J-S28042-19


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF                          : IN THE SUPERIOR COURT OF
PENNSYLVANIA,                            : PENNSYLVANIA
                                         :
                 Appellee                :
                                         :
           v.                            :
                                         :
LAVAUGHN FOLKES,                         :
                                         :
                 Appellant               : No. 1174 MDA 2018

       Appeal from the Judgment of Sentence Entered June 18, 2018
             in the Court of Common Pleas of Dauphin County
           Criminal Division at No(s):CP-22-CR-0002724-2017

BEFORE: BOWES, J., MCLAUGHLIN, J. and STRASSBURGER, J.*

MEMORANDUM BY STRASSBURGER, J.:            FILED: AUGUST 19, 2019

      Lavaughn Folkes (Appellant) appeals from the June 18, 2018 judgment

of sentence of three to eight years of incarceration following his nonjury

convictions for persons not to possess firearms and firearms not to be carried

without a license. Specifically, Appellant challenges the denial of his pretrial

suppression motion. We affirm.

      The trial court set forth the following factual and procedural history.

            On May 2, 2017, following an interaction with his assigned
      probation officer, [Appellant] was found in possession of a loaded
      firearm which was located underneath the driver’s seat of a car
      that [Appellant] had been seen inside, sitting in the driver’s seat.
      At the time of this discovery[, Appellant] was serving probation
      for the charges of [] robbery of a motor vehicle [and conspiracy-
      robbery of a motor vehicle,] to which he pled guilty on March 24,
      2015.

           Following the discovery of the firearm, [Appellant] was
      charged with persons not to possess firearms, and firearms not to

* Retired Senior Judge assigned to the Superior Court.
J-S28042-19


     be carried without a license. On December 22, 2017, [Appellant]
     filed a motion to suppress the evidence, and on January 19,
     2018[,] a suppression hearing on the matter commenced. The
     following evidence was adduced at the hearing.

            [Probation Officer (P.O.)] Naomi Morrow of Dauphin County
     Adult Probation was [Appellant’s] supervisor since November of
     2015, and had made contact with him at least once a month since
     being on supervision. On May 2, 2017, [P.O.] Morrow was
     partnered with [the] Harrisburg Police [Department] as a member
     of the Street Crimes Unit, and on this day [she and P.O. Aaron
     Harvey were riding along in a vehicle driven by Harrisburg Police
     Officer Nicholas Ishman,] … doing routine probation checks and
     assisting [Officer] Ishman with any stops that he conducted. At
     about 3:00 p.m. [P.O.] Morrow, Officer Ishman, and P.O. Harvey
     were located at [the intersection of 14th and Vernon streets] when
     they saw [Appellant] walk out of the corner store and get into a
     vehicle parked across from such store. [P.O.] Morrow knew that
     [Appellant] did not have a valid driver’s license, and was in
     violation of his probation to be driving a car without a license.3

           __________
           3 [Appellant] also testified that he did not have a driver’s

           license on May 2, 2017, and was aware that he was in
           violation of his probation to be driving without a license.

           Upon observing [Appellant] exit the store and enter the
     driver’s seat of the car,[1] [P.O.] Morrow asked Officer Ishman[,]
     who was driving them in an unmarked minivan, to stop, so [P.O.
     Morrow] could make contact with [Appellant]. At the time[, P.O.]
     Morrow was wearing a street crimes uniform which consisted of
     black cargo pants, black [] marked shirt[], and her
     probation/parole vest, which [said] “parole” on the front and back
     of the vest. [P.O.] Morrow called out to [Appellant]. [P.O.]
     Morrow and [P.O.] Harvey exited [the] vehicle, walked over to
     [Appellant,] who was sitting in the driver’s seat of the vehicle, and
     asked him to step out. [Appellant] exited the vehicle and
     interacted with [P.O.] Morrow.

           __________
           [1] Appellant was in the car with an unidentified front seat

           passenger. N.T., 1/19/2018, at 15, 17.



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            [P.O.] Morrow asked [Appellant] what he was doing on that
     day and why he was driving. [Appellant] told [P.O.] Morrow that
     the car was his mother’s, and he had just picked up his sister and
     was taking her to the store.[2] [P.O.] Morrow testified that she
     talked to [Appellant] for a little bit, asked him if he had anything
     illegal on him, and then asked him for consent to search his
     person. [Appellant] consented to the search and [P.O.] Morrow
     had [P.O.] Harvey conduct the search, which [did not yield any
     contraband. P.O.] Morrow then asked [Appellant] if there was
     anything illegal in the car, and if he minded if they search[ed] the
     car. [P.O.] Morrow testified that [Appellant] said “go ahead.”4
     [P.O.] Morrow then asked the passenger in the front passenger
     seat to exit the vehicle so they could search, and asked
     [Appellant] and his sister to step to the back of the car. The
     search of the vehicle yielded a small black handgun which was
     located under the front driver’s seat.

