Com. v. Whitney, K.

Opinion

J-A20033-14 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellee :

:

v. :

:

KASEIM WHITNEY, :

:

Appellant : No. 2941 EDA 2013

Appeal from the Judgment of Sentence entered on November 17, 2011 in the Court of Common Pleas of Chester County, Criminal Division, No. CP-15-CR-0001355-2010

BEFORE: FORD ELLIOTT, P.J.E., MUNDY and MUSMANNO, JJ. MEMORANDUM BY MUSMANNO, J.: FILED SEPTEMBER 05, 2014

imposed after he was convicted of possession with intent to deliver a

1

as well as

the summary offense of turning movements and required signals.2 We affirm.

The trial court extensively set forth the facts and procedural history

1 See 35 P.S. § 780-113(a)(30); 18 Pa.C.S.A. §§ 6106(a)(1), 6110.2.

2 See 75 Pa.C.S.A. § 3334(a).

J-A20033-14 underlying this appeal in its Opinion, which we adopt herein by reference. See Trial Court Opinion, 8/31/10, at 1-24.3 Following a hearing, the suppression court entered an Order denying -jury

trial, at the close of which the trial court found Whitney guilty of the above- mentioned charges.

Subsequently, on November 17, 2011, the trial court sentenced Whitney, on his PWID conviction, to a statutory term of five years in prison, and ordered him to pay the mandatory fine of $50,000. The court imposed a consecutive sentence of nine months to three years in prison for the

and a concurrent sentence of eighteen months to three years for the firearms not to be carried without a license conviction. The court imposed no further penalty for W

Following a procedural history that is not relevant to this appeal, on

August 6, 2013, Whitney filed a pro se Petition under the Post Conviction

4

seeking reinstatement of his direct appeal rights, nunc

pro tunc. The PCRA court granted relief, permitting Whitney to file an appeal nunc pro tunc, and appointing him counsel. Whitney timely filed a

3

car was approximately 64 pounds. 4 See 42 Pa.C.S.A. §§ 9541-9546.

3

J-A20033-14 Notice of Appeal. In response, the trial court ordered Whitney to file a Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal, and Whitney timely filed a Concise Statement.

On appeal, Whitney presents for our review the following issues challenging the denial of his Motion to Suppress:

I. Does [] Whitney, an unauthorized driver of a rental vehicle, have standing to challenge the search of the rental vehicle and his belongings contained therein?

II.

did the trial court err in failing to suppress physical

III. Did the trial court err in failing to suppress physical told he was free to leave?

IV. If this was an investigatory detention, did [the] trial court err in finding that there was reasonable and articulable suspicion to support such detention?

V.

voluntary or was it a product of an unjustified investigatory detention unsupported by reasonable suspicion that criminal activity was afoot?

Brief for Appellant at 4.

In reviewing Suppress, we are mindful that our role is to determine whether the record supports the

inferences and legal conclusions drawn from those findings. In making this determination, we may consider only the evidence of the pros read in the context of the record as a whole, remains uncontradicted. When the evidence supports the factual findings

4

J-A20033-14

of the suppression court, we may reverse only if there is an error in the legal conclusions drawn from those factual findings. As a reviewing court, we are therefore not bound by the legal conclusions of the suppression court and must reverse that

misapplied.

Commonwealth v. Page, 59 A.3d 1118, 1131 (Pa. Super. 2013) (brackets and citation omitted).

The Fourth Amendment to the United States Constitution and Article 1, Section 8 of the Pennsylvania Constitution protect individuals from unreasonable searches and seizures. U.S. Const. amend. IV; Pa. Const. art. 1, § 8. Generally, law enforcement must obtain a warrant prior to conducting a search; however, there are certain exceptions to the warrant requirement. Commonwealth v. Lagenella, 83 A.3d 94, 102 (Pa. 2013). One such exception, implicated in the instant case, is a consensual search. Commonwealth v. Caban, 60 A.3d 120, 127 (Pa. Super. 2012).

[T]he central inquiries in consensual search cases entail assessment of the constitutional validity of the citizen/police encounter giving rise to the consent, and the voluntariness of the consent given. To establish a valid consensual search, the Commonwealth must first prove that the individual consented during a legal police interaction. Where the underlying encounter is lawful, the voluntariness of the consent becomes the exclusive focus.

Id. (citations omitted).

