J-S71025-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

JESSICA D. HAVELT

                            Appellant                  No. 611 MDA 2014


             Appeal from the Judgment of Sentence March 12, 2014
               In the Court of Common Pleas of Franklin County
              Criminal Division at No(s): CP-28-CR-0000745-2012


BEFORE: FORD ELLIOTT, P.J.E., PANELLA, J., and FITZGERALD, J.*

MEMORANDUM BY PANELLA, J.                         FILED FEBRUARY 18, 2015

         Appellant, Jessica D. Havelt, appeals from the judgment of sentence

entered upon convictions for driving under the influence (“DUI”) of

marijuana and possession of a small amount of marijuana.         After careful

review, we affirm.

        On December 19, 2011, Pennsylvania State Police Trooper Alex Grote

observed a dark colored SUV driving between the lane of travel and a turn-

only lane for approximately 2 to 3 seconds before returning fully to the lane

of travel.     Trooper Grote followed the SUV for another 3/10 of mile,

estimating the rate of travel to be 60 mph in a 45 mph zone. During this

time, Trooper Grote twice more observed the SUV straddle two lanes for
____________________________________________


*
    Former Justice specially assigned to the Superior Court.
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extended periods.        At this time, Trooper Grote pulled the SUV over to

investigate.

      Upon     making     contact   with    the   driver,   Havelt,   Trooper   Grote

immediately noticed a strong odor of burnt marijuana.                  While Havelt

retrieved her driver’s license, Trooper Grote observed that her general

demeanor was lackadaisical and slow moving. Trooper Grote asked Havelt

to follow his finger with her eyes so that he could observe her pupil size and

ability to track.      While performing this test, Trooper Grote noticed that

Havelt’s eyes were very bloodshot and glassy. Trooper Grote then asked

Havelt to stick out her tongue. When Havelt complied, he observed that her

tongue had a bright green tinge, which he recognized as an indicator of

marijuana use. Pursuant to these observations, Trooper Grote asked Havelt

to exit her vehicle.

      Havelt exited her vehicle, and Trooper Grote had her perform a field

sobriety test.   After observing Havelt’s performance, and considering his

previous observations, Trooper Grote suspected that Grote was under the

influence of marijuana.       At this point, he intended to arrest her, and

instructed her to turn around as he approached her to handcuff her. As he

approached, he asked her how much marijuana she had smoked that night.




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Havelt responded that she had smoked “a bowl.” Trooper Grotehad not yet

provided her with Miranda1 warnings.

       Trooper Grote transported Havelt to a local hospital, where blood was

drawn for testing. The blood test results ultimately revealed that marijuana

metabolites were in Havelt’s blood. Trooper Grote then transported Havelt

to the State Police barracks for processing. While at the barracks, Trooper

Grote’s partner, Trooper Kevin Goss, searched Havelt’s purse, and found a

small amount of marijuana.

       Havelt filed a pre-trial motion seeking suppression of her statements

while being placed under arrest, as well as the marijuana found in her purse.

The trial court denied the suppression motions, and Havelt proceeded to a

bench trial.     The trial court found Havelt guilty of one count of DUI –

controlled substance, one count of DUI – Drugs or Combination of Drugs,

and one count of possession of a small amount of marijuana. The trial court

then sentenced Havelt to a term of imprisonment of 10 days to 6 months on

the DUI charges, and a consecutive term of probation of 30 days on the

possession charge. This timely appeal followed.

       On appeal, Havelt argues that the trial court erred in denying her

suppression motions.        In Commonwealth v. Scott, 878 A.2d 874 (Pa.



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1
    Miranda v. Arizona, 384 U.S. 436 (1966)



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Super. 2005), we set forth the appropriate standard of review where an

appellant appeals the denial of a suppression motion:


      [W]e are limited to determining whether the factual findings are
      supported by the record and whether the legal conclusions
      drawn from those facts are correct. We may consider the
      evidence of the witnesses offered by the prosecution, as verdict
      winner, and only so much of the defense evidence that remains
      uncontradicted when read in the context of the record as a
      whole. We are bound by facts supported by the record and may
      reverse only if the legal conclusions reached by the court below
      were erroneous.

