Com. v. Draine, L.

• Court: Superior Court of Pennsylvania
• Decided: November 1, 2023
• Docket: 82 EDA 2022
• Status: Unpublished

Opinion

J-S37041-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : LAMONT DRAINE, JR. : : Appellant : No. 82 EDA 2022

Appeal from the Judgment of Sentence Entered November 23, 2021 In the Court of Common Pleas of Delaware County Criminal Division at No(s): CP-23-CR-0007384-2019

BEFORE: BOWES, J., LAZARUS, J., and OLSON, J.

DISSENTING MEMORANDUM BY BOWES, J.: FILED NOVEMBER 1, 2023

I agree with the learned majority that Appellant’s violation of the Vehicle

Code provided justification for the initial stop and frisk for safety. See Majority

at 9-12. Where I diverge, however, is in the Majority’s conclusion regarding

what law enforcement officers may do after seizing a firearm from an

individual involved in the stop. In particular, I cannot agree that our case law

requires officers investigating illegal activity to possess reasonable suspicion

merely to check the licensure status of an individual in a manner that does

not prolong a valid stop before they return a firearm to that individual.

Accordingly, I respectfully dissent.

I find it prudent to begin with an overview of the relevant precedent

pertaining to traffic-related stops and police authority to check a defendant’s

firearm licensure status. In Rodriguez v. United States, 575 U.S. 348, 350

(2015), the Supreme Court of the United States was presented with “the J-S37041-22

question [of] whether the Fourth Amendment tolerates a dog sniff conducted

after completion of a traffic stop.” In considering this question, the Court

outlined the parameters of police authority during traffic stops:

A seizure for a traffic violation justifies a police investigation of that violation. A relatively brief encounter, a routine traffic stop is more analogous to a so-called Terry v. Ohio, 392 U.S. 1 (1968), stop than to a formal arrest. Like a Terry stop, the tolerable duration of police inquiries in the traffic-stop context is determined by the seizure’s “mission”—to address the traffic violation that warranted the stop and attend to related safety concerns. Because addressing the infraction is the purpose of the stop, it may last no longer than is necessary to effectuate that purpose. Authority for the seizure thus ends when tasks tied to the traffic infraction are—or reasonably should have been— completed.

....

Beyond determining whether to issue a traffic ticket, an officer’s mission includes ordinary inquiries incident to the traffic stop. Typically such inquiries involve checking the driver’s license, determining whether there are outstanding warrants against the driver, and inspecting the automobile’s registration and proof of insurance. These checks serve the same objective as enforcement of the traffic code: ensuring that vehicles on the road are operated safely and responsibly.

Id. at 354-55 (cleaned up).

The Rodriguez Court distinguished these mission-related purposes with

the dog sniff at issue in that case, which “is a measure aimed at detecting

evidence of ordinary criminal wrongdoing” and therefore “not fairly

characterized as part of the officer’s mission.” Id. at 355-56 (cleaned up). It

also distinguished the dog sniff from the “[h]ighway and officer safety”

concerns “stem[ming] from the mission of the stop itself” that may require an

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officer “to take certain negligibly burdensome precautions in order to complete

his mission safely.” Id. at 356-57 (cleaned up). Ultimately, the Court

reasoned that the dog sniff could not be justified on the same basis as an

order to exit the car, even if the levels of intrusion were identical. Id. Rather,

the Court determined that “[t]he critical question, then, is not whether the

dog sniff occurs before or after the officer issues a ticket, . . . but whether

conducting the sniff “prolongs”—i.e., adds time to—“the stop.” Id. at 357

(cleaned up). Thus, the Court held as follows:

[A] police stop exceeding the time needed to handle the matter for which the stop was made violates the Constitution’s shield against unreasonable seizures. A seizure justified only by a police-observed traffic violation, therefore, becomes unlawful if it is prolonged beyond the time reasonably required to complete the mission of issuing a ticket for the violation.

Id. at 350-51 (cleaned up).

Thereafter, in Commonwealth v. Hicks, 208 A.3d 916, 921 (Pa.

2019), our Supreme Court overturned a longstanding rule, first announced by

this Court in Commonwealth v. Robinson, 600 A.2d 957, 959 (Pa.Super.

