J-S12022-15


                                   2015 PA Super 98

COMMONWEALTH OF PENNSYLVANIA,                     IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

TAM THANH NGYUEN,

                            Appellant                 No. 911 EDA 2014


        Appeal from the Judgment of Sentence entered March 14, 2014
              In the Court of Common Pleas of Delaware County
             Criminal Division at No(s): CP-23-CR-0003833-2012


BEFORE: BOWES, SHOGAN, and FITZGERALD,* JJ.

OPINION BY SHOGAN, J.:                                FILED APRIL 27, 2015

       Appellant, Tam Thanh Ngyuen, appeals from the judgment of sentence

entered following his conviction for possession with intent to deliver a

controlled substance (“PWID”). For the reasons that follow, we vacate and

remand.

       The following findings of fact, as rendered by the trial court, are

relevant to our analysis:

       1. On January 4, 2012, shortly after 3:00 a.m., Trooper Jared
       Bromberg, an officer with the Pennsylvania State Police, was on
       duty and working patrol along with Trooper Thomas O’Konski
       when he observed a black Mercedes traveling at a high rate of
       speed. N.T., 6/20/13, pp. 21-23. Trooper Bromberg was working
       the 11 P.M. to 7 A.M. shift that evening. Id. at 20.

____________________________________________


*
    Former Justice specially assigned to the Superior Court.
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     2.    At approximately 3:15 A.M., as Trooper Bromberg was
     driving southbound on Interstate 95 (hereinafter “1-95”), the
     Mercedes drove past the troopers’ patrol vehicle. Id. at 22.
     Upon observing the Mercedes, Trooper Bromberg “clocked” the
     speed of the vehicle by matching its speed for six tenths of a
     mile. Id. at 22. The Mercedes was traveling 73 MPH in a 55
     MPH zone.       See Commonwealth Exhibit, C-1, Affidavit of
     Probable Cause.      Trooper Bromberg also observed the car
     following too closely. N.T., 6/20/13, p. 29.

     3. Trooper Bromberg was in full uniform and in a marked
     Pennsylvania State Police vehicle. Id. at 21.

     4. Trooper Bromberg activated his lights and siren in order to
     conduct a traffic stop of the vehicle. Id. at 22-23. The Mercedes
     pulled over onto the right shoulder of the road, between exits 7
     and 8 on 1-95. Id. at 23.

     5. Trooper Bromberg, who has been with employed with the
     Pennsylvania State Police for about eight and half years, has had
     extensive police training in the detection of controlled
     substances. Id. at 17-18. Over the course of his career,
     Trooper Bromberg has been involved in hundreds of drug
     investigations, and has investigated controlled substances while
     on patrol approximately 250-300 times. Id. at 18. He has made
     approximately 150 stops along the 1-95 Corridor that have
     involved narcotics. Id. at 29.

     6.   Following the stop, Trooper Bromberg approached the
     driver’s side of the Mercedes along with Trooper O’Konski. Id. at
     23.    Trooper Bromberg identified himself to the driver and
     explained the reason for the stop. Id. at 24. After he obtained
     the driver’s license and registration, he asked the driver to exit
     the vehicle. Id. at 24-25. The driver complied and stood at the
     rear of the vehicle per the trooper’s request. The driver was not
     handcuffed. Id. at 26.

     7.   Trooper Bromberg observed the driver “moving around
     excessively, “overtalking” and noticed that the driver was “overly
     apologetic” during the stop. Id. at 24, 29.

     8. As Trooper Bromberg approached the driver’s side of the
     vehicle, Trooper O’Konski approached the passenger side.


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     Trooper O’Konski stood at the right side of the vehicle without
     engaging the passenger. Id. at 25.

     9. When the driver was asked to step to the rear of the vehicle,
     Trooper Bromberg then walked to the passenger side of the
     vehicle and asked the passenger, [Appellant] herein, for his
     driver’s license. Id. at 26-27. [Appellant] refused to answer the
     trooper’s questions and did not make eye contact. Id. at 27.
     Trooper Bromberg noted that in his experience, this type of
     behavior is consistent with narcotics activity discovered during
     traffic stops. [Appellant] eventually provided his information to
     Trooper Bromberg. Id.

     10. Trooper Bromberg then returned to his vehicle and ran both
     the driver and [Appellant’s] information through both NCIC and
     PENNDOT. Id. at 28. [Appellant] came back with “numerous
     prior drug arrests.” Id. at 28.

