J-S22025-17


                                  2017 PA Super 244

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

LEVI A. GREEN

                            Appellant                  No. 1171 MDA 2016


               Appeal from the Judgment of Sentence July 1, 2016
                In the Court of Common Pleas of Luzerne County
               Criminal Division at No(s): CP-40-CR-0000336-2015


BEFORE: SHOGAN, J., MOULTON, J., and PLATT, J.*

OPINION BY MOULTON, J.:                                  FILED JULY 25, 2017

       Levi A. Green appeals from the July 1, 2016 judgment of sentence

entered in the Luzerne County Court of Common Pleas following his

convictions for possession with intent to deliver a controlled substance

(“PWID”), possession of a controlled substance, and possession of drug

paraphernalia.1 We affirm.

       On August 4, 2014, at approximately 4:00 p.m., Pennsylvania State

Police Trooper Mark Conrad was conducting radar enforcement on State

Route 115 in Bear Creek Township, Luzerne County, which had a speed limit

of 45 miles per hour. Trooper Conrad is assigned to the Northwest K-9 Unit

____________________________________________


       *
           Retired Senior Judge assigned to the Superior Court.
       1
           35 P.S. § 780-113(a)(30), (a)(16), and (a)(32), respectively.
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and had Astor, a Pennsylvania State Police canine, with him. 2         Trooper

Conrad’s vehicle was “positioned across from the Bear Creek Charter School

near [an] access ramp to the [Pennsylvania] Turnpike.”           Trial Ct. Op.,

10/24/16, at 2 (“1925(a) Op.”).

       Trooper Conrad measured the speed of a tan-colored Dodge sedan and

obtained a reading of 62 miles per hour. He then activated his emergency

lights and stopped the vehicle.            When Trooper Conrad approached the

vehicle, he noticed that Green, the vehicle’s sole occupant, appeared “overly

nervous for [a] traffic violation stop,” as Green’s “lips and face area around

his lips were trembling, and . . . a carotid artery in his neck appeared to be

pounding.”3 N.T., 10/13/15, at 10-11.

       Trooper Conrad recognized Green and the vehicle from two prior traffic

stops.4 In the first, Green was an occupant in a different vehicle traveling

from Philadelphia. During that stop, Trooper Conrad recovered cocaine and

marijuana hidden in the vehicle’s engine compartment.           In the second,

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       2
        Trooper Conrad is certified to handle police canines, and Astor
received re-certification as a drug detection dog in December of 2014.
       3
       Green testified at the suppression hearing. Green told the trial court
that he appeared nervous because Trooper Conrad had previously arrested
members of his family. N.T., 10/13/15, at 44.
       4
       At the suppression hearing, Green testified that Trooper Conrad also
asked Green if the Trooper knew him from somewhere and Green responded
that he did not know from where the Trooper would know him. N.T.,
10/13/15, at 43-44.



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Trooper Conrad stopped the same tan Dodge sedan driven by its owner

almost three months before the current stop, and found a hypodermic

needle in the vehicle.

       While at the window of the vehicle,5 Trooper Conrad asked Green for

the registration and insurance documents for the vehicle. Green replied that

he did not own the car and it was not registered to him.         Trooper Conrad

then asked Green about his travel plans. Green stated that he was returning

from Philadelphia, where he had dropped off his son at approximately 9:00

a.m.       Trooper Conrad returned to his vehicle and ran a criminal history

check on Green, which showed that Green had a “lengthy criminal history for

assault and drug offenses.”         1925(a) Op. at 3.   Trooper Conrad called for

backup, returned to the vehicle, and asked Green to step out.

