J-A01014-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee

                       v.

BRETT YOUNG,

                            Appellant                No. 163 EDA 2015


           Appeal from the Judgment of Sentence September 8, 2014
                 In the Court of Common Pleas of Bucks County
              Criminal Division at No(s): CP-09-CR-0002095-2013


BEFORE: LAZARUS, J., OTT, J., and STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.:                      FILED MARCH 01, 2016


        This is an appeal from the judgment of sentence entered in the Court

of Common Pleas of Bucks County by the Honorable Albert J. Cepparulo on

September 8, 2014, following Appellant’s convictions of two counts of

Possession of a Controlled Substance with Intent to Manufacture or Deliver

(PWID) and five counts of Use or Possession of Drug Paraphernaila.1      On

appeal, Appellant contends the trial court erred in denying his motion to

suppress items seized from his home following a traffic stop.    Following a

careful review of the record, we affirm.



____________________________________________


1
    35 Pa.C.S. §§780-113(a)(30), (a)(32), respectively.



*Former Justice specially assigned to Superior Court.
J-A01014-16


       At the hearing held on Appellant’s pretrial motions, Officer Gregory

Smith, an eleven-year veteran of the Bensalem Township Police Department

specially trained in narcotics investigations, testified that in November of

2012 he was contacted by a reliable confidential informant (C.I.) who

informed him Appellant was a large-scale marijuana dealer in the area from

whom he or she had previously purchased marijuana. N.T., 8/21/13, at 26-

27.   The C.I. relayed that Appellant lives near a bar and drives a black

pickup truck. Id. at 27. With a description of Appellant’s vehicle and home,

Officer Smith obtained Appellant’s name and address and discovered he

drove a black, Lincoln pickup truck. Id. at 27-29.

       On November 26, 2012, Officer Smith set up a controlled buy between

Appellant and the C.I.          Id. at 30.       Officer Smith maintained constant

surveillance of the C.I., and Sergeant Robert Bugsch and Officer Joseph

Gansky, also of the Bensalem Township Police Department, maintained a

constant visual surveillance of Appellant’s residence at 5445 Flushing Road,

Bensalem Township, throughout the transaction.2            Id. at 31.   Ultimately,

the C.I. purchased what was later determined to be one pound of raw

marijuana packaged in gallon-sized, plastic vacuum bags.             Id. at 37-41.

____________________________________________


2
  Both Sergeant Bugsch and Officer Gansky had been employed in the field
of law enforcement for a number of years and received narcotics training on
the federal, state and local levels. Between them, they had been involved in
over fifteen hundred (1,500) narcotics investigations. N.T., 8/22/13, at 183;
N.T., 8/23/13, at 462.



                                           -2-
J-A01014-16


Officer Smith thereafter prepared an application for and obtained a GPS

Tracker Order for Appellant’s vehicle which allowed police to monitor his

movements in that when he left the small street on which his home was

located, the aforementioned officers would receive an alert on their cell

phones. N.T., 8/21/13, at 41-42, 43-44, 128-29; N.T., 8/22/13, at 197-98;

N.T., 8/23/13, at 469-70.

         On December 3, 2012, Officer Smith received an alert that Appellant’s

truck had left his residence and was traveling southbound on Roosevelt

Boulevard into Philadelphia.     N.T., 8/21/13, at 44-45.   He communicated

with surveilling officers who located Appellant’s vehicle in the Hop Angel bar

parking lot. N.T., 8/23/13, at 494-95. Approximately twenty minutes after

officers arrived, Appellant left the bar and proceeded to a gas station and

then onto I-76 toward Center City at which time officers lost sight of the

truck.     N.T., 8/22/13, at 204-05, 208, 245; N.T., 8/23/13, at 497, 499.

Officer Smith who had been monitoring the truck’s GPS movements at the

police department soon after informed Sergeant Christie and Officer Gansky

the vehicle had stopped in the area of 30th Street and Cambridge Street in

Philadelphia, and Sergeant Christie and Officer Gansky responded to this

location.    N.T, 8/21/13, at 48-49; N.T., 8/22/13, at 208.     Officer Smith

believed that the number of short, quick stops Appellant was making along

the way indicated he was delivering marijuana at different locations. Id. at

56-58.


                                      -3-
J-A01014-16


      Conducting surveillance of Appellant’s truck on foot, the officers

observed Appellant and an unknown individual exit the residence and walk

over to the vehicle where Appellant retrieved what appeared to be a heavy

hockey-style bag.     The bag’s weight was suggested by the fact that

Appellant struggled to heave it onto his shoulder.      N.T., 8/21/13, at 53;

8/22/13, at 209, 211, 216, 246-47; N.T., 8/23/13, at 500-01, 505.

Appellant returned with his companion to the residence where they remained

for ten to twenty minutes after which they exited with Appellant carrying the

same, still apparently heavy bag which he placed in the bed of his truck.

N.T., 8/22/13, at 215, 218; N.T., 8/23/13, at 502, 507.        Officer Gansky

noticed plastic material hanging out of the top of the then-opened bag.

N.T., 8/22/13, 215-26, 247.      After a brief conversation, Appellant left the

area, and the individual reentered the home. N.T., 8/22/13, at 217-18. The

man was later identified as Jason Mellor.

      Appellant proceeded onto northbound I-95 toward Bensalem.           N.T.,

8/22/13, at 222. Officer Smith contacted a K-9 officer, Officer Brian Cowden

of the Bensalem Township Police Department, to initiate a stop of Appellant's

vehicle when he exited I-95 and conduct a subsequent search of the vehicle

for drugs. N.T., 8/21/13, at 57-58. Officer Smith informed Officer Cowden

of the controlled buy involving the C.I. and Appellant that occurred a week

earlier   and   provided   him   continuous   updated   information   regarding

Appellant’s stops and their location in Philadelphia. N.T., 8/22/13, 222-23,


                                      -4-
J-A01014-16


324, 339-40. In addition, Officers Smith and Gansky both testified that he

informed Officer Cowden of Appellant’s behavior earlier that evening, and

specifically, that he believed he was heading home to Bensalem with a large

bag in the back of his vehicle which, in light of his training and experience,

he believed contained marijuana.           N.T., 8/21/13, at 59; N.T., 8/22/13, at

223.