Regarding has standing to challenge the legality of the traffic stop and search of the rental v

5

J-A20033-14 In his second issue, Whitney argues that the stop of his vehicle was unlawful, and all of the evidence produced as a result of the stop must be suppressed because the stop was pretextual in nature, as Trooper Justin

vehicle in order to conduct a warrantless search of its contents. See Brief for Appellant at 24-29. Whitney points out that Trooper Hope conceded at the suppression hearing that (1) the sole reason he had decided to pursue

followed Whitney for approximately thirteen miles to see if he would commit which would provide

Trooper Hope grounds to stop the vehicle and investigate whether Whitney was involved in criminal activity. See id. at 24-25 (citing N.T., 6/22/10, at

because t

merely a pretext for some other investigation does not automatically require the suppression of evidence found after the traffic stop. Whren v. U.S., 517 U.S. 806, 812-13 (1996). In Whren, the United States Supreme Court established a bright-line rule that any technical violation of a traffic code legitimizes a stop, even if the stop is merely a pretext for an investigation of some other crime. Id.; see also Arkansas v. Sullivan, 532 U.S. 769, 772 (2001) (holding that a traffic violation arrest will not be rendered invalid by

6

J-A20033-14 the fact that it was a mere pretext for a narcotics search); U.S. v. Robinson, 414 U.S. 218, 221 n.1 (1973). This is true even if, as in the instant case, the Vehicle Code violation witnessed is a minor offense. Commonwealth v. Chase, 960 A.2d 108, 113 (Pa. 2008) (stating that

questioning motorists when they witness or suspect a violation of traffic Whren Court explained

probable- Whren, 517 U.S. at 813; see also Chase reasonable suspicion of a Vehicle Code violation, a constitutional inquiry into

Here, although Whitney strenuously challenges the pretextual nature of the stop, he does not dispute that he violated section 3334(a) of the

signal. See Brief for Appellant at 25, 31. Moreover, Whitney concedes that the case that he relies upon in support of his argument, U.S. v. Hernandez, 55 F.3d 443 (9th Cir. 1995), was effectively overruled by Whren, see Brief for Appellant at 27. In any event, Hernandez is not binding precedent for this Court. See Commonwealth v. Dunnavant, 63 A.3d 1252, 1255 n.2 (Pa. Super. 2013) hile decisions of the lower federal courts have a persuasive authority, they are not binding on Pennsylvania

7

J-A20033-14

the applicability of the holding in Whren by pointing to factual distinctions.

Accordingly, although we withhold comment regarding our opinion as

vehicle for thirteen miles to observe a Vehicle Code violation, we must conclude that the stop was legal.

Next, we will simultan and fifth issues. Whitney argues that even if the stop of his vehicle was legal, the physical evidence and his statements that were elicited as a result of his detention were inadmissible and should have been suppressed as being the product of an unreasonable search and seizure. See Brief for Appellant at 14, 29-50. According to Whitney, the police interaction that occurred after Trooper Hope had informed him that he was free to leave was an unjustified inv that was not supported by reasonable suspicion that Whitney was engaged in criminal activity. Id. Whitney summarizes his allegations in support of this challenge as follows:

Having stopped [] Whitne license and determined that it was valid and there were no outstanding warrants for [] Whitney. Upon learning that []

Whitney was not an authorized driver of the car, the trooper d him he was free to leave but he could not drive the car or walk on the turnpike. []

Whitney was given the choice of calling his girlfriend to pick him up there or allowing the trooper to drive him to the closest interchange[,] where she could meet him. Essentially, []

Whitney was not free to leave. Within seconds of informing him that he could leave, Trooper Hope, having been joined by two

8

J-A20033-14

more armed state troopers, began asking [] Whitney whether he had anything illegal in the car. Given all of these circumstances, [] Whitney did not believe he was free to leave and was the subject of an investigative detention without reasonable suspicion that he was involved in criminal activity.

Id. at 14; see also id. that he

and unrelenting[,] with [] Whitney responding to each question in the y contends that his consent to the search was invalid, as it was not voluntarily given and flowed from the illegal investigative detention. Id. at 51.

In its Opinion, the trial court set forth the applicable law and that (1) the police interaction, which occurred after Whitney was told he was free to leave, constituted a mere encounter, not an investigative detention; (2) even if the interaction did not s position

constituted an investigative detention supported by reasonable and articulable suspicion of criminal activity; and (3) the search of the vehicle onsent to the search was voluntarily given. See Trial Court Opinion, 8/31/10, at 35-57. Our review reveals that the trial

aining issues.

See id.

9

J-A20033-14

Motion to Suppress.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 9/5/2014