     11. Trooper Bromberg then returned to the Mercedes and issued
     a written warning for speeding and following too closely. Id. at
     29. Trooper Bromberg returned the driver and [Appellant’s]
     paperwork to them. Id. at 29-30.

     12. Trooper Bromberg then told the driver that the traffic stop
     was complete and that he was free to go. Id. at 30. He told him
     “to be careful pulling away.” Id.

     13. The driver began walking back towards the front driver’s
     seat of the Mercedes and the troopers walked towards their
     patrol vehicle. Id. at 30-31.

     14. Before Trooper Bromberg entered the patrol car, he turned
     around and reengaged the driver. Id. at 31. He explained that
     he had approached his door and the driver had reached the front
     driver’s side door to the Mercedes at this time. Id. at 31. He
     asked the driver if he could ask him some more questions, and
     the driver said yes. Id. at 31.

     15. Trooper Bromberg asked the driver about his nervousness,
     and asked where he had been coming from. Id. at 31-32. He
     also asked about his relationship with [Appellant]. Id. The
     driver answered all of his questions. Id.




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     16. Trooper Bromberg then asked the driver for consent to
     search the vehicle and “all of its contents.” Id. at 33. The driver
     gave consent. Id. at 34.

     17. Trooper Bromberg did not use any threatening language or
     draw his gun during this time. The driver and [Appellant] were
     not handcuffed.

     18. [Appellant] was asked to step out of the vehicle and was told
     that the driver had given consent to search the vehicle. Id. at
     34.

     19. [Appellant] did not make eye contact with Trooper
     Bromberg. Id. at 34. [Appellant] exited the vehicle after Trooper
     Bromberg made a second request. Id. 20.

     20. When [Appellant] exited the vehicle, he stuck his hands in
     his pockets. Id. at 34. Trooper Bromberg asked [Appellant] to
     take his hands out of his pockets and keep his hands visible, and
     he complied. Id. at 34-35.

     21. Trooper Bromberg asked [Appellant] if he had any weapons
     on him, and [Appellant] said no. Id. at 35.

     22. Trooper Bromberg then asked [Appellant] if he could frisk
     him for officer safety. Id. at 35. [Appellant] said yes. Id.

     23. Trooper Bromberg frisked [Appellant] by checking his waist,
     then his pant pocket area. Id. at 35. Upon frisking [Appellant],
     Trooper Bromberg felt a cell phone in his pocket. Id. at 39. He
     asked [Appellant] what the object was and [Appellant] replied
     that it was a cell phone. Id. When Trooper Bromberg felt
     [Appellant’s] right rear pocket, he felt a large amount of cash.
     Id.   When he asked [Appellant] what it was that he felt,
     [Appellant] replied that it was cash. Id.

     24. In [Appellant’s] right front pocket, Trooper Bromberg felt a
     “soft package” that based upon his experience and training, he
     believed was bagged pills. Id. at 39-40. He asked [Appellant]
     what the object was and [Appellant] said “OxyContin.” Id. at 40.

     25. Trooper Bromberg ordered [Appellant] to take the package
     out of his pocket, and [Appellant] complied. Id. at 42.


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        26. When [Appellant] removed the item from his pocket, Trooper
        Bromberg observed “clear, small Ziploc baggies.” Id. at 42. He
        was familiar with these bags from past arrests for narcotics and
        acknowledged that they are commonly referred to as coin bags.
        Id. Trooper Bromberg had seen these types of bags hundreds of
        times before. Id. at 42-43.

        27. Trooper Bromberg then handcuffed [Appellant] and placed
        him under arrest. Id. at 43.

        28. A search incident to arrest was performed and three bundles
        of cash held together with a rubber band, a cell phone, four bags
        of cocaine, and four jars of crack cocaine were recovered from
        [Appellant’s] person. Id. at 43. The amount of cash recovered
        amounted to $1058.20.        Id. at 43-44.    Trooper Bromberg
        immediately recognized the substance in the jars to be crack
        cocaine, based upon past arrests. Id. at 43.

        29. The court found the testimony of Trooper Bromberg to be
        credible.

Trial Court Opinion, 8/21/14, at 3-6.

        Appellant was arrested and charged with PWID,1 possession of a

controlled substance,2 and possession of drug paraphernalia.3 Prior to trial,

Appellant filed a motion to suppress evidence, which the trial court denied

after conducting a suppression hearing.

