J-A16001-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                     IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellant

                       v.

STEVEN ALSTON,

                            Appellee                   No. 1469 EDA 2013


                   Appeal from the Order Entered May 1, 2013
              in the Court of Common Pleas of Philadelphia County
                Criminal Division at No.: CP-51-CR-0015307-2012


BEFORE: LAZARUS, J., OLSON, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.:                              FILED AUGUST 17, 2015

        The Commonwealth appeals from the order of May 1, 2013, which

granted the motion of Appellee, Steven Alston, to suppress. 1 After review,

we are constrained to reverse and remand.

        We take the underlying facts and procedural history in this matter

from the May 1, 2013 notes of testimony and our independent review of the

certified record.

____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
  The Commonwealth may take an appeal of right from an order that does
not end the entire case if it certifies in the notice of appeal that the order will
terminate or substantially handicap the prosecution. See Pa.R.A.P. 311(d);
see also Commonwealth v. Torres, 764 A.2d 532, 536 n.2 (Pa. 2001).
The Commonwealth has included such a certification in this case.
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        On December 7, 2012, at approximately 9:50 p.m., Philadelphia Police

Officer Colin Goshert and his partner, Officer Jeff Thompson, were on routine

patrol when they observed Appellee’s vehicle.        (See N.T. Suppression

Hearing, 5/01/13, at 4-5; see also Complaint, 12/08/12, at 1). The officers

observed that the vehicle had dark tint on all the windows and the license

plate lacked a registration sticker. (See id. at 5). Officer Goshert activated

the lights and sirens of his marked police vehicle; when Appellee pulled his

car over, both officers moved toward it on foot. (See id.).

        Officer Goshert approached the driver’s window and asked Appellee for

his license, registration, certificate of insurance, and registration sticker.

(See id.). Appellee provided all the requested documents and the officers

returned to their police car.   (See id. at 6).   Officer Goshert then used

various police databases to confirm the validity of Appellee’s documents, the

absence of outstanding warrants, and the status of any permits to carry a

gun.    (See id.).   Officer Goshert testified that he always checks the gun

license status of drivers as well as outstanding warrants because of safety

concerns. (See id.). The check performed by Officer Goshert showed that

Appellee had a license to carry that had been revoked. (See id.).

        The officers reapproached Appellee and Officer Thompson asked him if

he had a weapon. (See id.). Appellee stated that he had a gun in the back

seat.    (See id. at 7).   Concerned about their safety, the officers asked

Appellee to exit the car and when he did so, Officer Goshert recovered a


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weapon from the back pouch behind the passenger seat.           (See id.).    The

police arrested Appellee for carrying a firearm without a license and carrying

a firearm in public in the city of Philadelphia.2

        On May 1, 2013, the trial court held a hearing on Appellee’s motion to

suppress.3 That same day, the trial court granted the motion. The instant,

timely appeal followed.4

        On appeal, the Commonwealth raises the following question for our

review:

               Did the [trial] court erroneously suppress the evidence of
        [Appellee’s] gun and statement to the police based on the
        court’s mistaken belief that officers conducting a lawful nighttime
        traffic stop could not properly ask him whether he was armed
        without first giving him warnings pursuant to Miranda v.
        Arizona, 384 U.S. 436 (1966), even though he was not in
        custody or interrogated?

(Commonwealth’s Brief, at 4).

        The Commonwealth challenges the trial court’s grant of Appellee’s

motion to suppress. When the Commonwealth appeals from a suppression

order, this Court follows a clearly defined scope and standard of review: we

____________________________________________


2
    18 Pa.C.S.A. §§ 6106(a)(1) and 6108, respectively.
3
  There is no written motion to suppress in the certified record or listed on
the docket.
4
 Although not initially ordered to by the trial court, the Commonwealth filed
a concise statement of errors complained of on appeal. See Pa.R.A.P.
1925(b). On September 23, 2014, the trial court issued an opinion. See
Pa.R.A.P. 1925(a).



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consider only the evidence from the defendant’s witnesses together with the

evidence of the prosecution that, when read in the context of the entire

record, remains uncontradicted. See Commonwealth v. Henry, 943 A.2d

967, 969 (Pa. Super. 2008), appeal denied, 959 A.2d 928 (Pa. 2008). This

Court must first determine whether the record supports the factual findings

of the suppression court and then determine the reasonableness of the

inferences and legal conclusions drawn from those findings. See id. Here,

because our review of the record demonstrates that the inferences and legal

conclusions that the trial court drew were not reasonable or legally correct,

we are constrained to reverse.

