Commonwealth v. Acosta

815 A.2d 1078, 2003 Pa. Super. 15, 2003 Pa. Super. LEXIS 18

Opinions

OPINION BY

MUSMANNO, J.:

¶ 1 The Commonwealth of Pennsylvania appeals from the Order of the trial court, which granted the suppression Motion filed on behalf of defendant Miqueas Acosta (“Acosta”)- We affirm.

¶ 2 In its Opinion dated February 15, 2001, the suppression court set forth its factual findings as follows:

On June 16, 2000, Officer John Mona-ghan was on duty in Bensalem Township, Bucks County, Pennsylvania. Officer Monaghan was driving southbound on U.S. Route 1 in a marked police vehicle when he saw a red, 1992 Ford minivan driven by [Acosta]. As Officer Monaghan began to pass the minivan, he noticed that [Acosta] changed the manner in which he was driving by straightening up, putting both hands on the steering wheel and refusing to look at the officer.

After Officer Monaghan passed [Acosta], he radioed the New York tag of the minivan into police headquarters in order to determine whether the tag was valid. Police headquarters informed him that the license plate for [Acosta’s] vehicle had been suspended. Officer Monaghan then activated his car’s overhead lights and pulled [Acosta] over to the right-hand side of the road.

Officer Monaghan approached the minivan and asked the sole occupant for his driver’s license, registration and insurance information. [Acosta] gave the officer a valid registration and insurance card and responded that he did not have his driver’s license. When asked for any form of identification, [Acosta] presented a BJ’s Wholesale Club card, displaying his picture and name. ,

When the officer informed [Acosta] that the name on the ID did not match the name on the registration and insurance card, , [Acosta] stated that his brother owned the vehicle. [Acosta] also orally provided the officer with two conflicting dates of birth, and could not produce any identification reflecting his date of birth. When Officer Monaghan asked him whether he was licensed, [Acosta] said he had a Minnesota driver’s license.

Officer Monaghan went back to his patrol car and called in the information regarding [Acosta’s] name and the two dates of birth. The officer was unable to obtain any licensing information for [Acosta]. However, he did ascertain that a subject with a different first name and the same last name was wanted in Wisconsin for writing bad cheeks.

Footnotes

•

[FN] The information Officer Monaghan received also included a general physical description of the wanted subject, which was fairly similar to that of [Acosta].

Upon receiving this information, Officer Monaghan radioed for assistance. He then approached the minivan and ordered [Acosta] to leave his vehicle. [Acosta] complied without incident. Officer Monaghan led [Acosta] to the rear of the minivan along the curb line of the highway. He repeated the questions he had asked previously regarding licen-sure and ownership of the vehicle. Officer Monaghan also asked additional questions which revealed that [Acosta] was traveling from New York to take the minivan to someone in Philadelphia. At some point during his conversation, Officer Dennis Hart arrived on the scene in full uniform and in a marked patrol car.

Officer Monaghan then informed [Acosta] that the police were having trouble with drug trafficking on that highway. He asked [Acosta] whether he had any weapons or narcotics in the vehicle. When [Acosta] said “no,” Officer Monaghan asked [Acosta] whether he would allow him to search the vehicle.

Although [Acosta] acquiesced in the officer’s request, that request was made while the officer retained the registration, insurance card, and the ID card. The officer never indicated in any way that [Acosta] was free to leave before he requested consent. The officer acknowledged that he was not certain whether he would have permitted [Acosta] to leave the scene had he attempted to do so. Furthermore, the entire conversation was in English.

When the consent was requested, [Acosta] was standing in front of one of three police vehicles on the scene with their overhead lights activated. Additionally, three officers — Officer Mona-ghan and Officer Hart and Officer Derek Goldstein — stood next to each other in close proximity to [Acosta] when consent was requested. [Acosta] was not provided with any consent forms advising him that he had a right not to consent and he did not give a written consent. In short, he was never advised in any way that he was free not to consent to the search.

Officer Monaghan and Officer Gold-stein searched [Acosta’s] vehicle while Officer Hart stood directly next to [Acosta] and watched him. During this initial search, the officers did not discover any drugs.

