Commonwealth v. Ortiz

786 A.2d 261, 2001 Pa. Super. 308, 2001 Pa. Super. LEXIS 3106

• Court: Superior Court of Pennsylvania
• Decided: November 5, 2001
• Status: Published

Opinions

JOHNSON, J.

¶ 1 Alberto Ortiz appeals from the judgment of sentence entered following his conviction of Possession of a Controlled Substance, Possession with Intent to Deliver a Controlled Substance, Possession of Drug Paraphernalia, and Driving while Operating Privilege Revoked or Suspended See 35 P.S. § 780-113(a)(16), (30), (32), 75 Pa.C.S. § 1543(b) (respectively). Ortiz contends that the suppression court erred in refusing to suppress drug evidence discovered during a search of his car and that there was insufficient evidence to support the verdict. After study, we conclude that the court erred in refusing to suppress evidence obtained during an unlawful search. Accordingly, we reverse the judgment of sentence and remand for further proceedings consistent with this Opinion.

¶ 2 This case arises from a traffic stop in the Borough of Wyomissing, Berks County. While on patrol, Officer Paul Baur of the Borough of Wyomissing Police Department, observed Ortiz driving a vehicle in an erratic fashion. Officer Baur activated his emergency light, directing Ortiz to pull over. Officer Baur stopped Ortiz on the suspicion that Ortiz’s rear window was tinted illegally. Ortiz parked the car in front of a convenience store and attempted to enter the store. Officer Baur stopped Ortiz and informed him that he was being detained because of the tinted window. In response, Ortiz indicated that the car belonged to someone else. Officer Baur requested Ortiz’s driver’s license and vehicle registration. Ortiz handed Officer Baur two pieces of paper and gave his date of birth. Officer Baur instructed Ortiz to stay in the car as he checked Ortiz’s information. Although he complied initially, Ortiz repeatedly exited the vehicle. Consequently, Officer Baur insisted that Oi’tiz stay in the car. On the fourth occasion, Ortiz approached Officer Baur’s vehicle and asked if he would be able to leave that evening. Officer Baur assured him that everything at that point was fine but that Ortiz would have to remain in his car. Police dispatch informed Officer Baur that Ortiz’s driver’s license had been suspended for a DUI related conviction but that the vehicle’s owner had given Ortiz permission to operate the car. Officer Baur then measured the tint in the rear window with a tint meter and determined that the light permitted to pass through the tint was below the legal minimum. Officer Baur issued a written warning instructing Ortiz to have the tint removed within five days. Thereafter, Officer Baur returned Ortiz’s paperwork and told him he was free to leave. Further, Officer Baur indicated that Ortiz could not drive the car due to the suspended license. As Ortiz collected his belongings, Officer Baur asked Ortiz if he had anything illegal in the car. When Ortiz said “no,” Officer Baur asked if he could search the car. Ortiz consented. Officer Baur’s search of the vehicle uncovered a sandwich bag containing a powdery substance later identified as cocaine, several small red baggies, a V-shaped, cardboard scoop, a folded dollar bill, and a small cut straw. Officer Baur then arrested Ortiz and the Commonwealth subsequently charged him with the commission of the aforementioned crimes. Prior to trial, Ortiz filed a motion to suppress the evidence seized during the search, which the suppression court subsequently denied. Following a bench trial, the trial court found Ortiz guilty of the charges and imposed an aggregate sentence of no less that four years’, three months’ and no more than six years’ incarceration. Ortiz then filed this appeal.

¶ 3 Ortiz presents the following issues for our review:

A. Did not the trial court err by denying [Ortiz’s] motion to suppress evidence seized from the vehicle that he was driving?

B. Was not the evidence insufficient to support the verdict, in that it did not establish beyond a reasonable doubt that Ortiz ever exercised dominion or control over the item seized from the vehicle, so that the motion for judgment of acquittal should have been granted?

Brief for Appellant at 4. Because our disposition of this matter turns on our discussion of Ortiz’s first question, we shall not reach his second question.

¶ 4 When reviewing the suppression court’s denial of a motion to suppress, we must first ascertain whether the record supports the suppression court’s factual findings. See Commonwealth v. Dangle, 700 A.2d 538, 539 (Pa.Super.1997). When reviewing rulings of a suppression court, we must consider only the evidence of the prosecution and so much of the evidence for the defense as remains uncontradicted when read in the context of the record as a whole. See Commonwealth v. Lynch, 773 A.2d 1240, 1243 (Pa.Super.2001). We are bound by the suppression court’s findings if they are supported by the record, and may only reverse the suppression court if the legal conclusions drawn from the findings are in error. See Commonwealth v. Perry, 710 A.2d 1183, 1184 (Pa.Super.1998).