     On appeal, the Commonwealth argues that “the suppression court

erred by adopting [Appellee’s] theory that police performing a lawful,

nighttime traffic stop could not ask him whether he had a gun without first

giving him Miranda warnings.” (Commonwealth’s Brief, at 11). Initially, we

note that this Court has held that there are three levels of interaction

between citizens and police officers: (1) mere encounter, (2) investigative

detention, and (3) custodial detention. See Commonwealth v. Jones, 874

A.2d 108, 116 (Pa. Super. 2005). Thus, we have stated:

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

           In contrast, an investigative detention, by implication,
     carries an official compulsion to stop and respond, but the

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

Id. (citation omitted). This Court has also stated that:

             The numerous factors used to determine whether a
      detention has evolved into an arrest include the cause for the
      detention, the detention’s length, the detention’s location,
      whether the suspect was transported against his or her will,
      whether physical restraints were used, whether the police used
      or threatened force, and the character of the investigative
      methods used to confirm or dispel the suspicions of the police.
      Custodial interrogation has been defined as questioning initiated
      by the police after a person has been taken into custody or
      otherwise deprived of his or her freedom of action in any
      significant way. Further, an interrogation occurs when the police
      should know that their words or actions are reasonably likely to
      elicit an incriminating response from the suspect. Miranda
      warnings must precede a custodial interrogation.

Commonwealth v. Clinton, 905 A.2d 1026, 1032 (Pa. Super. 2006),

appeal denied, 934 A.2d 71 (Pa. 2007) (internal quotation marks, emphasis,

and citations omitted).   It is long-settled that Miranda warnings are only

required for the third-level interaction, custodial interrogation.         See

Commonwealth v. Smith, 836 A.2d 5, 18 (Pa. 2003). However, equally

settled law states that a motor vehicle stop is a second-level interaction, an

investigative detention. See Clinton, supra at 1030.

      The courts have also plainly held that officer safety is a heightened

concern during traffic stops.      The United States Supreme Court has


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emphasized that there is an “inordinate risk confronting an officer as he

approaches a person seated in an automobile. According to one study,

approximately 30% of police shootings occurred when a police officer

approached a suspect seated in an automobile.” Pennsylvania v. Mimms,

434 U.S. 106, 110 (1977) (internal quotation marks and citation omitted).

In a recent decision, the Supreme Court reiterated 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).     The danger continues

throughout the stop because “if the suspect is not placed under arrest, he

will be permitted to reenter his automobile and he will then have access to

any weapons inside.” Michigan v. Long, 463 U.S. 1032, 1051-52 (1983)

(citation omitted). Those concerns are even greater when the motor vehicle

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

appeal denied, 989 A.2d 918 (Pa. 2010) (noting that nighttime “creates a

heightened danger that an officer will not be able to view a suspect reaching

for a weapon.”).

     Because of these 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), appeal denied, 882 A.2d 1004 (Pa.


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2005) (citations omitted).    The police may do so “despite the lack of an

articulable basis to believe that criminal activity if afoot or that the driver is

armed and dangerous.” Commonwealth v. Brown, 654 A.2d 1096, 1100

(Pa. Super. 1995), appeal denied, 664 A.2d 972 (Pa. 1995) (citations

omitted). “[T]he concern for officer safety [is so serious that it] outweighs

the minor intrusion on drivers and passengers whose freedom of

movement has already been curtailed by the traffic stop.” Clinton, supra

at 1030 (citation omitted, emphases in original). Such minimal intrusions on

privacy rights 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).

      Further, the courts have held that it is constitutionally permissible for

the police to access databases to search criminal history, warrant status,

and related information during a traffic stop, so long as it does not

unreasonably extend the stop. See Rodriguez, supra at 1615 (so long as

it does not unreasonably extend stop, police officer may conduct “certain

unrelated checks during an otherwise lawful traffic stop.”); Clinton, supra

at 1030 (police may check or secure information they believe necessary to

enforce provisions of Motor Vehicle Code); Commonwealth v. Bolton, 831

A.2d 734, 737 (Pa. Super. 2003) (police officer does not need to have some

level of suspicion prior to running license plate through the NCIC computer).




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      In the instant matter, the trial court found that there was “reasonable

suspicion and probable cause” for the initial stop of the motor vehicle. (Trial

Court Opinion, 9/23/14, at 4). However, the trial court then held that the

police completed the stop once they “determined that [Appellee’s] driver’s

license and insurance were current and valid. . . .” (Id.). The trial court

continued that there was “no reasonable basis or cause for the officer to

investigate, search, or inquire as to the [Appellee’s] licensure status for a

firearm.” (Id.). The trial court also found that length of the interrogation

supports a finding of custodial interrogation, as did “the investigative

methods used by the officers[.]” (Id. at 5). The trial court fails to cite to

any legal authority in support of these findings.

