J-A21028-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

BARBARA DISANTIS

                            Appellant                  No. 3608 EDA 2014


           Appeal from the Judgment of Sentence November 17, 2014
                 In the Court of Common Pleas of Bucks County
              Criminal Division at No(s): CP-09-CR-0005464-2014


BEFORE: ALLEN, J., MUNDY, J., and FITZGERALD, J.*

MEMORANDUM BY MUNDY, J.:                             FILED AUGUST 24, 2015

        Appellant, Barbara DiSantis, appeals from the November 17, 2014

judgment of sentence of 12 months’ probation imposed following her

convictions for possession of a controlled substance and possession of drug

paraphernalia.1      After careful review, we vacate Appellant’s judgment of

sentence, reverse and remand.

        The trial court summarized the relevant factual background of this

case in the following manner.

                   On May 18, 2014, Trooper Lee Nolan of the
              Pennsylvania State Police, while in full uniform with a
              marked patrol vehicle, initiated a traffic stop on a
____________________________________________


*
    Former Justice specially assigned to the Superior Court.
1
    35 Pa.C.S. §§ 780-113(a)(16) and (a)(32), respectively.
J-A21028-15


          black Pontiac sedan for a traffic violation in Bristol
          Township, Bucks County. Trooper Nolan observed
          an extinguished brake light on a black Pontiac sedan
          while it was traveling on I-95 northbound. In order
          to conduct the stop at a safe location, Trooper Nolan
          stopped the vehicle 700 yards down off 413 in Bristol
          Township.     Trooper Nolan then approached the
          vehicle and observed five (5) occupants in the
          vehicle. As Trooper Nolan approached the vehicle[,]
          he observed [Appellant] seated behind the driver of
          the vehicle. Trooper Nolan observed that [Appellant]
          had puffy hands that appeared to have track marks
          on them, which from his experience is consistent
          with drug use.

                Trooper Nolan requested that the driver step
          outside the vehicle, and she complied. As the driver
          stepped outside, Trooper Nolan observed an
          extremely small black rubber band, which is
          consistent with putting heroin packets together,
          located in plain view on the floor of the vehicle by
          the driver. Trooper Nolan then showed the driver
          her brake light was out and explained the reason for
          the stop. The driver gave Trooper Nolan her license,
          registration and insurance card.

                After running the vehicle registration, Trooper
          Nolan approached the passengers of the vehicle on
          the passenger’s side and began to speak with them.
          The passengers appeared to be extremely nervous
          while speaking with Trooper Nolan. Trooper Nolan
          then requested the identifications from the vehicle
          occupants, who complied with his request[, and the
          driver returned to her vehicle]. Trooper Nolan ran
          the    driver    and     vehicle    occupants   through
          CLEAN/NCIC, to obtain their driver’s record. When
          Trooper Nolan ran [Appellant’s] identification, it
          showed that she had warrants from Florida for
          probation     violations   in    reference   to   drugs.
          Additionally, Trooper Nolan ran the criminal history
          of the driver and all the occupants of the vehicle.

                Trooper Nolan prepared a written warning to
          the driver for the extinguished br[ake] light. Trooper

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J-A21028-15


          Nolan then approached the driver’s side of the
          vehicle and spoke with the driver and requested that
          she step outside the vehicle. After the driver exited
          the vehicle, Trooper Nolan explained to the driver
          that he was issuing her a warning for the brake light
          and handed her the warning, her registration, her
          license and her insurance card. After returning all
          the driver’s documentation to her, Trooper Nolan
          instructed the driver that she was free to leave.

                After instructing the driver that she was free to
          leave, the driver turned around, and walked towards
          her vehicle, while Trooper Nolan took several steps
          towards his vehicle.      After taking several steps,
          Trooper Nolan turned around and asked the driver if
          she had a few minutes. After acknowledging that
          she had a few minutes, the driver turned around and
          walked towards Trooper Nolan.