Shortly thereafter, Officer Christine Kelliher arrived on the scene with a drug-sniffing dog named Cosmo. Up until this point in time, [Acosta] was still standing with Officer Hart along the curbside near the passenger’s side of the patrol vehicle. But when the dog arrived, [Acosta] was placed in the back seat of Officer Monaghan’s patrol car. Officer Monaghan stated that [Acosta] was moved for “safety reasons,” although the officer testified that Cosmo was not a vicious dog, albeit it was “playful in nature” and would jump up. However, at all times, the dog was leashed and under the control of Officer Kelliher.

While [Acosta] was in the back seat of the patrol vehicle, Officer Monaghan, Officer Goldstein, Cosmo and narcotics Officer Gross searched the minivan for a second time. As a result of the second search, narcotics were found in a steel compartment built into the rear bench of the vehicle. [Acosta] was then handcuffed and advised he was under arrest. At this point, forty-five minutes had elapsed since the initial stop.

Although [Acosta] was Hispanic and later in the investigation Officer Mona-ghan felt the need to request that Officer Nieves advise [Acosta] of his Miranda rights in Spanish, nonetheless all conversations with [Acosta] at the scene were conducted in English. [Acosta] told Officer Nieves that he “knew English a little bit” but was more comfortable speaking in Spanish.

Trial Court Opinion, 2/15/01, at 1-5 (citations omitted).

¶ 3 Acosta filed a Motion to suppress the evidence seized during the search, claiming that the search violated his rights under the United States and Pennsylvania Constitutions. After a hearing, the suppression court determined that the encounter preceding the search was a valid detention based upon a violation of the Vehicle Code. Id. at 6. The suppression court explained that “there was a continuous investigative detention throughout the entire time Officer Monaghan and [Acosta] were together.” Id. On this basis, the suppression court concluded that Acosta was “seized” at the time that he gave police officers his consent to search the vehicle, and held that “the consent was not the product of an essentially free and unconstrained choice and was thus involuntary.” Id. Accordingly, the suppression court granted Acosta’s Motion to suppress the narcotics seized during the search. Thereafter, the Commonwealth filed the instant appeal pursuant to Pa.R.A.P. 311(d).¹

¶ 4 On appeal, the Commonwealth claims that “[Acosta] provided [the] police [officers with] a lawful consent to search the vehicle,” and on this basis, the war-rantless search of the vehicle was justified. See Appellant’s Brief on Reargument at 10, We disagree.

¶ 5 When reviewing a ruling by a suppression court, our role is to determine whether the record as a whole supports the suppression court’s factual findings, and whether the legal conclusions drawn from such findings are free of error. Commonwealth v. Zhahir, 561 Pa. 545, 751 A.2d 1153 (2000). Where, as here, the Commonwealth appeals from the ruling of the suppression court, we are constrained to consider only the evidence presented by the defense and so much of the evidence for the prosecution that remains uncontra-dicted when read in the context of the record as a whole.² Commonwealth v. Torres, 564 Pa. 86, 95, 764 A.2d 532, 536-37 (2001).

¶ 6 Pennsylvania case law recognizes three categories of interaction between police officers and citizens. The first of these is a “mere encounter,” or request for information, which need not be supported by any level of suspicion, but which carries no official compulsion to stop or to respond. Commonwealth v. Mack, 568 Pa. 329, 341 n. 1, 796 A.2d 967, 975 n. 1 (2002) (Nigro, J. dissenting) (citing Interest of S.J., 551 Pa. 637, 713 A.2d 45, 47 n. 3 (1998)). The second category, an “investigative detention,” must be supported by reasonable suspicion. Id, This interaction “subjects a suspect to a stop and a period of detention, but does not involve such coercive conditions as to constitute the functional equivalent of an arrest.” Id. The third category, an arrest or “custodial detention,” must be supported by probable cause. Id. “Probable cause exists where the facts and circumstances within the officer’s knowledge are sufficient to warrant a person of reasonable caution in the belief that an offense has been or is being committed.” Id. (citing Commonwealth v. Gibson, 536 Pa. 123, 638 A.2d 203, 206 (1994)).

