J-E02004-21
2021 PA Super 244
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellant : : : v. : : : VISMANI CANALES CARMENATES : No. 1045 MDA 2019
Appeal from the Suppression Order Entered June 25, 2019 In the Court of Common Pleas of Clinton County Criminal Division at No(s): CP-18-CR-0000623-2018
BEFORE: PANELLA, P.J., BENDER, P.J.E., BOWES, J., LAZARUS, J., OLSON, J., DUBOW, J., KUNSELMAN, J., MURRAY, J., and McCAFFERY, J.
OPINION BY DUBOW, J.: FILED: DECEMBER 14, 2021
The Commonwealth of Pennsylvania appeals from the June 25, 2019
Order granting the Motion to Suppress filed by Vismani Canales Carmenates
(“Carmenates”). The Commonwealth argues that the suppression court erred
in relying on waived arguments, making factual findings that contradicted the
testimony, and granting Carmenates’ Motion to Suppress. After careful
review, we conclude that Carmenates did not knowingly, intelligently, or
voluntarily consent to the search of his vehicle. Thus, we affirm the Order
granting Carmenates’ Motion to Suppress.
Following a traffic stop, the Commonwealth charged Carmenates with
Possession With Intent to Deliver a Controlled Substance and Possession of
Drug Paraphernalia.1 Carmenates filed an Omnibus Pre-Trial Motion, including
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1 35 P.S. §§ 780-113(a)(3) and 780-113(a)(32), respectively. J-E02004-21
a Motion to Suppress, contending that the traffic stop was illegal and his
consent to search the vehicle was not knowing, intelligent, or voluntary and/or
was invalid because it was the product of an unconstitutional detention.
The suppression court held a hearing on the Motion to Suppress, at
which Pennsylvania State Trooper Jeremy Hoy and Carmenates testified.2 The
court also viewed and admitted into evidence the DVD recording of Trooper
Hoy’s and Carmenates’ interaction produced by the mobile video recording
(“MVR”) unit on Trooper Hoy’s patrol vehicle, and a photograph of items
hanging from the rearview mirror of Carmenates’ vehicle. From the evidence
submitted, the suppression court found the following facts.
On December 12, 2018, Trooper Hoy was working in the Bureau of
Criminal Investigation, Drug Law Enforcement, Central SHIELD Unit.3 He was
on stationary patrol near the Lamar exit of Interstate 80 when he observed
Carmenates’ vehicle following a tractor-trailer at what Trooper Hoy considered
an unsafe distance and at a speed slower than the flow of traffic.
Trooper Hoy pulled over Carmenates’ car using lights and a siren.
Trooper Hoy exited his patrol vehicle. As he approached the passenger side
2 The suppression court qualified Trooper Hoy to testify as an expert in the field of criminal interdiction.
3 The SHIELD unit is a “criminal interdiction unit assigned primarily to work
the interstates and highways in Pennsylvania[]” by “conducting traffic stops, attempting to ferret out criminal activity to help slow down the flow of illegal activities in the Commonwealth of Pennsylvania.” N.T. Suppression, 5/3/19, at 6-7.
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window of Carmenates’ vehicle4 he noticed in the back of the vehicle several
large duffel bags and a suitcase, covered by a tan sheet and a large stuffed
toy bear. He also observed numerous fast food and snack items, a fast food
drink and water in the cup holders, two air freshener spray bottles, and
“religious paraphernalia” hanging from his rearview mirror. Trooper Hoy
testified that these items could be indicators of criminality.5 Trooper Hoy did
not smell any odor of marijuana or observe any drugs or drug paraphernalia,
cash, weapons, or contraband of any type, nor did he observe Carmenates
attempt to conceal anything or make any furtive movements.
When Trooper Hoy attempted to speak with Carmenates, Carmenates
immediately indicated that he spoke only Spanish. Trooper Hoy does not
speak Spanish, but told Carmenates that they “could make it work.”6 To
“make it work,” Trooper Hoy employed the Google Translate application
(“Google Translate”) on his cell phone to translate his statements from English
4 Trooper Hoy testified that for safety reasons he always approaches a driver
during a traffic stop from the passenger side of the vehicle. N.T. at 63.