                Trooper Nolan then asked the driver if there
          was anything in the vehicle, and explained to her the
          items that he saw inside the vehicle that led him to
          be suspicious that there might be something inside
          the vehicle, such as the rubber band and the marks
          on [Appellant’s] hands. The driver stated that there
          was nothing in the vehicle. The driver then gave
          Trooper Nolan verbal and written consent to search
          the vehicle.   After the driver signed the written
          consent form allowing the search, Trooper Nolan
          approached the vehicle, and so he was going to
          perform a search.

                At the time Trooper Nolan requested to search
          the driver’s vehicle, his patrol car was parked behind
          the driver’s vehicle, with his lights on. Trooper
          Nolan was parked on an angle, so the driver could
          have driven away without moving his vehicle. He did
          not yell at the driver or the vehicle occupants or
          brandish his gun. There were two additional officers
          on scene, located several yards away from Trooper
          Nolan, behind his patrol vehicle, who were not
          speaking with the driver or any of the vehicle
          occupants at this time.


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                  After receiving verbal and written consent to
            search the vehicle, Trooper Nolan had the
            passengers exit the two[-]door vehicle one by one.
            Trooper Nolan asked if there was anything[,]
            weapons of contraband[,] on anyone’s person. As
            the occupants exited the vehicle, Trooper Nolan
            patted the occupants down for weapons.          While
            [Appellant] was exiting the backseat of the vehicle[,]
            she handed her cigarette pack to Trooper Nolan.
            Trooper Nolan opened the cigarette pack, to make
            sure there were no weapons in the package, because
            he was planning on handing her cigarettes back to
            her while he searched the vehicle. Trooper Nolan
            observed that the cigarette packet contained three
            packets of suspected heroin, later confirmed as
            heroin. After Trooper Nolan secured the heroin in his
            patrol vehicle[,] he continued to search the vehicle
            and recovered contraband from where [Appellant]
            had been sitting.

Trial Court Opinion, 3/20/15, at 1-4 (citations and footnotes omitted).

      The Commonwealth, by criminal information, charged Appellant with

the aforementioned offenses on October 9, 2014.       On October 30, 2014,

Appellant filed a motion to suppress seeking suppression of all evidence,

averring she was subject to an unlawful investigative detention and

challenging the consent to search.    Appellant’s Omnibus Pre-Trial Motion,

10/30/14, at ¶¶ 9-12.      The trial court held a suppression hearing on

November 17, 2014. At the conclusion of the hearing, the trial court denied

Appellant’s motion, and Appellant proceeded immediately to a stipulated

bench trial N.T., 11/17/14, at 71-72. The trial court found Appellant guilty

of possession of a controlled substance and possession of drug paraphernalia




                                     -4-
J-A21028-15


and sentenced Appellant to 12 months’ probation.           Id. 79, 85.2     On

December 15, 2014, Appellant filed a timely notice of appeal.3

       On appeal, Appellant raises the following issues for our consideration.

                    A. Whether the trial court erred in failing to
              suppress evidence seized from a vehicle where
              Appellant was a passenger because the consent to
              search the vehicle was tainted by an illegal
              detention?

                    B. Whether the trial court erred in failing to
              suppress evidence located in Appellant’s cigarette
              package when the state trooper conducted a
              warrantless search of the cigarette package without
              Appellant’s consent?

                    C. Whether the trial court erred in finding
              Appellant did not have a privacy interest in the
              vehicle and the cigarette package that was located
              on Appellant’s person?

Appellant’s Brief at 4.

       We begin by noting our well-established standard of review over

challenges to the denial of suppression motions.

              We 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. Where the record supports
              the factual findings of the trial court, we are bound
____________________________________________


2
  Specifically, the trial court imposed the 12-month probationary sentence
for Appellant’s conviction of possession of a controlled substance and
imposed no further penalty on her conviction for possession of drug
paraphernalia. N.T., 11/17/14, at 85.
3
  Appellant and the trial court have complied with Pennsylvania Rule of
Appellate Procedure 1925.