¶ 7 The Fourth Amendment to the United States Constitution protects the right of persons in this country to be secure from “unreasonable searches and seizures.” U.S. Const, amend. IV. “Thus, pursuant to the protections of the Fourth Amendment, before a police officer may conduct a search, he must generally obtain a warrant that is supported by probable cause and authorizes the search.” Commonwealth v. Reid, No. 280 Capital Appeal Docket, 811 A.2d 530, 544 (2002). A search warrant is not required where a person with the proper authority “unequivocally and specifically consents to the search.” Id. (citing Florida v. Jimeno, 500 U.S. 248, 250-51, 111 S.Ct. 1801, 114 L.Ed.2d 297 (1991)).

¶ 8 Article I, section 8 of the Pennsylvania Constitution, while similar in language to the Fourth Amendment, focuses upon personal privacy interests. See In re S.J., 551 Pa. 637, 648, 713 A.2d 45, 50 (1998) (Cappy, J. concurring) (distinguishing Article I, section 8 from its federal counterpart) (citing Commonwealth v. Edmunds, 526 Pa. 374, 390, 586 A.2d 887, 895 (1991)). Our Pennsylvania Supreme Court has “accorded greater protections to the citizens of this state under Article I, § 8 of our constitution under certain circumstances.” Commonwealth v. Cleckley, 558 Pa. 517, 525, 738 A.2d 427, 431 (1999).

¶ 9 To establish a valid consensual search, the Commonwealth must first prove that the consent was given during a legal police interaction. Commonwealth v. Strickler, 563 Pa. 47, 57, 757 A.2d 884, 889 (2000). Where the underlying encounter is found to be lawful, voluntariness becomes the exclusive focus. Id. Here, Acosta does not dispute that his initial encounter with Monaghan constituted a lawful investigative detention. Thus, our analysis focuses solely upon whether Acosta’s consent to search his vehicle, given during this detention, was voluntary.

¶ 10 It is the Commonwealth’s burden to prove that a defendant consented to a warrantless search. Cleckley, 558 Pa. at 520, 738 A.2d at 429 (citing Bumper v. North Carolina, 391 U.S. 543, 548, 88 S.Ct. 1788, 20 L.Ed.2d 797 (1968); Commonwealth v. Silo, 480 Pa. 15, 389 A.2d 62 (1978)). To establish a voluntary consensual search, the Commonwealth must prove “that 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— under the totality of the circumstances.” Mack, 568 Pa. at 334, 796 A.2d at 970 (quoting Strickler, 563 Pa. at 79, 757 A.2d at 901 (2000)).

¶ 11 In this case, Monaghan requested Acosta’s consent to search during a lawful investigative detention. “Situations involving a request for consent to search following an initial lawful detention have posed difficult analytical questions for courts[.]” Strickler, 563 Pa. at 60, 757 A.2d at 890 (emphasis added) (citing Commonwealth v. Sierra, 555 Pa. 170, 723 A.2d 644 (1999) (equally divided Court)). Our Supreme Court’s decision in Strickler, a case involving consent given subsequent to an initial lawful detention, provides some guidance in analyzing the issue now before us.

¶ 12 In Strickler, a police officer observed two men apparently urinating along side a public road. Id. at 53, 757 A.2d at 886. After questioning the men and verifying the documentation for the vehicle and the driver, the officer returned the documents to the driver. Id. at 53, 757 A.2d at 887-88. At that time, the officer informed defendant Brett Strickler (“Strickler”) that it was not appropriate to stop along the road and urinate on someone’s property. Id. at 53, 757 A.2d at 888. The officer began walking back to his cruiser when he turned and asked Strick-ler if there was anything illegal in the vehicle. Id. When Strickler stated that there was not, the officer requested Striek-ler’s consent to search the vehicle. Id. The officer told Strickler that he was free to withhold his consent. Id. at 54, 757 A.2d at 887. Strickler consented to the search, which disclosed a marijuana smoking pipe. Id. at 54, 757 A.2d at 887.

¶13 After his arrest, Strickler filed a suppression motion, claiming that his consent was not voluntary. The trial court granted the motion, and the Commonwealth appealed. On appeal, this Court reversed the order of the trial court. Commonwealth v. Strickler, 707 A.2d 553 (Pa.Super.1997). Thereafter, the Pennsylvania Supreme Court granted allowance of appeal.

