J-S36021-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee
v.
ERIK LOPEZ-TORRALBA,
Appellant No. 2769 EDA 2016
Appeal from the Judgment of Sentence of August 4, 2016 In the Court of Common Pleas of Montgomery County Criminal Division at No(s): CP-46-CR-0003427-2015
BEFORE: PANELLA, J., OLSON, J., AND FORD ELLIOTT, P.J.E.
MEMORANDUM BY OLSON, J.: Filed July 3, 2017
Appellant, Erik Lopez-Torralba, appeals from the judgement of
sentence entered August 4, 2016, contending that the trial court erred in
denying his motion to suppress evidence. Upon careful consideration, we
affirm.
The trial court summarized the facts of this case as follows:
Detective James Wood testified that, on April 14, 2015, he was participating in the investigation of a large-scale heroin trafficking operation in Norristown, Montgomery County, Pennsylvania. At approximately 1:10 p.m. on that date, Detective Wood was sitting in an unmarked car in the vicinity of Marshall and Arch Streets, waiting for uniformed officers to make a traffic stop of a 2005 Acura suspected to be transporting a large quantity of heroin. Before the traffic stop could take place, the Acura pulled into a parking spot on Arch Street. There were three people inside the vehicle: the driver—subsequently identified as [Appellant]—and two passengers. J-S36021-17
Accompanied by two uniformed officers, Detective Wood—who was in plain clothes with a bullet-proof vest with the word “Police” written on the front—approached the Acura. While the uniformed officers dealt with the passengers, Detective Wood went to the driver’s side of the Acura, where he encountered [Appellant]. The detective identified himself, informed [Appellant] that he was conducting a drug investigation, and directed [Appellant] to get out of the Acura, following which the detective performed a “pat down” of [Appellant] for officer safety. The “pat down” did not lead to the discovery of any weapons. Detective Wood testified that, although he was armed himself, his gun was concealed inside his police vest. The detective testified that he did not display his weapon at any point during his entire encounter with [Appellant].
Detective Wood testified that his conversation with [Appellant] on Arch Street was conducted in a calm manner, with no threats made and no raised voices. The detective testified that he did not put his hands on [Appellant] apart from the “pat down.” The detective testified that, during the course of this conversation, he asked [Appellant] for permission to search the Acura, and that [Appellant] verbally consented to the search.
Detective Wood, however, did not search the Acura at this point, but instead directed that [Appellant] be placed inside a marked police vehicle and transported to the Norristown Police Station. The detective himself then drove [Appellant’s] Acura to the police station, a trip of approximately one minute.
Arriving at the police station at approximately 1:25 p.m., Detective Wood retrieved a pre-printed “consent to search form” from another officer. The detective then directed [Appellant] to sit in the front passenger seat of the Acura while the detective sat in the driver’s seat. Detective Wood testified that he did this so that [Appellant] would not feel intimidated by all of the other officers moving around the station. Inside the Acura, Detective Wood asked [Appellant] if he would be willing to provide a written consent to searches of his car, residence and cellular telephone. [Appellant] agreed to provide a written consent to search.
Detective Wood handwrote on the form specific identifying information for [Appellant’s] Acura, his address, and his cellular telephone. The detective did not testify as to his asking [Appellant] for any identifying information concerning the Acura
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(i.e., the VIN number or registration number), and plainly had no reason to do so, as the license number and VIN number were readily apparent on the vehicle itself. In regard to [Appellant’s] phone, the detective testified that he had noted the presence of an iPhone on the center console of the vehicle and had asked [Appellant] if it was his. [Appellant] had replied that it was. The [Appellant] also provided Detective Wood with his address.
Detective Wood testified that—prior to having [Appellant] sign the consent to search form—he read the form aloud to [Appellant] and also asked [Appellant] to read it himself. On its face, the form stated in pre-printed language:
I understand that I have the right to refuse the consent to search described above and the right to refuse to sign this form.
I further state that no promises, threats, force, physical or mental coercion of any kind whatsoever have been used against me to get me to consent to the search described above or to sign this form.
Detective Wood testified that he verbally informed [Appellant] that he was free to revoke his consent to search. Pressed on this issue in cross-examination by [defense counsel], Detective Wood testified: “I told him that he could stop the search at any time.” [The trial court] fully credited Detective Wood’s testimony in its entirety.
[Appellant] signed the “consent to search” form, which was entered into evidence as CS-1. The detective testified that the handwritten identification information for the Acura, [Appellant’s] address, and the cell phone [were] all written on the form at the time [Appellant] signed it[.]