        Following a bench trial, Appellant was convicted of PWID.       At the

conclusion of trial, Appellant waived his right to a presentence report and


____________________________________________


1
    35 P.S. § 780-113(a)(30).
2
    35 P.S. § 780-113(a)(16).
3
    35 P.S. § 780-113(a)(32).



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asked the trial court to proceed to sentencing. Appellant was sentenced to

the mandatory minimum sentence of thirty-six to seventy-two months.

     Appellant filed a timely notice of appeal on March 25, 2014. The trial

court directed Appellant to file a Pa.R.A.P. 1925(b) statement and Appellant

timely complied.   The trial court issued an opinion pursuant to Pa.R.A.P.

1925(a).

     Appellant presents the following issues for our review:

     1. Whether the lower court abused its discretion in denying
     motion to suppress physical evidence, where Appellant’s consent
     to submit to Terry v. Ohio pat down for weapons was coerced,
     during the course of illegal detention that was wholly
     unsupported by reasonable suspicion that Appellant was
     engaged in criminal activity or articulable suspicion that
     Appellant was armed and dangerous, which violated Appellant’s
     right to a fair search and seizure under the Fourth Amendment,
     and Article 1, Section 8 of the Pennsylvania State Constitution?

     2. Whether the lower court abused its discretion in denying
     motion to suppress physical evidence, where police exceeded
     scope of Terry stop, by conducting invasive search for
     contraband, without reasonable suspicion and after ascertaining
     that Appellant was not armed and dangerous, which violated
     Appellant’s constitutional right to a fair search and seizure under
     the Fourth Amendment and Article 1, Section 8 of the
     Pennsylvania State Constitution?

     3. Whether the lower court abused its discretion in denying
     motion to suppress incriminating statement, where police elicited
     statement during custodial interrogation, without advising
     Appellant of his Miranda Rights, which violated Appellant’s
     constitutional right against self-incrimination under the Fifth
     Amendment and Article 1, Section 9 of the Pennsylvania State
     Constitution?

     4. Whether Appellant was denied a fair suppression hearing,
     where Commonwealth presented evidence of 1) Appellant’s
     consent to submit to pat down and 2) Appellant’s verbal

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        admission to possessing Oxycontin, without apprising Appellant
        of such evidence, through police affidavits or other discoverable
        paper work, prior to the commencement of the suppression
        hearing?

        5. Whether the mandatory minimum sentence of three (3) to six
        (6) years imposed by the trial court should be vacated, where
        the Superior Court, in Commonwealth v. Newman held that
        Pennsylvania mandatory minimum sentencing statutes no longer
        pass constitutional muster, pursuant to the United State
        Supreme Court holding in Alleyne v. United States, that
        mandatory minimum sentencing statutes are unconstitutional
        because they permit the trial court, to increase a defendant’s
        minimum based upon a preponderance of the evidence, rather
        than a jury beyond a reasonable doubt?

Appellant’s Brief at 5-6.

        In his first issue, Appellant argues that the trial court abused its

discretion in denying the motion to suppress physical evidence because the

Terry4 pat-down occurred during the course of an illegal detention

unsupported by reasonable suspicion.             Appellant’s Brief at 13.   Appellant

maintains that the Trooper’s redirection to Appellant to exit the vehicle, after

concluding the initial traffic stop and advising the parties they were free to

leave, was a new interaction requiring an independent showing of reasonable

suspicion that criminal activity was afoot or that Appellant was armed and

dangerous. Id. at 18. Accordingly, Appellant argues, because the Trooper

did not have reasonable suspicion justifying the second interaction, all



____________________________________________


4
    Terry v. Ohio, 392 U.S. 1, 30 (1968).



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evidence recovered incident and subsequent to the Terry pat-down should

be suppressed as fruit of the poisonous tree. Id.

     The standard of review an appellate court applies when considering an

order denying a suppression motion is well established. An appellate court

may consider only the Commonwealth’s evidence and so much of the

evidence for the defense as remains uncontradicted when read in the

context of the record as a whole.    Commonwealth v. Russo, 934 A.2d

1199, 1203 (Pa. 2007) (citing Commonwealth v. Boczkowski, 846 A.2d

75 (Pa. 2004)). Where the record supports the factual findings of the trial

court, the appellate court is bound by those facts and may reverse only if

the legal conclusions drawn therefrom are in error. Id. However, it is also

well settled that the appellate court is not bound by the suppression court’s

conclusions of law. Id. (citing Commonwealth v. Duncan, 817 A.2d 455

(Pa. 2003)).