       Suspicious that Green may have been trafficking drugs, Trooper

Conrad asked Green to consent to a search of the vehicle.6          When Green

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       5
        At the suppression hearing, Green testified that when he passed
Trooper Conrad’s vehicle, “there were at least five . . . cars behind him,” and
Trooper Conrad “did not pull directly behind Green’s vehicle, but rather
behind the fifth car behind Green.” 1925(a) Op. at 4. According to Green,
Trooper Conrad approached the vehicle and asked Green “if he knew that he
was speeding.” Id. Green denied speeding. Id.
       6
        At the suppression hearing, Green testified that after Trooper Conrad
went back to his cruiser and re-approached the sedan, Trooper Conrad
asked Green to step out of the vehicle and sign a document that Trooper
Conrad presented as a citation for speeding. Green, however, characterized
this document as a consent form to search the vehicle and refused to sign it.
Green stated that Trooper Conrad asked to search Green’s person and
(Footnote Continued Next Page)


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declined, Trooper Conrad deployed Astor.          Astor alerted to the odor of

narcotics on both the driver and passenger sides of the vehicle.      Trooper

Conrad then searched the vehicle and found a folded black bag in the engine

compartment next to the air filter, located on the passenger side of the

vehicle. Inside the black bag, Trooper Conrad discovered three sleeves of

heroin, containing 525 packets total.

      On August 17, 2015, Green filed a motion to suppress, arguing that

(1) Trooper Conrad had no reasonable suspicion to detain him or to deploy

Astor to sniff the vehicle, and (2) Trooper Conrad lacked probable cause to

search the vehicle.

      On October 13, 2015, the trial court held a suppression hearing.

Trooper Conrad testified on behalf of the Commonwealth, noting that, along

with the factual information above, he had been employed by the

Pennsylvania State Police for 10 years, had received specialized training in

drug investigation and drug interdiction, had been involved in approximately

1,000 drug investigations, and had been previously qualified as an expert in

drug trafficking and highway interdiction. On the Commonwealth’s motion,

the trial court accepted Trooper Conrad as an expert in drug trafficking and

drug interdiction.         Trooper Conrad testified that based on: (1) his

experience, (2) his prior contacts with Green and the vehicle, (3) Green’s

                       _______________________
(Footnote Continued)

performed a pat-down search. Green described the search as offensive,
alleging that Trooper Conrad grabbed Green’s genitals. 1925(a) Op. at 5.



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nervousness, (4) Green’s return from Philadelphia, which is a drug-source

city, and (5) Green’s use of a third-party vehicle whose owner was not

present, he believed that he had reasonable suspicion to deploy Astor.

      On December 23, 2015, the trial court denied Green’s motion to

suppress.         Green proceeded to a jury trial.    On May 26, 2016, the jury

convicted Green of the aforementioned charges. On July 1, 2016, the trial

court sentenced Green to an aggregate term of 1 to 2 years’ incarceration

followed by 2 years’ probation. On July 7, 2016, Green timely filed a notice

of appeal.

      Green raises three issues on appeal:

             I.     Whether Trooper Conrad exceeded the scope of the
                    predicate traffic stop of [Green], for allegedly
                    speeding, and then subjected [Green] to an illegal
                    detention    that    was    wholly   unsupported     by
                    reasonable suspicion that [Green] was engaged in
                    criminal activity or articulable suspicion that [Green]
                    was armed and dangerous?

         II.        Whether Trooper Conrad conducted an illegal canine
                    sniff of [Green]’s vehicle after the conclusion of the
                    predicate traffic stop and without the requisite
                    reasonable suspicion that [Green] was engaged in
                    criminal activity?

        III.        Whether Trooper Conrad conducted an illegal
                    warrantless search of [Green]’s car after the
                    conclusion of the predicate traffic stop and without
                    the requisite probable cause to conclude that
                    [Green] was engaged in criminal activity?

Green’s Br. at 4 (suggested answers omitted).

      In reviewing the denial of a suppression motion, we must determine




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           whether the suppression court’s factual findings are
           supported by the record and whether the legal conclusions
           drawn from those facts are correct.             Because the
           Commonwealth prevailed before the suppression court, we
           may consider only the evidence of the Commonwealth and
           so much of the evidence for the defense as remains
           uncontradicted when read in the context of the record as a
           whole. Where the suppression court’s factual findings are
           supported by the record, we are bound by these findings
           and may reverse only if the court’s legal conclusions are
           erroneous.       Where, as here, the appeal of the
           determination of the suppression court turns on allegations
           of legal error, the suppression court’s legal conclusions are
           not binding on an appellate court, whose duty it is to
           determine if the suppression court properly applied the law
           to the facts. Thus, the conclusions of law of the courts
           below are subject to our plenary review.