        The trial court detailed what happened next as follows:

              Officer Cowden had been a K9 officer at Bensalem
        Township Police Department for nine (9) years. N.T. 8/22/13,
        287. During this time, he had become a certified K-9 handler
        and he had handled two (2) different canine officers. Id. at 288-
        89, 290 -91. The K9 related to this case is "Edo." Id. at 290. Edo
        is cross-trained to locate both subjects and the tracking and
        recovery of evidence, building searches, and narcotics detection.
        Id. at 292-296. Edo is trained to detect marijuana, crack
        cocaine, powder cocaine, heroin, and methamphetamine.10 Id. at
        296.
              On December 3, 2012, Officer Cowden observed a 2007
        black Lincoln pick-up truck at approximately 10:45 p.m. and
        followed the vehicle off Street Road and onto the Route 13
        (Bristol Pike) exit. N.T. 8/21/13, 105; N.T. 8/22/13, 325. He
        followed the vehicle northbound on Bristol Pike in the area of
        Park Avenue and effectuated a traffic stop. N.T. 8/22/13, 325.
        Officer Cowden noticed the truck had dark-tinted windows on the
        front wing windows, which is prohibited in Pennsylvania. Id.[3] He
____________________________________________


3
    Section 4524 of the Motor Vehicle Code provides in relevant part:

        § 4524 Windshield Obstructions and wipers
                                  ***
        (e) Sun screening and other materials prohibited.-

              (1) No person shall drive any motor vehicle with any sun
                 screening device or other material which does not
                 permit a person to see or view the inside of the vehicle
(Footnote Continued Next Page)


                                           -5-
J-A01014-16


      testified that this is the reason he pulled [Appellant] over "in
      cooperation with also it being a narcotics investigation." Id. at
      325, 416-17. However, he later candidly testified that he would
      have pulled the vehicle over regardless of the dark–tinted
      windows because he was given orders to do so. Id. at 358 -59.
             During the stop, Officer Cowden first made contact with
      [Appellant] and asked for his driver's license, insurance, and
      registration.11 N.T. 8/22/13, 329, 402. During this stop,
      [Appellant]'s hand was visibly shaking and he "wouldn't make
      eye contact" with Officer Cowden. Id. at 327, 360. Officer
      Cowden told him he was pulled over for his window tint, to which
      [Appellant] responded he planned on having it removed
      immediately. N.T. 8/22/13, 358. Officer Cowden took the
      documents from [Appellant] and ran information back in the
      patrol car. Id. at 360. He then re-approached [Appellant] and
      inquired as to where he was coming from and where he was
      going. N.T. 8/22/13, 338. [Appellant] indicated he came from La
      Scala restaurant in Philadelphia and was going home. N.T.
      8/22/13, 339. Officer Cowden asked [Appellant] to step out of
      the vehicle and asked if he could pat him down and [Appellant]
      indicated he could. Id. at 362-63, 404 -06. At this point he told
      [Appellant] to calm down and relax because he "appeared
      nervous." Id. at 364. Officer Cowden, while he had [Appellant]'s
      documentation in his hands, continued to question [Appellant]
      behind [Appellant]'s vehicle, and asked if he had ever been
      arrested before, exactly where he was in Philadelphia, where he
      lived and for how long, along with other questions. Id. at 364 -
      65, 367-69, 406-07, 413-15, 425-26. Officer Cowden admitted
      that none of these questions related to the window tint issue. Id.
      at 366-67, 424, 425-26. Officer Thomas Mee (also of the
      Bensalem Township Police Department), who responded to the
      scene, also asked [Appellant] unrelated questions as well that
      were not related to the window tint. Id. at 425.
             Officer Cowden then instructed [Appellant] to get back into
      his vehicle and he complied. Id. at 432. Officer Cowden went
      back to his patrol vehicle to continue this "investigation" and
                       _______________________
(Footnote Continued)

                so their windshield, side wing or side window of the
                vehicle.

75 Pa.C.S.A. § 4524(e)(1).




                                            -6-
J-A01014-16


     instead contacted Officers Smith and Gansky and they indicated
     that he should go the "consent route" meaning asking the driver
     if he would consent to a search of his vehicle. N.T. 8/22/13, 340
     -41, 369 -70, 372-74.
           Officer Cowden re-approached [Appellant] and had him
     exit the vehicle a second time. N.T. 8/22/13, 376, 433. He
     brought [Appellant] to the back of his vehicle and informed him
     that he was getting a verbal warning for tinted windows, gave
     him his documentation back, shook his hand and told him he
     was free to go. Id. at 376-77, 393-94, 433-34. [Appellant] got
     back into his vehicle. Id. at 376-77, 394-95.
           However, shortly thereafter Officer Cowden went back to
     the vehicle and asked [Appellant] for the third time to exit the
     vehicle and for consent to search his truck. Id. at 378, 395.
     [Appellant] exited but replied "No. Do you have a search
     warrant?" N.T. 8/22/13, 342, 378. Officer Cowden responded
     "No." Id. [Appellant] then turned to go back to his vehicle and
     Officer Cowden immediately commanded [Appellant] to stand
     towards the back of the vehicle for a third time with Officer
     Mee.12 Id. at 343, 379, 396 -98, 434. [Appellant] complied and
     Officer Cowden then deployed Edo. Id. at 343-44, 379. Edo
     indicated the presence of narcotics at the driver's side of the
     back bumper, in that he started sniffing intently and began to
     scratch at this side of the rear bumper. Id. at 348-49.
           [Appellant] was taken into custody and told the officers
     were going to apply for a search warrant for his vehicle. N.T.,
     8/22/13, 349-50, 380. Before any search warrant arrived, during
     a search incident to arrest, Officer Cowden removed about $450
     from [Appellant]'s person, as well as his ID and cell phone. Id. at
     349-50, 383. Furthermore, Officer Cowden described [Appellant]
     as "cool as a cucumber" in a text to Officer Gansky; he later
     explained that he observed indicators that [Appellant] appeared
     nervous. Id. 331-35. He testified that the following factors
     indicate an individual is nervous: perspiration, carotid artery in
     the neck pulsing vigorously, short breaths/not being able to
     catch one[’]s breath, and folded arms. Id. In [Appellant], Officer
     Cowden only noticed that he crossed his arms very briefly, did
     not make eye contact and his hand was shaking when he initially
     turned documents over to the officer. Id. at 327, 334-35,421-22,
     443.
           Officer Gansky was situated across the street during the
     stop and thereafter he conducted an inventory search of
     [Appellant]'s vehicle, which was not recorded because Officer
     Cowden had turned off the overhead lights of his vehicle which