           __________
           [2] Appellant’s sister was not in the car when officers arrived.

           N.T., 1/19/2018, at 15. Though it is not clear from the
           record exactly when, at some point she arrived at the
           vehicle while the officers were still there. Id. at 18.

           4 [P.O.] Harvey also testified that [Appellant] did not refuse
           consent, did not hesitate in giving consent, and that it was
           “pretty unequivocal” that [Appellant] gave consent.
           Additionally, [P.O.] Harvey testified that none of the other
           passengers raised any objections to the search, they were
           all very cooperative [and] very quick to answer, and that
           there was nothing that made it seem like they had an issue
           with [the officers] asking to search and [their] giving
           permission to do so.

Trial Court Opinion, 1/10/2019, at 1-3 (citations to record omitted; some

paragraph breaks supplied).

     Following the suppression hearing, the trial court denied Appellant’s

motion. Order, 2/21/2018. At the conclusion of a bench trial, Appellant was

found guilty of both charges and sentenced to a term of three to eight years

of incarceration for each conviction, to be served concurrently.       Appellant

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timely filed a notice of appeal. Both Appellant and the trial court complied

with Pa.R.A.P. 1925.

      On appeal, Appellant presents the following question for this Court’s

consideration: Whether the trial court “erred in denying [Appellant’s] motion

to suppress when probation officers performed a warrantless search of

[Appellant’s] vehicle without procuring [Appellant’s] unequivocal, specific, and

voluntary consent?” Appellant’s Brief at 8.

      We consider Appellant’s question mindful of the following.

      Our standard of review on appeal of the denial of a motion to
      suppress is to determine whether the certified record supports the
      suppression court’s factual findings and the legitimacy of the
      inferences and legal conclusions drawn from those findings. We
      consider only the evidence of the prosecution’s witnesses and so
      much of the defense as, fairly read in the context of the record as
      a whole, remains uncontradicted. If the record supports the
      factual findings of the suppression court, we reverse only if there
      is an error in the legal conclusions drawn from those factual
      findings.

Commonwealth v. Gould, 187 A.3d 927, 934 (Pa. Super. 2018) (citations

and internal quotation marks omitted).

      On appeal, Appellant concedes that probation officers can search a

probationer’s person and property on the basis of reasonable suspicion, but

he argues that the consent he gave to search was not voluntary. Appellant’s

Brief at 12, 16-20.

      Because Appellant’s claim challenges the probation officer’s ability to

conduct a search of the vehicle, we observe the following. Probationers have

limited Fourth Amendment rights because of a diminished expectation of

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privacy. Commonwealth v. Parker, 152 A.3d 309, 316 (Pa. Super. 2016)

(citations and internal quotation marks omitted).      Pursuant to 42 Pa.C.S.

§ 9912, a county probation officer may conduct a property search “if there is

reasonable suspicion to believe that the real or other property in the

possession of or under the control of the offender contains contraband or other

evidence of violations of the conditions of supervision.”          42 Pa.C.S.

§ 9912(d)(2). The statute specifies factors a court may take into account in

determining whether reasonable suspicion exists:

      (i) The observations of officers.

      (ii) Information provided by others.

      (iii) The activities of the offender.

      (iv) Information provided by the offender.

      (v) The experience of the officers with the offender.

      (vi) The experience of officers in similar circumstances.

      (vii) The prior criminal and supervisory history of the offender.

      (viii) The need to verify compliance with the conditions of
      supervision.

42 Pa.C.S. § 9912(d)(6).3 In addition, the statute provides that “reasonable

suspicion to search shall be determined in accordance with constitutional




3 The statute also requires that, absent exigent circumstances, a probation
officer must obtain prior approval from a supervisor to conduct a property
search. 42 Pa.C.S. § 9912(d)(3). However, a violation of the statute does
not constitute an independent ground for suppression of evidence. Id.
§ 9912(c).
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J-S28042-19

search and seizure provisions as applied by judicial decision.” Id.; see also

Parker, 152 A.3d at 318.

            In establishing reasonable suspicion, the fundamental
     inquiry is an objective one, namely, whether the facts available to
     the officer at the moment of the intrusion warrant a person of
     reasonable caution in the belief that the action taken was
     appropriate.     This assessment, like that applicable to the
     determination of probable cause, requires an evaluation of the
     totality of the circumstances, with a lesser showing needed to
     demonstrate reasonable suspicion in terms of both quantity or
     content and reliability.

