Com. v. Lopez

• Decision Date: 14 July 1992
• Parties: COMMONWEALTH of Pennsylvania v. Benjamin LOPEZ, Jr., Appellant.
• Court: Pennsylvania Superior Court

Page 177

609 A.2d 177

415 Pa.Super. 252

COMMONWEALTH of Pennsylvania v. Benjamin LOPEZ, Jr., Appellant.

Superior Court of Pennsylvania.

Argued March 4, 1992.

Filed May 14, 1992.

Reargument Denied July 14, 1992.

Elliott J. Segel, Erie, for appellant.

William R. Cunningham, Dist. Atty., Erie, for Com., appellee.

Before DEL SOLE, JOHNSON and FORD ELLIOTT, JJ.

JOHNSON, Judge:

This is an appeal from the judgment of sentence imposed after a jury convicted Benjamin Lopez, Jr. of Possession With Intent to Deliver Marijuana in violation of 35 Pa.C.S. § 780-113(a)(30). After post trial motions were denied, the court sentenced Lopez to five to ten years' imprisonment. On appeal, Lopez contests solely the denial of his Motion to Suppress seventy-six pounds of marijuana, seized from his vehicle by police, following a routine traffic stop. He argues that his right, protected by the Fourth Amendment and the Pennsylvania Constitution, Article I, Section 8, to be free from unreasonable searches and seizures was violated. We agree and reverse.

In reviewing the denial of a motion to suppress, our responsibility is to determine whether the record supports the suppression court's factual findings and the legitimacy of the inferences and legal conclusions drawn from those findings. Commonwealth v. Vinson, 361 Pa.Super. 526, 522 A.2d 1155 (1987). If the suppression court held for the prosecution, we consider only the evidence of the prosecution's witnesses and so much of the evidence for the defense as, fairly read in the context of the record as a whole, remains uncontradicted. Id. When the factual findings of the suppression court are supported by the evidence, the appellate court may reverse if there is an error in the legal conclusions drawn from those factual findings. Commonwealth v. Reddix, 355 Pa.Super. 514, 513 A.2d 1041 (1986).

The relevant facts in this case are not in dispute, and, after careful review, we are satisfied that the suppression court's factual findings, as they appear in its Opinion of November 1, 1989, are supported by the record. However, we are compelled to note several important omissions from the suppression court's summary of the salient facts regarding Corporal Martin's reasons for suspecting Lopez of drug related activity.

On the afternoon of July 13, 1989, Benjamin Lopez was driving a Ryder rental truck towing a Volkswagen automobile on Interstate 90 in Erie County. His wife, Yvonne, and his four year old child were passengers. Corporal Robert Martin of the Pennsylvania State Police noticed the tow chains between the Ryder truck and the Volkswagen were not crossed as required by § 4905(d) of the Pennsylvania Vehicle Code, and signalled Lopez to pull over.

After the stop, upon request, Lopez produced his driver's license, vehicle registration and the rental agreement for the truck, which revealed that the truck had been rented in Carlsbad, New Mexico with a destination of Glen Falls, New York. Upon concluding that the papers were in order, Corporal Martin did not return them to Lopez but, instead asked Lopez to exit the vehicle and walk to its rear.

After showing Lopez the towing violation, Corporal Martin proceeded to question Lopez regarding the origin, destination, purpose, and duration of his trip from New Mexico. While retaining the license and rental agreement, Corporal Martin asked Lopez "[W]ould you mind letting me look into the back of the truck?" Preliminary Hearing Transcript, August 2, 1989, at 7; R.R. at 7A. Lopez did not object, opened the lock and pulled up the door. Corporal Martin observed that the truck was empty except for several blankets, some children's toys and two suitcases. He then asked Lopez about the ownership and destination of the Volkswagen automobile; Lopez responded that he was delivering it to his brother.

Corporal Martin then told Lopez to sit in the Ryder truck while he radioed for assistance. When Trooper William Wagner, also of the Pennsylvania State Police, arrived, Corporal Martin asked Lopez if he had any drugs, weapons or alcohol in the vehicles, to which Lopez responded "no." Nonetheless, Corporal Martin asked Lopez if he would "consider signing a voluntary consent form to let [them] search the vehicles?" Id. at 8; R.R. at 8A. Lopez agreed and signed a consent form which was provided to him by Trooper Wagner.

After Lopez signed the form, Corporal Martin instructed one of the other troopers, who had arrived on the scene, to conduct a canine search of the Volkswagen. During the search, Lopez and his wife were asked to stand behind the guardrails, alongside the thruway, for their protection. The search revealed a cache, containing approximately seventy- six pounds of marijuana, in a compartment located behind the back seat of the Volkswagen. Lopez was then patted down, handcuffed and placed inside a patrol vehicle where he was given his Miranda warnings. Yvonne Lopez was not searched or arrested at the scene. She was, however, subsequently arrested at the state police barracks, after the officers conferred with the District Attorney's Office.