      To begin with, we find that the trial court’s conclusion that the police

completed the traffic stop once Officer Goshert determined that Appellee’s

license and insurance were current and valid and that, therefore, running the

weapons check created a custodial interrogation, is neither reasonable nor

legally correct. (See Trial Ct. Op., 9/23/14, at 4). While our Supreme Court

has not created a bright line rule as to when an initial valid traffic stops ends

and thus new reasonable suspicion is necessary to support a continued

detention, it has set forth certain factors for us to consider, including:

             . . . the existence and nature of any prior seizure;
      whether there was a clear and expressed endpoint to any
      such prior detention; the character of police presence and
      conduct in the encounter under review (for example—the
      number of officers, whether they were uniformed, whether police
      isolated subjects, physically touched them or directed their

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      movements, the content or manner of interrogatories or
      statement. . . ); geographic, temporal and environmental
      elements associated with the encounter; and the presence or
      absence of express advice that the citizen-subject was free to
      decline the request for consent to search. In general, a full
      examination must be undertaken of all coercive aspects of the
      police/citizen interaction.

Commonwealth v. Freeman, 757 A.2d 903, 906-07 (Pa. 2000) (emphasis

added, citation omitted).

      In Freeman, supra, our Supreme Court found that a second, unlawful

detention had occurred. See id. at 907-08. It stated that once the police

gave the driver a written warning, returned her license and registration and

told her she was free to leave, the stop had ended. See id. at 905, 907-08.

Therefore, before returning to the vehicle, interrogating the driver, and

obtaining her consent to search the vehicle, the police required new

reasonable suspicion. See id.

      In a recent decision, relying on Freeman, this Court held that the

police had subjected the driver to a second, unlawful detention.          See

Commonwealth v. Nguyen, --- A.3d ---, 2015 WL 1883050, at **8-9 (Pa.

Super. April 27, 2015).     We held that, after the police officer issued a

written warning, told the driver that the traffic stop was complete and he

was free to go, the officer could not reenter his patrol vehicle, return to the

driver, interrogate him and ask his consent to search the car absent

additional reasonable suspicion. See id. **2, 8-9.      We specifically stated

that the officer had accomplished the purpose of the lawful detention


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because he had issued a warning and told the driver he was free to go. See

id. at *9.

      Here, the trial court failed to undertake the full examination of the

circumstances mandated by the Freeman Court.            (See Trial Ct. Op.,

9/23/14, at 4). Our review of the record demonstrates that there had not

been a clear and expressed endpoint of the prior detention at the time

highlighted by the trial court. (See N.T. Suppression Hearing, 5/01/13, at

6). Rather, Appellee was still detained pursuant to the lawful detention

because, at the time Officer Goshert ran the gun license check, he had not

returned Appellee’s documents to him and still had the option of issuing a

warning or citation to him.   Thus, the trial court’s holding that the traffic

stop concluded after the police officer ran the driver’s license check, is not

supported by the record. See Freeman, supra at 907-08; Nguyen, supra

at ** 8-9.

      Further, the trial court’s holdings that there was “no reasonable basis

or cause for the officer to investigate, search, or inquire as to the

[Appellee’s] licensure status for a firearm[;]” and that the length of the

interrogation supports a finding of custodial interrogation, as did “the

investigative methods used by the officers[;]” cannot stand. (Trial Ct. Op.,

9/23/14, at 4-5).   We find this Court’s decision in Clinton, supra to be

instructive.




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        In Clinton, the police stopped a vehicle for failing to stop at a stop

sign.    See Clinton, supra at 1028.      The police parked their unmarked

vehicle, with lights and sirens, behind the defendant, and three police

officers approached the car. See id. One of the officers asked for license

and registration and then asked the defendant if he had a weapon or

anything that the police should know about and the defendant admitted that

he had marijuana.       See id.    This statement led to the search of the

defendant’s person and car and his subsequent arrest.      See id.   The trial

court granted the defendant’s motion to suppress concluding that, while the

initial traffic stop was valid, the detective acted in a manner that was

“inherently coercive with the aim of eliciting incriminating evidence without

having advised [the defendant] of his rights against self-incrimination.” Id.

at 1029 (internal quotation marks and record citation omitted).    On appeal,

we disagreed.