                                    -7-
J-A01014-16


     activated the video recording. Id. at 226, 228, 250-51, 387-89,
     392. Officer Gansky filled out the general inventory form which
     documents any valuables inside the vehicle as well as the
     present condition of the vehicle. Id. at 228-29. However, at the
     time of the hearing Officer Gansky did not have the form nor
     was it given to the District Attorney in discovery because it was
     not logged with the rest of the evidence and Officer Gansky
     believes it was in a paperwork filing cabinet. Id. 229-30.
     Furthermore, he testified he did not get permission to perform
     an inventory search of the vehicle from a sergeant because he
     did not need to. Id. at 260 -61. However, the BTPD inventory
     policy, which was in effect May 27, 2011, indicates that the
     officer directing the vehicle to be towed/seized "will inspect and
     inventory the vehicle unless responsibility has been transferred
     to someone upon approval of an off -duty supervisor." N.T.
     8/22/13, 260-61; See Exh. DS-1. Further, the policy provides
     that "the search must be conducted in good faith and not as a
     substitute for warrantless investigatory search for gathering
     incriminating evidence or contraband." N.T. 8/22/13, 258-59,
     262-63; See Exh. DS-1. Finally, the inventory policy provides
     that on every inventory, a Vehicle Inventory Form is required to
     be filled out, containing a detailed description of the items
     discovered and a detailed description of where the item was
     located in the motor vehicle, among other things. N.T. 8/21/13,
     152; N.T. 8/22/13, 386; See Exh. DS -1. Officer Gansky stated
     he did not smell anything when he opened up the bed of
     [Appellant]'s truck. N.T. 8/22/13, 281-82. A duty tow was called,
     and following the inventory, Officer Cowden escorted the duty
     tow back to the Bensalem Township Police Department sally
     port. Id. at 351-52.
            Following an inventory of [Appellant]'s truck, Officer
     Gansky, along with Sergeant Christie and BTPD Officer David
     Clee, Jr. (who is assigned through Bensalem to the Drug
     Enforcement Agency),13 made contact with one of the occupant
     owners of 918 North 30th Street, Jason Mellor. N.T. 8/22/13,
     230-32. Mr. Mellor was identified as the subject that was with
     [Appellant] earlier that night. Id. at 231. He advised that he had
     purchased seven (7) pounds of marijuana from [Appellant] for
     $21,000. Id. at 232.
            Meanwhile, Corporal Brady and Officer Smith together
     authored a search warrant for [Appellant]'s vehicle. N.T.
     8/21/13, 64. Included in this search warrant is the following
     information: the C.I.'s initial information, the controlled buy
     conducted on November 26, 2012, observations during the

                                   -8-
J-A01014-16


     Philadelphia surveillance, and the specifics regarding the traffic
     stop and subsequent K9 search of [Appellant]'s vehicle. See Exh.
     CS-2. The search warrant was approved by a magisterial district
     judge and was thereafter executed. N.T. 8/21/13, 67; See Exh.
     CS -2.
            The evidence seized from the search of the truck was
     utilized in the Search Warrant for [Appellant]'s Residence. N.T.
     8/21/13, 78-79; See Exh. CS-4. This search warrant was
     approved by magisterial district judge Gary Gambardella and the
     signed warrant was sent back to the BTPD headquarters at
     approximately 4:00 a.m. on December 4, 2012. N.T. 8/21/13,
     81; See Exh. CS-4. In the search warrant, the following facts
     were sworn to: the initial information provided by the C.I., the
     November 26, 2012 controlled buy, the December 3, 2012
     physical surveillance of Mr. Young in Philadelphia, the stop of
     [Appellant’s] vehicle in Bansalem, items seized from this stop,
     and information received following a knock and talk with Jason
     Mellor. Id. However, on the face sheet of the search warrant in
     the area designated for "Date(s) of Violation," in error 12 /16/12
     was placed. N.T. 8/21/13, 97-99, 163-64, 165; See Exh. C -4.
     Officer Smith explained that this was a typo because
     [Appellant]'s date of birth is December 16Th. N.T. 8/21/13, 163 -
     66.
            Corporal Adam Kolman (of the BTPD) and Officer Cowden
     were sent to secure [Appellant]'s residence at approximately
     1:30 a.m. on December 4, 2012, as [Appellant]'s house backs
     up to the Neshaminy Creek and it would be difficult or impossible
     to safely secure the residence and also out of fear that any other
     evidence would be destroyed. N.T. 8/21/13, 88-90; N.T.
     8/22/13, 353, 355; N.T. 8/23/13, 515, 530 -31. [Appellant] lives
     on a small block of four to five homes. N.T. 8/23/13, 516. The
     officers were provided with a key to [Appellant]’s residence
     recovered from [Appellant] by members of the special
     investigation unit. N.T. 8/21/13, 91-93; N.T. 8/23/13, 515, 520,
     530 -31. They were instructed to make outside observations first
     and to report back to Officer Smith as to their observations. N.T.
     8/23/13, 515. During this time, [Appellant] was in custody. N.T.
     8/21/13, 89; N.T. 8/23/13, 532. Additionally, the officers were
     informed by members of the special investigations unit that
     there would be a large dog in the residence. N.T. 8/23/13, 519 -
     20.
            Once officers arrived, they noticed a work pickup truck
     parked in front of [Appellant]'s residence and other cars parked
     in the cul-de-sac next to his residence. Id. at 516, 531-32.