1991), that “‘possession of a concealed firearm by an individual in public is

sufficient to create a reasonable suspicion that the individual may be

dangerous, such that an officer can approach the individual and briefly detain

him in order to investigate whether the person is properly licensed.’” Hicks,

supra at 921 (quoting Robinson, supra at 959). In that case, a bystander

saw Hicks with a firearm and reported it to police. Notably, Hicks was not

observed engaging in any illegal activity. The High Court stated that “an

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individual licensed to carry a firearm may do so in public, openly or concealed,

within a vehicle or without, throughout every municipality in Pennsylvania.”

Id. at 926. It also expressly rejected the Commonwealth’s position that police

officers are “duty bound to seize and investigate the licensing status of every

individual who carries a concealed firearm in Pennsylvania.” Id. at 932

(cleaned up). The Court explained that it was overruling Robinson because

that “holding facially contravene[d] established law . . . , demand[ed] no

suspicion of criminal activity—let alone individualized suspicion—and

countenance[d] a sweeping and unjustified expansion of the authority of law

enforcement to seize persons upon the basis of conduct that, standing alone,

an officer cannot reasonably suspect to be criminal.” Hicks, supra at 947.

Subsequently, this Court decided Commonwealth v. Malloy, 257 A.3d

142 (Pa.Super. 2021). In Malloy, an officer stopped a vehicle based upon

the improper placement of a license plate. Malloy was a passenger in the

vehicle. When asked for identification, he produced a lanyard, which the

officer associated with an individual working as an armed security guard, and

therefore the officer asked whether he had a firearm. Malloy responded

affirmatively that the firearm was located on his hip. For safety, the officer

asked him to exit the vehicle so he could secure the firearm, and then asked

him for his firearms credentials. During the ensuing fifteen to twenty minutes,

the officer conducted various checks with local detectives and the

Pennsylvania State Police to determine whether Malloy had a valid license to

carry. He was arrested after they determined that he did not. Id. at 145-46.

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In denying suppression in Malloy, the trial court first concluded that,

pursuant to Rodriguez, the checks run by the officer during the traffic stop

were permissible. This Court rejected that conclusion:

[N]either the trial court nor the Commonwealth cite legal authority which equates an investigation of a passenger’s documented authority to carry a firearm to the incidental inquiries permitted during a lawful traffic stop under Rodriguez and which promote safe and financially responsible operation of motor vehicles. More tellingly, neither the trial court nor the Commonwealth offer any explanation as to how or why a passenger’s firearms licensure status relates to these incidental inquiries or, more broadly, to the safe and financially responsible operation of a motor vehicle in general. We are convinced that a passenger’s legal authority to own or possess a firearm is simply unrelated to a driver’s authority to operate a motor vehicle, the existence of outstanding warrants against the driver, and whether a lawfully detained vehicle is properly registered or insured. As such, we reject the trial court’s conclusion that [the officer’s] request for [Malloy’s] documented firearms authorization could be pursued as incidental to the traffic stop herein.

We also reject the suggestion that [the officer’s] request fell within the limited class of minimally intrusive and permitted demands police officers may make, out of concern for officer safety and without independent justification, during the course of a lawful traffic stop. [Malloy] forwards no claim that [the officer] lacked authority to ask for identification, to inquire about the presence of weapons, to request that Appellant exit the vehicle, or to demand that [he] surrender his firearm for the duration of the stop. Moreover, our reading of the transcript reveals that [the officer] secured [the] firearm without incident before requesting that [Malloy] produce documentation that the firearm was lawfully in his possession. [The] seizure of the firearm essentially eliminated any immediate risk the weapon posed to law enforcement personnel, bystanders, and occupants of the vehicle for the duration of the stop and transformed the officer’s pursuit of [Malloy’s] firearms credentials into an inquiry exclusively aimed at collecting evidence of collateral wrongdoing. See Rodriguez, 575 U.S. at 355. Put differently, once [the officer] secured the firearm, [Malloy’s] legal authority to own or possess a gun clearly

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bore no discernible relationship to individual safety or security within the context of the traffic stop. Under these circumstances, where seizure of a firearm has substantially diminished the risk to officers and others who may be present during a lawful vehicle detention, we see no reason why the Fourth Amendment, in the absence of independent justification, suspicion, or cause, should tolerate even a 10- to 15-minute extension of a routine traffic stop for the investigation of a secondary criminal matter. Hence, the request challenged in this case does not fall within the category of actions the police may undertake during a lawful traffic stop based solely on concerns for safety and security and without independent justification or cause.