Id., at 877 (citations omitted).

      First, Havelt contends that the trial court erred in denying suppression

of her statements made prior to receiving Miranda warnings. Police officers

are required to provide Miranda warnings only where a suspect is subjected

to custodial interrogation.   See Commonwealth v. Smith, 575 Pa. 203,

224, 836 A.2d 5, 18 (2003).         “The law is clear that Miranda is not

implicated unless the individual is in custody and subjected to interrogation.

Interrogation is defined as police conduct calculated to, expected to, or likely

to evoke admission.” Commonwealth v. Umstead, 916 A.2d 1146, 1152

(Pa. Super. 2007) (internal quotation marks and citations omitted).        Mere

questioning of a motorist during a traffic stop is not a custodial detention,

and therefore Miranda warnings are not required before such questioning.

See Berkemer v. McCarty, 468 U.S. 420, 435-442 (1984). Furthermore,

sobriety tests do not automatically transform a traffic stop into a custodial




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detention.   See Commonwealth v. Sullivan, 581 A.2d 956 (Pa. Super.

1990).

      Here, the dispute centers on whether Havelt was in custody at the

time Trooper Grote asked how much marijuana she had smoked that night.

Havelt asserts that she was in custody; the Commonwealth argues, and the

trial court found, that she was not.

      The following factors have been used to assist courts in determining

whether a detention has risen to the level of an arrest:

      The facts a court utilizes to determine, under the totality of the
      circumstances, whether a detention has become so coercive as
      to constitute the functional equivalent of arrest include: the basis
      for the detention; its length; its location; whether the suspect
      was transported against his or her will, how far, and why;
      whether restraints were used; whether the law enforcement
      officer showed, threatened or used force; and the investigative
      methods employed to confirm or dispel suspicions.

Commonwealth v. Levanduski, 907 A.2d 3, 24 (Pa. Super. 2006) (en

banc). The test for whether a person is in custody for the purposes of

Miranda “focuses on whether the individual being interrogated reasonably

believes his freedom of action is being restricted.” Commonwealth v.

Gonzalez, 979 A.2d 879, 888 (Pa. Super. 2009) (citations omitted).

      The trial court held three hearings on the motions to suppress. At the

initial hearing, Trooper Grote testified as follows:

      Q:     What did you do after the lack of convergence test?

      A:     I placed her under arrest for suspicion of DUI.




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       Q:   What was your reasoning for suspecting that she was
       under the influence?

       A:     I did do something prior to that, but …

       Q:     Okay. What did you do prior to that?

       A:   Knowing that she had been smoking marijuana, I asked
       her much she smoked.

       Q:    Okay. Did she – how – let me ask you this, what were you
       doing when you asked her that question?

       A:    Standing there. When we concluded field sobriety testing,
       we were standing there face-to-face, and I looked at her and I
       said, how much marijuana did you smoke? I already know that
       you smoke.

N.T., Pre-Trial Hearing, 2/8/13, at 36-37.

       A second hearing was scheduled for February 26, 2013, but was

continued after it was discovered that the Pennsylvania State Police had a

mobile video recording (“MVR”), and that neither the Commonwealth nor

Havelt had been provided a copy of the MVR.2            After reviewing the MVR,

Havelt filed a motion for transcription of the February 8 hearing, asserting

that Trooper Grote’s initial testimony from the hearing was materially

inconsistent with the contents of the video.            The trial court, without

explanation, denied the motion.


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2
  The trial court noted, in its transcribed order from the bench, that there
was “apparently, prior communication indicating that there was a belief that
there was no MVR existing in this case and that this case has been delayed
for several months.” Order, 2/26/13, at *3.



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     A review of the transcript of the third hearing, on March 18, 2013,

reveals that the exact sequence of events prior to the statement at issue

was not a subject of testimony. However, at trial, Trooper Grote provided

the following testimony on direct examination:

     Q:    Without getting into that, the fact that she did not do a
     one-leg stand, why was that in your report?