                                   -9-
J-A01014-16


     Neither officer was aware of what vehicles belonged to what
     home, as this was a common parking lot. Id. at 517. There was
     some interior lighting on the first floor of the residence. Id. at
     516, 518, 532.
            Officer Cowden testified that he believed the two knocked
     on the door and announced their presence prior to entrance.
     N.T. 8/22/13, 354, 446, 448. Corporal Kolman testified to the
     same, and stated it was his common practice to announce his
     presence before entering a residence. N.T. 8/23/13, 521, 533.
     Thereafter, they waited to go into the residence for ten (10) to
     twenty (20) seconds. N.T. 8/22/13, 449. The officers were not
     sure if anyone else would be in the residence. N.T. 8/23/13,
     538. Upon entry, they observed the dog secured in a crate. N.T.
     8/22/13, 449-50; N.T. 8/23/13, 522. They cleared the entire
     residence and announced their presence on every level of the
     home. N.T. 8/23/13, 522-23, 535-36. In an upstairs bathroom,
     they observed a rifle. N.T. 8/23/13, 522. In the basement, they
     observed a four-foot-by-five–foot safe with a bulletproof vest
     next to it and an unopened box that contained eight by ten inch
     freezer bags. N.T. 8/23/13, 522-23. Thereafter, they remained
     on the first (main) floor of the residence until the search warrant
     was obtained. N.T. 8/23/13, 525. They were on scene for
     approximately three (3) hours and during this time no one tried
     to gain entrance to the residence. N.T. 8/23/13, 525. Neither
     officer searched through other items and did not do anything
     other than clear the residence. N.T. 8/23/13, 526. The search
     warrant was thereafter executed on the home at approximately
     4:20 a.m. on December 4, 2012. N.T. 8/21/13, 95.
            Based on both the complexity and number of issues
     presented, we took the matter under advisement and it was
     determined that both the District Attorney and defense would
     submit letter briefs. N.T. 8/23/13, 560-61. We ordered that the
     defense was to submit a brief within twenty (20) days, and the
     District Attorney was given ten (10) days thereafter to respond.
     Id. at 561.
            The defense submitted a brief on or about Thursday,
     September 12, 2013. The Commonwealth submitted a brief on
     or about September 23, 2013.
            Based upon the comprehensive testimony received, the
     legal briefs submitted by both parties, and this court's
     exhaustive review of all applicable appellate law, we issued an
     Order on January 6, 2014 outlining our conclusions of law, with
     the intention of apprising the parties on the record of our
     findings of fact prior to [Appellant]'s trial. We compartmentalized

                                   - 10 -
J-A01014-16


      the volume of issues into three (3) categories and Ordered that
      the motion to suppress all physical evidence seized from
      Defendant's vehicle was granted and all evidence seized was
      suppressed, the motion to suppress physical evidence seized
      during the initial entry into Defendant's residence was denied,
      and the motion to suppress all physical evidence seized pursuant
      to a search warrant issued for Defendant's residence was denied.
      _____
      10
         [Appellant] initially challenged Edo’s qualifications to conduct
      the dog sniff of the exterior of [Appellant’s] vehicle during the
      stop. See “Omnibus Pretrial Motion,” 6/11/13, ¶¶ 27-28.
      However, based on comprehensive testimony of both Officer
      Cowden (Edo’s handler) and his independent trainer Robert
      Swann, we determined that, without question, Edo is qualified.
      See N.T. 8/22/13, 175-182, 290-321; N.T. 8/23/13, 546-53;
      See Exh. CS-8; CS-10. However, because [Appellant] does not
      challenge this determination on appeal, we see no need to set
      forth a detailed account of the facts supporting our reasoning.
      11
         The entire stop was captured by the audio and visual recording
      devices in Officer Cowden’s patrol vehicle. N.T. 8/22/13, 356-
      57. The recitation of the facts regarding the stop below is based
      upon the evidence submitted at the suppression hearing in the
      form of witness testimony as well as our independent review of
      this recording, which was entered into evidence as CS-9.
      12
         Specifically, Officer Cowden stated “step back over there with
      him” four separate times in an increasingly louder voice. N.T.
      8/22/13, 399, 437-38.
      13
         See N.T. 8/21/13, 109.

Trial Court Opinion, filed March 12, 2015, at 9-16.

      Following a stipulated waiver trial held on September 8, 2014, the trial

court found Appellant guilty of the aforementioned crimes.      On that same

date, Appellant was sentenced to twenty-four (24) months to sixty (60)

months in prison on the PWID conviction. Finding him to be RRRI eligible,

the sentencing court reduced his minimum sentence to eighteen (18)

months.    Appellant was further sentenced to a one (1) year period of


                                    - 11 -
J-A01014-16


probation on the five Possession of Drug Paraphernalia convictions which

were to be served consecutively to Count 2 and to each other.      Appellant

filed his Motion for Reconsideration of Sentence on September 17, 2014, and

the same was denied following a hearing on December 15, 2014.

      Appellant filed a notice of appeal with this Court on January 13, 2015,

and his Statement of Matters Complained of on Appeal on February 3, 2015,

wherein he raised the same five issues he presents in his appellate brief for

our review:

         A. Whether the Trial Judge correctly decided that there was
            probable cause for the stop of [Appellant’s] vehicle.
         B. Whether the Trial Judge correctly decided that there was
            probable cause to seize and arrest [Appellant] during the
            traffic stop which led to the seizure of the key to the
            searched home and created a delay during which time the
            police obtained information for use in the search warrant
            of the home.
         C. Whether the Trial Judge correctly decided that the police
            had probable cause and exigent circumstances for a
            warrantless entry of [Appellant’s] residence under both the
            4th Amendment and Pennsylvania Constitution when no
            one was home and [Appellant] was in custody which would
            have required suppression of the evidence found therein.
         D. Whether the Trial Judge correctly decided that there was
            probable cause for the authorization of a night time search
            warrant after excluding information from the search
            warrant as a result of suppression.
         E. Whether the night time search warrant for the home was
            supported by probable cause for a night time execution if
            the evidence observed by police during the warrantless
            entry was omitted.