           With respect to factual findings, we are mindful that it is
     the sole province of the suppression court to weigh the credibility
     of the witnesses. Further, the suppression court judge is entitled
     to believe all, part or none of the evidence presented. However,
     where the factual determinations made by the suppression court
     are not supported by the evidence, we may reject those findings.
     Only factual findings which are supported by the record are
     binding upon this [C]ourt.

Commonwealth v. Benton, 655 A.2d 1030, 1032 (Pa. Super. 1995)

(citations omitted).   In addition, we are aware that questions of the

admission and exclusion of evidence are within the sound discretion of the




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trial court and will not be reversed on appeal absent an abuse of discretion.

Commonwealth v. Freidl, 834 A.2d 638, 641 (Pa. Super. 2003).

      “‘Interaction’ between citizens and police officers, under search and

seizure law, is varied and requires different levels of justification depending

upon the nature of the interaction and whether or not the citizen is

detained.”   Commonwealth v. DeHart, 745 A.2d 633, 636 (Pa. Super.

2000). The three levels of interaction are: mere encounter, investigative

detention, and custodial detention. Id.

            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).

      Reasonable suspicion exists only where the officer is able to
      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. Therefore, this Court must make an objective
      inquiry, namely, whether the facts available to the officer at the
      moment of the [intrusion] warrant a man of reasonable caution
      in the belief that the action taken was appropriate.

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Commonwealth v. Plante, 914 A.2d 916, 922 (Pa. Super. 2006) (internal

citations and quotations omitted).

      “To determine whether a mere encounter rises to the level of an

investigatory detention, we must discern whether, as a matter of law, the

police conducted a seizure of the person involved.”       Commonwealth v.

Reppert, 814 A.2d 1196, 1201 (Pa. Super. 2002).

      To decide whether a seizure has occurred, a court must consider
      all the circumstances surrounding the encounter to determine
      whether the demeanor and conduct of the police would have
      communicated to a reasonable person that he or she was not
      free to decline the officer’s request or otherwise terminate the
      encounter. Thus, the focal point of our inquiry must be whether,
      considering the circumstances surrounding the incident, a
      reasonable [person] innocent of any crime, would have thought
      he was being restrained had he been in the defendant’s shoes.

Id. at 1201-1202 (internal citations and quotations omitted).

      More specifically, our Supreme Court has had the opportunity to

address investigative detentions in the context of motor vehicle traffic stops.

In Commonwealth v. Freeman, 757 A.2d 903 (Pa. 2000), a Pennsylvania

State Police trooper noticed two vehicles traveling fairly close together,

switching lanes and jockeying for position as if in a “cat and mouse” fashion.

Id. at 904. The trooper stopped one of the vehicles, which was driven by

Diana Freeman (“Freeman”), while another officer stopped the second

vehicle. Id. Freeman’s vehicle contained two passengers. Id. When the

trooper asked Freeman if she was lost or having a problem with the other

driver, she explained that she had entered the wrong lane and had


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maneuvered to the left lane to continue west on Interstate 80. Id. She also

denied traveling with the other vehicle. Id.

      While conducting a radio check of Freeman’s driver’s license and

registration card, the trooper learned from another trooper that the

occupants of the other vehicle contradicted Freeman by stating that the two

vehicles were traveling together and further explained that they were

following Freeman’s car because it was having some type of engine problem.

Freeman, 757 A.2d at 905. Returning to Freeman’s car, the trooper gave

Freeman a written warning, returned her license and registration card, and

informed her that she was free to leave. Id.

      The trooper went back to his patrol car but then returned to Freeman’s

vehicle and again asked whether Freeman was traveling with the second car.

Freeman, 757 A.2d at 905. When she replied that she was not, the trooper

informed her that the occupants of the second car had said otherwise, and

he asked her to get out of the vehicle. Id. Freeman did so and walked to

the rear of the car.    Id.   At this point, the trooper asked Freeman for

consent to search her vehicle, which Freeman granted.       Id.   The ensuing

search of the vehicle resulted in the discovery of five bags of marijuana. Id.