        In so doing, we reiterated that a traffic stop constitutes an

investigative detention, not a custodial interrogation. See id. at 1030. We

held that a question by police regarding the presence of a weapon is

constitutionally permissible, stating that such a question “unquestionably

and completely” falls on the side of officer safety and such a question “is

clearly less intrusive than a request by police to exit the vehicle.”   Id. at

1031 (emphasis in original).      Further, we specifically found that such a

question “is not of the type that would typically elicit incriminating


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statements.”     Id.   In holding that the trial court erred in finding that the

conditions were so coercive as to create a custodial interrogation, we stated:

              The cause for Appellee’s detention was a traffic stop after
       the police observed Appellee commit a traffic violation. The
       investigatory traffic stop had not yet concluded when Appellee
       made his incriminating statement; indeed, Appellee had not yet
       even produced the requested registration and insurance
       information. Appellee’s detention had, therefore, been relatively
       brief at the time he made his statement. The location of the
       detention was in an apartment building parking lot off a public
       roadway. Appellee had not been transported against his will at
       the time he made his incriminating statement. Appellee had not
       been physically restrained. The police did not threaten force.
       Finally, Detective Love’s question was not threatening,
       demanding, onerous, devious, or characterized by trickery. The
       question was plain, even-tempered, and to the point. Moreover,
       as we determined above, Detective Love’s question was not one
       reasonably likely to elicit an incriminating response from
       Appellee, and thus the question did not constitute an
       interrogation at all. Even though Appellee’s vehicle was blocked
       by a police car, there was no reason to conclude that Appellee
       could not have simply walked away or asked the police to move
       their vehicle at the conclusion of the investigatory stop had
       Appellee not volunteered his incriminating statement. Finally, it
       cannot be denied that the restrictive nature of Appellee’s
       encounter with the police paled in comparison to the restrictive
       nature of the encounter between the pedestrian and police
       officer that our Supreme Court determined was not a custodial
       detention in [Commonwealth v.] Pakacki, [901 A.2d 983, 988
       (Pa. 2004)].[5]

____________________________________________


5
  In Pakacki, a police officer stopped a pedestrian who resembled the
description of the suspect in a shooting; asked him if he had any weapons,
drugs, or needles; told him that for officer safety reasons he would perform
a pat down, and asked the defendant several questions about the shooting.
See Pakacki, supra at 985. During the frisk, the police officer smelled
marijuana and felt what he believed to be a marijuana pipe. See id. When
questioned, the defendant admitted that it was a marijuana pipe. See id.
Our Supreme Court held that the defendant was not in custody and the
(Footnote Continued Next Page)


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Id. at 1033 (emphasis omitted).

        We see little meaningful distinction between the facts in Clinton and

those in the instant matter.         While Officer Goshert ran a check for a gun

license in the instant matter, which did not occur in Clinton, as discussed

above, database checks are constitutionally permissible so long as they do

not unreasonably extend the time of the stop.         See Rodriguez, supra at

1615.

        Here, although the trial court held that the detention was unduly

lengthy, it fails to cite to anything in the record to support this factual

finding. (See Trial Ct. Op., at 5). Our review of the record demonstrates

that there was no testimony at all about the length of the detention. (See

N.T. Suppression Hearing, 5/01/13, at 4-12).           Thus, because the record

does not support the trial court’s factual finding about the length of the

detention, we are not bound by it. See Henry, supra at 969.

        Moreover, given the inherent dangers of a nighttime traffic stop, a

check to see if the driver has a permit to own a weapon appears to be

precisely the type of de minimis invasion of privacy, one that is far less

intrusive than asking a driver to exit the vehicle, which the courts have



                       _______________________
(Footnote Continued)

officer was not required to give Miranda warnings prior to questioning him
about the object in his pocket. See id. at 988.



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previously allowed. See Rodriguez, supra at 1614-16; Campbell, supra

at 663, Clinton, supra at 1030.

      Further, as in Clinton, the traffic stop had not concluded when

Appellee made the statement that he possessed a weapon. The location of

the detention was a public street in the city of Philadelphia. Appellee had

not been transported against his will at the time he made the statement. He

had not been physical restrained. The police had not even asked him to exit

his vehicle. The police did not threaten force. Officer Thompson’s question

was not threatening or in any manner devious. There is no indication that

Officer Thompson raised his voice or acted in an intimidating manner.

      Additionally, as we stated in Clinton, a question about whether

Appellee possessed a weapon “was not one reasonably likely to elicit an

incriminating response from Appellee, and thus . . . did not constitute an

interrogation[.]”   Clinton, supra at 1033 (emphasis omitted).      While the

police parked their vehicle behind Appellee’s car, there is nothing in the

record to support a conclusion that police would not have permitted him to

leave had he not stated that he possessed a weapon.                (See N.T.

Suppression Hearing, 5/01/13, at 5-7).      Thus, the trial court’s conclusion

that the police subjected Appellee to a custodial interrogation requiring the

administration of the Miranda warnings is neither reasonable nor legally

correct.    See Packacki, supra at 988; Clinton, supra at 1033.




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Accordingly, we are constrained to reverse the grant of suppression and

remand the matter for further proceedings consistent with this decision.

     Order reversed. Case remanded. Jurisdiction relinquished.

     Judge Olson files a Concurring Statement.

     Judge Lazarus files a Dissenting Memorandum.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/17/2015




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