Commonwealth v. Jones, 988 A.2d 649, 654 (Pa. 2010) (internal

quotations and citations omitted).

         First, Green argues that Trooper Conrad lacked reasonable suspicion to

detain Green. Green asserts that Trooper Conrad’s traffic stop was limited

to issuing Green a citation for the speeding infraction and, therefore, Trooper

Conrad illegally detained him “after the conclusion of the predicate traffic

stop.”     Green’s Br. at 10.   Further, Green contends that Trooper Conrad

lacked reasonable suspicion to detain Green based on the totality of the

circumstances, likening his case to Commonwealth v. Dales, 820 A.2d 807

(Pa.Super. 2003), in which this Court found that a police officer lacked




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reasonable suspicion to detain a vehicle and acted on a hunch. 7                   We

disagree.

       Green asserts that Trooper Conrad subjected him to an investigative

detention.     The Commonwealth does not argue otherwise and we agree.

See Commonwealth v. By, 812 A.2d 1250, 1255-56 (Pa.Super. 2002)

(“Where the purpose of an initial traffic stop has ended and a reasonable

person would not have believed that he was free to leave, the law

characterizes a subsequent round of questioning by the police as an

investigative detention or arrest.”).

       Because an investigative detention “constitutes a seizure of a person

and activates the protections of the Fourth Amendment[,]” Commonwealth

v. Baldwin, 147 A.3d 1200, 1203 (Pa.Super. 2016), we must determine

whether      Trooper   Conrad     had    reasonable    suspicion   to   detain   Green

independent of the traffic stop.               “To constitute a valid investigative

detention, the seizure must be justified by an articulable, reasonable
____________________________________________


       7
        Green concedes that Trooper Conrad lawfully stopped the vehicle for
an alleged speeding violation. In its opinion, the trial court used the
reasonable-suspicion standard to determine that Trooper Conrad lawfully
stopped Green for a speeding violation.        1925(a) Op. at 8.     Under
Pennsylvania law, a police officer may only stop a motorist for speeding if
that officer possesses probable cause that the motorist was speeding.
Commonwealth v. Salter, 121 A.3d 987, 993 (Pa.Super. 2015) (“If a
vehicle is stopped for speeding, the officer must possess probable cause to
stop the vehicle. . . . because when a vehicle is stopped, nothing more can
be determined as to the speed of the vehicle when it was observed while
traveling upon a highway.”). However, it is clear that Trooper Conrad had
probable cause to stop Green for a speeding violation.



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suspicion that [Green] may have been engaged in criminal activity

independent    of    that    supporting      h[is]   initial   lawful   detention.”

Commonwealth v. Freeman, 757 A.2d 903, 908 (Pa. 2000). This Court

has stated the following regarding reasonable suspicion:

             [T]o establish grounds for reasonable suspicion, the
         officer must articulate specific observations which, in
         conjunction with reasonable inferences derived from those
         observations, led him reasonably to conclude, in light of
         his experience, that criminal activity was afoot and that
         the person he stopped was involved in that activity. The
         question of whether reasonable suspicion existed at the
         time [the officer conducted the stop] must be answered by
         examining the totality of the circumstances to determine
         whether the officer who initiated the stop had a
         particularized and objective basis for suspecting the
         individual stopped. Therefore, the fundamental inquiry of
         a reviewing court must be an objective one, namely,
         whether the facts available to the officer at the moment of
         the [stop] warrant a man of reasonable caution in the
         belief that the action taken was appropriate.

Commonwealth v. Basinger, 982 A.2d 121, 125 (Pa.Super. 2009)

(internal citations and quotation marks omitted; alterations in original).

      We conclude that Trooper Conrad possessed reasonable suspicion to

detain Green on suspicion that he was trafficking drugs.            When Trooper

Conrad   approached    the   vehicle   and    made     contact   with   Green,   he

immediately noticed that Green was “overly nervous just for being stopped

for a traffic violation,” as Green’s carotid artery was pulsating and “his lips

and face area around his lips were trembling.”         N.T., 10/13/15, at 11-12.