      Freeman and her passengers were charged with possession of a

controlled substance and possession with intent to deliver. Freeman, 757

A.2d at 906. Freeman filed a motion to suppress, which was denied.         Id.

After being convicted, appeals were filed by the Commonwealth and


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Freeman.   Id.    Freeman’s appeal centered on the failure to suppress and

was based upon the argument that her consent to a search of the vehicle

had been tainted by an illegal detention. Id. As the initial stop was deemed

lawful, the question was whether there had been, in the interaction between

Freeman and the police officer, a “second” detention that was illegal,

thereby rendering the granted consent invalid.     Id.   Our Supreme Court

concluded that the “second” round of questioning constituted a seizure,

commenting that:

            The transition to and character of the subsequent
     interaction, however, supports the conclusion that Freeman was
     subject to a second seizure. Since the trooper had accomplished
     the purpose of the stop, as he expressly indicated, Freeman
     would have been entirely within her rights to drive away at that
     point.    Nevertheless, the trooper’s subsequent actions were
     inconsistent with his statement to Freeman that she was free to
     leave, as he: returned to Freeman’s vehicle; questioned her
     about the second vehicle; pointed out the inconsistent
     statements from the vehicle’s occupants when she denied
     traveling with that vehicle; and, ultimately and most
     significantly, asked her to step out of the vehicle prior to the
     request for consent. … Moreover, given everything that had
     come before, although these events occurred after express
     conferral of advice that Freeman was free to depart, they would
     have suggested to a reasonable person that such advice was no
     longer operative.

Id. at 907-908.

     In Commonwealth v. Moyer, 954 A.2d 659 (Pa. Super. 2008), (en

banc), this Court was faced with a traffic stop encounter featuring a

“second” round of questioning and also concluded that the additional

questioning constituted a seizure.    There, Moyer’s vehicle was stopped by


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two Pennsylvania State Police troopers when it was observed that the

vehicle’s taillight had a hole in it.    Id. at 661.   One of the troopers also

observed movement within the vehicle near the passenger side floor area.

Id. After approaching the vehicle, the trooper explained the reason for the

stop and obtained Moyer’s license and registration. Id. A check of Moyer’s

background, prompted by the fact that he had bloodshot eyes and acted

nervous, revealed a previous arrest involving marijuana possession. Id. at

661-662.   A written warning for the taillight violation was prepared, after

which the officer returned to the vehicle and directed Moyer out of the

vehicle, showed Moyer the issue with the taillight and told him to have it

repaired. Id. at 662. The trooper then handed Moyer the warning card and

told him he was free to leave. Id.

      However, as Moyer reached the driver’s door of his vehicle, the trooper

called out Moyer’s name and asked him if he minded answering a few

questions. Moyer, 954 A.2d at 662. Moyer was then confronted with the

information regarding his prior arrest and the trooper’s observation of

movement in the vehicle. Id. The trooper then asked Moyer if there were

any drugs or paraphernalia in the car.           Id.   When Moyer responded

negatively, the trooper asked him if there were any drugs or paraphernalia

on his person.     Id.   Moyer again responded negatively, prompting the

trooper to ask if he could check the vehicle to make sure. Id. The trooper

did not inform Moyer that he could refuse the request, and Moyer then


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consented.    Id.   The ensuing search produced two crack pipes, leading

Moyer to admit that he had consumed crack previously. Id.

      Upon these facts, we concluded that Moyer had been subjected to a

subsequent custodial interrogation.   Moyer, 954 A.2d at 668.       In making

this assessment, we noted:

      when an individual has been subjected to a valid detention and
      the police continue to engage that person in conversation, the
      citizen, having been in official detention, is less likely to
      understand that he has the right to refuse to answer questions
      or a search. Furthermore, … the Court stressed that “conferral
      of the ‘free-to-go’ advice is, itself not a reason to forego a
      totality assessment” and therefore does not constitute a
      controlling factor in assessing whether a person would actually
      credit a police indication that he was free to leave.

Id. at 665 (emphasis in original) (citing Commonwealth v. Strickler, 757

A.2d 884, 899 n.24 (Pa. 2000)).

      In the case sub judice, Appellant does not dispute the validity of the

initial traffic stop. It appears that the trooper appropriately effectuated the

stop based upon the motor vehicle code violations he observed.            After

ending the interaction based on the traffic violation, however, Trooper

Bromberg initiated a second round of questioning with the driver. Thus, the

question becomes whether this second interaction constituted a seizure and

whether that subsequent seizure was supported by reasonable suspicion.