Detective Wood testified that his entire discussion with [Appellant] inside the Acura was conducted calmly, with no threats, raised voices, or weapons displayed, and that [Appellant] was not handcuffed during the discussion.
After [Appellant] signed the “consent to search” form, [Appellant] and Detective Wood exited the Acura. With [Appellant] standing to the side, Detective Wood and another officer conducted a fifteen minute search of the Acura, discovering nothing illegal at that time.
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Retaining [Appellant’s] cellular telephone for a subsequent search, Detective Wood then gave [Appellant] the keys to his Acura and asked him to drive to his residence for the search to which [Appellant] had consented. [Appellant] agreed, and Detective Wood and other officers followed [Appellant] to his home in separate vehicles. After arriving at [Appellant’s] home, Detective Wood and other officers searched the residence, ultimately discovering a large amount of what [] transpired to be heroin. A subsequent follow-up search of the Acura led to the discovery of more heroin concealed in the vehicle.
Trial Court Opinion, 12/15/2016, at 4-8 (internal citation omitted).
The relevant procedural history of this case is as follows. Appellant
was charged with two counts of possession of heroin with intent to deliver, 1
two counts of conspiracy to possess heroin with intent to deliver,2 and one
count of possession of drug paraphernalia.3 On February 26, 2016,
Appellant filed an omnibus pre-trial motion, which included a motion to
suppress the evidence found in his vehicle, cellular telephone, and residence.
On March 22, 2016, a suppression hearing was held. By written order that
same date, the suppression court denied Appellant’s motion to suppress. On
March 30, 2016, a jury convicted Appellant on all charges. On August 4,
____________________________________________
1 35 P.S. § 780-113(A)(30). 2 18 Pa.C.S.A. § 903(a)(1). 3 35 P.S. § 780-113(a)(32).
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2016, the trial court imposed an aggregate sentence of not less than nine
nor more than 18 years’ imprisonment. This timely appeal followed.4
Appellant raises two issues for our review:
Did the [trial] [c]ourt commit reversible error by failing to grant a motion to suppress evidence on a theory that [] Appellant failed to make a knowing, voluntary and intelligent consent for the police to search his residence, automobile and cellular telephone (which searches resulted in the Commonwealth obtaining incriminating evidence)[?]
Did the [trial] court commit reversible error by failing to suppress evidence on a theory that [] Appellant was not appropriately advised of his rights pursuant to Miranda v. Arizona, 384 U.S. 436 (1966) and its Pennsylvania progeny prior to being asked to provide incriminating information (i.e., information regarding the Appellant’s residence, automobile and cellular telephone which resulted in the Commonwealth obtaining incriminating evidence)[?]
Appellant’s Brief at 2.
Appellant’s claims challenge an order denying his suppression motion.
“Our 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 ____________________________________________
4 On October 12, 2016, the trial court ordered Appellant to file a concise statement of errors complained of on appeal (“concise statement”). See Pa.R.A.P. 1925(b). Appellant subsequently requested, and was granted, an extension of time in which to prepare the concise statement. On November 17, 2016, Appellant filed his concise statement. On December 14, 2016, the suppression court issued a statement adopting its findings of facts and conclusions of law. See Pa.R.A.P. 1925(a)(1) (permitting trial court to request that the judge who ruled on the contested matter issue a Rule 1925 opinion and permitting adoption by reference of previously filed rationale). Appellant’s two issues on appeal were included in his concise statement.
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conclusions drawn from those facts are correct.” Commonwealth v. Stem,
96 A.3d 407, 409 (Pa. Super. 2014) (citation omitted). “[O]ur scope of
review is limited to the factual findings and legal conclusions of the
suppression court.” In re L.J., 79 A.3d 1073, 1080 (Pa. 2013) (citation
omitted). “We may consider only the Commonwealth’s evidence and so
much of the evidence for the defense as remains uncontradicted when read
in the context of the record as a whole.” Commonwealth v. Gary, 91 A.3d
102, 106 (Pa. 2014) (citation omitted). On a motion to suppress, the
burden is on the Commonwealth to prove, by a preponderance of the
evidence, that the evidence seized from Appellant was legally obtained. See
Commonwealth v. Howard, 64 A.3d 1082, 1087 (Pa. Super. 2013),
appeal denied, 74 A.3d 118 (Pa. 2013)(citation omitted).