Brief for Appellant at 3-4.

      In addressing these claims, we are mindful of our well-settled standard

of review:

                                   - 12 -
J-A01014-16


            Our standard of review in addressing a challenge to a trial
      court’s denial of a suppression motion is limited to determining
      whether the factual findings are supported by the record and
      whether the legal conclusions drawn from those facts are
      correct.
                  [W]e may consider only the evidence of the
            prosecution 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 record
            supports the findings of the suppression court, we
            are bound by those facts and may reverse only if the
            court erred in reaching its legal conclusions based
            upon the facts.


Commonwealth v. Williams, 941 A.2d 14, 26-27 (Pa.Super. 2008) (en

banc) (citations, quotations, and quotation marks omitted).

      Initially, Appellant asserts the trial court incorrectly decided officers

had probable cause to stop his vehicle.      We note this Court has held that

there are three categories of interactions between police officers and

citizens.

      The first of these is a “mere encounter” (or request for
      information) which need not be supported by any level of
      suspicion, but carries no official compulsion to stop or to
      respond. The second, an “investigative detention” must be
      supported by a reasonable suspicion; it subjects a suspect to a
      stop and a period of detention, but does not involve such
      coercive conditions as to constitute the functional equivalent of
      an arrest. Finally, an arrest or “custodial detention” must be
      supported by probable cause.

Commonwealth v. Fleet, 114 A.3d 840, 845 (Pa.Super. 2015) (quotation

omitted).

      75 Pa.C.S.A. § 6308(b) permits a police officer to conduct a vehicle

stop if he has reasonable suspicion to believe that a violation of the Motor

                                    - 13 -
J-A01014-16


Vehicle Code is occurring or has occurred; thus, where a Vehicle Code

violation is suspected, but a traffic stop is necessary to further investigate

whether a violation has occurred, an officer need only possess reasonable

suspicion to make the stop. Commonwealth v. Salter, 121 A.3d 987, 993

(Pa.Super. 2015); see also Commonwealth v. Holmes, 14 A.3d 89 (Pa.

2011) (determining the standard of reasonable suspicion was sufficient to

stop a vehicle to investigate a front windshield obstruction).

      To meet the less stringent standard of reasonable suspicion, the officer

must point to specific and articulable facts which, together with the rational

inferences    drawn    therefrom,    reasonably     warrant      the   intrusion.

Commonwealth v. Smith, 904 A.2d 30, 35 (Pa.Super. 2006). Thus, to

establish reasonable suspicion, a police officer must be able to         identify

specifically facts which led him to reasonably suspect a violation of the

Vehicle Code, in this case Section 4524(e).

      The courts also have plainly held that officer safety concerns are

heightened during traffic stops. The United States Supreme Court recently

emphasized that “[t]raffic stops are especially fraught with danger to police

officers, so an officer may need to take certain negligibly burdensome

precautions in order to complete his mission safely.” Rodriguez v. United

States, 135 S.Ct. 1609, 1616 (2015) (internal quotation marks and citations

omitted).    Safety concerns are even greater when the motor vehicle stop

occurs at night. See In re OJ, 958 A.2d 561, 566 (Pa.Super. 2008) (noting


                                     - 14 -
J-A01014-16


that nighttime “creates a heightened danger that an officer will not be able

to view a suspect reaching for a weapon.”).        In light of such valid safety

concerns, police officers who conduct a traffic stop are entitled to require

that the driver and any passengers step out of a vehicle “as a matter of

course.”   Commonwealth v. Campbell, 862 A.2d 659, 663 (Pa.Super.

2004).     Such minimal intrusions on the privacy rights of drivers and

passengers are permissible “because the expectation of privacy with respect

to one’s automobile is significantly less than that relating to one’s home or

office.” California v. Carney, 471 U.S. 386, 391 (1985).

  Furthermore,

      [w]hile it is argued the lesser standard will allow a vehicle stop
      to be made based on pretextual motives, the United States
      Supreme Court made clear that case law “foreclose[s] any
      argument that the constitutional reasonableness of traffic stops
      depends on the actual motivations of the individual officers
      involved.” [Commonwealth v. ]Whren, [517 U.S. 806] at 813,
      116 S.Ct. 1769 [(1996)]. In other words, if police can
      articulate a reasonable suspicion of a Vehicle Code
      violation, a constitutional inquiry into the officer's motive
      for stopping the vehicle is unnecessary.

Commonwealth v. Chase, 960 A.2d 108, 120 (Pa. 2008) (emphasis

added).

      Our review of the record contradicts Appellant’s assertion the initial

traffic stop was illegal, for while the trial court maintained the police officers

had probable cause to stop him for a violation of the Vehicle Code, in light of

the foregoing authority, they needed only reasonable suspicion.            Officer

Cowden testified Appellant’s vehicle had dark tinted windows on the front

                                      - 15 -
J-A01014-16


wing window which is prohibited in Pennsylvania, even though he also

candidly    admitted   he   would   have   pulled   him   over   for   a   narcotics

investigation notwithstanding. N.T., 8/22/13, at 325-26.         In addition, both

Sergeant Christie and Officer Gansky indicated that while surveilling

Appellant prior to the stop, they did not have a clear view of the vehicle’s

interior due to the tint.   Id. at 207, N.T., 8/23/13, at 495.         Furthermore,

Appellant himself admitted to Officer Cowden he was planning to have the

tint removed as he had difficulty seeing out of the vehicle. N.T., 8/22/13, at

327, 376.    As such, under the totality of the circumstances, the officers’

initial observation of Appellant’s dark tinted windows gave them reasonable

suspicion to believe Appellant was in violation of 74 Pa.C.S.A. § 4524(e)(1);

therefore, the subsequent traffic stop to investigate further the window tint

was supported by reasonable suspicion.          See 75 Pa.C.S.A. § 6308(b);

Commonwealth v. Feczko, 10 A.3d 1285, 1291 (Pa. Super. 2010) (en

banc), appeal denied, 25 A.3d 327 (Pa. 2011).