Moyer, 954 A.2d at 665.

      Trooper Bromberg provided the following testimony regarding his re-

engagement of the driver. Trooper Bromberg testified that after issuing the


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warning, the driver “thanked me. Again, he was very apologetic and was, as

I was explaining, was over-talking, which is nervousness.” N.T., 6/20/13, at

29.   Trooper Bromberg referenced the following exchange with the driver

after re-engaging him:

      I asked him if I can ask him a few questions. He related yes. I
      asked him about his nervousness, about him being very
      apologetic, about moving around outside of the vehicle, how he
      knew the passenger, where they were coming from.

Id. at 31-32.

      When asked on cross-examination why he re-engaged the driver after

issuing the warning and walking back to his cruiser, Trooper Bromberg

testified: “I took the totality of the circumstances of the driver’s behavior,

the passenger’s behavior, and the passenger’s rap sheet.”          Id. at 51.

Trooper Bromberg agreed with Appellant’s counsel that he possessed the

information regarding Appellant’s criminal record after running the driver’s

and Appellant’s information and before ending the interaction based on the

initial traffic violation. Id. Thus, when again asked why he re-engaged the

driver, Trooper Bromberg testified that “before I could ask for a consent to

search, the driver has to feel free to leave.” Id. at 52. Explaining further,

he stated: “Before the driver was – in order to get consent, I had to turn it

into a mere encounter.”     Id.   Trooper Bromberg provided the following

additional testimony regarding this second round of questioning:

      [Appellant’s counsel]: I thought you told His Honor that my –
      the individuals were free to leave when you told them you were
      giving them a warning.

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     [Trooper Bromberg]:      To end the traffic stop.

     [Appellant’s counsel]:   To end the traffic stop.

     [Trooper Bromberg]:      Correct.

     [Appellant’s counsel]: But in your mind, they weren’t really free
     to leave because you were going to reengage. Weren’t you?

     [Trooper Bromberg]: I made the decision, after I told them
     they were free to go, that I was going to reengage him and ask
     him questions.

     [Appellant’s counsel]:   And that was pre-meditated for legal
     reasons. Yes?

     [Trooper Bromberg]:      Yes.

N.T., 6/20/13, at 53.

     Given the facts surrounding the subsequent interaction, we conclude

that the driver and Appellant were subject to a second seizure. As noted,

the driver and Appellant were stopped for a lawful detention resulting from

the motor vehicle code violations.    Because the trooper had accomplished

the purpose of the stop, as indicated by his issuance of a warning and

stating that the driver and Appellant were free to go, the driver would have

been within his rights to drive away at that point.       Nevertheless, the

trooper’s subsequent actions were inconsistent with his statement that they

were free to leave.     After walking toward his cruiser, the trooper turned

around and returned to the driver’s vehicle, approached the driver, and

began to ask the driver additional questions.    Moreover, when the trooper

re-engaged the driver, the driver was still standing outside of his vehicle.


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N.T., 6/20/13, at 73. As this Court has noted, when a person is standing

outside rather than inside his vehicle, he is less likely to believe that he can

actually   leave   the   area   by   entering   the   car   and   driving   away.

Commonwealth v. Kemp, 961 A.2d 1247, 1254 (Pa. Super. 2008) (citing

Moyer, 954 A.2d at 659).

      Thus, even though the trooper advised the driver and Appellant that

they were free to leave, the trooper’s actions would suggest to a reasonable

person that such advice was no longer operative.        Freeman, 757 A.2d at

908. Indeed, the trooper testified that it was his intention to re-engage the

driver after ending the initial traffic violation stop.     As such, we cannot

conclude that a reasonable person would feel free to leave the scene.         As

noted previously, “when an individual has been subjected to a valid

detention and the police continue to engage that person in conversation, the

citizen, having been in official detention, is less likely to understand that he

has the right to refuse to answer questions or a search.” Moyer, 954 A.2d

at 665. Thus, we conclude that the driver and Appellant were not involved

in a mere encounter with the troopers at that point, but instead were

subjected to a second investigative detention.        See Commonwealth v.

Jones, 874 A.2d 108, 116 (Pa. Super. 2005) (“[W]here 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.”).


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      Accordingly, for this investigative detention to pass constitutional

muster, it must be supported by reasonable suspicion of criminal activity.