                                           -5-
J-A21028-15


            by those facts and may reverse only if the legal
            conclusions drawn therefrom are in error.    An
            appellate court, of course, is not bound by the
            suppression court’s conclusions of law.

Commonwealth v. Gary, 91 A.3d 102, 106 (Pa. 2014) (citation omitted).

      In Appellant’s first issue on appeal, she argues that the trial court

erred in denying her motion to suppress because the consent to search the

vehicle was preceded by an illegal investigative detention of the occupants of

the vehicle.   Appellant’s Brief at 10.     Therefore, she argues, because the

consent was obtained as a result of the unlawful detention, the evidence

should have been suppressed. Id. Importantly, Appellant does not dispute

the validity of the initial vehicle stop.    See Appellant’s Brief at 6 (noting

Trooper Nolan conducted a vehicle stop because the vehicle’s taillight was

broken); See also N.T., 11/17/14, at 7 (Appellant’s counsel informing the

trial court, “[w]e are not disputing the initial traffic stop”). Rather, Appellant

claims the illegal detention occurred when Trooper Nolan “reengaged the

driver seconds after telling her she was free to leave.” Appellant’s Brief at

13-14 (citation omitted). The Commonwealth counters by arguing that the

driver was engaged in a mere encounter with Trooper Nolan because “there

was a clear separation between the initial detention of the valid traffic stop

and the second encounter where consent was given.” Commonwealth Brief

at 16.   In the alternative, the Commonwealth argues that the facts and

circumstances, as they appeared to Trooper Nolan following the initial traffic

stop, gave rise to reasonable suspicion of criminal activity.      Id. at 21-23.

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J-A21028-15


Accordingly, we begin our analysis by determining the nature of the second

encounter between Trooper Nolan and the driver.4

       The Fourth Amendment of the United States Constitution guarantees

that, “[t]he right of the people to be secure in their persons, houses, papers,

and effects, against unreasonable searches and seizures, shall not be

violated….” U.S. Const. amend IV. Similarly, the Pennsylvania Constitution

assures citizens of our Commonwealth that “[t]he people shall be secure in

their persons, houses, papers and possessions from unreasonable searches

and seizures….”       Pa. Const. art. I, § 8.    The protection afforded by the

Fourth Amendment against unreasonable searches and seizures extends to

those encounters entailing only a brief detention.         Commonwealth v.

Strickler, 757 A.2d 884, 888 (Pa. 2000). In analyzing the constitutionality

of an interaction between citizens and law enforcement, we first assess into

which of three categories of interaction the challenged encounter falls.

              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 respond. The second, an “investigative
____________________________________________


4
  Appellant was not the driver of the vehicle; however, “[a] traffic stop for a
suspected violation of law is a ‘seizure’ of the occupants of the vehicle and
therefore must be conducted in accordance with the Fourth Amendment.”
Heien v. North Carolina, 135 S. Ct. 530, 536 (2014) (citation omitted). In
the instant case, the second encounter between Trooper Nolan and the
driver occurred prior to her returning to her vehicle and immediately
following the initial traffic stop. Accordingly, it is necessary to determine the
constitutionality of this encounter, as the occupants’ Fourth Amendment
rights are implicated.



                                           -7-
J-A21028-15


            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, 844 (Pa. Super. 2015) (citation

omitted).

     As noted, Appellant argues she was subjected to an investigative

detention without the requisite reasonable suspicion based on Trooper

Nolan’s “reengaging” the driver of the vehicle in which she was an occupant,

while the Commonwealth contends such interaction with the driver was a

mere encounter or an otherwise constitutional investigative detention. See

Appellant’s Brief at 10; Commonwealth Brief at 21-23.       When analyzing

whether an interaction escalates from a mere encounter to an investigative

detention, we employ the following standard.

            To guide the crucial inquiry as to whether or not a
            seizure has been effected, the United States
            Supreme Court has devised an objective test
            entailing a determination of whether, in view of all
            surrounding circumstances, a reasonable person
            would have believed that he was free to leave. In
            evaluating the circumstances, the focus is directed
            toward whether, by means of physical force or show
            of authority, the citizen-subject’s movement has in
            some way been restrained.           In making this
            determination, courts must apply the totality-of-the-
            circumstances approach, with no single factor
            dictating the ultimate conclusion as to whether a
            seizure has occurred.