     A:    Because I use my reports as templates. So the DUI I
     made before this, I used that template to do the paperwork on
     the following one and I had left that in there from a previous
     DUI.

     Q:    Is it fair to say that you did not perform anything
     regarding the one-leg stand?

     A:    I did not. That was my mistake in the report.

     Q:   So it looks like at this point in the video where the video
     was stopped you’re placing her under arrest for suspicion of
     DUI?

     A:    Yes.

     Q:   When you did that, did she make any other statements to
     you?

     A:    I asked her prior to placing her under arrest I believe, I’m
     not sure if I did place her under arrest or not, I’m not sure, but I
     did ask her how much weed did you smoke tonight. How much
     marijuana did you smoke tonight?

     Q:    And what did she say?

     A:    A bowl.




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N.T., Trial, 12/23/13, at 42-43.3 When presented with the video on cross-

examination, Trooper Grote’s testimony was directly at odds with his

testimony at the February 8 hearing:

       Q:    So it is now 52:27 that you say put your hands behind
       your back. I believe it was you or was it Trooper Goss?

       A:     No, that was me.

       Q:    And I’m assuming that you’re reaching for your handcuffs
       at that point?

       A:     Yes, sir.

       Q:    Because it was your intent to place her under arrest,
       correct?

       A:     Yes.

       …

       Q:    And do you recall responding … that … you’re not sure
       when it was asked but you recall her being asked [how much
       marijuana she had smoked?]

       A:     Yes.

____________________________________________


3
  In In re L.J., 79 A.3d 1073 (Pa. 2013), the Pennsylvania Supreme Court
announced a prospective rule that the record for review of a suppression
motion is closed at the time the trial court rules on the motion, unless the
evidence was unavailable prior to the ruling. Since the trial court in this
case denied the suppression motion on June 7, 2013, more than four months
before L.J. was filed, the prospective rule does not apply. Furthermore, it is
undenied that the MVR was unavailable for the first suppression hearing, and
that Havelt was denied the opportunity to revisit Trooper Grote’s testimony
on the admission until trial. As such, this case also falls under the exception
to the rule announced in L.J.. See id., at 1085 (trial evidence not relevant
to review of suppression decision, “absent a finding that such evidence was
unavailable during the suppression hearing.”).



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      Q:    Let’s see if we can answer that question. It’s now 52:33 in
      the upper right-hand corner; is that correct?

      A:   Yes.

      Q:   And you already got the handcuffs out and are placing
      them on her; is that also correct?

      A:   Yes.

      Q:   Now, it appears there was mumbling and it appears you
      were asking her something?

      A:   Yes.

      Q:   What were you asking her?

      A:     I was asking her when the last time or, yes, when was the
      last time you smoked weed or how much weed did you smoke.

      Q:   And you were in the process of putting her in handcuffs?

      A:    I didn’t put them on yet, but yes.

      Q:   And that was your intent; correct?

      A:   Yes.

      Q:    And it’s fair to say at this point there was no Miranda or
      anything like that, at least nothing I heard; correct?

      A:   No, I didn’t read them.

Id., at 66-68. The Commonwealth did not rehabilitate this testimony on re-

direct.

      We conclude that under these circumstances, Havelt was in fact under

arrest, and therefore in custody, when Trooper Grote asked about her

marijuana use.    It is true that not every time an individual is placed in

handcuffs is the functional equivalent of an arrest. See Commonwealth v.

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Rosas, 875 A.2d 341, 348 (Pa. Super. 2005); Commonwealth v.

Guillespie, 745 A.2d 654, 660-61 (Pa. Super. 2000). However, there is no

indication of any other purpose for the restraint in this case.     Indeed,

Trooper Grote admitted that his intent at that time was to place Havelt

under arrest. Giving the Commonwealth the benefit of every inference from

Trooper Grote’s testimony, the best that can be said is that Havelt was in

the process of being arrested when she uttered the incriminating statement

at issue.   Since it is undisputed that Trooper Grote’s question constituted

interrogation, and that he had not provided Miranda warnings to Havelt at

the time, we conclude that the inculpatory statement should have been

suppressed.

