Commonwealth v. Winkle

880 A.2d 1280, 2005 Pa. Super. 284, 2005 Pa. Super. LEXIS 2843

• Court: Superior Court of Pennsylvania
• Decided: August 8, 2005
• Status: Published

Opinions

OPINION BY

BOWES, J.:

¶ 1 Kenneth Van Winkle appeals from the June 25, 2004 judgment of sentence of three to six years imprisonment that was imposed after he was convicted at a nonju-ry trial of two counts of possession of a controlled substance and one count each of possession with intent to deliver and possession of drug paraphernalia. We affirm.

¶ 2 We examine the facts found by the suppression court, as announced from the bench at the conclusion of the suppression hearing. On November 9, 2003, at approximately 9:55 p.m., on-duty Bensalem Township Police Officer Stephen Clark noticed a Ford Taurus on Street Road in Bucks County. Appellant was a passenger in the Ford Taurus, which was being operated by Jonathan Diaz. Officer Clark followed Mr. Diaz’s vehicle for a brief period before initiating a traffic stop, and Mr. Diaz quickly pulled to the side of the road. Prior to initiating the traffic stop, Officer Clark had processed the vehicle’s license plate utilizing Pennsylvania Department of Transportation records that he accessed with a computer terminal in his police car. Those records revealed that the license plate attached to Mr. Diaz’s vehicle was registered to a different vehicle.

¶ 3 After initiating the traffic stop and approaching Mr. Diaz’s vehicle, Officer Clark immediately recognized the odor of marijuana emanating from the vehicle and observed Appellant sitting in the passenger side with his left hand cupped against the left side of his leg. Officer Clark could not determine what Appellant was holding. At some point, Officer Clark asked Mr. Diaz to exit the vehicle and walk back to the police vehicle to wait for additional officers to arrive. While standing near the police vehicle, Officer Clark and Mr. Diaz discussed the discrepancy with the vehicle’s registration, the counterfeit insurance card that Mr. Diaz possessed, and Mr. Diaz’s admission to smoking marijuana earlier in the day. Mr. Diaz was not placed in handcuffs during this conversation; in fact, Mr. Diaz was not handcuffed until after Officer Clark discovered contraband under the passenger seat of Mr. Diaz’s vehicle.

¶ 4 After two police officers arrived to assist in the interdiction, Officer Clark approached Appellant, who remained in the passenger seat of Mr. Diaz’s vehicle. Officer Clark again observed that Appellant, who was expressionless and unresponsive to questions, had cupped an object in his left hand. The officer was able to detect that the object was a plastic bag that contained smaller plastic bags. After Appellant refused to tell Officer Clark what he was holding, Officer Clark ordered him from the vehicle. Officer Clark watched as Appellant furtively leaned forward and secreted an object under the passenger seat as he exited the vehicle. Officer Clark frisked Appellant for weapons, discovered $3,385.00 in his pants pockets, and directed him to stand with the two officers who had remained with Mr. Diaz. At this point, Officer Clark proceeded to search the vehicle and discovered approximately thirty grams of cocaine and a small amount of marijuana under the passenger seat. After the contraband was discovered, police handcuffed Mr. Diaz and Appellant and transported them to the police station.

¶ 5 Appellant was arrested and convicted of the aforementioned offenses. This appeal followed, wherein Appellant raises the following issues:

Whether the officer lacked probable cause to believe the vehicle was in violation of the Motor Vehicle Code if the officer lacked sufficient time to check the license number before initiating the traffic stop and did not observe any motor vehicle violations before the stop.

Whether evidence discovered, [sic] following a seizure of the appellant’s person should be suppressed if the officer’s reason for conducting the seizure was the appellant’s furtive movements.

Whether the officer exceeded the scope of a Terry pat down by searching the appellant’s pockets knowing that appellant did not possess a weapon and if so, should the fruits of that search be suppressed?

Whether evidence discovered during a warrantless search of a vehicle should have been suppressed when the search was conducted after the occupants of the vehicle were in police custody and no exigent circumstances existed ... to conduct a warrantless search ... ?

Appellant’s brief at 4.

Our standard of review in addressing a challenge to a trial court’s denial of a motion to suppress is limited to determining whether the factual findings are supported by the record and whether the legal conclusions drawn from those facts are correct. Commonwealth v. LaMonte, 859 A.2d 495, 499 (Pa.Super.2004). Because the prosecution prevailed in the suppression court, we may 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. LaMonte, 859 A.2d at 499. Where the record supports the factual findings of the suppression court, we are bound by those facts and may reverse only if the legal conclusions drawn from them are in error. Id.

Commonwealth v. Bell, 871 A.2d 267, 271 (Pa.Super.2005).