                                    -8-
J-A21028-15


Commonwealth v. McAdoo, 46 A.3d 781, 784 (Pa. Super. 2012) (citation

omitted), appeal denied, 65 A.3d 413 (Pa. 2013). In the specific context of

a police-citizen interaction following the conclusion of a valid traffic stop,

several considerations inform our analysis, including the following.

            A non-exclusive list of factors to be used in assessing
            whether police conducted a mere encounter after
            completion of a traffic stop includes: 1) the presence
            or absence of police excesses; 2) whether there was
            physical contact; 3) whether police directed the
            citizen’s movements; 4) police demeanor and
            manner of expression; 5) the location of the
            interdiction; 6) the content of the questions and
            statements; 7) the existence and character of the
            initial investigative detention, including its degree of
            coerciveness; 8) the degree to which the transition
            between the traffic stop/investigative detention and
            the subsequent encounter can be viewed as
            seamless, … thus suggesting to a citizen that his
            movements may remain subject to police restraint;
            9) the presence of an express admonition to the
            effect that the citizen-subject is free to depart is a
            potent, objective factor; and 10) whether the citizen
            has been informed that he is not required to consent
            to the search.

Commonwealth v. Moyer, 954 A.2d 659, 665 (Pa. Super. 2008) (en banc)

(internal quotation marks and citations omitted), appeal denied, 966 A.2d

571 (Pa. 2009). The trial court explained its consideration of the totality of

the circumstances and its conclusion that the subsequent interaction

between the driver and Trooper Nolan was a mere encounter as follows.

                  The following facts were considered in
            determining whether a reasonable person in the
            driver’s position would have believed she was free to
            leave. This [c]ourt looked to the fact that there were
            two other officers on scene in addition to Trooper

                                     -9-
J-A21028-15


            Nolan (the “Trooper”), however they were located
            several yards away from the Trooper, behind his
            patrol vehicle. The other officers on scene were not
            speaking with the driver or any of the vehicle
            occupants while the Trooper was obtaining consent
            for the search. There is no evidence than any of the
            officers had any physical contact with the driver or
            the occupants of the vehicle before the [T]rooper
            requested to search the vehicle.        The Trooper’s
            patrol car was parked on an angle behind the driver’s
            vehicle, with his lights on. The driver could have
            driven away without the Trooper moving his vehicle.
            The Trooper did not yell at the driver or the vehicle
            occupants or brandish his gun. Lastly, the Trooper
            expressly told the driver that she was “free to leave.”

                   The facts here do not suggest that the Trooper
            acted in a coercive manner or spoke forcefully to the
            driver or any of the vehicle occupants. Given the
            totality-of-the-circumstances, the subsequent round
            of questioning by the Trooper after the initial valid
            traffic stop, once the Trooper returned all the driver’s
            documentation and instructed the driver that she
            was free to leave, was [a] mere encounter and
            therefore the consent to search was not tainted by
            an illegal detention.

Trial Court Opinion, 3/20/15, at 6-7. For the following reasons, we disagree

with the legal conclusion drawn by the trial court that the driver was

engaged in a mere encounter with Trooper Nolan prior to giving her consent.

See Gary, supra.