5 Suppression Court Opinion (“Opinion”) at 4-5. The “religious paraphernalia” consisted of two elephants and a picture of woman hanging from Carmenates’ rearview mirror. Trooper Hoy could not identify the woman or with which, if any, religion these items were associated. See N.T. at 69-70. The suppression court concluded after reviewing the photograph of Carmenates’ rearview mirror that the “religious paraphernalia” observed by Trooper Hoy was not, in fact, religious paraphernalia and it rejected the Commonwealth’s allegation that religious materials generally are an indication of criminal activity. See Opinion at 5.
6 Opinion at 4.
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to Spanish and Carmenates’ statements from Spanish to English.7 Trooper
Hoy indicated that he did not have any problems understanding the responses
he received from Carmenates from the Google Translate application and that
Carmenates never told Trooper Hoy that he did not understand a question
Trooper Hoy asked him through Google Translate. Trooper Hoy conceded,
however, that Google Translate is “not 100 percent accurate at times.”8
Carmenates provided Trooper Hoy with Carmenates’ drivers’ license,
insurance card, and registration card. Trooper Hoy requested that
Carmenates exit the vehicle. Carmenates complied and Trooper Hoy searched
him for weapons.9 Trooper Hoy instructed Carmenates to stand outside the
patrol vehicle’s front passenger window in the cold while Trooper Hoy
conducted a criminal history check inside his heated patrol vehicle using the
7 To use Google Translate, Trooper Hoy and Carmenates handed Trooper Hoy’s
phone back and forth, each taking turns recording his voice and waiting for the application to translate. If either man interrupted the other, or if one of them paused before finishing his sentence, the recorder stopped recording and started translating. 8 N.T. at 79.
9 Trooper Hoy described Carmenates’ hands as shaking when Carmenates handed Trooper Hoy these items and while passing Trooper Hoy’s cell phone back and forth. The suppression court rejected the Commonwealth’s suggestion that the court should infer from Carmenates’ shaking hands that he was nervous because he was conducting criminal activities. Instead, the court inferred that Carmenates—a member of the travelling public who Trooper Hoy had placed out in the cold weather without the opportunity to retrieve an outercoat—was cold. Opinion at 6.
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vehicle’s computer.10 Trooper Hoy explained that he remained in his warm
patrol vehicle because he needed to use his computer to verify Carmenates’
identity, it was cold out, and it was easier for Trooper Hoy to hear the Google
Translate translations inside the vehicle.
Trooper Hoy stated that he intended to issue a warning to Carmenates—
but before doing so, and before returning Carmenates’ documents to him and
ending the traffic stop, Trooper Hoy asked him about his travel plans. During
this portion of the MVR recording, Carmenates is heard giving lengthy
responses in Spanish to Trooper Hoy’s questions. However, many of
Carmenates’ responses were not translated by Google Translate at all and
Google Translate translated some lengthy responses as short, nonsensical
English statements, including the statement “you already see the see a bear
for the girl the suitcase with the coat over coat.” MVR Recording, 12/12/18,
at 7:39-8:19.
Trooper Hoy had copies of a written “consent to search” form already
translated into Spanish in his vehicle. Nevertheless, approximately 12
minutes into the traffic stop, Trooper Hoy chose to use Google Translate to
obtain Carmenates’ consent to “see” his luggage.11 Trooper Hoy never offered
10 Carmenates, who was not wearing a jacket, told Trooper Hoy that he was
cold. In response, and because “[i]t was a little chilly,” Trooper Hoy pointed the police car’s heat vents toward Carmenates as he stood outside to “warm his hands, stay warm throughout the encounter.” N.T. at 32.
11 Opinion at 7.
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Carmenates the opportunity to review the Spanish-language consent form.
While still standing jacketless outside the police vehicle in the cold,
Carmenates replied “si” to the question of whether Trooper Hoy could “see”
Carmenates’ luggage. Carmenates then proceeded to walk towards his
vehicle.
Trooper Hoy then exited his vehicle and followed Carmenates to
Carmenates’ vehicle. Carmenates opened the rear door of his vehicle and
retrieved a suitcase. Trooper Hoy, however, using gestures rather than words,
directed Carmenates to a black duffel bag located under the tan bed sheet and
large stuffed toy bear. Carmenates retrieved the black duffel bag and
complied with Trooper Hoy’s non-verbal direction to open it.12 The black duffel
bag contained a large amount of marijuana packaged and vacuum sealed in
plastic bags. Trooper Hoy then handcuffed Carmenates and searched the
remaining duffel bags. In the bags, Trooper Hoy discovered approximately 39
pounds of marijuana.