¶ 6 First, Appellant challenges the trial court’s finding that Officer Clark had probable cause to believe that Mr. Diaz violated the Motor Vehicle Code. According to Appellant, the record demonstrates that Officer Clark did not know that the vehicle displayed an incorrect license plate until after he initiated the stop. Appellant argues that Officer Clark lacked sufficient time prior to the traffic stop to contact the Pennsylvania Department of Transportation and check the vehicle’s license number. Instead, Appellant posits that Officer Clark did not receive the relevant information until he processed Mr. Diaz’s license and registration after approaching Mr. Diaz’s vehicle. We disagree.

¶ 7 The record supports the trial court’s finding that Officer Clark stopped Mr. Diaz’s vehicle after forming a probable-cause belief that the vehicle was licensed illegally. During the suppression hearing, Officer Clark testified unequivocally that prior to initiating the traffic stop, he processed the vehicle’s license plates utilizing Pennsylvania Department of Transportation records that he accessed using a computer terminal in his police car. He then determined that the license plate attached to Mr. Diaz’s vehicle was registered to a different vehicle.

¶ 8 We observe that in addressing this issue, the trial court misinterpreted Mr. Diaz’s testimony relating to the course of events following the initial traffic stop. Specifically, the court interpreted Mr. Diaz’s testimony as corroborating Officer Clark’s account of the interdiction. However, contrary to the trial court’s findings, Mr. Diaz did not testify that Officer Clark addressed Mr. Diaz’s faulty vehicle registration immediately upon approaching the vehicle. Instead, Mr. Diaz testified that Officer Clark informed him that the registration was improper only after he had returned from taking the registration documentation back to the police vehicle. Although we must reject the court’s findings of fact relating to that testimony, we nevertheless affirm the trial court’s probable cause determination. See Commonwealth v. Bell, 2005 PA Super 101, 871 A.2d 267 (en banc) (although record did not support all of trial court’s findings, we are bound by findings that record did support). In light of the fact that the trial court credited Officer Clark’s testimony in its entirety, we believe that the court would have accepted Officer Clark’s testimony even if it was aware that Mr. Diaz’s testimony did not bolster Officer Clark’s account. Accordingly, we hold that the record supports the trial court’s probable cause determination notwithstanding the court’s reliance upon its misapprehension of Mr. Diaz’s testimony.

¶ 9 Next, we address Appellant’s contention that exigent circumstances did not exist to support Officer Clark’s warrantless search of Mr. Diaz’s vehicle. Appellant argues that he and Mr. Diaz were in custody at the time the search occurred, and therefore, no risk existed that the pair could pose a threat to the officers or destroy any evidence contained in the vehicle.

¶ 10 For the following reasons, we conclude that exigent circumstances existed to conduct a warrantless search of Mr. Diaz’s vehicle. We have held that exigent circumstances support a warrantless vehicle search where prompt police action is imperative either because the evidence was likely to be destroyed or because a threat existed of physical harm to police officers or other innocent individuals. Commonwealth v. Casanova, 748 A.2d 207 (Pa.Super.2000).

¶ 11 This issue concerns whether Mr. Diaz had been arrested before Officer Clark searched the vehicle. If Mr. Diaz was in formal custody at that juncture, exigent circumstances would not exist because the police would have had sufficient opportunity to obtain a search warrant. However, if Mr. Diaz was not in custody during the relevant period, an exigent circumstance would exist in that after receiving the traffic citation, Mr. Diaz could have left the scene and potentially destroyed any incriminating evidence.

¶ 12 The determination of whether Mr. Diaz was in custody depends on the totality of the circumstances surrounding the interdiction. Commonwealth v. Dupre, 866 A.2d 1089, 1106 (Pa.Super.2005) (person in custody when physically deprived of freedom in any significant way or placed in situation in which he reasonably believes that freedom of action or movement is restricted by interrogation).

Among the factors the court utilizes in determining, under the-totality of the circumstances, whether police detention became so coercive as to constitute the functional equivalent of arrest are: the basis for the detention; the location; whether the suspect was transported against his will; how far, and why; whether restraints were used; the show, threat, or use of force; and the methods of investigation used to confirm or dispel suspicions.

Id. (quoting Commonwealth v. DiStefano, 782 A.2d 574, 579-80 (Pa.Super.2001)).

¶ 13 As noted by the foregoing recitation of the trial court’s findings of fact, the police did not place Mr. Diaz into custody until after the contraband was discovered in his vehicle. Accordingly, the record belies Appellant’s position that an exigent circumstance did not exist. In fact, the police only placed Mr. Diaz into custody because they discovered Appellant’s contraband. Initially, Officer Clark was merely going to detain Mr. Diaz pending the issuance of a traffic citation. Officer Clark testified in relation to this issue as follows:

Q. Was Mr. Diaz under arrest at that time?

[Officer Clark]. No.