Appellant contends that the searches of his residence, car, and cellular
telephone were illegal for two reasons. First, he contends that he did not
knowingly, voluntarily, and intelligently consent to such searches. Second,
he asserts that he was not advised of his rights pursuant to Miranda before
being asked to provide incriminating information relating to his residence,
automobile, and cellular telephone. Thus, Appellant argues that the
incriminating evidence recovered from these searches should have been
suppressed. Appellant’s Brief at 18. The Commonwealth contends that
Appellant’s consent was voluntarily given after police informed him verbally
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and in writing that he had the right to refuse consent, and he affirmed in
writing that he was not coerced. Commonwealth’s Brief at 11.
As this Court has explained, “the Fourth Amendment to the United
States Constitution and Article I, Section 8 of the Pennsylvania Constitution
protects citizens from unreasonable searches and seizures.”
Commonwealth v. Clemens, 66 A.3d 373, 378 (Pa. Super. 2013). Thus, a
search conducted without a warrant is unconstitutional unless an established
exception applies. See Schneckloth v. Bustamonte, 412 U.S. 218, 219
(1973). One exception to the requirement of a warrant is a search
conducted pursuant to consent. See id. at 219. If an individual gives valid
consent, then the ensuing search is reasonable and the individual’s
constitutional rights are not violated by police conduct. See Florida v.
Jimeno, 500 U.S. 248, 250-251 (1991). “To establish a valid consensual
search, the prosecution must first prove that the consent was given during a
legal police interaction, or if the consent was given during an illegal seizure,
that it was not a result of the illegal seizure; [] second, [the prosecution
must demonstrate] that the consent was given voluntarily.”
Commonwealth v. Newton, 943 A.2d 278, 283-284 (Pa. Super. 2007).
Appellant does not dispute that the initial police encounter (an
investigative detention) was lawful or that the detective had reasonable
suspicion to support his actions. Thus, our analysis focuses solely upon
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whether Appellant’s consent to search his car, residence, and cellular
telephone, given during this detention, was voluntary.
It is well-settled that the issue of whether a consent to search has
been voluntarily given is a question of fact that is determined on a
case-by-case basis from the totality of the circumstances. See, e.g.,
Commonwealth v. Strickler, 757 A.2d 884, 901 (Pa. 2000). To
demonstrate that consent was voluntary, the evidence must establish “[t]hat
a consent is the product of an essentially free and unconstrained choice—not
the result of duress or coercion, express or implied, or a will overborne[.]”
Id. at 901. This Court has set forth numerous factors to consider when
determining if consent were voluntary. Specifically, we consider:
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) whether the person has been told that he is free to leave; and 9) whether the citizen has been informed that he is not required to consent to the search.
Commonwealth v. Kemp, 961 A.2d 1247, 1261 (Pa. Super. 2008) (noting
overlap of analysis in assessing whether consent was voluntary and whether
seizure occurred). We consider those factors seriatim.
For the first factor, the record does not disclose police excesses. At
the traffic stop, two uniformed officers accompanied the detective. N.T.,
3/22/16, at 18. The detective was dressed in plainclothes and wearing a
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bullet-proof vest with the word “Police” written across the chest. Id. at 17.
There was at least one, perhaps two, marked police vehicles and two
unmarked vehicles at the scene. Id. at 18-19. Appellant was not
surrounded by a swat team, or even several officers, and was approached
only by the detective on the driver’s side. Id. at 20-21. While there was
undoubtedly a police presence, this did not amount to police excess.
Therefore, this factor weighs in favor of voluntariness.
With regard to the second factor, there was no physical contact
between Appellant and the police. The detective testified that he did not
make physical contact with Appellant apart from the “pat-down” conducted
for officer safety. Id. at 22-24. The detective does not remember if
Appellant were handcuffed in the back of the police vehicle while being
transported to the Norristown Police Station. See Id. at 25. Since the trial
court credited the detective’s testimony that there was no physical contact
with Appellant apart from the pat-down search, this factor weighs in favor of
voluntariness.
As to the third factor, there is evidence that the detective controlled
and directed Appellant’s movements. The detective ordered the Appellant
out of his vehicle to perform the “pat-down.” N.T., 3/22/16, at 22. The
detective also directed Appellant to be placed inside a marked police vehicle
and transported to the Norristown Police Station. Trial Court Opinion,
12/15/2016, at 5. Once at the police station, the detective directed that
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Appellant sit in the front passenger seat of Appellant’s vehicle, while the
detective sat in the driver’s seat. Id. at 6. Because the detective retained
control over Appellant and directed his movements, this factor weighs
against voluntariness.