      At the suppression hearing, the only evidence presented by the

Commonwealth was the testimony of Trooper Nolan, and the defense

presented no evidence.     The testimony of Trooper Nolan established the

events unfolded according to the following timeline. Trooper Nolan initiated

the traffic stop for an extinguished brake light, and the vehicles pulled into a

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J-A21028-15


“small parking lot.” Id. at 11, 23. He was in full uniform in a marked patrol

vehicle, with the lights activated. Id. at 20. He parked his vehicle behind

the driver’s vehicle on an angle, which would permit the driver to pull out of

the parking lot without Trooper Nolan moving his car. Id. at 21. On scene,

two other officers were present behind Trooper Nolan’s patrol car, in full

uniform. Id. at 22, 42. Trooper Nolan testified that he recalled at least one

of the two other police vehicles present was a marked police car; he could

not recall the other, specifically. Id. at 43.   As he approached the vehicle,

he noticed there were five occupants therein.         Id. at 12.   He further

observed at this time that Appellant, seated in the backseat, had “track

marks” located on her hands, and her hands appeared to be swollen. Id. at

13. Trooper Nolan testified that, in his experience, the appearance of her

hands indicated she was a drug user.      Id. Trooper Nolan approached the

driver, who appeared nervous, and asked her to step out of her vehicle. Id.

The driver complied and walked toward Trooper Nolan’s vehicle. Id. As the

driver exited, Trooper Nolan observed a small, black rubber band “consistent

with putting heroin packets together” in plain view “on the floor, next to the

[driver’s] seat.” Id. at 13-14. Next, Trooper Nolan spoke with the driver,

showed her which of her brake lights was out, and secured the driver’s

license, registration, and insurance documents.       Id. at 14-15.   Trooper

Nolan then ran the driver’s registration information, approached the driver’s

vehicle, and began speaking with the front seat passenger; Appellant was


                                     - 11 -
J-A21028-15


seated behind the driver’s seat along with two other passengers in the back

seat. Id. at 16-17. Trooper Nolan testified that he had received “conflicting

stories” from the driver and the occupants regarding where they were

coming from, and the occupants appeared nervous. Id. at 16-17. During

his conversation with the occupants, Trooper Nolan requested their

identifications, and they complied. Id.       He then went back to his patrol

vehicle, and the driver returned to her vehicle.     Id.   At his patrol vehicle,

Trooper Nolan ran the driving records and criminal histories of all occupants,

which yielded Appellant’s out-of-state violations related to drug offenses.

Id. at 18. He then typed up a warning for the brake light and filled out a

written request for consent to search the vehicle.      Id. at 18-19.    Trooper

Nolan returned to the driver’s side of the vehicle and again requested the

driver step out.   Id. at 19.    He specifically testified as follows regarding

issuing the warning and his encounter with the driver thereafter.

            [The Commonwealth]:

                  Q. What did you do [after the driver stepped
            out of her vehicle]?

            [Trooper Nolan]:

                   A. I explained to the operator of the vehicle
            that I’d be issuing her a warning for the brake light.
            At that time[,] I gave [the driver] her warning back,
            her registration, her license and her insurance card.

                   Q. At this -- I’m sorry, go ahead.

                  A. I gave her that back, and at that time I told
            her she was free to leave.

                                     - 12 -
J-A21028-15



               Q. Now, at this point in time did you have any
          documents that belonged to her?

               A. I did not, no.

               Q. Did you have any of her possessions?

               A. No.

          Q. And specifically what words did you say to her
          after you gave the documents back?

               A. I said to her she was free to leave.

               Q. What did you do after you said that?

                A. After I said she was free to leave, she
          turned around, walked towards her vehicle.     I
          turned, took several steps towards my vehicle.

               After several steps, I turn[ed] around and
          asked the operator if she had a few minutes. At that
          time she acknowledged that she did. She turned
          around and walked towards me.

                                     …

               Q. … What specifically did you say to her after
          you had both walked away.

                A. After I’ve already said she was free to
          leave?

               Q. Yes.

               A. I called her by her first name, which I don’t
          remember what it was, and I asked if she had a
          minute or can I have a minute of your time or
          something to that effect.

               Q. Did you command her to return?

               A. No.

                                   - 13 -
J-A21028-15



                 Q. Did you make any orders?

                 A. No.

                 Q. Now, you said you’re free to go and then
           you asked another question. Between that space of
           time how much time had elapsed?

                 A. I don’t know time. I mean, you’re talking, I
           turned towards my vehicle, walked towards mine,
           and … she was in front of my vehicle and she had
           turned around. She took several steps. She was
           almost by the door of her driver’s side door, to give
           her that leeway.

