Commonwealth Of Pa. v. Powell

• Decision Date: 31 March 2010
• Citation: 994 A.2d 1096
• Parties: COMMONWEALTH of Pennsylvania, Appellantv.Raymond POWELL, Appellee.Commonwealth of Pennsylvania, Appellantv.Clayton J. Solomon, Appellee.
• Court: Pennsylvania Superior Court

994 A.2d 1096

COMMONWEALTH of Pennsylvania, Appellant

v.Raymond POWELL, Appellee.

Commonwealth of Pennsylvania, Appellant

v.Clayton J. Solomon, Appellee.

Superior Court of Pennsylvania.

Argued Feb. 23, 2010.

Filed March 31, 2010.

COPYRIGHT MATERIAL OMITTED

Michelle H. Sibert, Assistant District Attorney, for Commonwealth, appellant.

Timothy L. Clawges, Public Defender, for Powell, appellee.

Royce L. Morris, Harrisburg, for Solomon, appellee.

BEFORE: GANTMAN, ALLEN, and LAZARUS, JJ.

OPINION BY ALLEN J.:

¶ 1 In this appeal, the Commonwealth asserts that the trial court erred in granting Appellees' motion to suppress physical evidence.¹ We affirm in part, reverse in part, and remand.

¶ 2 Following a preliminary hearing, Appellees were held for court on drug and conspiracy charges. Prior to trial, they filed suppression motions. At the suppression hearing, held April 3, 2009, the Commonwealth called Corporal Gregory J. Miller of the Pennsylvania State Police. Although Appellees did not call any witnesses, the audio/visual recording of the traffic stop was played for the court. The suppression court summarized Corporal Miller's testimony as follows: ²

[Corporal Miller] does illegal drug interdiction work and supervises such activities. He testified that part of those activities is learning “how to extend a traffic stop.” On the afternoon of October 9, 2008, Miller was in a uniform working on the Pennsylvania Turnpike in Cumberland County. While driving an unmarked police car, he saw a Honda car with a New York license plate traveling westbound with “large objects hanging from the rearview mirror.” Miller stopped the car for a violation of Section 4524(c) of the Vehicle Code. Miller walked up to the Honda at 14:03:36. Clayton Solomon was the driver and Raymond Powell was a passenger in the front seat. While standing at an open window on the passenger side, Miller said why he had stopped the car. There was a “Bob Marley” bandana and a Christmas tree air freshener hanging from the rearview mirror. Marley [was] a Reggae singer and there were depictions of marijuana leaves on the bandana. Miller said “Take that off-I'm going to give you a warning for it not a ticket.” Solomon provided Miller with his New York driver's license and a registration for the Honda. The vehicle was registered to Beverly C. Johnson at P.O. Box 31697, Rochester, New York. Solomon said she was his wife. He said he and Powell were driving from Queens, New York to Pittsburgh. At 14:04:25 Miller left the passenger door, walked to the rear of the car and talked to a uniformed state trooper who had arrived in a marked patrol car. At 14:04:49, Miller walked back to the passenger side of the car and asked Powell for identification. He told Powell that he is required by regulation to “write down everyone who is in the car.” Powell said that he did not have a license and he gave [Miller] his Jamaican electoral ID card. Miller told the [car's] occupants to turn their cell phones off. He said “You can talk to anyone you want once you get your warning and you are out of here.” During the interaction up to this point, Solomon gave short responses and Powell did not make eye contact with Miller.