¶ 5 In support of his first question, Ortiz contends that the trial court erred in refusing to suppress drug evidence seized during a search of his vehicle. Brief for Appellant at 9. Ortiz argues that Officer Baur had neither a warrant nor a valid consent to perform the search. Brief for Appellant at 6. Specifically, Ortiz relies on the factual similarities between Commonwealth v. Freeman, 563 Pa. 82, 757 A.2d 903 (2000), and his own case. Brief for Appellant at 13. As such, Ortiz contends that our Supreme Court’s holding in Freeman controls in this matter. Brief for Appellant at 13. Following scrutiny of Freeman and the companion case, Commonwealth v. Strickler, 563 Pa. 47, 757 A.2d 884 (2000) we conclude that Officer Baur reinitiated an investigative detention without the requisite reasonable suspicion and, consequently, performed an illegal search. Accordingly, we conclude that the court erred in failing to suppress contraband obtained as a result of the illegal search.

¶ 6 The distinctions apparent between the Strickler and Freeman cases, when applied to the facts of this ease, manifest the trial court’s error. In Strickler, the officer observed the defendant and a friend urinating on the side of a rural roadway. The officer pulled over to discern what the men were doing. The officer approached the men, asked for identification and returned to his vehicle to check for any outstanding warrants. After verifying that there were no warrants for either of the men, the officer called the defendant over, returned his license, admonished him for his conduct, thanked him for his cooperation and began walking back to his cruiser. The officer then turned around and asked the defendant if he had anything illegal in the car. When the defendant told the officer that he did not, the officer asked if he could search the defendant’s car. Noticing the defendant’s hesitation, the officer told him that he did not have to consent to the search, after which, the defendant consented to the search. The search revealed drug paraphernalia between the console and the front passenger seat.

¶ 7 In Freeman, a trooper observed the defendant jockeying for position with another vehicle along Interstate 80. The trooper, with the assistance of another officer, stopped and detained the defendant and the driver of the other vehicle. The drivers were questioned separately. The defendant gave the officer her license and indicated that she was lost, thus explaining her driving. She also told the trooper that she was not traveling with the occupants of the other car. While checking the defendant’s license for outstanding warrants, the trooper discovered, from the other officer, that the occupants of the second vehicle stated the two cars were traveling together. Upon returning to the defendant’s car, the trooper returned the defendant’s driver’s license and registration, gave her a written warning and informed the defendant that she was free to leave. The trooper then returned to his cruiser and observed that the defendant had not moved. The trooper returned to the car and again asked the defendant if she was traveling with the other car which, at this point, was still being detained by other officers. The defendant again stated that she was not traveling with the other vehicle. The trooper informed the defendant of the story given by the other driver and asked her to step out of the car. The officer then asked her consent to search the car, which she gave. The search ultimately revealed five Ziploc bags of marijuana.

¶8 In both cases, our Supreme Court was asked to determine whether under the Fourth Amendment, evidence seized during the course of a consensual search must be suppressed where the consent followed the conclusion of a lawful detention. While the analysis employed in both cases is similar, the factual distinctions demarcate the salient rules of law to be applied in this case. The first crucial inquiry that the Court addresses, in both cases, is when does the initial investigative detention end. This distinction is crucial because if the subsequent interaction were merely a continuation of the initial lawful detention, the analysis shifts to a determination of whether the consent is given voluntarily. See Strickler, 757 A.2d at 888-89 (stating that “[w]here the underlying encounter is found to be lawful, voluntariness becomes the exclusive focus[ ]”). Conversely, if the subsequent police/citizen interaction follows a detention that has properly concluded, then that interaction must be analyzed anew to determine whether it amounts to a constitutionally valid seizure or merely a casual encounter.

¶ 9 In both cases, the police officers did, initially, conduct a lawful detention of the defendant and thereafter returned the defendants’ driver license and registration. In Freeman, the Court found that “the arresting trooper articulated a clear endpoint to the lawful detention by advising Freeman that she was free to depart after returning her driver’s documentation and issuing an appropriate traffic warning.” Freeman, 757 A.2d at 907. Similarly, in Strickler, the Court found that “[although the officer did not make the endpoint of the lawful detention an express one, there was an endpoint nonetheless .... ” Strickler, 757 A.2d at 901 (emphasis added). The Court reasoned that “a central consideration will be whether the objective circumstances would demonstrate to a reasonable citizen that he is no longer subject to police domination.” Id. at 899 (observing that whether the police inform the citizen that he is free to leave weighs heavily in that consideration).

¶ Í0 Having concluded that the initial detentions were separate from the subsequent police/citizen interactions, the Court considered next whether those subsequent interactions were consistent with either a mere casual encounter or an investigative detention. Essential to the Court’s analysis, in both cases, is whether under the circumstances, a reasonable person would feel free to leave. The Court, in Freeman, enumerates several factors to be considered in determining whether a seizure has been effected, as follows:

the existence and nature of any prior seizure; whether there was a clear and expressed endpoint to any such prior detention; the character of police presence and conduct in the encounter under review (for example — the number of officers, whether they were uniformed, whether police isolated subjects, physically touched them or directed their movement, the content or manner of interrogatories or statements, and “excesses” factors stressed by the United States Supreme Court); geographic, temporal and environmental elements associated with the encounter; and the presence or absence of express advice that the citizen-subject was free to decline the request for consent to search.