                                        …

                 Q. I’m assuming, then, that you met at some
           point. Did you have a discussion then?

                 A. Yes.

                 Q. What was the discussion about?

                A. Just -- I don’t remember specifically. I had
           asked if there’s anything in the vehicle. I explained
           to her the stuff that I had seen inside the vehicle
           which led to me being suspicious that there may be
           something inside the vehicle. She related that there
           was not.

                 At this time[,] I requested written consent.
           The operator gave me a verbal and written consent
           to search the vehicle.


N.T., 11/17/14 at 19-20; 24, 26.        On cross-examination, Trooper Nolan

clarified that at the time he reengaged the driver, he no longer had any of

her items or the passengers’ items.

           [Counsel for Appellant]:

                                      - 14 -
J-A21028-15



                   Q. And you gave [the driver] her documents
             back [after requesting driver to exit her vehicle in
             order to give her the warning]?

                   A. Well, I explained to her that I was issuing
             her a warning, issued that to her, gave her license
             back, her registration and also her insurance card.
             Gave all her documentations back.

                    Q. When did you give the passengers back
             their ID’s?

                   A. I might have given them to the driver. I
             didn’t have them still. I believe I might have given
             them to the driver.

Id. 47-48. He further testified regarding his training as follows.

             [Counsel for Appellant]:

                   Q. Have you been trained to tell people you’re
             free to go and then follow up with [“]can I ask you
             some questions[?”]?

                   A. Yes, because she is free to go.

Id. at 49.

      In Commonwealth v. Nguyen, 116 A.3d 657 (Pa. Super. 2015), this

Court recently analyzed the constitutionality of a police encounter following

an initial, valid traffic stop.   In Nguyen, a police trooper initiated a valid

traffic stop for speeding. Nguyen, supra at 660, 666-667. The trooper and

his partner approached the driver’s side, and the trooper explained the

nature of the stop to the driver.       Id. at 660.   The trooper asked for and

received the driver’s license and registration and then asked the driver to

exit the vehicle, and the driver complied.      Id. The trooper’s partner then

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J-A21028-15


approached the passenger side of the vehicle, but he did not engage the

passenger. Id. at 661. Next, the trooper approached the passenger in the

vehicle, the appellant, and asked for his license. Id. The appellant did not

make eye contact and refused to answer the trooper’s question, which, in

the trooper’s experience, was behavior consistent with narcotics activity.

Id. The appellant eventually gave his information to the trooper. Id. The

trooper ran the driver and the appellant’s information and found that the

appellant had prior drug convictions.    Id.   The trooper then returned the

paperwork to the driver and the appellant, issued a written warning for the

traffic violation, and told the driver he was “free to go.” Id. The trooper

and his partner walked toward their vehicle while the driver walked toward

his. Id. As the trooper approached the door of his vehicle, he turned around

and asked the driver if he could ask him some more questions.      Id.   The

driver had reached the side of his door at this point and agreed to answer

the trooper’s questions. Id. The trooper proceeded to ask the driver some

questions about the driver’s nervousness and his relationship with the

appellant and requested consent to search the vehicle and “all of its

contents.”   Id.   Following receipt of consent by the driver to search the

vehicle, the trooper asked the appellant to step out of the vehicle, and

ultimately, as a result of the interaction, the appellant was convicted of

several drug offenses. Id. at 661-662.




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J-A21028-15


      This Court concluded, “given the facts surrounding the subsequent

interaction … the driver and [a]ppellant were subject to a second seizure.”

Id. at 667. Specifically, this Court observed the following.

            [T]he driver and [the a]ppellant 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 the issuance of a warning and stating that the
            driver and [the a]ppellant were free to go, the driver
            would have been in 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.

Id. at 667-668.      This Court further concluded that the stop required

reasonable suspicion. Id. at 668. However, because the trooper “possessed

the information regarding [the a]ppellant’s criminal history prior to ending

the initial stop based on the traffic information[,] … such information could

not serve as the basis of reasonable suspicion for the subsequent interaction

after the initial stop ended.” Id.