Upon reviewing the vehicle’s documentation, Trooper Conrad discovered that

the vehicle belonged to an absent third party, which, in his experience,


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J-S22025-17



raised his suspicion that the vehicle was being used for drug trafficking. In

addition, Green stated that he was returning from Philadelphia, a city known

to Trooper Conrad as a source location for narcotics. Trooper Conrad also

performed a criminal background check on Green, which showed “a lengthy

criminal history for . . . assault and drug offenses.”      1925(a) Op. at 3.

Further, when Trooper Conrad stopped the vehicle, he remembered prior

contacts with Green and with the subject vehicle.      Trooper Conrad’s prior

contact with Green, where Green was a passenger in a vehicle stopped by

Trooper Conrad, resulted in recovery of cocaine and marijuana hidden in the

engine compartment of the vehicle. Trooper Conrad’s prior contact with the

tan Dodge sedan resulted in recovery of a hypodermic needle in the

passenger compartment. Under these circumstances, we agree with the trial

court that Trooper Conrad possessed reasonable suspicion that Green was

trafficking drugs.

      Green argues that his case is controlled by our decision in Dales.

There, an officer stopped a vehicle for a suspected illegal tint and during that

stop noticed a number of air fresheners in the vehicle and some type of

“mediciney” scent in the vehicle, but not a scent that was attached, in that

officer’s experience, to any particular controlled substance. Dales, 820 A.2d

at 809-10. After the officer checked the driver’s information and determined

that the driver was properly licensed and the vehicle registered and insured,

the officer explained the nature of the window tint violation to the driver and

that if the driver removed the tint, he would be in compliance the Vehicle

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Code. Id. The officer then began asking questions about travel plans and

asked the driver whether there was anything illegal in the vehicle.    Id. at

811. The driver responded in the negative and the officer asked to search

the vehicle. Id. The driver consented to a search and the officer recovered

approximately one pound of crack cocaine from the trunk of the vehicle. Id.

On the driver’s motion, the trial court suppressed the crack cocaine found by

the officer. Id.

      We affirmed the trial court’s ruling that the officer lacked reasonable

suspicion to detain the driver beyond the initial traffic stop.   Id. at 815.

Specifically, we found that the officer continued with a second round of

questioning after citing the driver for the violation, which required

reasonable suspicion of criminal activity beyond the tint violation. Because

the officer “only observed [that]: (1) there was a smell of bactine emanating

from the [driver]’s vehicle; (2) [there] were several air fresheners in the

vehicle, and (3) the [driver] appeared nervous[,]” we concluded that the

facts available to the officer supported no more than a hunch of criminal

activity and, as such, the officer lacked reasonable suspicion to detain the

driver.   Id. at 814-15.   Here, in contrast, the facts and circumstances

available to Trooper Conrad, independent of the speeding violation for which

Trooper Conrad stopped Green, provided reasonable suspicion that Green

was trafficking drugs.




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       Next, Green argues that Trooper Conrad lacked reasonable suspicion

to deploy Astor and conduct a canine sniff. For the reasons set forth above,

we disagree.

       A canine sniff is a search pursuant to Article I, Section 8 of the

Pennsylvania Constitution.        Commonwealth v. Rogers, 849 A.2d 1185,

1190 (Pa. 2004).8 However, because “this type of search . . . ‘is inherently

less intrusive upon an individual’s privacy than other searches[,]’” our

Supreme Court has held that police do not need “probable cause to conduct

a canine search of a place.”         Id. (quoting Commonwealth v. Johnston,

530 A.2d 74, 79 (Pa. 1987)).             “[R]ather, the police need merely have

reasonable suspicion for believing that narcotics would be found in the place

subject to the canine sniff.”9 Id.