Miller returned to his police car at 14:05:44 and conducted a radio check. At times he saw Solomon looking at him in the rearview mirror. The radio check showed that there were no warrants outstanding for Solomon and Powell. Solomon's driver's license and the vehicle registration were in order. At 14:23:10 Miller returned to the Honda after telling his radio contact that he was “going to ask some questions and see what happens.” He gave Solomon back his license and registration and he gave Powell back his “stuff.” He asked Solomon to get out [of the car] so that he could explain the warning to him. Solomon got out and he and Miller went to the rear of the Honda. Miller said: “I need you to sign here-I'll give you a copy of that and you're free to go.” Solomon signed the warning and Miller gave him a copy. At 14:24:14. Miller said: “Here's your copy-have a safe trip alright.” Miller made about a three-quarter turn toward his patrol car. At 14:24:18 he turned back towards Solomon and said “Sir, is it alright if I talk to you for a minute.” Solomon made no response. Miller asked the same question again. Solomon said “No problem.” Miller asked Solomon where they were coming from and he said “From Queens,” and that they were headed to Pittsburgh. Miller asked Solomon “Who lives out there?” Solomon said “Brittany,” and that Brittany was his girlfriend. Solomon told Miller that while in Pittsburgh he was going to pick up some shoes. Miller asked him where were they staying in Pittsburgh “A hotel or something,” to which Solomon said: “No we are staying at her house.” Miller asked who Powell is and Solomon said “A friend.” Miller told Solomon “I am going to talk to him [referring to Powell] for one minute. Hang loose here.” At 14:25:30 Miller went to the passenger side window of the Honda. He told Powell that he gave Solomon a warning with no fine and no points. He said “Do you mind if I talk to you a couple of minutes.” Powell answered some of the same questions Miller had asked Solomon although he added that Brittany was sick and that they were going to come back from Pittsburgh right away. At 14:26:27, Miller walked back and talked again to Solomon. He asked him if he had any guns, cocaine, marijuana or any large amounts of money he could not account for. Solomon said “no” to each item. By this time a second uniformed state trooper who had arrived in another marked patrol car was present. [Miller had not called for assistance; both troopers' arrival was unexplained.] At 14:26:44, Miller said “Do you have a problem with me searching the car.” Solomon grunted something that cannot be deciphered on the audiotape. He gestured toward the car and Miller immediately asked again: “Is it okay to search it?” At 14:26:47 Solomon made no response and again gestured toward his car. [On direct examination Miller testified that when he asked Solomon if he had a problem with him searching the car, Solomon said “nah,” and motioned toward his car. On cross-examination he testified that he wrote in his police report that Solomon said “Yeah or something to that effect.” What the recording shows is that Miller asked Solomon a second time: “Okay to search it,” to which no response can be heard. Solomon again made a small gesture with his right hand toward the Honda and walked towards the passenger door. Miller never testified that he asked Solomon a second time for consent to search the car.] Miller said “Hang loose.” Solomon walked toward the driver's door and the other trooper said “Come here a minute.” Solomon arrived at the driver's door and the other trooper walked up to him and directed him away from the door. Miller said: “Come over here a second.” The trooper and Miller walked back to the rear of the car where Miller asked Solomon if he had any weapons and told him he is going to pat him down. The third trooper was at the rear of the Honda. Miller had Powell get out of the car. Miller told both Powell and Solomon that they were not under arrest. They were patted down. A search of the Honda was conducted which resulted in the seizure of contraband.

Suppression Court Opinion, 5/1/09, at 3-7 (footnotes omitted).

¶ 3 After hearing Corporal Miller's testimony, the suppression court took the matter under advisement. By order entered May 1, 2009, the suppression court granted Appellees' suppression motion. According to the suppression court, although the initial traffic stop for the rearview mirror obstruction was proper, Solomon did not give Corporal Miller consent to search the vehicle. On this basis alone, the court ruled that all of the physical evidence seized was subject to suppression. The court further found, however, that even if Solomon had given the proper consent, the evidence would still have to be suppressed because the prolonged detention following the initial stop was unlawful, and there was not a sufficient cessation between the conclusion of the traffic stop and Corporal Miller's renewed interaction with Solomon under the dictates of Commonwealth v. Strickler, 563 Pa. 47, 757 A.2d 884 (2000) and Commonwealth v. Freeman, 563 Pa. 82, 757 A.2d 903 (2000). This appeal followed. The suppression court did not require Pa.R.A.P. 1925 compliance.

¶ 4 The Commonwealth raises the following issues on appeal:

I. DID THE [SUPPRESSION] COURT ERR IN CONCLUDING THAT THE INITIAL DETENTION WAS UNLAWFUL BASED ON THE DURATION OF THE TRAFFIC STOP, WHERE THE ENTIRE TRAFFIC STOP TOOK APPROXIMATELY 23 MINUTES?

II. DID THE [SUPPRESSION] COURT ERR IN FINDING THERE WAS NO SUFFICIENT BREAK IN THE CAUSAL CHAIN BETWEEN THE PRIOR UNLAWFUL DETENTION AND CONSENT TO SEARCH?

III. WERE [APPELLEES] SUBJECT TO A CONTINUED INVESTIGATIVE DETENTION BASED ON REASONABLE AND ARTICULABLE SUSPICION THAT CRIMINAL ACTIVITY WAS AFOOT?

IV. DID THE [SUPPRESSION] COURT ERR WHEN IT FOUND THAT [SOLOMON'S] CONSENT TO SEARCH WAS NOT UNEQUIVOCAL, SPECIFIC AND VOLUNTARY?

V. DOES [POWELL] LACK STANDING WHEN HE DID NOT SHOW, AS THE PASSENGER, THAT HE HAD A LEGITIMATE EXPECTATION OF PRIVACY IN THE VEHICLE?

Commonwealth's Brief at 4.

¶ 5 The standard of review employed by an appellate court when reviewing the grant of a suppression motion has been summarized by our Supreme Court:

We begin by noting that where a motion to suppress has been filed, the burden is on the Commonwealth to establish by a preponderance of the evidence that the challenged evidence is admissible. Pa.R.Crim.P. 323(h). See Commonwealth v. Iannaccio, 505 Pa. 414, 480 A.2d 966 (1984) cert. denied, 474 U.S. 830, 106 S.Ct. 96, 88 L.Ed.2d 78 (1985). In reviewing the ruling of a suppression court, our task is to determine whether the factual findings are supported by the record. Commonwealth v. Monarch, 510 Pa. 138, 147, 507 A.2d 74, 78 (1986). If so, we are bound by those

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