Com. v. Rogers

• Decision Date: 22 November 1999
• Citation: 741 A.2d 813
• Parties: COMMONWEALTH of Pennsylvania, Appellant, v. Edward S. ROGERS, Appellee.
• Court: Pennsylvania Superior Court

741 A.2d 813

COMMONWEALTH of Pennsylvania, Appellant, v. Edward S. ROGERS, Appellee.

Superior Court of Pennsylvania.

Submitted September 13, 1999.

Filed November 22, 1999.

Patricia J. McLean, Asst. Dist. Atty., Butler, for Com., appellant.

Andrea I. Konow, Pittsburgh, for appellee.

Before POPOVICH, ORIE MELVIN and HESTER, JJ.

ORIE MELVIN, J.:

¶ 1 This is an appeal by the Commonwealth of Pennsylvania from an April 14, 1999 Order granting Appellee Edward S. Rogers' motion to suppress. The issue is whether the trial court correctly concluded that Trooper Banovsky did not have sufficient reasonable suspicion of criminal activity to justify Appellee's initial detention and the subsequent canine sniff search of his vehicle. We reverse.

¶ 2 On January 9, 1998, Trooper Banovsky observed Appellee's vehicle traveling southbound on Interstate 79, passing other traffic. The Trooper positioned his vehicle behind Appellee's and followed him for 4/10ths of a mile, clocking his speed at 73 mph in a posted 55-mph zone. Trooper Banovsky also observed the vehicle to be bearing an expired Tennessee temporary registration plate. A traffic stop was initiated at approximately 2:22 P.M. Upon approaching Appellee's vehicle, he found Appellee to be in such a nervous and trembling state that he attempted to place him at ease by advising him to take a deep breath and relax. The trooper questioned Appellee as to where he was going. Appellee responded by telling him he was going to Tennessee to return the vehicle to the seller.

¶ 3 Appellee provided the Trooper with a West Virginia title issued to the vehicle, an incomplete Tennessee Certificate of Title extension form (missing the name of the transferee and odometer reading) and a Tennessee Department of Revenue form dated December 17, 1997. Appellee also provided a Texas driver's license. In addition to the incomplete information on the title extension form, the Trooper noted that the name on the driver's license did not match the name on the Department of Revenue form. Specifically, the license read Edward Stanley Rogers while the revenue form listed the purchaser as Edward Stanley and was signed in the same manner with a Pennsylvania address that included a fraudulent six-digit zip code. When asked who lived at that address the Appellee stated "I don't know, the guy I bought the car off of put that down and told me not to worry about it."

¶ 4 Trooper Banovsky also noticed behind the driver's seat an open box of "Tide" powdered laundry detergent, an open box of "Bounce" fabric softener dryer sheets, and a used roll of "Scotch" packaging tape. Trooper Banovsky next questioned Appellee as to where he was coming from. Appellee told him he had been visiting a friend in Butler, but could not recall the address. Appellee was then asked to exit the vehicle, whereupon Trooper Banovsky patted him down. The Trooper questioned Appellee as to whether there was anything illegal in the vehicle. Appellee evaded answering the question by attempting to explain how he had purchased the vehicle, and was trying to sell it in Pennsylvania. The Trooper then asked for consent to search the vehicle. Appellee refused consent, and the Trooper inquired as to his reason for refusal. Appellee stated, "I don't know if there's anything in the door panels or air vents, I haven't searched the car yet."

¶ 5 At this point the Trooper requested a criminal history check. The check was positive for prior drug convictions. The Trooper continued the investigation by requesting a K-9 unit to perform a drug sniff of the exterior of the vehicle. Allegheny County Police Officer Kent Maier and a K-9 named Rosie responded to the scene. Rosie checked the exterior of the vehicle with a positive alert at the driver's side door. Whereupon, without prompting, Rosie jumped inside the open driver's window immediately indicating to the right rear of the vehicle. The search was then terminated. Based on the positive results the vehicle was secured and towed to the Butler State Police barracks where a second dog sniff was conducted by another K-9 named Ebony with the same results. A search warrant was obtained and an interior search of the vehicle revealed a large black nylon bag. The bag contained 24 individually wrapped "bricks" of suspected marijuana weighing approximately 52 pounds.