            The threshold question in cases such as this is whether the
     probation officer had a reasonable suspicion of criminal activity or
     a violation of probation prior to the search.

Parker, 152 A.3d at 318 (citations, brackets, and internal quotation marks

omitted).

     Here, the trial court determined P.O. Morrow had reasonable suspicion

that Appellant was in violation of his probation prior to the search of the

vehicle. Trial Court Opinion, 1/10/2019, at 5-6. Appellant does not challenge

this finding on appeal.    See Appellant’s Brief at 4 (challenging only the

voluntariness of consent in his statement of questions involved). Thus, with

reasonable suspicion, the search was permissible irrespective of Appellant’s

consent.

     Even if Appellant had made such a challenge, we agree with the trial

court’s finding of reasonable suspicion. P.O. Morrow reasonably suspected

Appellant was driving without a license in violation of his probation; she

observed Appellant enter and sit in the driver’s seat of a car that was on a


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J-S28042-19

public road away from his home, and as his supervisor, she knew Appellant

did not have a driver’s license.    N.T., 1/19/2018, at 14-16.      In addition,

Appellant admitted to her that he had just been driving his mother’s car. Id.

at 15. Thus, we agree with the trial court that the officers had reasonable

suspicion that Appellant was in violation of his probation prior to the search of

the vehicle. Trial Court Opinion, 1/10/2019, at 5-6; see also Parker, 152

A.3d at 318.     Therefore, any search of Appellant’s vehicle was lawful,

regardless of his consent.

      However, even if the officers did not have reasonable suspicion, the

officers obtained Appellant’s consent prior to the search. As stated supra, on

appeal, Appellant contends his consent was not voluntary. Appellant’s Brief

at 16-20.

            One of the limited exceptions to the warrant requirement is
      a consensual search. We have long approved consensual searches
      because it is no doubt reasonable for the police to conduct a
      search once they have been permitted to do so. Although a
      warrantless,   but    consensual,    search    is   constitutionally
      permissible, obtaining consent is an “investigative tool” utilized by
      law enforcement. It allows police to do what otherwise would be
      impermissible without a warrant. As a consent search is in
      derogation of the Fourth Amendment, there are carefully
      demarked limitations as to what constitutes a valid consent
      search.

            First, consent must be voluntarily given during a lawful
      police interaction.     For a finding of voluntariness, the
      Commonwealth must establish that the consent given by the
      defendant is the product of an essentially free and unconstrained
      choice – not the result of duress or coercion, express or implied,
      or a will overborne – under the totality of the circumstances.



                                      -7-
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            If consent is given voluntarily, the ensuing search must be
      conducted within the scope of that consent. The standard for
      measuring the scope of an individual’s consent is one of “objective
      reasonableness.” We do not ascertain the scope of consent from
      the individual’s subjective belief or the officer’s understanding
      based on his or her training and experience, but based on what ...
      the typical reasonable person would have understood by the
      exchange between the officer and the suspect.

Commonwealth v. Valdivia, 195 A.3d 855, 861–62 (Pa. 2018) (citations,

footnotes, brackets, some quotation marks omitted).

      Here, Appellant argues that his consent was coerced because he claims

he was in custody, three officers converged on him, the officers directed his

and his sister’s movements, he had only been released recently from

electronic monitoring, and P.O. Harvey questioned him about the amount of

money found on Appellant’s person. Id. at 19-20.

      To the extent Appellant claims he was in custody, see Appellant’s Brief

at 19, we note the following. Our jurisprudence defines custody as consisting

of “coercive conditions as to constitute the functional equivalent of an arrest.”

Commonwealth v. Chambers, 55 A.3d 1208, 1214 (Pa. Super. 2012)

(citation and brackets omitted); see also Commonwealth v. Miller, 186

A.3d 448, 452 (Pa. Super. 2018) (stating that because Miller was in custody,

it weighs against a finding of voluntariness).

      Here, it is clear Appellant was not in custody when P.O. Morrow asked

him if the officers could search the vehicle.     P.O. Morrow was Appellant’s

supervisor. She happened upon him while patrolling the area, observed him

apparently violating the terms of his probation, did not activate lights or

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sirens, got out of the unmarked minivan, walked across the street, asked him

to exit the vehicle, and casually asked Appellant what he was doing.       The

officer’s minivan was parked across the street and did not block Appellant from

leaving. As discussed supra, P.O. Morrow reasonably suspected Appellant was

violating a probation condition, and there is nothing in the record to indicate

that P.O. Morrow was doing anything more than requesting information, or

that she gave any official compulsion to stop or respond. See Gould, 187

A.3d at 937 n.9 (compiling cases where no investigative detention occurred)