Regarding the fourth factor, this Court concludes that the demeanor of
the police was not coercive. The detective informed Appellant that he was
conducting a drug investigation and his conversation with Appellant was
conducted in a calm manner, with no threats made and no raised voices.
N.T., 3/22/16, at 22. Although the detective was armed, he never displayed
his weapon, and to the contrary, his gun was concealed in his vest and not
visible. Id. 23. Additionally, the detective testified that he placed Appellant
in the Acura when they arrived at the police station specifically so he would
not feel intimidated by the other officers moving around the premises. Id.
27. The detective testified that his entire discussion with the Appellant
inside the Acura was conducted calmly, with no threats, raised voices, or
weapons displayed, and that Appellant was not handcuffed during the
discussion. Trial Court Opinion, 12/15/2016, at 7. Therefore, the
detective’s demeanor and manner of expression weigh in favor of
The fifth factor, i.e., location of the encounter, weighs in favor of
voluntariness. Specifically, the initial encounter occurred in the early
afternoon on a public street, where the Appellant was plainly visible to
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pedestrians and motorists. N.T., 3/22/16, at 18. During this encounter,
Appellant gave verbal consent for the detective to search his car. Id. at 24.
Subsequently, the Appellant was transferred to the police station, but was
never taken inside. Id. at 27. Instead, he was placed in his own car and
given a written consent form authorizing a search of his car, residence, and
cellular telephone. Id. at 27-29. There are no factors that lead this Court to
conclude that the location of the encounter somehow overwhelmed
Appellant’s capacity to make an unconstrained choice. Therefore, this factor
weighs in favor of voluntariness.
Concerning the sixth factor, which looks at the communication
between the detective and Appellant, this Court concludes there was no
confusion regarding the requests for consent. The detective, after informing
Appellant that he was conducting a drug investigation, simply asked if he
could search the car, and Appellant agreed. N.T., 3/22/16, at 24. At the
police station, the detective presented Appellant with a consent to search
form, which indicated identifying information regarding Appellant’s car,
residence, and cellular telephone. Id. at 28-33. Prior to Appellant signing
the consent form, the detective verbally explained it to him and read it
aloud. Id. 28. The Appellant also read the form himself before signing it.
Id. Thus, there is nothing present in the interaction between the detective
and Appellant that would create confusion regarding the detective’s
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intentions to search Appellant’s car, residence, and cellular telephone.
With regard to the seventh factor, we conclude that the request to
search was directly related to the initial investigative detention. The
detective was waiting for uniformed officers to make a traffic stop of a 2005
Acura, which he reasonably suspected was involved in transporting a large
quantity of heroin. Trial Court Opinion, 12/15/2016, at 4. Once the car was
pulled over, the officers and detective approached the car and subsequently
informed the Appellant that they were conducting a drug investigation. Id.
at 5. Thus, the detective’s request to search the car, residence and cellular
telephone, was directly related to the investigative detention. Therefore,
this factor weighs in favor of voluntariness.
The eighth factor, regarding whether the Appellant was told he was
free to leave, weighs against voluntariness. There is no indication that
Appellant was told he was free to leave. The detective testified that
Appellant was not physically able to leave due to the placement of the police
cars and a dumpster around his Acura. N.T., 3/22/16, at 44. The detective
also testified that he did not inform the Appellant that he was free to leave.
Id. Rather, he directed that Appellant be transported to the police station in
the back of a marked police car. Id. at 45. Thereafter, Appellant waited in
the back of the police vehicle for five to ten minutes until he was removed
and placed in the front passenger side of his car. Id. At this point, as the
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detective testified, he was in custody and not free to go. Id. at 47. Thus,
this factor weighs against voluntariness.5
Finally, the ninth factor, whether the Appellant was informed that he
was not required to consent to the search, weighs in favor of voluntariness.
As our Supreme Court has noted, this factor is especially important. See
Strickler, 757 A.2d at 901, citing U.S. v. Mendenhall, 446 U.S. 558
(1990); Florida v. Bostick, 501 U.S. 429, 432 (1991). In this case, the
detective testified that, prior to having Appellant sign the consent form, he
read the form aloud to him and asked Appellant to read it himself, which he
did. N.T., 3/22/16, at 28. On its face, the form stated in pre-printed
language:
I understand that I have the right to refuse the consent to search described above and the right to refuse to sign this form.
I further state that no promises, threats, force, or physical or mental coercion of any kind whatsoever have been used against me to get me to consent to the search described above or to sign this form.
Commonwealth’s Exhibit CS-1.