¶ 14 On appeal, our Supreme Court upheld the validity of Strickler’s consent to the search of his vehicle, even though the officer had never expressly stated to Strickler that he was free to leave following the initial lawful detention. Strickler, 563 Pa. at 77, 757 A.2d at 900. The Strickler Court focused upon the fact that the officer’s actions suggested to the defendant and his companion that they were free to leave following the initial detention, and the officer did nothing to suggest that the subsequent request for the defendant’s” consent to search the vehicle was to be viewed as a directive. Id. The Supreme Court opined: “[T]he officer did not touch Strickler or direct his movements; there is no evidence of any use of coercive language or tone by the officer. We also deem significant the arresting officer’s admonition to Strickler that he was not required to consent to the search.” Id. at 77-78, 757 A.2d at 900. Thus, the Strick-ler Court concluded that the officer’s admonition that the defendant could refuse consent outweighed the officer’s failure to expressly advise the defendant that he was fine to leave following the initial detention. Id. at 78, 757 A.2d at 901.

¶ 15 In the instant case, based upon its factual findings and under the totality of the circumstances, the trial court determined that Acosta did not voluntarily consent to the search. At trial, Monaghan testified that when he passed Acosta, Acosta placed both hands on the steering wheel and stared straight ahead. N.T., 12/4/00, at 10. Monaghan testified that he attempted to get Acosta’s attention, but this attempt solely consisted of “looking” at Acosta. Id. at 48-49. Monaghan’s radio check of Acosta’s license plate revealed that the license plate had been suspended. Id. at 12. At that time, Monaghan stopped Acosta’s vehicle to investigate the suspended license plate. Id. at 13.

¶ 16 During the investigative detention, Acosta gave Officer Monaghan valid registration and insurance documentation for the vehicle. Id. at 14. Acosta, however, could not produce his driver’s license and presented conflicting information regarding his identity. Id. at 14, 17-18. A radio check of the information provided by Acosta disclosed that a person with a different first name and the same last name was wanted in Wisconsin for writing bad checks. Id. at 21. The general description of the Wisconsin suspect was fairly similar to Acosta’s appearance. Id. Based upon this information, Monaghan asked Acosta to step out of the vehicle. Id. at 23-24, 57.

¶ 17 Monaghan began to question Acosta regarding his identity, but ceased when he discovered that Acosta was traveling from New York to Philadelphia. Monaghan then began to discuss drug trafficking along U.S. Route 1. Id. 26-27. Monaghan told Acosta that there was drug trafficking along the route traveled by Acosta, and asked Acosta whether he had any weapons or drugs in the vehicle. Id. at 27. When Acosta stated that he did not, Monaghan, while still retaining Acosta’s vehicle documentation, requested Acosta’s consent to search the vehicle. Id.

¶ 18 At the time Monaghan requested Acosta’s consent, three marked police cars with flashing overhead lights and three uniformed police officers were present at the scene and stood in close proximity to Acosta.³ Id. at 29, 67. Monaghan had not returned Acosta’s vehicle registration, insurance card, or identification. Id. at 70. At the suppression hearing, Monaghan admitted that he didn’t know whether he would have allowed Acosta to walk away at that point in time. Id. at 64.

¶ 19 During the first search, Officer Hart remained in close proximity to Acosta while Officers Monaghan and Goldstein searched Acosta’s vehicle. Id. at 64. The officers recovered no evidence of controlled substances at that time. Id. at 66. When a narcotics dog arrived at the scene prior to the second search, the officers placed Acosta in a marked police vehicle with one officer standing near the passenger’s door. Id. at 31, 40, 69. Acosta remained in the vehicle, without his documentation, during the second search of the vehicle. Id. at 66. It was during this search that the officers uncovered controlled substances.⁴

¶ 20 Based upon the above factual findings, the trial court found that the following coercive factors were present when Monaghan requested Acosta’s consent for the search: (1) the existence of a prior, lawful detention; (2) the withholding of Acosta’s vehicular documentation; (3) the presence of other officers and marked police cars with flashing lights in close proximity to Acosta; and (4) the absence of an express endpoint to the detention in the form of an admonition by the authorities that Acosta was free to leave.⁵ Each of these factors, standing alone, may not be sufficient to establish coercion. However, the presence of all of these factors, under the totality of the circumstances, lead us to conclude that Acosta’s consent was not “the product of an essentially free and unconstrained choice[,]” but was “the result of duress or coercion, express or implied, or a will overborne — under the totality of the circumstances.” See Mack, 568 Pa. at 334, 796 A.2d at 970. The evidence supports the trial court’s finding that Acosta’s consent was not “voluntary”.⁶