      Regardless, the trial court suppressed all evidence seized from

Appellant’s vehicle and his post-arrest statement upon finding that the

purpose of the stop was effected prior to the officers’ detention of Appellant

and deployment of the K-9; thus, the trial court analyzed the validity of the

search warrant issued for Appellant’s residence without considering such

evidence.




                                     - 16 -
J-A01014-16


      Nevertheless, Appellant next contends that but for their pretextual

stop of Appellant’s vehicle, officers would not have discovered marijuana in

his vehicle, which fact they used “to confront the individual in Philadelphia

which led to information for the search warrant and [ ] would not have had

his key to enter his home while he was in custody without a warrant.” Brief

for Appellant at 21-22. Appellant reasons that if the traffic stop had ended

prior to the K-9 search, he would have returned home with the knowledge

that officers were surveilling him and could have removed any contraband

therefrom and from his vehicle before they discovered it; thus, none of the

evidence uncovered following the search of his residence would have been

available to use against him at trial. Specifically, Appellant indicates that as

the search warrant was authorized approximately three hours after Officer

Cowden and Corporal Kolman arrived at Appellant’s residence, he would

have had a minimum four hours to remove the contraband from his vehicle

and his home. Brief for Appellant at 23-24.

      Initially, we note that while our review of the record reveals Appellant

challenged the propriety of the traffic stop below, he did not set forth in

either his suppression motion or at trial the specific argument he makes

herein that but for the traffic stop, officers would not have been able to seize

evidence from his home pursuant to a search warrant because he would

have had an opportunity to destroy it.        Having failed to raise this specific

issue before the trial court, Appellant has waived it for appellate review.


                                     - 17 -
J-A01014-16


Pa.R.A.P. 302(a)(issues not raised in the trial court are waived on appeal);

Commonwealth v. Muniz, 5 A.3d 345, 352 (Pa.Super. 2010) (this Court

will not consider an issue an appellant fails to raise before the suppression

court).

      Even had he properly preserved this tenuous issue for appellate

review, Appellant’s speculative analysis ignores the fact that in light of its

determination Appellant had been illegally seized once the purpose of the

traffic stop concluded, the trial court suppressed all evidence recovered from

Appellant’s truck as well as his post-arrest statement. In addition, the trial

court properly applied the exclusionary rule when analyzing the validity of

the search warrant issued for his residence in that it carefully and distinctly

considered the items seized as a result of the traffic stop, the officers’ plain

view observations upon their initial entry into Appellant’s home, and their

search of his home pursuant to a warrant.

      In doing so, the trial court noted Appellant erroneously presupposed

that the officer’s seizure of the key to his residence was a prerequisite for

the approval of a search warrant for the premises, for the probable cause

affidavit does not include any information that Corporal Kolman or Officer

Cowden either possessed a key to Appellant’s home or intended to use it to

gain entry thereto. The trial court further found that Appellant’s detention

did not create an unlawful delay in the submission of the application for a

search warrant, as no officer testified that he would have altered the course


                                     - 18 -
J-A01014-16


of the investigation had Appellant been out of custody. Trial Court Opinion,

filed March 12, 2015, at 19-20.   Moreover, Officer Smith testified that prior

to the time he prepared the application for the search warrant for Appellant’s

residence, Officer Gansky had informed him he had spoken with the person

who had exited the home with Appellant in the Fairmont section of

Philadelphia, Jason Mellor.   N.T., 8/21/13, at 70-72.    Mr. Mellor advised

Officer Gansky he had just purchased several pounds of marijuana from Mr.

Young which Mr. Young carried into the residence in a black duffel bag. Id.

at 76. This information, included in the affidavit of probable cause, was not

dependent upon items seized following the traffic stop.

      Appellant next avers that as he was in police custody during the time

Corporal Kolman and Officer Cowden entered his home and they had no

information that anyone else resided there, they cannot reasonably contend

they believed items therein were at risk of being destroyed or removed from

the residence; thus, the trial court erred in concluding the officers’

warrantless entry for purposes of securing the premises while they awaited a

search warrant was justified by exigent circumstances.     Brief for Appellant

at 31-32. In analyzing this issue, we are mindful of the following:

            It is well established that “probable cause alone will not
      support a warrantless search or arrest in a residence ... unless
      some exception to the warrant requirement is also present....
      [A]bsent consent or exigent circumstances, private homes may
      not be constitutionally entered to conduct a search or to
      effectuate an arrest without a warrant, even where probable
      cause exists.” [ ... ] [O]ur Supreme Court explained that “[i]n
      determining whether exigent circumstances exist, a number of

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J-A01014-16


      factors are to be considered,” such as, (1) the gravity of the
      offense, (2) whether the suspect is reasonably believed to be
      armed, (3) whether there is above and beyond a clear showing
      of probable cause, (4) whether there is strong reason to believe
      that the suspect is within the premises being entered, (5)
      whether there is a likelihood that the suspect will escape if not
      swiftly apprehended, (6) whether the entry was peaceable, and
      (7) the time of the entry, i.e., whether it was made at night.
      These factors are to be balanced against one another in
      determining whether the warrantless intrusion was justified.
             Other factors may also be taken into account, such as
      whether there is hot pursuit of a fleeing felon, a likelihood that
      evidence will be destroyed if police take the time to obtain a
      warrant, or danger to police or other persons inside or outside
      the dwelling. Nevertheless, police bear a heavy burden when
      attempting to demonstrate an urgent need that might justify
      warrantless searches or arrests.

Commonwealth v. Bowmaster, 101 A.3d 789, 793 (Pa.Super. 2014)

(citations omitted).

      Herein, the trial court determined exigent circumstances permitted

investigating officers to enter Appellant’s home prior to obtaining a warrant.