Lopez filed a motion to suppress, and on October 31, 1989, a suppression hearing was held before the Court of Common Pleas of Erie County. The Commonwealth submitted, as evidence of their burden of proof, the transcript of the preliminary hearing held in this matter on August 2, 1989, at which both Corporal Martin and Trooper Wagner testified. At the preliminary hearing, Corporal Martin was questioned regarding the reasons for suspecting Lopez of drug related activity DEFENSE COUNSEL: There wasn't any--well, when you looked inside the rental and you are speaking to Mr. Lopez and explaining why you stopped him and so on, you didn't personally observe anything inside the field of your observation inside that rental truck, any objects or any conduct by any individuals inside which would lead you to believe there was suspicion for criminal activity or anything of that nature, did you?

CPL. MARTIN: No.

. . . . .

DEFENSE COUNSEL: And after you showed him the chains and explained to him that they are supposed to be crossed, and the reason for the stop, that's when you had this conversation with him about "Where are you going? Where is your destination?" And so forth?

CPL. MARTIN: Yes.

. . . . .

DEFENSE COUNSEL: What was the purpose of asking him these other questions, as far as where he was going and who he was moving and if he was moving and so on? What was the purpose at that time in asking those type of questions of Mr. Lopez?

CPL. MARTIN: Just policeman's intuition. Just you know, investigative talking to the gentleman.

Preliminary Hearing Transcript, August 2, 1989, at pp. 16-18; R.R. at 16A-18A.

At the conclusion of the suppression hearing, the court determined that neither the initial stop of Lopez's vehicle, nor Corporal Martin's request that Lopez exit his vehicle were violative of the Fourth Amendment. The court also determined that the subsequent detention and questioning of Lopez was reasonable, that his consent to the search of the Volkswagen was "voluntary and knowing," and that the subsequent related search was lawful. In determining whether the suppression court erred in its legal conclusions, we will address the constitutionality of each increment of the confrontation separately, as if each was a separate and distinct "non-custodial detention," i.e. 1) the initial stop of Lopez for a traffic violation; 2) the request for Lopez to get out of his vehicle; 3) the subsequent detention and questioning of Lopez; and 4) his consent to search the Volkswagen.

A noncustodial detention or forcible stop occurs when a police officer temporarily detains an individual by means of physical force or a show of authority for investigative purposes. Commonwealth v. Brown, 388 Pa.Super. 187, 190, 565 A.2d 177, 178 (1989). See also Commonwealth v. Williams, 287 Pa.Super. 19, 22, 429 A.2d 698, 700 (1981). A forcible stop constitutes a seizure of a person and thus, activates the protections of the Fourth Amendment and the requirements of Terry v. Ohio, 392 U.S. 1, 20, 88 S.Ct. 1868, 1879, 20 L.Ed.2d 889, 903 (1968); Commonwealth v. Brown, supra, 388 Pa.Super. at 190, 565 A.2d at 178.

In order for a stop to be reasonable under the Fourth Amendment of the United States Constitution, the police must have articulable and reasonable grounds to suspect, or probable cause to believe, that criminal activity may be afoot. Commonwealth v. Swanger, 453 Pa. 107, 307 A.2d 875 (1973); Commonwealth v. Murray, 460 Pa. 53, 331 A.2d 414 (1975). This standard is met "if the police officer's reasonable and articulable belief that criminal activity was afoot [is] linked with his observation of suspicious or irregular behavior on behalf of the particular defendant stopped." Commonwealth v. Espada, 364 Pa.Super. 604, 609, 528 A.2d 968, 970 (1987).

First, it is uncontested that Corporal Martin stopped Lopez because he had articulable and reasonable grounds to suspect, or probable cause to believe, that a provision of the Vehicle Code was being violated. Such a stop was clearly permissible under 75 Pa.C.S. § 6308; Commonwealth v. Elliott, 376 Pa.Super. 536, 546 A.2d 654 (1988), appeal denied in 521 Pa. 617, 557 A.2d 721 (1989).

Lopez contends, however, that after he was stopped, Corporal Martin was without legal basis to order him to get out of the Ryder truck, absent a specific reason to believe that he was either armed and dangerous or that criminal activity was afoot. We disagree.

The United States Supreme Court addressed this issue in Pennsylvania v. Mimms, 434 U.S. 106, 98 S.Ct. 330, 54 L.Ed.2d 331 (1977). Focusing on the reasonableness in the circumstances of the officer's request for the driver to get out of the vehicle, the Mimms court held that, out of concern for the safety of police officers, an officer may, consistent with the Fourth Amendment guarantee against unreasonable searches and seizures, order a driver...