’s

person or in the vehicle. The officer properly stopped the car, which had not

stopped at a stop sign. The strong smell of marijuana supplied reasonable

suspicion of criminal activity that justified an investigatory detention.

Attendant to that investigatory detention, the officer could properly inquire

as to whether Appellant had any additional information the officer should

know.7    See Commonwealth v. Kemp, 961 A.2d 1247 (Pa.Super.2008)

(finding Appellant’s consent to search the vehicle was voluntary, where

officer had reasonable suspicion that appellant possessed narcotics and

there was no excessive police conduct, no physical contact between police
____________________________________________


7
  Appellant did not challenge whether the police officer had reasonable
suspicion to fear for his safety to justify the pat-down search before the
suppression court, and does not challenge the search before this Court.
See, e.g., Commonwealth v. Scarborough, 89 A.3d 679, 683
(Pa.Super.2014) (“a police officer may conduct a brief investigatory stop of
an individual if the officer observes unusual conduct which leads him to
reasonably conclude that criminal activity may be afoot. Moreover, if the
officer has a reasonable suspicion, based on specific and articulable facts,
that the detained individual may be armed and dangerous, the officer may
then conduct a frisk of the individual’s outer garments for weapons,”
quoting Commonwealth v. Clemens, 66 A.3d 373, 381 (Pa.Super.2013)).
Therefore, we will not discuss the issue.



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and appellant, and officer did not display weapon or act aggressively.). As

in Pakacki, the officers smelled marijuana following a stop and asked

follow-up questions, but the facts did not establish that the stop became a

custodial interrogation, requiring Miranda warnings, until after the officer

discovered the narcotics. Appellant was not physically denied his freedom of

action in any significant way or placed in a situation in which he reasonably

believed that his freedom of action or movement was restricted by the

interrogation.

      Order reversed. Case remanded. Jurisdiction relinquished.

      Judge Shogan joins in the Memorandum.

      Judge Lazarus files a Dissenting Memorandum.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/14/2016




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