Id. at 152-53 (cleaned up).

Finally, I find guidance from this Court’s recent decision in

Commonwealth v. Ross, 297 A.3d 787, 792 (Pa.Super. 2023). Ross was

pulled over for driving with an inoperable brake light. In running his license

and registration, the officer learned that, while there were no problems with

either of those, his license to carry a firearm had been revoked. Before

returning his license, the officer asked Ross whether he had a firearm, to which

he replied in the affirmative. The officer secured the firearm and arrested

Ross. The entire stop lasted approximately ten minutes. Id. at 790. The trial

court ultimately granted Ross’s motion to suppress, concluding that the

questioning exceeded the scope of the traffic stop and extended the

reasonable time needed to issue a traffic citation. Id. at 794-95.

Upon review, this Court disagreed with the trial court. We observed that

“the constitutionality of mission-specific questions, including those related to

the safety of the officer, during a traffic stop, and the determination of . . .

when tasks tied to the traffic stop are completed or reasonably should have

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been completed, is fact specific.” Id. at 798. In Ross, that fact-specific

analysis resulted in a conclusion that “the valid traffic stop was ongoing at the

time [the officer] asked whether Ross possessed a firearm because he had not

concluded the stop with a warning or citation or indicated that Ross could

leave.” Id. at 795 (cleaned up). Additionally, we held that the officer “in no

way unnecessarily prolonged the stop, as he completed his routine check of

the various databases and asked the question after he walked back to Ross’s

vehicle while holding Ross’s license.” Id. (cleaned up). Since the stop was

still ongoing, the officer was permitted to inquire about the presence of

firearms. Id.

As to the officer’s safety concerns, we observed that “the interest in the

safety of law enforcement officers outweighs the de minimus intrusion to the

individual who is asked to step outside a lawfully stopped motor vehicle[, and]

the asking of an additional question or two about a firearm was less intrusive

than the order to exit the vehicle[.]” Id. at 796-97 (cleaned up). Indeed, the

Court elaborated on officer safety concerns during traffic stops:

It bears emphasizing that balancing the constitutional rights of motorists, the public protection objectives, and police officer safety is difficult, especially in the context of rapidly evolving traffic stops. One particular concern for officers during a traffic stop is the proliferation of guns, including the substantial increase in the number of people possessing firearms, the rise in mass shootings, and the ability to carry a concealed weapon in vehicles in Pennsylvania. Clearly, neither the United States Constitution nor the Pennsylvania Constitution require officers to gamble with their personal safety during traffic stops. Therefore, in the context of traffic stops, police officers may take reasonable precautions

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when the circumstances give rise to legitimate safety concerns.

Id. at 797–98. The Ross Court distinguished Ross’s scenario from that in

Malloy, focusing on the fact that the officer’s safety in Malloy was secured

by the seizure of the firearm, and therefore the subsequent inquiry into

Malloy’s licensure status was improper. Ross, supra at 797.

In light of the foregoing precedent, I deem it appropriate to apply a fact-

specific test to determine whether the permit check ran afoul of Appellant’s

constitutional rights. In this case, Patrolmen Dylan Glenn and Charles Waters

were on patrol in Chester Township when they observed Appellant and

Lawrence Cook walking in the middle of the roadway in a high crime area at

approximately 12:45 a.m. on November 21, 2019, despite the presence of a

sidewalk along that street. See N.T. Suppression, 9/1/20, at 7-9, 12-16, 18,

61. Based upon the violation of pedestrians walking along the highway,

Patrolman Glenn approached the individuals. Patrolman Glenn identified

himself and notified the two men as to why he was stopping them. Id. at 20.

In response, the two individuals argued that there was no sidewalk available.

Id. at 40.

The patrolmen prepared to pat down Mr. Cook and Appellant for safety

reasons. Before doing so, Patrolman Waters asked Appellant if he had any

weapons or anything on his person that could harm the patrolman. Appellant

responded that he had a firearm and, upon further inquiry, directed the

patrolman to his backpack. Id. at 21-22, 62-63. Patrolman Waters removed

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the backpack and secured the firearm. Id. at 23, 63. Thereafter, he obtained

identification from Appellant. Id. at 62-63. Patrolmen Glenn then ran

background checks on both individuals and determined after a permit check

that Appellant did not have a conceal-carry permit. Id. at 26.