The testimony and MVR recording indicated that Trooper Hoy never
informed Carmenates that Carmenates was free to leave or to refuse consent
to search his vehicle or personal effects or of his Miranda13 rights. In
addition, Trooper Hoy still had possession of Carmenates’ license, registration, ____________________________________________
12 Trooper Hoy conceded that he did not ask Carmenates if Trooper Hoy could
look inside or examine Carmenates’ luggage or duffel bags or search Carmenates’ vehicle or personal effects. N.T. at 84.
13 Miranda v. Arizona, 384 U.S. 436 (1966).
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and proof of insurance at the time Trooper Hoy requested to see Carmenates’
luggage, including the black duffel bag.
Carmenates testified through a translator at the suppression hearing.
He stated that he spoke just a few words of English. N.T. at 97. He also
testified that he understood Trooper Hoy’s request to see Carmenates’ luggage
as meaning that Trooper Hoy simply wanted to “see” it. Id. Carmenates also
testified that Trooper Hoy pointed at the bags because Trooper Hoy “did not
have a translator there.” Id. at 97-98. He further testified that if Trooper
Hoy pointed, Carmenates “would follow his orders” because he “didn’t think
that [he] had the option to say no, so I just followed what he told me to do.”
Id. at 98. Importantly, Carmenates testified that Trooper Hoy “wasn’t talking
to me and he didn’t use” Google Translate; rather, he “kept pointing[.]” Id.
at 99. Following the hearing and after considering the parties’ briefs, the
suppression court granted Carmenates’ Motion to Suppress, concluding that
the Commonwealth had failed to establish that Carmenates voluntarily,
knowingly, and intelligently consented to the search of his vehicle and
luggage, finding, inter alia, that “a substantial language barrier existed
between [Carmenates] and Trooper Hoy and [Carmenates] did not fully
comprehend Trooper Hoy’s request and/or statements.” Opinion at 8, 15.
The Commonwealth timely appealed, and, on September 1, 2020, this
Court published an Opinion reversing the suppression court’s Order granting
Carmenates’ Motion to Suppress, finding that Carmenates knowingly,
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intelligently, and voluntarily consented to Trooper Hoy’s request to search.
See Commonwealth v. Carmenates, No 1045 MDA 2019 (Pa. Super. filed
Sept. 1, 2020). Carmenates subsequently filed an Application for Reargument
En Banc. On November 9, 2020, we issued a per curiam Order granting
reargument and withdrawing the panel’s September 1, 2020 decision.
Pursuant to this Order, the Commonwealth filed a substituted Brief, raising
the following six issues:
1. Whether the suppression court committed an error of law/abuse of discretion in determining that [Carmenates’] consent to search his vehicle and its contents was not voluntary?
2. Whether the suppression court committed an error of law/abuse of discretion in concluding that [Carmenates] was the subject of an unconstitutional detention?
3. Whether the suppression court committed an error or law/abuse of discretion in failing to find that [Carmenates] waived various issues by failing to present them in his Omnibus Pretrial Motion?
4. Whether the suppression court committed an error of law/abuse of discretion in making factual findings outside the record of the suppression hearing?
5. Whether the suppression court committed an error of law/abuse of discretion in making factual findings contrary to the uncontroverted testimony of the Commonwealth’s witness at the suppression hearing, PSP Trooper Hoy?
6. Whether the suppression court committed an error of law/abuse of discretion in failing to give due weight to the opinions and observations of Trooper Hoy based upon his knowledge, experience, and training in the field of narcotics investigations?
Commonwealth’s Brief at 4-5.
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Standard of Review
“When reviewing the grant of a suppression motion, we must determine
whether the record supports the trial court’s factual findings and whether the
legal conclusions drawn from those facts are correct.” Commonwealth v.
