J-S37018-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                 IN THE SUPERIOR COURT OF
                                                    PENNSYLVANIA
                         Appellee

                    v.

DOUGLAS ENGELBERT,

                         Appellant                 No. 1248 WDA 2015


             Appeal from the Judgment of Sentence July 15, 2015
                 In the Court of Common Pleas of Erie County
             Criminal Division at No(s): CP-25-CR-0001764-2014


BEFORE: GANTMAN, P.J., SHOGAN and LAZARUS, JJ.

MEMORANDUM BY SHOGAN, J.:                            FILED JUNE 17, 2016

     Appellant, Douglas Engelbert, appeals from the judgment of sentence

entered on July 15, 2015, in the Erie County Court of Common Pleas.

We affirm.

     Prior to trial, Appellant filed a motion to suppress evidence.       The

suppression court provided the following factual background:

           On June 6, 2014 at approximately 1:45 p.m., Corporal
     Reed Grenci and Trooper Scott McLean of the Pennsylvania State
     Police were on patrol at mile marker 17, Interstate 90, Fairview
     Township, Erie County, Pennsylvania.          Corporal Grenci has
     extensive experience and training in drug and/or contraband
     Interdiction cases (10 years). He has approximately 200 hours
     of training and has served as an instructor. He participated in
     twenty major seizures and has been qualified as an expert
     witness in that area. He also is trained as a canine handler.

           On this particular day, he and Trooper McLean were on an
     interdiction patrol monitoring the eastbound traffic on Interstate
     90. At the time in question, they observed a large diesel truck
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     with heavily tinted windows. He was only able to recognize the
     silhouette of the driver. As this is a violation of 75 Pa.C.S.A.
     § 4524(e)(1), he followed the truck and overtook it. As he was
     passing it, the driver waived [sic] to him, a movement that
     Grenci found unusual. He stopped the vehicle and determined
     that [Appellant] was driving. The vehicle was registered in the
     State of Utah. Based upon his training and experience, he found
     it odd that this vehicle would be traveling such a long distance
     with no apparent load. He ran the plates and determined that
     the owner was Joel Orton. He also observed that there were no
     Department of Transportation markings. Having stopped the
     truck, he approached the driver’s side.           Trooper McLean
     approached the passenger side. They noted that [Appellant] was
     the only occupant. Initially, [Appellant] indicated that the tinting
     was legal in Utah. However, Corporal Grenci determined
     otherwise.

            Grenci asked [Appellant] about the trip. [Appellant] said he
     was on his way to Buffalo, New York to pick up a hot tub which
     he Intended to transport to Utah for his cousin. The trooper
     found this unlikely given the financial cost of such a trip in this
     type of vehicle. [Appellant] also appeared overly nervous. He
     was shaky and wanted the encounter to end. When Grenci
     asked [Appellant] for his cousin’s name, [Appellant] paused for
     an inordinate period of time and asked the trooper why he
     wanted to know. Grenci responded because he was a police
     officer and that’s what he did (ask questions). [Appellant] gave
     the trooper a name, but Grenci didn’t believe him. At this point,
     Grenci believed that [Appellant’s] behavior was consistent with
     others whom he had experienced in other interdiction cases. He
     also knew that most drugs, especially marijuana, originate from
     the western United States. Marijuana is grown in northern
     California, among other places. He also noted that the truck’s
     registration was not in [Appellant’s] name.        He found this
     significant because drug dealers often use third party vehicles
     which allows the driver to claim ignorance of the contents, and
     permits the owners to thwart asset forfeiture (through an
     innocent owner defense). There was only a gym bag located in
     the truck. This was significant because the lack of luggage is
     unusual for the length of the trip. (Grenci estimated that a one-
     way trip from Utah to Buffalo would take, at a minimum, three
     days).     After returning to his vehicle Grenci found that
     [Appellant] had prior arrests including convictions for drug
     possession and delivery. Considering the circumstances, he

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     wrote out a warning. However, by that time he had decided that
     he was going to conduct a canine search of the exterior of the
     vehicle. He returned to the truck and asked [Appellant] to exit,
     which he did. He gave him a warning and returned the vehicle
     documents to him. At that time [Appellant] asked: “Am I free to
     go?”