The detective further testified that he verbally informed the Appellant
that he was free to revoke his consent to search. N.T., 3/22/16, at 48.
Pressed on the issue during cross-examination, the detective testified: “I
told him that he could stop the search at any time.” Id. at 52. Thus, ____________________________________________
5 Although Appellant was never advised he was free to leave during the encounter, it is equally clear that departure was never used as a bargaining chip to secure Appellant’s consent.
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Appellant received both a written and verbal instruction that he was free to
refuse to consent to these searches. Furthermore, he was informed verbally
that he could end the searches at any time. Appellant never expressed any
concerns regarding the searches, and willfully led police officers to his house.
Therefore, this Court concludes that the Appellant was informed, more than
once, and understood that he had the right to refuse consent. Thus, this
factor weighs in favor of voluntariness.
In light of the foregoing analysis regarding the factors needed to be
considered, and the weight of those factors, we conclude that the
suppression court’s analysis is supported by the record and free of legal
error. Our Supreme Court has repeatedly emphasized the importance of the
fact that a defendant was informed that he could refuse a search. E.g.,
Commonwealth v. Mack, 796 A.2d 967, 971-972 (Pa. 2002), citing
Strickler, 757 A.2d at 901. In this case, the totality of the circumstances
suggest that Appellant was aware that he had the right to refuse a search of
his car, residence, and cellular telephone, yet, he still elected to consent to
the searches. This important finding, in combination with several other
factors that support a finding of voluntariness, outweigh the less significant
factors that weigh against voluntariness. Thus, Appellant’s consent to the
searches was voluntary.
In sum, the Commonwealth demonstrated that Appellant voluntarily
consented to the challenged searches during a legal police interaction.
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Therefore, the consent is valid and the suppression court correctly denied
Appellant’s motion.
We turn to Appellant’s second issue, which asserts that he should have
received Miranda warnings before being asked to provide information
relating to his residence, cellular telephone, and car.6
Statements made during custodial interrogation are presumptively
invalid unless they are preceded by the defendant being informed of his
Miranda rights. See Commonwealth v. Williams, 941 A.2d 14, 30 (Pa.
Super. 2008). The “standard for determining whether an encounter with
police is custodial or police have initiated custodial interrogation, so as to
trigger Miranda requirements, is [an] objective one based on [the] totality
of circumstances, with due consideration given to [the] reasonable
impression conveyed to [the] person interrogated.” Commonwealth v.
Mannion, 725 A.2d 196, 200 (Pa. Super. 1999). “Custodial interrogation” is
questioning that is likely or expected to elicit a confession or an
incriminating statement. Id. at 200. In order to trigger the safeguards of
6 Although Appellant argues that he was entitled to Miranda warnings before providing information about his residence, cellular telephone and car, we note that Appellant was not asked to provide information regarding the phone or his car before consenting to the search. Instead, the police had possession of the car and the cellular telephone (found on the center console of the car). Appellant was only asked whether he consented to the search of those items. Thus, Appellant’s argument regarding the need for Miranda warnings has no applicability to the phone or the car.
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Miranda, there must be both “custody” and “interrogation.”
Commonwealth v.Turner, 772 A.2d 970, 973 (Pa.Super. 2001).
Certain questions asked by authorities do not require Miranda
warnings. For instance, “[b]iographical data necessary to complete booking
or pretrial services” fall within the “routine booking question” exemption of
questions not within Miranda’s protections. Pennsylvania v. Muniz, 496
U.S. 582, 601 (1990). Here, when Appellant gave verbal consent for the
search of his residence, he was asked to provide his address merely for the
purpose of completing the consent form. This is analogous to information
routinely asked during booking inquiries.
We agree with the finding of the trial court that the Appellant was not
subjected to custodial interrogation at that time. Trial Court Opinion,
12/15/2016, at 9. There was no request for a confession and there were no
questions concerning details of the suspected crime(s). This Court is not
aware of any case law supporting the claim that a police officer may not ask
an individual about his residential address for purposes of securing his
consent to search. Furthermore, Appellant, in his brief, concedes “[t]he case
law does not require that a subject must be advised of his rights under
Miranda prior to consenting to a search.” Appellant’s Brief at 18 (emphasis
omitted). Thus, Appellant’s Miranda claim fails.
In sum, we conclude that the trial court correctly determined that
Appellant’s consent was knowing, voluntary, and intelligent. Further, we
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conclude that the detective was not required to give Miranda warnings prior
to obtaining identifying information regarding Appellant’s residence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 7/3/2017
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