¶ 21 The Dissenting Opinion appears to rely upon the Pennsylvania Supreme Court’s decision in Mack for its conclusion that Acosta’s consent was not the product of coercion. However, the factual scenario in Mack is readily distinguishable from the circumstances of the instant case.

¶ 22 In Mack, Sergeant Kilrain (“Kil-rain”) of the Philadelphia Police Department received a telephone call from a police officer in Houston, Texas. The officer in Texas informed Kilrain that a narcotics-detector dog alerted to a piece of luggage that had been placed on a flight to Philadelphia. Id. at 331, 796 A.2d at 968. Kil-rain and other officers confirmed that a flight was scheduled to arrive in Philadelphia from Houston. Id. When the flight arrived, they observed Alma Mack (“Mack”) retrieve a piece of luggage matching the description of the bag described by Houston police. Id. at 331-32, 796 A.2d at 969.

¶ 23 An officer subsequently approached Mack, and asked to examine her luggage claim ticket. The ticket matched the claim number given by Houston police. Id. The officer asked Mack to accompany him to an airport office. Once inside, the officer gave Mack her Miranda warnings, and asked for her permission to search the bag. Id. The officer informed Mack that she could refuse, but if she refused, she would be detained in order to obtain a search warrant. Id. After Mack read a Consent to Search Form, and said nothing for about ten minutes, she consented to the search. Id. In her bag, the officers discovered three bricks of marijuana. Id.

¶ 24 Mack challenged the validity of her consent by filing a suppression motion, which the trial court denied. This Court affirmed the judgment of sentence, after which the Pennsylvania Supreme Court granted allowance of appeal. On appeal, the Mack Court was required to determine whether Mack “validly consented to the search of her baggage when, prior to giving her consent, the police advised [her] that they would apply for a warrant if she denied them permission to search.” Id. at 333-34, 796 A.2d at 970.

¶ 25 In upholding the validity of the search, the Mack Court refused to adopt a per se rule that consent to search in the context of a custodial detention is involuntary when police advise the suspect that they would get a search warrant if the suspect refused to consent to the search. Id. at 335, 796 A.2d 967, 796 A.2d at 971. The Mack Court concluded that “the statement by police that they ‘would have to get a search warrant’ is merely a factor, but not a dispositive one, in the totality of the circumstances that a court must review in determining whether the police coerced the individual into consenting to the search.”⁷ Id. In concluding that Mack’s consent was voluntary, the Supreme Court considered the mitigating factors that police officers had advised Mack of her Miranda rights, and advised her that she could refuse to consent to the search. Id.

¶26 Here, unlike in Mack, Monaghan did not inform Acosta of his Miranda rights prior to requesting consent for the search. In addition, the officers did not advise Acosta that he was free not to consent to the search, a factor deemed significant in both Strickler and Mack. Moreover, unlike Strickler, there was no express endpoint to the initial lawful detention. Thus, the mitigating factors deemed significant in Mack and Strickler are not present in the instant case, and do not serve to outweigh the coercive atmosphere.

¶27 In summary, the totality of the circumstances supports the trial court’s conclusion that Acosta’s consent was the not product of a “free and unconstrained choice.” See Strickler, 563 Pa. at 79, 757 A.2d at 901. On this basis, we affirm the Order of the trial court, which granted Acosta’s Motion to suppress the evidence seized during the search.⁸

¶ 28 Order affirmed.

¶ 29 STEVENS, J., files a Dissenting Opinion.

¶ 30 JOYCE, J., joins Dissenting Opinion.

¶ 31 ORIE MELVIN, J., joins Dissenting Opinion.

¶ 32 LALLY-GREEN, J., joins Dissenting Opinion.

Further investigation revealed that [Acosta] was not the subject wanted in Wisconsin.