McCleary, 193 A.3d 387, 390 (Pa. Super. 2018) (citation omitted). “We may
only consider evidence presented at the suppression hearing.” Id. (citation
omitted). “[B]ecause the defendant prevailed on this issue before the
suppression court, we consider only the defendant’s evidence and so much of
the Commonwealth’s evidence as remains uncontradicted when read in the
context of the [suppression] record as a whole.” Id. (citation omitted).
We are highly deferential to the suppression court’s factual findings and
credibility determination. Commonwealth v. Batista, 219 A.3d 1199, 1206
(Pa. Super. 2019). “It is within the suppression court’s sole province as
factfinder to pass on the credibility of witnesses and the weight to be given to
their testimony. The suppression court is free to believe all, some or none of
the evidence presented at the suppression hearing.” Commonwealth v.
Elmobdy, 823 A.2d 180, 183 (Pa. Super. 2003) (citations omitted). If the
record supports the suppression court’s findings, we may not substitute our
own findings. Bastista, 219 A.3d at 1206. However, we give no deference
to the suppression court’s legal conclusions and review them de novo. Id.
I. Whether Consent was Knowing, Intelligent, and Voluntary
In its first and second issues, the Commonwealth asserts that the
suppression court erred in concluding that Carmenates’ consent was not
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knowing, intelligent, and voluntary.14 Commonwealth’s Brief at 20-23. The
Commonwealth claims that the suppression court incorrectly applied
Commonwealth v. Strickler, 757 A.2d 884 (Pa. 2000), to conclude that the
search violated Carmenates’ rights.15 The Commonwealth, emphasizing the
facts favorable only to its assertion that the search of Carmenates’ luggage
was consensual, argues that the court erred in placing significance on the fact
that Trooper Hoy did not advise Carmenates of his Miranda rights or his right ____________________________________________
14 The Commonwealth purports that it combined its argument in support of issues one and two into one section. Our review of the Commonwealth’s Brief indicates, however, that the Commonwealth has, in fact, only presented argument in support of its first issue, i.e., that it did not prove that Carmenates’ consent was knowing, intelligent, and voluntary. We, therefore, conclude that the Commonwealth abandoned its second issue—that the suppression court erred in finding that Carmenates was the subject of an illegal detention. Nevertheless, we observe that Carmenates raised as a basis to support suppression of the marijuana found in his vehicle that the traffic stop was illegal and the consent to search was proceeded by an unconstitutional detention. The suppression court, however, declined to address this claim after finding that Carmenates’ consent to search was not knowing, intelligent, or voluntary. Accordingly, even if the Commonwealth had not abandoned this issue, it would fail as the suppression court did not make the legal conclusion challenged by the Commonwealth.
15 The Commonwealth also asserts that the suppression court misapplied the
holding in United States v. Lopez, 817 F. Supp. 2d 918 (S.D. Miss. 2011), which the Commonwealth characterizes as “factually distinguishable from the present matter to the extent that its application constitutes an error of law by the suppression court.” The Commonwealth does not, however, explain how the facts in Lopez are distinguishable from the instant facts. Furthermore, we note that the suppression court conceded that Lopez is not binding on Pennsylvania courts, it did not rely exclusively on Lopez granting Carmenates’ Motion to Suppress, and, our review of Lopez, belies the Commonwealth’s claim that its facts are so dissimilar from the instant facts as to render the suppression court’s reference to it legal error. Accordingly, we find no merit to this claim.
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to refuse to consent to the search.16 Id. at 21. The Commonwealth avers
that the encounter was cordial, and Trooper Hoy did not demand to see the
contents of Carmenates’ vehicle’s rear compartment, but merely asked to see
the luggage and Carmenates willingly opened the bag after Trooper Hoy
pointed at it. Id. at 20, 22-23.
It is well-settled that a search conducted without a warrant is
unreasonable and unconstitutional unless an established exception to the
warrant requirement applies. Strickler, 757 A.2d at 888. “One such
exception is consent[.]” Id.
“To establish a valid consensual search, the Commonwealth must first
prove that the consent was given during a legal police interaction.”
Commonwealth v. Bell, 871 A.2d 267, 273 (Pa. Super. 2005). Next, the
Commonwealth must prove the consent was given voluntarily. Id. “To be
considered valid, the consent must be the product of an essentially free and
unrestrained choice—not the result of duress or coercion, express or implied,
or a will overbourne—under the totality of the circumstances.”