      In the instant case, the evidence at the suppression hearing

established Trooper Nolan initiated a valid traffic stop based on the driver’s

broken brake light. N.T. 11/17/14, at 11. During the course of the initial

stop, he noticed nervous behavior of the driver; a single, small black rubber

band near the driver’s side on the floor; and Appellant’s hands, which were


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J-A21028-15


swollen and, in his opinion, had an appearance consistent with drug use.

Id. at 12-14. There were two other officers present, in full uniform, and

each parked their respective patrol vehicle behind Trooper Nolan’s in what

Trooper Nolan described as a “small parking lot.” Id. at 21-23.        Further,

Trooper Nolan twice requested that the driver leave her vehicle. Id. at 13,

19.   Specifically, Trooper Nolan requested the driver to step out of her

vehicle when he first approached the driver to show her the broken brake

light and request her documentation.           Id. at 13-15.   The driver then

returned to her vehicle, and Trooper Nolan returned to his vehicle to type up

the written warning. Id. at 17. Before issuing the warning to the driver or

returning the documentation, Trooper Nolan again requested the driver to

step out of her vehicle. Id. at 19.   After issuing the warning, Trooper Nolan

informed the driver she was free to go and, after she walked toward her car,

asked her if he could have a few more minutes of time, which resulted in the

consent to search her vehicle.    Id.    at 19-20.    Under the totality of the

circumstances, we conclude the driver and Appellant were subject to a

second seizure. See McAdoo, supra; see See also Moyer, supra at 667

(observing that a coercive environment was demonstrated by, inter alia, the

police directing the appellee out of the vehicle ”even though the existence of

a hole in [the appellee’s] taillight could readily have been addressed while

[the a]ppellee remained in his vehicle” and noting “the reintroduction of

questioning occurred within seconds after the admonition that [a]ppellee


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J-A21028-15


could leave the scene, rendering the interdiction virtually seamless”);

Nguyen, supra at 668 (noting when a person is located outside, rather

than inside, his or her vehicle, that person is less likely to believe he or she

can leave the area by entering the vehicle and driving away).          Further,

identical to the subsequent encounter initiated by the trooper in Nguyen,

Trooper Nolan’s articulated reasons for suspicion, i.e., the appearance of

Appellant’s hands, the nervous behavior, and the single, black rubber band,

were possessed prior to his termination of the first, valid detention.

Therefore, there was no new information on which he could base a

reasonable suspicion of criminal activity, and we conclude the subsequent

detention was unconstitutional. See Nguyen, supra at 668.

      Accordingly, because the driver’s consent was the product of the illegal

detention, the trial court erred in denying Appellant’s motion to suppress.

See Commonwealth v. Freeman, 757 A.2d 903, 906, 909 (Pa. 2000)

(noting, “where [] an illegal seizure precedes the consent search, the

Commonwealth must also establish a break in the causal connection

between the illegality and the evidence thereby obtained” and concluding

that “the trooper’s initiation of a second seizure and receipt of [the

appellant’s] consent were integrally connected” requiring suppression of the

fruits of the search).

      Based on the foregoing discussion, we reject the Commonwealth’s

argument that the driver was engaged in a mere encounter following the


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conclusion of the initial traffic stop, and we conclude Appellant was subject

to a second investigative detention without reasonable suspicion. We further

conclude that the consent to search was tainted by the illegal detention.

Therefore, the trial court erred in denying Appellant’s motion to suppress. 5

Accordingly, we vacate Appellant’s judgment of sentence, reverse the order

denying suppression, and remand for proceedings consistent with this

memorandum.

       Judgment      of   sentence     vacated     and   order   denying   Appellant’s

suppression motion reversed. Case remanded. Jurisdiction relinquished.

       Justice Fitzgerald joins the memorandum.

       Judge Allen concurs in the result.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/24/2015




____________________________________________


5
  Based on our resolution of Appellant’s first issue, we need not address her
remaining issues.



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