Kemp, 961 A.2d at 1254.        “Where the investigative detention at issue

follows a lawful traffic stop, the officer must demonstrate cause for suspicion

after the end of the initial stop, and independent of any basis on which he

conducted the prior stop.” Jones, 874 A.2d at 117.

      Here, the trooper identified the fact that the driver was overly

apologetic, nervous, and talkative as reasons to re-engage the driver.

             In [Commonwealth v.] Sierra[, 723 A.2d 644 (Pa.
      1999)] and DeHart, our Courts pronounced an officer’s
      assessment of nervous demeanor palpably insufficient to
      establish reasonable suspicion of a citizen’s involvement in
      criminal activity, even when viewed in combination with other
      indicia of potential criminal acts.      We have found furtive
      movements similarly deficient even when they occur in high
      crime environments in the late hours of the night. Thus, we find
      no basis to conclude that excessive nervousness and furtive
      movements, even considered together, give rise to reasonable
      suspicion of criminal activity. A police officer’s observation of a
      citizen’s nervous demeanor and furtive movements, without
      more, establishes nothing more than a “hunch,” employing
      speculation about the citizen’s motive in the place of fact. Were
      we to validate such a practice, we would open every occupant of
      a motor vehicle in this Commonwealth to law enforcement
      officers’ wholly subjective interpretation of inoffensive conduct,
      and undermine our Supreme Court’s time-honored insistence
      that police officers may stop our citizens only on the basis of
      objective criteria. This we cannot do. This we will not do.

Reppert, 814 A.2d at 1206 (some internal citations omitted).

      Thus, we conclude that the driver’s behavior of being overly apologetic

or nervous is insufficient to establish reasonable suspicion.     Additionally,

Trooper Bromberg possessed the information regarding Appellant’s criminal

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history prior to ending the initial stop based on the traffic violation.

Accordingly, such information could not serve as the basis of reasonable

suspicion for the subsequent interaction after the initial stop ended.

Moreover, as previously noted, Trooper Bromberg testified to having the

intention of re-engaging the driver after ending the initial traffic violation

stop with the hopes of turning that interaction into a mere encounter. Thus,

we cannot conclude that the Trooper had reasonable suspicion to justify the

second investigative detention.

      Additionally, we find no validity to any argument that the subsequent

search of the vehicle was voluntary. When a consensual search is preceded

by an illegal detention, “the government must prove not only the

voluntariness of the consent under the totality of the circumstances, but ...

must also establish a break in the causal connection between the illegality

and the evidence thereby obtained.” Commonwealth v. Sierra, 723 A.2d

644, 647-648 (Pa. 1999).      In determining whether the consent has been

vitiated by the taint of the preceding illegal detention, the reviewing court

must consider: “(1) the temporal proximity of the illegal detention [and the

defendants’ consent]; (2) the presence of intervening factors between the

two events; and (3) the circumstances surrounding, and the nature of, the

official misconduct.” Id. at 648 (brackets in original).

      Under the facts of the present case, there was insufficient attenuation

between the consent and the illegal detention to purge the taint of the


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Trooper’s unlawful conduct.           The driver consented to the search only

moments after the Trooper re-initiated questioning.              Moreover, there were

no intervening circumstances that would have diminished the coercive

atmosphere of the illegal detention or otherwise justified the search. Finally,

as previously noted, at the time the driver offered to allow the search, the

vehicle was surrounded by two troopers, and Trooper Bromberg had just

repeated his questioning regarding the driver’s excessive nervous and

apologetic demeanor. Under such circumstances, the driver’s consent was

tainted by the officer’s conduct and was therefore ineffective to justify the

search. Sierra, 723 A.2d at 648.

       Because the officers lacked reasonable suspicion to support the

detention and the driver’s consent was tainted, the officers had no authority

to search the car. Therefore, they had no justification for ordering Appellant

out of the vehicle pursuant to the search and subsequently patting him

down. As a result, the evidence seized during the pat-down search should

have been suppressed. Thus, we are constrained to conclude that the court

erred in denying Appellant’s motion to suppress.5

       Judgment      of   sentence     vacated     and   order    denying   Appellant’s

suppression motion reversed. Case remanded for a new trial. Jurisdiction

relinquished.
____________________________________________


5
  Due to our resolution of Appellant’s first issue, we need not address
Appellant’s remaining claims raised on appeal.



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/27/2015




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