Unlike in Malloy, Appellant was not merely a passenger in a vehicle

stopped for a motor vehicle infraction, but rather a principal actor who was

stopped and being investigated for violating the Vehicle Code by walking in

the middle of the street. Moreover, this illegal conduct occurred late at night

in a high crime area, and Appellant and Mr. Cook argued with the patrolmen

regarding the reason for the stop and the availability of a sidewalk. Thus, the

firearm check in this case was “supported by something more than the mere

possession of a firearm.” Majority at 15.

Regardless of these additional factors, the stop was not prolonged by

the ensuing permit check. Rather, my review of the record bears out that it

was completed simultaneously with the permissible identification checks and

while the stop remained ongoing. Finding that there was no extension of the

valid traffic-related stop in this case, reasonable or otherwise, I would

conclude that the patrolmen’s actions did not violate our case law and do not

warrant suppression. See Ross, supra at 798 (“Because we conclude that

the concerns for the safety of the officers justified the proportional intrusion

on Ross, the motion to suppress should have been denied.”).

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While I find this matter factually distinguishable from Malloy and would

reverse on that basis, I am also troubled by Malloy. While it concedes that

the safety risks of a traffic-related stop are secured by the seizure of a firearm,

it then demands that the firearm must, at some point, be returned by the

officers before the safety concerns can be fully addressed. Respectfully, I

believe such a rule to be untenable. Practically speaking, to suggest that an

officer cannot explore the legality of the possession of a firearm seized during

a valid traffic stop for safety begs the question: are they just supposed to

give it back to the individual when the stop is concluded without ascertaining

whether the owner is entitled to possess it? Surely if officer safety permits

the intrusive action of seizing the firearm, the same safety concerns must

allow the unintrusive act of extending the valid stop for a minimal amount of

time to ensure the officers are not re-arming someone barred from carrying a

firearm while the officers remain vulnerable.

Such an inquiry can readily be completed in a timely manner that does

not prolong the stop. If it does prolong the stop unreasonably, then it violates

Rodriguez and suppression may be warranted. When it does not, however,

Rodriguez instructs that “negligibly burdensome precautions” must be

permitted. Rodriguez, supra at 356. Otherwise, we are left with caselaw

that permits officers to inquire about firearms during traffic stops and to seize

any firearms temporarily for officer safety but prohibits them from

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determining whether the owner of the firearm may lawfully possess it before

returning it at the conclusion of the stop.

Thus, pursuant to Malloy, an officer conducting a traffic-related stop

where a firearm is present is faced with a no-win scenario. If she decides to

run a firearm permit check during without prolonging the interaction, she

nonetheless risks the possibility of suppression of any contraband discovered

thereafter. On the other hand, if the officer decides not to run a check, she

risks her safety by potentially returning a firearm to an individual who may

have had their license to carry revoked for wrongdoing and who has every

incentive to avoid being arrested for the firearm violation. I find this non

sequitur troubling. It is an overextension of the holdings in Rodriguez and

Hicks, and incompatible with the fact-specific nature of these cases.

As I would affirm the order denying suppression, I next turn to

Appellant’s final issue on appeal. Therein, he challenges his conviction for

carrying a firearm without a license where the underlying traffic violation was

dismissed prior to trial. See Appellant’s brief at 15. Critically, Appellant

presents no argument whatsoever in support of this issue, instead merely

reciting portions of the suppression hearing where the patrolmen testified that

they did not observe additional illegal activity beyond the Vehicle Code

violation. See id. at 15-17. Accordingly, I would find this issue waived. See

Commonwealth v. Freeman, 128 A.3d 1231, 1249 (Pa.Super. 2015) (“The

failure to develop an adequate argument in an appellate brief may result in

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waiver of the claim under Pa.R.A.P. 2119.” (cleaned up)). Notwithstanding

waiver, I simply fail to see how the Vehicle Code violation bears any relation

to the elements of carrying a firearm without a license.

Discerning no reason to disturb Appellant’s judgment of sentence or

conviction, I would affirm. Therefore, I respectfully dissent.

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