The trial court recognized that officers had no reason to believe Appellant,

who was in custody, posed a danger to them or that anyone knew he had

been arrested which may prompt him or her to attempt to destroy or conceal

evidence located in his residence. Notwithstanding, the trial court reasoned

that the home’s geographical location along the Neshaminy Creek posed a

safety concern in that it was impossible for officers to secure the residence

from the perimeter and further observed that prior to their entry, officers

noticed a light on in the home and viewed numerous vehicles parked in

Appellant’s cul-de-sac.    The court also stressed that officers also had


                                    - 20 -
J-A01014-16


probable cause to believe Appellant had committed a felony drug delivery

offense the prior week, that he was suspected of possessing narcotics and

paraphernalia on the night in question, and that they entered his home

peaceably and solely to secure their safety.       Trial Court Opinion, filed March

12, 2015, at 21-22. In the alternative, the trial court opined that even were

this Court to determine exigent circumstances did not exist to justify officers’

initial warrantless entry and protective sweep of Appellant’s residence, the

independent source exception to the exclusionary rule applies herein. Id. at

22 (citing Commonwealth v. Beck, 34 A.3d 111 (Pa.Super. 2011).4

       Upon our review of the record, under the specific facts of this case, we

find the Commonwealth failed to establish that exigent circumstances

existed for Corporal Kolman and Officer Cowden to enter Appellant’s home

while they awaited the issuance of a search warrant.              With only their

observations that the home was adjacent to a creek, a single light was on

inside, and vehicles were parked in his cul-de-sac, officers simply did not

have probable cause to believe Appellant, who was in their custody, was

armed or that criminal activity was afoot inside or outside of the dwelling.

Indeed, Officer Smith testified that generally it is possible for officers to

secure a home by simply standing at the front and back entrances thereto,

and admitted that they could have surveilled Appellant’s home without
____________________________________________


4
  In light of our discussion, infra, we need not engage in an independent
source rule analysis herein.



                                          - 21 -
J-A01014-16


needing to stand in the Neshaminy Creek because a small deck/patio was

attached to the rear of the home.    N.T., 8/21/13, at 90. In addition, as is

indicated in the aforementioned statement of the relevant facts, Corporal

Kolman and Officer Cowden indicated they saw no movement when they

canvassed the area around the home, and when they entered and

announced themselves they saw nothing and heard no movement aside from

a dog secured in a cage. Though parked vehicles were in the vicinity, the

officers were unsure whether any of those vehicles belonged to individuals

present inside the home.    As such, while the officers stressed they had

probable cause to believe Appellant was dealing narcotics and peacefully

entered the home prior to obtaining a warrant in an effort to ensure that any

potential evidence would not be concealed or destroyed, under the facts

herein, their concerns do not outweigh Appellant’s individual rights and

liberties. See Bowmaster, supra.

     However, even if the officers’ initial entry into Appellant’s residence

were not justified by exigent circumstances, such unlawful entry does not

mandate the suppression of the evidence they recovered later pursuant to a

valid search, for our Supreme Court has determined that where some

evidence listed in a search warrant affidavit had been unlawfully obtained,

we must nevertheless consider whether the affidavit otherwise sets forth

probable cause in the absence of such evidence.         Commonwealth v.

Hernandez, 935 A.2d 1275 (Pa. 2007). “In other words, we must decide


                                    - 22 -
J-A01014-16


whether, absent the information obtained through illegal activity, probable

cause existed to issue the warrant. . . . Only evidence that was available to

police because of the unconstitutional search, i.e., the product of the illegal

police activity, is disregarded.” Id. at 1283-1284 (citations omitted). Our

review of the record leads us to conclude that the untainted, legally obtained

information contained within the search warrant affidavit was sufficient to

establish probable cause to search Appellant’s residence.

      As the Commonwealth acknowledges, the Magisterial District Judge

who reviewed the warrant application had been informed of the initial

observations of officers securing the residence and, undoubtedly, they were

in communication with members of the special investigations unit as they

secured the home. Also, a single line on the last page of the six-page search

warrant application indicates that “[w]hile securing [Appellant’s] residence

[Corporal] Kolman and Officer Cowden observed the following items in plain

view in [Appellant’s] residence:     a bulletproof vest, a rifle, and empty

[Z]iplock bags (identical to the ones recovered in [Appellant’s] truck), and a

large safe.”   However, the decision to prepare an application for a search

warrant for Appellant’s residence had been made prior to the time at which

Corporal Kolman and Officer Cowden secured his residence to prevent the

destruction or concealment of any evidence until such warrant was issued.

      On November 26, 2012, officers observed Appellant leave his home

carrying a large duffel bag, meet with the C.I. and provide him or her with


                                    - 23 -
J-A01014-16


marijuana in exchange for currency. On December 3, 2012, officers followed

Appellant to 30th Street in Philadelphia, watched him take a large duffel bag

from his truck, carry it into and out of the residence, and were informed

later that evening by an occupant of the home that Appellant sells him

marijuana.    Thereafter, officers discovered a significant amount of money

and marijuana in the individuals’ room in the home. While these incidents

were separated by seven days, a lapse of time between officers’ discovery of

criminal activity and the issuance of a search warrant will not necessarily

dissipate probable cause or be deemed too remote where it is shown that

criminal activity is likely to have continued up to the time of the issuance of

a search warrant.    Commonwealth v. Haggerty, 564 A.2d 1269, 1272

(Pa.Super. 1989).

      After setting forth their employment and qualifications, the affiants,

Officers Smith and Brady detailed the following:

      Whereas, within the last ten days your affiants spoke with a
      confidential information (C.I. 12-72) in reference to someone
      they knew was selling marijuana. The informant advised your
      affiants that he/she would be able to purchase marijuana from a
      male named Brett. The informant advised your affiants that
      Brett lives in the Bensalem area. Your affiants were able to
      determine that Brett, was Brett Young, of 5445 Flushing Rd. The
      informant also advised your affiants that Brett drives a dark
      colored pickup. The informant also advised your affiants that
      he/she had purchased marijuana out of Young’s residence in the
      past.