¶ 6 Appellee was then arrested and charged with violations of the Controlled Substance Drug, Device and Cosmetic Act, specifically 35 P.S. § 780-113(a)(30), Possession with the Intent to Deliver a Controlled Substance; 35 P.S. § 780-113(a)(16), Possession of a Controlled Substance; 35 P.S. § 780-113(a)(32), Possession of Drug Paraphernalia; as well as two summary motor vehicle violations. On March 23, 1998, Appellee filed a motion to suppress all statements and physical evidence that was obtained pursuant to an allegedly unlawful detention. A suppression hearing was scheduled for March 3, 1999, before the Honorable Martin J. O'Brien, P.J. At the time of the hearing, since the facts were not disputed the parties stipulated to the testimony that would have been presented by way of submitting to the court relevant portions of the police reports and other documents as well as briefs for the court's consideration. On April 14, 1999, the suppression court issued a Memorandum Opinion and Order granting suppression. This timely appeal followed.¹

¶ 7 The suppression court is required to make findings of fact and conclusions of law as to whether the evidence was obtained in violation of an accused's constitutional rights. Commonwealth v. Wilmington, 729 A.2d 1160, 1162 (Pa.Super.1999) (en banc). Our standard of review of a ruling on a motion to suppress is well settled. When the Commonwealth appeals from a suppression order we must consider only the evidence from the defendant's witnesses together with the evidence of the prosecution that, when read in the context of the entire record, remains uncontradicted. Commonwealth v. Nester, 551 Pa. 157, 709 A.2d 879 (1998). If the evidence supports the suppression court's finding of facts on the motion to suppress, this Court may reverse only when the legal conclusions drawn from those facts are erroneous. Commonwealth v. Bruce, 717 A.2d 1033 (Pa.Super.1998).

¶ 8 Instantly, the Commonwealth does not contest the suppression court's legal conclusion that Appellee was subjected to an investigative detention. We must therefore consider whether Trooper Banovsky was able to point to specific and articulable facts which, taken together with the reasonable inferences from those facts, reasonably indicate that criminal activity might have been afoot. Commonwealth v. Francis, 700 A.2d 1326, 1328 (Pa.Super.1997) (citing Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)). Furthermore, whether reasonable suspicion exists must be based on the totality of the circumstances. In the Interest of D.M., 556 Pa. 160, 727 A.2d 556, 557 (1999) (citing United States v. Cortez, 449 U.S. 411, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981)). As noted by our Supreme Court:

It is not the function of a reviewing court to analyze whether each individual circumstance gave rise to reasonable suspicion, but rather to base that determination upon the totality of the circumstances—the whole picture. The evidence collected must be seen and weighed not in terms of library analysis by scholars, but as understood by those versed in the field of law enforcement.

Id. at 168, 727 A.2d at 559-560 (citation omitted).

¶ 9 In reaching its conclusion that the detention was illegal the suppression court stated:

In considering the totality of the circumstances, however, the Court finds that this information does not sufficiently support a finding of reasonable suspicion that [Appellee] Rogers was committing a criminal act, namely the transportation and possession of drugs. [Appellee] Rogers['] nervousness is reasonable under the circumstances of being stopped by the police for traveling at an excessive speed. Further, the discrepancies in the documentation give rise at most to a belief that [Appellee] Rogers was operating the vehicle without proper title, registration, or even ownership. Trooper Banovsky's contention, as stated in his affidavit of probable cause for issuance of the search warrant, that these laundry supplies allegedly can be used to mask the odor of marijuana is not sufficient to form a reasonable suspicion of drug activity.

Suppression Court Opinion, 4/14/99, at 7. We disagree.

¶ 10 The facts and circumstances surrounding this case give rise to a belief in the occurrence of criminal conduct. After lawfully stopping Appellee for Vehicle Code violations Trooper Banovsky found Appellee to be in an extreme state of nervousness. The paperwork for the vehicle was both incomplete and conflicting. When asked to explain, the Appellee acknowledged the Pennsylvania address was fictitious. Additionally, while obtaining the paperwork from the Appellee the trooper detected open boxes of laundry detergent and fabric softener sheets in the backseat along with packaging tape. The Trooper knew from his experience in investigating narcotics offenses that these laundry supplies were commonly packaged with certain drugs to mask their odor so as to avoid detection during transport. See Commonwealth v. Epps, 415 Pa.Super. 231, 608 A.2d 1095, 1096 (1992) (holding that officer who noticed broken vent window on a car and subsequently stopped its driver, possessed reasonable suspicion based on the knowledge gained from his experience in investigating car thefts that thieves often gain entry by breaking vent windows, rather than the car's more conspicuous windows), see also, Commonwealth v. Johnson, 444 Pa.Super. 289, 663 A.2d 787, 789 (1995) (finding officer had reasonable suspicion where he saw defendant throw plastic baggies from car window, noted upon inspecting the baggies that their corners had been cut, and knew from experience investigating...