            Given the totality of the circumstances, and the use of the
     term “free to go” which Grenci interpreted as confirmation of
     [Appellant’s] prior contact in these kinds of circumstances, he
     believed that he had reasonable suspicion to detain the vehicle
     to conduct a canine search for drugs. A canine search was
     conducted and the dog alerted to the passenger side of the
     vehicle. At that point, Grenci believed he had probable cause to
     search the vehicle and conducted a preliminary search of the
     undercarriage. He found a compartment. He was able to place
     his hands in the compartment and felt bags. [Appellant] was
     arrested and the truck was impounded and taken to the
     Pennsylvania Police Barracks where it was searched.              A
     compartment had been installed on the undercarriage of the
     vehicle which contained 65 packages of marijuana all weighing
     approximately one pound per package. At the time of his arrest,
     the [Appellant] told Grenci that he needed to be taken out of
     there because he thought he was being trailed. This, too, was
     significant to Grenci because in these types of drug courier
     situations a trail vehicle is often used to insure that the drugs
     end up at the appointed location and also to determine if the
     vehicle had been interdicted.

Suppression Court Opinion, 12/1/14, at 1-3.

     Appellant filed a motion to suppress which the trial court denied in an

order filed on December 1, 2014. The case proceeded to a bench trial on

May 26, 2015. At the conclusion of the trial, Appellant was found guilty of

possession of a controlled substance with intent to deliver, possession of

marijuana, and possession of drug paraphernalia. On July 15, 2015, the trial

court sentenced Appellant to an aggregate term of eighteen to sixty months




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of incarceration. This timely appeal followed.     On appeal, Appellant raises

one issue for this Court’s consideration:

      Whether the [suppression] court erred in denying Appellant’s
      motion to suppress evidence that was obtained following a
      warrantless search of the Appellant’s vehicle in violation of the
      Appellant’s rights under the 4th Amendment to the United States
      Constitution and Article I of the Pennsylvania Constitution.

Appellant’s Brief at 3.

      With respect to an appeal from the denial of a motion to suppress, our

Supreme Court has stated the following:

      Our standard of review in addressing a challenge to a trial
      court’s denial of a suppression motion is whether the factual
      findings are supported by the record and whether the legal
      conclusions drawn from those facts are correct. When reviewing
      the ruling of a suppression court, we must consider only the
      evidence of the prosecution and so much of the evidence of the
      defense as remains uncontradicted when read in the context of
      the record.... Where the record supports the findings of the
      suppression court, we are bound by those facts and may reverse
      only if the legal conclusions drawn therefrom are in error.

Commonwealth v. Eichinger, 915 A.2d 1122, 1134 (Pa. 2007) (citations

omitted). “It is within the suppression court’s sole province as factfinder to

pass on the credibility of witnesses and the weight to be given their

testimony.” Commonwealth v. Gallagher, 896 A.2d 583, 585 (Pa. Super.

2006). Moreover, our scope of review from a suppression ruling is limited to

the evidentiary record that was created at the suppression hearing. In re

L.J., 79 A.3d 1073, 1087 (Pa. 2013).

      Here, Appellant concedes that Corporal Grenci and Trooper McLean

lawfully stopped Appellant’s vehicle.       Appellant’s Brief at 6.   Rather, the

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issue is whether the warrantless search of the vehicle through use of a

canine was supported by reasonable suspicion.1 Id. at 7.

       It is well settled that there are three levels of interaction between a

citizen and a police officer: a mere encounter, an investigative detention,

and a custodial detention. Commonwealth v. DeHart, 745 A.2d 633, 636

(Pa. Super. 2000).

       A mere encounter can be any formal or informal interaction
       between an officer and a citizen, but will normally be an inquiry
       by the officer of a citizen. The hallmark of this interaction is that
       it carries no official compulsion to stop or respond.

       In contrast, an investigative detention, by implication, carries an
       official compulsion to stop and respond, but the detention is
       temporary, unless it results in the formation of probable cause
       for arrest, and does not possess the coercive conditions
       consistent with a formal arrest.      Since this interaction has
       elements of official compulsion it requires reasonable suspicion
       of unlawful activity. In further contrast, a custodial detention
       occurs when the nature, duration and conditions of an
       investigative detention become so coercive as to be, practically
       speaking, the functional equivalent of an arrest.

Id. (internal citations and quotation marks omitted).

____________________________________________


1
   The United States Supreme Court has explained that a police officer may
conduct certain unrelated checks, such a as a canine sniff, during a lawful
traffic stop. Rodriguez v. U.S., 135 S.Ct. 1609, 1615 (2015). However,
the officer may not do so in a way that prolongs the traffic stop, absent the
reasonable suspicion ordinarily demanded to justify detaining an
individual. Id. (emphasis added). As will be discussed below, Corporal
Grenci had reasonable suspicion, apart from the window tint that caused the
initial traffic stop, to believe that Appellant was trafficking a controlled
substance. Accordingly, it was permissible to extend the traffic stop to
conduct the canine sniff.