Freeman, 757 A.2d at 906-07 (citing Strickler, 757 A.2d at 889).

¶ 11 In Strickler, the Court concluded that the subsequent conduct was consistent with a casual encounter and accordingly not a seizure requiring any degree of suspicion to justify the encounter. 757 A.2d at 901. In reaching this conclusion, the Court found significant the fact that: 1) the police officer did not touch the defendant or direct his movement; and 2) the officer told the defendant that he did not have to give his consent. See id. at 901-02. Conversely, in Freeman, the Court concluded that the subsequent interaction was an investigative detention requiring the Commonwealth to demonstrate that an articulable, reasonable suspicion existed to justify the detention. 757 A.2d at 907-08. There, the Court found significant the fact that: 1) notwithstanding that the officer told the defendant she was free to leave, he re-approached her car and asked her about her relationship with the other driver; and 2) the officer asked the defendant to step out of the car. See id. (concluding that despite express advice that Freeman was free to leave and given everything that came before, a reasonable person would believe that such advice was no longer operative).

¶ 12 In the present matter, as in Freeman, the officer concluded the initial detention by returning Ortiz’s documentation and expressly informing him that he was free to leave. Clearly, a reasonable person would conclude that he was free to leave after being expressly told as much. Thus, the officer’s subsequent interaction with Ortiz must be evaluated on its own to determine whether that encounter demonstrated either a seizure or a casual encounter. See Freeman, 757 A.2d at 908. Here, Officer Baur pulled over Ortiz in the parking lot of a convenience store at approximately 10:30 p.m. Officer Baur stopped Ortiz because he suspected that the car had an illegally tinted rear window. Findings of Fact and Conclusions of Law, 7/26/00, at ¶ 4. Officer Baur then took papers Ortiz handed him and checked Ortiz’s record for outstanding warrants. Findings of Fact and Conclusions of Law, 7/26/00, at ¶ 6, 7. While awaiting information from dispatch, Officer Baur repeatedly instructed Ortiz to stay in his vehicle and observed that Ortiz was sweating heavily. Findings of Fact and Conclusions of Law, 7/26/00, at ¶ 8, 13. Upon discovering that Ortiz had permission to drive the vehicle but that he was doing so under a suspended license, Officer Baur: 1) gave Ortiz a written warning; 2) told him he was free to leave; and 3) informed him that he could not drive the car. Findings of Fact and Conclusions of Law, 7/26/00, at ¶ 11, 12, 14. Although Officer Baur told Ortiz he was free to go, he remained behind Ortiz and asked if he had anything illegal in the car and if he could search the vehicle. Findings of Fact and Conclusions of Law, 7/26/00, at ¶ 15, 16. In view of the fact that: 1) the stop took place at night; 2) Ortiz could no longer drive the vehicle; and 3) he was told he could leave yet the officer stood behind him as he gathered his belongings; coupled with the fact that Officer Baur failed to inform Ortiz that he did not have to consent to the search, a reasonable person would not feel free to leave. Thus, we conclude that Ortiz was subject to a second detention necessitating a commensurate degree of suspicion on the officer’s part to justify his coercive actions and the resulting impact on Ortiz’s constitutionally protected interests. See Freeman, 757 A.2d at 907-08 (despite express advice that Freeman was free to leave and given everything that came before, a reasonable person would believe that such advice was no longer operative).

¶ 13 While Ortiz’s behavior during the initial investigative detention may have merited further inquiry to determine if his anxiety was due to illegal conduct, nothing happened after the conclusion of the initial stop to provide Officer Baur further cause for suspicion. See Freeman, 757 A.2d at 908. Without the existence of a reasonable suspicion after the first encounter had ended, the second detention was unlawful. Furthermore, Ortiz’s consent “will not justify the otherwise illegal search unless the Commonwealth can demonstrate that [his] consent was an independent act of free will and not the product of the illegal detention.” Freeman, 757 A.2d at 909 (quoting Florida v. Royer, 460 U.S. 491, 501, 108 S.Ct. 1319, 75 L.Ed.2d 229 (1983)). However, because of the temporal proximity between the detention and the consent for the search and the lack of any intervening circumstances, which would demonstrate that the consent was an act of free will, it is impossible for the Commonwealth to demonstrate that Ortiz’s consent was not the product of the detention. See id. Therefore, we conclude that because Ortiz’s consent is invalid, the fruits of the consequent search should have been suppressed.

¶ 14 For the foregoing reasons, we reverse the judgment of sentence and remand this case to the trial court for further proceeding consistent with this Opinion.

¶ 15 Judgment of sentence REVERSED. Case REMANDED for further proceedings consistent with this Opinion. Jurisdiction RELINQUISHED.

¶ 16 Orie Melvin, J. files a Dissenting Opinion.