      This conclusion, however, does not necessarily require re-trial.   We

have previously held that the erroneous admission of a confession can be

harmless error, even if the confession was coerced. See Commonwealth

v. Snyder, 60 A.3d 165, 173 (Pa. Super. 2013).

      Here, we have no difficulty in finding that the error was harmless. As

noted previously, Trooper Grote testified that he had already intended to

place Havelt under arrest for suspicion of DUI when he asked the question,

and Havelt does not contest that Trooper Grote had probable cause to

initiate the arrest. Once arrested, a blood sample was taken from Havelt,

which confirmed Trooper Grote’s suspicions.     The blood test results were

stipulated to at trial and admitted as evidence. Based upon Trooper Grote’s


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observations prior to the statements and the blood test results, we conclude

that the admission of Havelt’s confession was harmless.

      In her second issue, Havelt argues that the trial court erred in denying

her motion to suppress the small amount of marijuana found in her purse.

Havelt asserts that Trooper Goss searched her purse pursuant to an

investigatory intent, and not in furtherance of an inventory search. The trial

court found that the search of the purse was a valid inventory search.

      The United States and Pennsylvania Supreme Courts have recognized

that inventory searches are a well-defined exception to the warrant

requirement of the Fourth Amendment. See South Dakota v. Opperman,

428 U.S. 364 (1976); see also, Commonwealth v. Nace, 524 Pa. 323,

571 A.2d 1389 (1990). Inventory searches are not subject to the warrant

requirement because they are not investigatory in nature. Commonwealth

v. Smith, 808 A.2d 215, 224 (Pa. Super. 2002). Instead, they are initiated

with one or more of the following purposes in mind: (1) protection of the

owner’s property while it is in police custody; (2) protection of the police

from disputes over claims of lost or stolen property; (3) protection of the

police from potential danger; and (4) to assist the police in determining

whether the vehicle was stolen and then abandoned. Id.

      “An inventory search is reasonable if it is conducted pursuant to

reasonable standard police procedures and in good faith and not for the sole

purpose of investigation.” Colorado v. Bertine, 479 U.S. 367, 374 (1987).


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Motive distinguishes an inventory search from an investigatory search; an

inventory search is motivated by a desire to safeguard the property of the

arrestee, not by an aim to uncover incriminating evidence. See Hennigan,

753 A.2d at 255. An inventory search must be conducted in good faith, not

as a substitute for a warrantless investigatory search.      See id.; compare

Commonwealth v. Anderl, 477 A.2d 1356, 1360 (Pa. Super. 1984)

(holding inventory search invalid where officers removed automobile seats

and ripped upholstery looking for contraband); with Opperman, 428 US. at

365 (upholding inventory search of an impounded automobile which

recovered   marijuana   from   a    closed    glove   compartment);   see   also

Commonwealth v. Scott, 365 A.2d 140, 144 (Pa. Super. 1976) (upholding

use of evidence found during an inventory search of an automobile even

though it was not in plain view).

      While there is significant evidence of record that Trooper Goss

searched Havelt’s purse with an investigatory motive, there is also evidence

capable of supporting the trial court’s finding that the search was an

inventory search. Pursuant to the stipulation of the parties, the search did

not occur until Havelt was under arrest and at the State Police Barracks.

Furthermore, Trooper Grote testified that the search occurred while Havelt

was being processed. See N.T., Pre-Trial Hearing, 3/18/13, at 54-55; 65-

66.   Given our limited scope of review, we cannot conclude that the trial

court abused its discretion or committed an error of law in concluding that


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Trooper Goss’s search was a valid inventory search.         As a result, we

conclude that Havelt’s second issue on appeal merits no relief.

     Judgment of sentence affirmed. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/18/2015




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