(“Commonwealth v. Au, [] 42 A.3d 1002, 1008 ([Pa.] 2012) (concluding no

investigative detention occurred where officer approached vehicle parked in

lot, but did not activate overhead lights, position his vehicle so as to block

suspect vehicle from leaving, or otherwise issue threats or commands or show

force); Commonwealth v. Baldwin, 147 A.3d 1200, 1204 (Pa. Super. 2016)

(finding no investigative detention where officers’ vehicle did not block

pedestrian’s path out of parking lot); Commonwealth v. Collins, 950 A.2d

1041, 1044, 1047 (Pa. Super. 2008) (en banc) (finding no investigative

detention where police parked 20 feet behind vehicle parked along highway,

did not block vehicle from leaving, and did not activate overhead lights).”).

      Thus, there is no evidence that Appellant was subjected to “coercive

conditions to constitute the functional equivalent of an arrest” when P.O.

Morrow asked Appellant if he had anything illegal in the car and whether the




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officers could search it. See Chambers, 55 A.3d at 1214; see also N.T.,

1/19/2018, at 11-17.

      The trial court determined that Appellant “expressly volunteered

consent to search both his person and his vehicle.”         Trial Court Opinion,

1/10/2019, at 5. The record supports the trial court’s finding. P.O. Morrow

testified on direct examination as follows.

      A.    I asked him if there’s anything illegal in the car. And he says,
            No. And I say, Do you mind if we search the car? And he
            says that – he gave us – he said go ahead.

      Q.    At this point, what’s his demeanor? Is he –

      A.    Calm, cool.

N.T., 1/19/2018, at 17. P.O. Harvey confirmed P.O. Morrow’s testimony that

Appellant consented to the search of the vehicle. Id. at 33-34 (testifying that

Appellant answered quickly, did not hesitate, and did not refuse when asked

for consent to search the car).4      In addition, all of the Commonwealth’s

witnesses testified that the interaction between P.O. Morrow and Appellant

was conversational. Id. at 15-16, 26, 29, 44 (describing their interaction as

“casual,” “normal,” “everyday,” “cordial,” “just making contact,” “just talking,”


4 Appellant asserts that P.O. Harvey’s testimony is inconsistent with that of
P.O. Morrow. Appellant’s Brief at 18-19. Some of the questions on cross-
examination were worded in a confusing fashion and elicited seemingly
inconsistent “yes” or “no” responses. Our review of the transcript reveals that
P.O. Harvey testified clearly that Appellant consented to a search of the
vehicle. N.T., 1/19/2018, at 37 (testifying on cross-examination that “[P.O.
Morrow] asked if there was anything illegal in the vehicle. Pretty much the
standard thing we ask. And [Appellant] replied that there was nothing illegal
in the vehicle and he did consent to the search”).
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and “like you’d talk to anyone on the street”).        Appellant was “completely

normal” and “not nervous at all.” Id. at 26. P.O. Morrow was about 10 feet

away from Appellant, with P.O. Harvey behind her, and Officer Ishman was

“catty-corner” on the other side of the vehicle. Id. at 30, 42. Appellant had

room to move around, P.O. Morrow was “not right up in” Appellant’s face, and

she did not command or direct him to do anything prior to the search. Id. at

30. Further, the officers were not looking for Appellant that day, but happened

upon him. Id. at 24-25. P.O. Morrow initially made contact with Appellant

by calling to him from across the street while she was still inside Officer

Ishman’s vehicle. Id. at 14. Officer Ishman let the probation officers out to

cross the street toward where Appellant was sitting in the driver’s seat of a

vehicle, and then Officer Ishman parked his vehicle and joined them. Id. at

14, 41-42. The officers were in an unmarked minivan, did not use any lights

or sirens, parked across the street from Appellant, and did not block

Appellant’s car from leaving. Id. at 13, 41.

      Under the totality of the circumstances, we agree with the trial court

that Appellant’s consent was voluntary and “the product of an essentially free

and unconstrained choice – not the result of duress or coercion, express or

implied,   or   a   will   overborne.”     See    Valdivia,   195   A.3d   at   862;

Commonwealth v. Luczki, -- A.3d --, 2019 WL 2399637 (Pa. Super. June

7, 2019) (citation omitted) (“It is within the suppression court's sole province




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as factfinder to pass on the credibility of witnesses and the weight to be given

their testimony.”).

      For all of the foregoing reasons and based upon our review of the record,

we discern no error in the trial court’s denial of Appellant’s suppression

motion.

      Judgment of sentence affirmed.

      Judge Bowes joins this memorandum.

      Judge McLaughlin concurs in the result.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 8/19/2019




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