Commonwealth v. Quiles, 166 A.3d 387, 391 (Pa. Super. 2017) (citations
and internal quotation marks omitted).
The Pennsylvania Supreme Court has also noted that because “both the
tests for voluntariness [of consent] and for seizure centrally entail an
16 The Commonwealth also repeats its averment that the suppression court
exaggerated other factors, such as the cold weather and language barrier. See Commonwealth’s Brief at 12.
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examination of the objective circumstances surrounding the police/citizen
encounter to determine whether there was a show of authority that would
impact upon a reasonable citizen-subject’s perspective, there is a substantial,
necessary overlap in the analyses.” Strickler, 757 A.2d at 901-02.
Thus, to determine whether a consent is valid when provided close in
time to a traffic stop, courts consider the following factors:
1) the presence or absence of police excesses; 2) whether there was physical contact; 3) whether police directed the citizen’s movements; 4) police demeanor and manner of expression; 5) the location of the interdiction; 6) the content of the questions and statements; 7) the existence and character of the initial investigative detention, including its degree of coerciveness; 8) “the degree to which the transition between the traffic stop/investigative detention and the subsequent encounter can be viewed as seamless, ... thus suggesting to a citizen that his movements may remain subject to police restraint,”; 9) the “presence of an express admonition to the effect that the citizen- subject is free to depart is a potent, objective factor;” and 10) whether the citizen has been informed that he is not required to consent to the search.
Commonwealth v. Moyer, 954 A.2d 659, 665 (Pa. Super. 2008) (en banc)
(citations omitted).
“[K]nowledge of the right to refuse to consent to the search is a factor
to be taken into account, [but] the Commonwealth is not required to
demonstrate such knowledge as a prerequisite to establishing voluntary
consent.” Strickler, 757 A.2d at 901. Further, “the maturity, sophistication
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and mental or emotional state of the defendant (including age, intelligence
and capacity to exercise free will), are to be taken into account.” 17 Id.
Here, the suppression court granted Carmenates’ Motion to Suppress
because it found that Carmenates’ consent was “without any question”
involuntary, observing that a “substantial language barrier” between Trooper
Hoy and Carmenates prevented Carmenates from fully understanding Trooper
Hoy’s requests and statements.18 Opinion at 8, 11, 15.
Following our review of the totality of the circumstances, we agree that
Carmenates’ consent was not knowing, intelligent, and voluntary. The record
reflects that Carmenates spoke only a few words of English and that Trooper
Hoy does not speak Spanish. Thus, throughout their encounter, Trooper Hoy
and Carmenates used Google Translate to facilitate their conversation.
Trooper Hoy conceded that Google Translate is “not 100 percent accurate at
times” and the record evidence of some of the inaccurate and nonsensical
translations provided by Google Translate supports this testimony.
17 The Commonwealth did not present any evidence at the suppression hearing
regarding Carmenates’ maturity, sophistication, or mental or emotional state at the time Trooper Hoy obtained Carmenates’ consent to search.
18 In determining that the consent to search obtained by Trooper Hoy from
Carmenates was invalid, the trial court also considered relevant that: (1) Trooper Hoy neglected to inform Carmenates that he could refuse to consent to the search or of his Miranda rights; (2) the traffic stop had been an extended stop; (3) Trooper Hoy exerted pressure on Carmenates by directing him to stand in the cold weather while Trooper Hoy remained in his own warm vehicle; and (4) Trooper Hoy directed Carmenates’ actions. Opinion at 11, 15.
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Moreover, and critically, despite Trooper Hoy’s knowledge that the
translations provided by Google Translate were not always accurate, he chose
not to provide Carmenates with a copy of the Pennsylvania State Police
Spanish-language consent to search form that he kept in his patrol vehicle
and instead orally requested Carmenates’ consent. To obtain Carmenates’
consent, Trooper Hoy chose to use the less precise word “see” rather than a
more precise term such as “search, “examine,” or “look inside,” thereby
imbuing the request for consent with inherent, yet avoidable, ambiguity.
Furthermore, Trooper Hoy acknowledged the substantial language barrier
towards the end of the encounter by ceasing to communicate with Carmenates
verbally, and, instead, merely pointing and gesturing at the items that Trooper
Hoy wanted to search. Given these facts, the trial court reasonably concluded
that there was a “substantial language barrier” between Carmenates and
Trooper Hoy that precluded Carmenates from fully comprehending Trooper
Hoy’s questions and statements and from providing a valid consent to search.