      Whereas, on 11/26/12 your affiants conducted a controlled buy
      utilizing (C.I.12-72). On that date the informant was issued pre
      recorded buy money for the buy. He/she and their vehicle were
      searched prior to the buy and found void of contraband. Prior to

                                    - 24 -
J-A01014-16


     the buy Sgt. Bugsch and Officer Gansky were conducting
     surveillance at Young’s residence at 5445 Flushing Rd Bensalem.
     At approximately 1900 hours Sgt. Bugsch observed Young leave
     his residence carrying a dark bag. (Young was driving his 2007
     black Lincoln pick-up bearing PA registration YWS-1613. The tag
     was run through NCIC and came back to Brett Young of 5445
     Flushing Rd). Young was then followed to a pre arranged
     meeting location where he sold the informant marijuana. After
     the deal was [sic] the informant turned over the marijuana to
     Officer Gansky. Young was then followed back to his residence
     at 5445 Flushing Rd Bensalem PA.

     Whereas, C.I. 12-72 has no crimi falsi arrests or convictions.
     C.I. 12-72 has been deemed reliable based on cooperation with
     the Bensalem Police Special Investigations Unit that has proven
     to be accurate, truthful and reliable.         The confidential
     [i]nformant has supplied Affiant Smith with information
     regarding drug usage and trafficking. The confidential informant
     never supplied any information to Affiant Smith that turned out
     to be inaccurate, untruthful or unreliable.

     Whereas, on 12/3/12 your affiants were conducting surveillance
     on Young. Young left his residence at approximately 1845 hours
     and followed into Philadelphia. Young was followed to the area
     of 30th and Cambridge St. in Philadelphia.         Officer Gansky
     observed Young retrieve a large black duffel bag from the rear of
     his pick up bed. Officer Gansky stated that the bag appeared to
     be very heavy. Young then carried that bag into 918 30 th Street
     Philadelphia PA. Young was inside for approximately 20 minutes
     before exiting. Young was observed carrying a large black duffle
     [sic] bag out of that residence. Young was then followed from
     918 30th Street Philadelphia PA. Young was then initiated in a
     traffic stop on Bristol Pike Bensalem PA by Officer Cowden.

     Whereas, Officer Cowden initiated Young’s vehicle in a traffic
     stop for tinted windows and the previous described activity.
     Officer Cowden observed that Young appeared to be nervous.
     Officer Cowden stated that Young would not make eye contact
     with him. Officer Cowden stated that Young’s hands were shaky
     when handing him his registration. Officer Cowden asked Young
     where he was coming from? Young stated that he was at a
     friend’s house in the city. Officer Cowden also asked Young
     where he was headed. Young stated that he was headed home
     to Flushing Rd. After speaking [to] Young Officer Cowden asked

                                  - 25 -
J-A01014-16


      Young for consent to search his vehicle. Young replied, “No, do
      you have a search warrant[?]” . . . .

Affidavit of Probable Cause, 12/4/12, at ¶¶ 4-8.

      This untainted information is distinguishable from the subsequently

tainted evidence obtained following the traffic stop and from the brief

reference to the items officers saw upon their warrantless entry into

Appellant’s residence. Indeed, Corporal Kolman and Officer Cowden entered

Appellant’s home not with an eye toward gaining additional information for

use in the preparation of the affidavit of probable cause, but rather to secure

it. Their entry was not forcible, and they made only cursory observations of

items in plain view as they sought to ensure no other occupants were

present; no evidence was seized until the search warrant was executed.

See Commonwealth v. Bruner, 564 A.2d 1277, 1282 (Pa.Super. 1989)

(observing that officers’ warrantless entry of premises did not result in a

search, seizure or observation of evidence or result in a modification in the

already executed search warrant).      Moreover, their warrantless entry was

not the source of any significant substantive changes to the affidavit.

Accordingly, an analysis of the four corners of the affidavit reveals that it set

forth sufficient probable cause independent of any tainted evidence to

support the warrant; therefore, the warrant was valid and the evidence

seized under its authority was properly admitted at trial. See Herndndez,

supra.




                                     - 26 -
J-A01014-16


       To the extent Appellant challenges the nighttime aspect of the

issuance of search warrant, we find this issue to be waived.             At the

suppression hearing, Appellant argued simply that the entry into his home

prior to the issuance of a search warrant “violated not only the knock and

announce rule, but also that there were no exigent circumstances justifying

the entry into the home without probable cause with the search warrant.”

N.T, 8/21/13, at 6-7. Appellate review of an order denying suppression is

limited to an examination of the precise basis under which suppression

initially was sought, and no new theories of relief may be considered on

appeal. Commonwealth v. Little, 903 A.2d 1269, 1272-73 (Pa.Super.

2006).    Appellant did not develop a specific argument regarding nighttime

execution of the warrant in his motion to suppress argued at the suppression

hearing or in his post sentence motion.            Thus, it is waived.     See

Commonwealth v. Gordon, 528 A.2d 631, 642 (Pa.Super. 1987) (“The

raising of one particular theory in support of a suppression claim is not

sufficient to preserve all other possible grounds for suppression of the same

evidence”).5


____________________________________________


5
  We are mindful that our Supreme Court has mandated “(n)o search
warrant shall authorize a nighttime search unless the affidavits show
reasonable cause for such nighttime search.” Pa.R.Crim.P. 203(E). Due to
the greater intrusion upon an individual’s privacy occasioned by a nighttime
search, some greater justification than that required for a daytime search
must be shown. See Pa.R.Crim.P. [203(E) and Comment]. Put simply, the
(Footnote Continued Next Page)


                                          - 27 -
J-A01014-16


      For all of the foregoing reasons, we affirm.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/1/2016




                       _______________________
(Footnote Continued)

affidavit for a warrant authorizing a nighttime search must show both
probable cause and some reason why the search cannot wait until morning.

Bowmaster, supra, 101 A.3d at 793-94 (italics and citations omitted).
Herein, Officers specifically requested a nighttime clause be granted for the
following reasons:

   1. The residence is already secured by law enforcement.
   2. To avoid the destruction of evidence.
   3. [Appellant] is presently in custody and cannot be arraigned until
      the search of the residence is executed.
   4. There are no occupants inside of the residence, therefore, no
      occupants will be disturbed while the search is being conducted
      during the evening hours.


Affidavit of Probable Cause, 12/4/12, at 5.




                                           - 28 -