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        Accordingly, we must determine whether the officers were 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. Rogers, 741 A.2d

813, 817 (Pa. Super. 1999) (citations omitted).                  “Furthermore, whether

reasonable     suspicion    exists   must      be   based   on    the   totality   of   the

circumstances.” Id. (citations omitted).

        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. (citations omitted).2

        Here, Corporal Grenci testified at the suppression hearing that he

focused on Appellant’s vehicle because of the window tint. N.T., 11/24/14,

at 6.     Concluding that the window tint was too dark and violated the

Pennsylvania Motor Vehicle Code, 75 Pa.C.S. § 4524(e)(1), Corporal Grenci

and Trooper McLean followed Appellant. Id. at 6-7. When they approached

Appellant’s vehicle on the highway, Appellant waved to them. Id. at 7-8.

Corporal Grenci, a fifteen-year veteran with the Pennsylvania State Police,

____________________________________________


2
  We also point out that the use of trained dogs to sniff for the presence of
drugs is a search under Article 1 § 8 of the Pennsylvania Constitution.
Rogers, 741 A.2d at 818 (citation omitted).



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testified that he did not recall anyone on the highway ever waving at him,

and he thought this was suspect. Id. at 3, 8-9.      Specifically, he believed

Appellant was trying to convey to the police that he was a “good guy” and

not doing anything wrong. Id. at 8. The troopers conducted a traffic stop

based on the suspected illegal window tint and approached the vehicle. Id.

at 9. Corporal Grenci asked Appellant where he was going, and Appellant

informed the corporal that he was driving to Buffalo to retrieve a hot tub

from his cousin. Id. at 11. The corporal did not believe the hot tub story as

it seemed costly and implausible.     Id.   Moreover, Appellant was initially

unable to provide his cousin’s name and appeared to stall and then make up

a name. Id. at 12. Appellant’s behavior was overly and unusually nervous.

Id.   Corporal Grenci also thought it was suspicious that the truck was

registered to a third party because using a vehicle owned by a third party is

common among drug traffickers. Id. at 12-14. Corporal Grenci noted that

drug traffickers use vehicles owned by a third party because, if the vehicle is

impounded, the rightful owner can attempt to avoid forfeiture by claiming he

was unaware of the illicit use.   Id. at 14.   Additionally, Appellant had no

luggage for this long trip, only a small gym bag. Id. at 15. Corporal Grenci

also determined that Appellant had two marijuana arrests for possession

with intent to deliver in Nebraska and California. Id. at 17. The truck was

very recently registered and insured, which is common with drug traffickers

because traffickers will use a vehicle for a finite amount of time and take it


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off the street to avoid attracting attention to that vehicle.   Id. at 18-19.

Furthermore, when the corporal handed Appellant back the driver’s license,

registration, and insurance card, Appellant asked if he was free to go before

Corporal Grenci could say anything. Id. at 19. Corporal Grenci stated that

Appellant’s nervousness, impatience, and use of the words “free to go” were

suspicious, because the phrase “free to go” is a term specific to law

enforcement. Id. at 20.

      After review, we agree with the suppression court that Corporal

Grenci’s testimony, viewed together under the totality of the circumstances,

supports a reasonable suspicion that criminal activity was afoot, and it

permitted Corporal Grenci to investigate his suspicion.    See Rogers, 849

A.2d at 1190-1191 (providing that a canine sniff search of person requires

probable cause but a canine sniff search of the exterior of a vehicle canine

sniff need only be supported by reasonable suspicion). Corporal Grenci and

his dog are a canine team certified to detect marijuana, hashish, cocaine,

methamphetamine, and heroin. N.T., 11/24/14, at 21. The canine sniffed

the exterior of the vehicle Appellant was driving and alerted to an area under

the truck that contained a hidden after-market compartment. Id. at 21-22.

“[O]nce a canine sniff of a vehicle’s exterior triggers a positive indication,

reasonable suspicion of contraband in the vehicle ripens into probable

cause.” Commonwealth v. Hernandez, 935 A.2d 1275, 1285 (Pa. 2007)

(citation omitted).   The canine alerting Corporal Grenci to this hidden


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compartment caused the corporal to reach his hand into the compartment

where he could feel the bags and the marijuana buds. N.T., 11/24/14, at

22. The compartment was searched and found to contain sixty-five pounds

of marijuana. Id. at 22-23.

         While no single factor would necessarily suffice to establish reasonable

suspicion, when Corporal Grenci’s testimony is viewed in its totality, we are

satisfied that the suppression court committed no error in denying

Appellant’s motion to suppress. Accordingly, we affirm Appellant’s judgment

of sentence.

         Judgment of sentence affirmed.

         P.J. Gantman joins the Memorandum.

         Judge Lazarus files a Concurring Statement in which P.J. Gantman

joins.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/17/2016




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