In light of the foregoing, we conclude that Carmenates did not
knowingly, intelligently, and voluntarily consent to the search of his vehicle
and belongings. Accordingly, the suppression court properly suppressed the
evidence seized pursuant to the search.
II. Waiver
In its third issue, the Commonwealth asserts that, in granting
Carmenates’ Motion to Suppress, the suppression court erroneously relied on
grounds Carmenates had withdrawn from the court’s consideration.
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Commonwealth’s Brief at 11. In particular, the Commonwealth claims that
Carmenates waived consideration of the reliability of the Google Translate by
withdrawing his “hearsay objection related to the admissibly [sic] of the
Google Translate application.”19 Id. at 12 (quoting Carmenates’ Memorandum
in Support of Omnibus Pretrial Motion, 6/5/19, at Section II.E.). The
Commonwealth asserts that, notwithstanding that Carmenates withdrew his
objection, Google Translate’s reliability “improperly colored” the suppression
court’s decision. Id. The Commonwealth avers that the suppression court
should have restricted its analysis to the two issues on which Carmenates
focused his Motion: (1) whether his initial stop was legal; and (2) whether his
consent to search his vehicle was knowing, intelligent, and voluntary. Id. at
13.
Prior to trial, a defendant may file a motion “to suppress any evidence
alleged to have been obtained in violation of the defendant’s rights.”
Pa.R.Crim.P. 581(A); see Commonwealth v. Long, 753 A.2d 272, 279 (Pa.
Super. 2000). “The motion shall state specifically and with particularity the
evidence sought to be suppressed, the grounds for suppression, and the facts
and events in support thereof.” Pa.R.Crim.P. 581(D). “[F]ailure to comply
with the specificity requirement of Rule 581(D) will result in waiver, as those
requirements have been held to be mandatory.” Commonwealth v. Dixon,
997 A.2d 368, 376 (Pa. Super. 2010). ____________________________________________
19Carmenates had initially objected to “the admissibility of anything that Google Translate indicated was said by [him.]” Opinion at 4.
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The requirement that a defendant raise the grounds for suppression in
his motion ensures that the Commonwealth is on notice of what evidence it
must produce at the suppression hearing to satisfy its burden of proving that
the police obtained the evidence legally. Commonwealth v. Carper, 172
A.3d 613, 619 (Pa. Super. 2017).
Our review indicates that, contrary to the Commonwealth’s claims,
Carmenates’ motion specifically and sufficiently put the Commonwealth on
notice that Carmenates intended to argue that the traffic stop was illegal and
that his consent to the search was not knowing, intelligent, and voluntary, at
least in part as a result of Google Translate’s inaccuracy. In addition, the
Notes of Testimony from Carmenates’ suppression hearing confirm that the
Commonwealth understood Carmenates’ issues as it knew to present evidence
to the contrary.
Moreover, although Carmenates’ stated in his Memorandum in Support
of Ominibus Pre-Trial Motion that he withdrew his objection to the admissibility
of the Google Translate application on hearsay grounds, he also reiterated that
the court should consider Google Translate’s lack of reliability in the context
of the coercive nature of the interaction between Trooper Hoy and Carmenates
and when determining whether the Commonwealth had proven that
Carmenates’ consent to search was legally obtained. We, thus, disagree with
the Commonwealth that Carmenates waived all consideration, for any reason,
of Google Translate’s reliability by the suppression court.
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Furthermore, the Commonwealth’s assertion that the suppression court
improperly considered testimony concerning the reliability of Google Translate
after Carmenates withdrew his objection to its admissibility on hearsay
grounds conflates the concept of admissibility of evidence with weight of the
evidence. Here, after the Commonwealth elicited testimony from Trooper Hoy
that he had no problem understanding Carmenates’ responses to his questions
as translated by Google Translate and that Carmenates never indicated that
he did not understand a question translated by Google Translate, Trooper Hoy
conceded on cross-examination, without objection, that Google Translate “is
not 100 percent accurate at times.” Id. at 36-37, 79. The court weighed this
testimony along with the other evidence of the translations and found that
“the translation offered by Google Translate was not clear or precise, and
[was] sometimes inaccurate.” Opinion at 4 ¶ 14. The record supports this
conclusion. Thus, there is no merit to the Commonwealth’s claim that the
court erred in considering the reliability of Google Translate because Appellant
had withdrawn his objection to the admissibility of the evidence.