Q. Was he free to leave?

[Officer Clark]. I — he was going to be issued a citation. He was not free to leave at that time, because he was going to be issued a traffic citation.

N.T. Suppression Hearing, 5/5/04, at 15. The trial court recognized this fact stating,

Mr. Diaz, in fact, was only issued a citation for possessing a counterfeit insurance card. And it is my belief that Officer Clark could have- — issued a much more serious criminal violation against Mr. Diaz. But Officer Clark, nonetheless, decided not to do that. And, in fact, indicated that Mr. Diaz was not under arrest at any time and, presumably, he [would have been] permitted to go free after he was issued a citation.

Id. at 96. Hence, although police eventually transported Mr. Diaz to the police station, this occurred after they discovered contraband in his vehicle and arrested Appellant for the drug offenses stemming from that discovery.

¶ 14 As the record demonstrates that Mr. Diaz was not placed into custody until after the police searched his vehicle, we conclude that exigent circumstances existed for the search. Otherwise, once Mr. Diaz received his traffic citation, he could have driven the vehicle from the scene before the police obtained a search warrant.

¶ 15 Next, we address Appellant’s claim that Officer Clark did not have reasonable suspicion to ask Appellant to alight from the vehicle to conduct an investigative detention. For the following reasons, this claim lacks merit.

¶ 16 As a matter of precaution, a police officer is entitled to ask occupants of a vehicle to step from the vehicle during a traffic stop. Commonwealth v. Freeman, 568 Pa. 82, 757 A.2d 903 (2000) (citing Pennsylvania v. Mimms, 434 U.S. 106, 98 S.Ct. 880, 54 L.Ed.2d 331 (1977)). Hence, Officer Clark did not need any level of suspicion to ask either Appellant or Mr. Diaz to alight from the vehicle. Indeed, apparently recognizing the shortcomings of his argument, Appellant asserts the traffic stop had concluded before he asked Appellant to exit the vehicle. According to Appellant, the initial traffic stop ended when Officer Clark concluded his conversation with Mr. Diaz and informed him that he was going to receive a citation for the registration violation. Again, we disagree.

¶ 17 Generally, a traffic stop concludes after the officer addresses the motor vehicle violation. See Commonwealth v. Freeman, 563 Pa. 82, 757 A.2d 903 (2000) (once officer accomplished purpose of the stop, defendant was within right to drive away); Commonwealth v. By, 812 A.2d 1250 (Pa.Super.2002) (where purpose of initial traffic stop ends and reasonable person does not feel reasonably free to leave, subsequent round of questioning by police is investigative detention). Herein, Officer Clark had not yet issued a motor vehicle citation to Mr. Diaz before leaving him with the back-up police officers and approaching Appellant. Since the motor vehicle violation had not been resolved at that juncture, we conclude that the traffic stop was ongoing when Officer Clark asked Appellant to exit the vehicle.

¶ 18 Finally, we address Appellant’s argument that Officer Clark’s pat-down search of his person exceeded the permissible scope of a weapons frisk pursuant to Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), and the currency discovered as result of the search should be suppressed as the fruit of an illegal search. Appellant contends that the record demonstrates that Officer Clark’s pat down was tantamount to an evidentiary search. Specifically, Appellant asserts that after Officer Clark felt a bulge in Appellant’s pocket and confirmed that the bulge was a roll of currency, he continued to search Appellant, seizing the object to determine if there was contraband secreted inside the money.

¶ 19 In confronting this issue, the trial court concluded that Officer Clark was justified in seizing Appellant’s money as a search incident to arrest. However, we observe that since Officer Clark testified that he conducted the frisk before he discovered the contraband that Appellant hid in Mr. Diaz’s vehicle, the record does not support this conclusion. Nevertheless, mindful that the contraband validly was seized from Mr. Diaz’s vehicle and that the currency would have been discovered on Appellant’s person incident to his arrest based on that seizure, we conclude that the currency falls within the inevitable-discovery exception. Commonwealth v. Ingram, 814 A.2d 264 (Pa.Super.2002) (evidence that would inevitably have been discovered was admissible despite Miranda violations). Therefore, on this basis, we affirm the trial court’s decision to admit evidence of the currency during trial. See Commonwealth v. Voss, 838 A.2d 795 (Pa.Super.2003) (Superior Court may affirm lower court’s decision on any ground).

¶ 20 Judgment of sentence affirmed.

¶ 21 P.J.E. McEWEN files a Dissenting Opinion.