       In light of our conclusion that Trooper Conrad possessed reasonable

suspicion that Green was trafficking drugs, we similarly conclude that

Trooper Conrad had reasonable suspicion to believe that narcotics would be




____________________________________________


       8
        This is different from federal law. See, e.g., Illinois v. Caballes,
543 U.S. 405, 409 (2005) (holding that canine sniff “performed on the
exterior of respondent’s car while he was lawfully seized for a traffic
violation” was not “a constitutionally cognizable infringement . . . on
respondent’s privacy expectations” under the Fourth Amendment)
       9
       When the subject of the search is a person, police must possess
probable cause. See Commonwealth v. Martin, 626 A.2d 556, 560 (Pa.
1993).



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found in the vehicle.        Accordingly, Trooper Conrad was entitled to deploy

Astor and conduct a canine sniff of Green’s vehicle.

        Next, Green argues that Trooper Conrad lacked the requisite probable

cause to search the vehicle after Astor indicated the presence of drug odors.

Green argues that “Trooper Conrad based his illegal warrantless search on

the illegal canine sniff of [Green’]’s car[,]” and that “[a] reading of [Trooper

Conrad’s] suppression hearing testimony indicates no independent factors

that would have provided Trooper Conrad with the probable cause needed to

support a warrantless search of [Green]’s vehicle. Green’s Br. at 16. We

disagree.

        Police may search an automobile without a warrant so long as they

have probable cause to do so, as an automobile search “does not require

any     exigency     beyond    the    inherent     mobility   of   a     motor   vehicle.”

Commonwealth v. Gary, 91 A.3d 102, 104 (Pa. 2014).10                       Our Supreme

Court has concluded that Article I, Section 8 of the Pennsylvania Constitution

is    co-extensive    with    the    Fourth    Amendment      to   the    United   States
____________________________________________


        10
         Gary is technically a plurality decision. Former Justice Orie Melvin
did not participate in the consideration or decision of the case, which led to a
decision by only six justices of the Court. Justice McCaffery wrote the
opinion announcing the judgment of the Court, which Chief Justice Castille
and Justice Eakin joined. Justice Todd wrote a dissent that Justice Baer
joined. Justice Saylor, however, wrote a concurrence, in which he “join[ed]
the lead Justices in adopting the federal automobile exception.” Gary, 91
A.3d at 138 (Saylor, J., concurring). Therefore, Gary is binding precedent
on this Court with respect to Pennsylvania’s adoption of the federal
automobile exception to the warrant requirement.



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Constitution, which has long supported a warrant exception for automobile

searches so long as probable cause to search exists. See id. at 108-13; see

also Carroll v. United States, 267 U.S. 132 (1925) (establishing federal

automobile exception to warrant requirement under Fourth Amendment).

With respect to probable cause to search, our Supreme Court instructs us

that

           [p]robable cause exists where the facts and circumstances
           within the officers’ knowledge are sufficient to warrant a
           person of reasonable caution in the belief that an offense
           has been or is being committed. With respect to probable
           cause, this [C]ourt adopted a “totality of the
           circumstances” analysis in Commonwealth v. Gray, 509
           Pa. 476, 503 A.2d 921, 926 (1985) (relying on Illinois v.
           Gates, 462 U.S. 213, . . . (1983)). The totality of the
           circumstances test dictates that we consider all relevant
           facts, when deciding whether [the officer had] probable
           cause.

Commonwealth v. Luv, 735 A.2d 87, 90 (Pa. 1999) (some citations and

quotations omitted).

       Astor indicated the presence of narcotics odors on both sides of the

vehicle.    Astor’s indication alone was sufficient to raise Trooper Conrad’s

reasonable suspicion to probable cause.        See Rogers, 849 A.2d at 1192

(“[The dog] alerted to the driver’s side door; this indicated to the officers

that she had detected narcotics.    At that juncture, a person of reasonable

caution [would believe] that an offense has been or is being committed, and

reasonable suspicion ripened into probable cause.”) (internal quotation

omitted; some alterations in original).       In light of Trooper Conrad’s drug



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interdiction and drug-detection experience and Astor’s indication, we

conclude that the facts and circumstances known to Trooper Conrad were

“sufficient to warrant a person of reasonable caution in the belief that” Green

was trafficking drugs.

      Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/25/2017




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