III. Suppression Court’s Findings of Fact and Credibility Determinations
In its fourth and fifth issues, the Commonwealth asserts that the
suppression court erred in making findings of fact that contradicted Trooper
Hoy’s testimony. Commonwealth’s Brief at 14-17. Specifically, the
Commonwealth complains that the court erred in “mak[ing] extensive
reference to[,]” and “sensationalizing the severity of[,] the temperature” on
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December 12, 2018, to “fit its narrative.” Id. at 14-15. The Commonwealth
also avers the court erred in concluding that there was a substantial language
barrier between Trooper Hoy and Carmenates when Trooper Hoy’s testimony
indicated that neither man had trouble understanding the other and
Carmenates offered only limited testimony about their ability to communicate.
Id. at 15-17.
We defer to the suppression court’s findings of fact because, as the
finder of fact, it is the suppression court’s prerogative to pass on the credibility
of the witnesses and the weight to be given to their testimony.
Commonwealth v. Whitlock, 69 A.3d 635, 637 (Pa. Super. 2013). We may
not substitute our own findings where the records supports those made by the
suppression court. Batista, 219 A.3d at 1206.
Following our review, we conclude that the record supports the
suppression court’s findings of fact. With respect to the suppression court’s
findings pertaining to the weather, our review of the record confirms that this
traffic stop took place in northern Pennsylvania in December, Trooper Hoy was
using the heat in his patrol vehicle to stay warm, and he directed the vehicle’s
vents to the outside to provide some heat for Carmenates. That the vehicle’s
heater was on at all confirms that it was a cold day. Further, the record
supports the court’s finding that a language barrier existed. It is undisputed
that Carmenates did not speak English and Trooper Hoy did not speak
Spanish. The two men communicated through Google Translate, which even
Trooper Hoy conceded was not 100 percent accurate. In addition, it is
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undisputed that at the end of the encounter, Trooper Hoy used hand motions,
rather than words, to direct Carmenates’ actions.
In its final issue, the Commonwealth complains that the court failed to
give any weight to Trooper Hoy’s uncontroverted opinions and observations
that Carmenates’ apparently legal actions were, in fact, indicia of criminal
behavior and that it was upon those factors that Trooper Hoy based his
reasonable suspicion that Carmenates was involved in criminal activity.
Commonwealth’s Brief at 17-19. The Commonwealth specifically notes that
the court rejected Trooper Hoy’s opinion that religious materials are an
indication of criminal activity. Id. at 18. The Commonwealth observes that
Carmenates did not offer an expert to refute Trooper Hoy’s expert opinion.
Id. at 19.
As noted above, “[i]t is within the suppression court’s sole province as
factfinder to pass on the credibility of witnesses and the weight to be given to
their testimony. The suppression court is free to believe all, some or none of
the evidence presented at the suppression hearing.” Elmobdy, 823 A.2d at
183 (citations omitted). We cannot and will not reweigh the evidence or
substitute our credibility determinations for those of the suppression court.
We disagree that the suppression court was required to find that
reasonable suspicion existed merely because Trooper Hoy testified that he
believed it did. Commonwealth v. Holmes, 14 A.3d 89, 96 (Pa. 2011)
(determination of whether officer had reasonable suspicion is an objective
determination and “[i]t is the duty of the suppression court to independently
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evaluate whether, under the particular facts of a case, an objectively
reasonable officer would have reasonably suspected criminal activity was
afoot”); Commonwealth v. Walton, 63 A.3d 253, 256 (Pa. Super. 2013)
(noting the suppression court determined the credibility of witnesses and the
weight to be given to their testimony and finding officer lacked reasonable
suspicion to conduct investigatory stop). Further, the suppression court did
not determine whether reasonable suspicion existed. Rather, it suppressed
the evidence because it concluded Carmenates did not knowingly, voluntarily,
and intelligently consent to the search. This claim, therefore, fails.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 12/14/2021
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