J-S72020-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA             :    IN THE SUPERIOR COURT OF
                                         :          PENNSYLVANIA
                                         :
            v.                           :
                                         :
                                         :
TIFFANY ROWAN,                           :
                                         :
                  Appellant              :         No. 379 EDA 2016

          Appeal from the Judgment of Sentence January 21, 2016
           in the Court of Common Pleas of Montgomery County,
            Criminal Division at No(s): CP-46-CR-0003672-2014

BEFORE:    BENDER, P.J.E., MUSMANNO, J., and STEVENS*, P.J.E.

MEMORANDUM BY MUSMANNO, J.:                         FILED MARCH 28, 2018

     Tiffany Rowan (“Rowan”) appeals from the judgment of sentence

imposed following her conviction of possession of a controlled substance.

See 35 P.S. § 780-113(a)(16).     We vacate the judgment of sentence and

remand for further proceedings.

     The trial court set forth the relevant underlying facts as follows:

     Officer Anthony Space [(“Officer Space”)] testified that he has
     approximately seven (7) years of experience in law enforcement.
     For the last three (3) years, Officer Space has worked as a patrol
     officer with the Abington Township Police Department.
     Previously, Officer Space worked as a police officer in patrol for
     approximately four (4) years in the 22nd District of the
     Philadelphia Police Department.

     Officer Space has specific training and experience with narcotics,
     has participated in several hundred narcotics arrests, and has
     completed approximately three hundred (300) hours in advanced
     car stop training through McLaughlin and other training venues.
     This training includes instruction in criminal, street-level, and
     highway interdiction.


____________________________________
* Former Justice specially assigned to the Superior Court.
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     On September 21, 2013, Officer Space was working the 7:00
     p.m. to 7:00 a.m. shift. While on foot patrol in the Glenside
     section of Abington Township at 2:15 a.m., Officer Space saw a
     black Pontiac pull into the 7-Eleven parking lot at 362 Easton
     Road. Four (4) individuals exited the Pontiac and entered the 7-
     Eleven. After the individuals left the 7-Eleven and reentered the
     car, Officer Space saw that the car’s Pennsylvania inspection
     sticker had expired the previous year. Officer Space approached
     on foot and stopped the car. Officer Space explained the reason
     for the stop to the driver and requested to see his driver’s
     license, registration, and insurance verification.

     As the driver was gathering his license, registration, and
     insurance verification, Officer Space’s attention was drawn to the
     two rear passengers. [Rowan] and a male passenger were
     displaying excessive signs of nervousness.         Specifically, the
     officer noticed that they were shaking, fidgeting, and breathing
     heavily. As Officer Space and [Rowan] were looking toward one
     another, the officer saw [Rowan] move her purse from a position
     where Officer Space could see it and relocated the purse to the
     other side of her body and out of his sight.

     Based on his experience after hundreds of previous vehicle
     stops, Officer Space testified that the level of [Rowan’s]
     nervousness was inconsistent with the behavior of the general
     public and beyond that expected from citizens stopped by the
     police. Officer Space then asked the driver to bring his license
     and registration to the rear of the car. The driver complied.

     Officer Space asked the driver about the two rear passengers.
     The driver said he knew the male passenger and that he had just
     met [Rowan] that evening at the 19th Hole, a dance club on
     Jenkintown Road. Officer Space asked the driver if there was
     any contraband in the vehicle. The driver responded: “Not that
     I know of, but I can’t speak for everyone else in the car.”
     Without being asked, the driver then said: “You’re welcome to
     search the car.”

     After receiving the driver’s consent to search the car, Officer
     Space had the other occupants exit the car. Once [Rowan]
     exited the car, she appeared even more nervous.

     Considering that it was 2:15 a.m., Officer Space was on foot
     patrol and did not know whether his backup had arrived yet,

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      there were four (4) passengers and the possibility that there was
      criminal activity afoot, Officer Space determined that it would be
      prudent to conduct a safety pat-down of the individuals who had
      been in the car before searching the car. During his pat-down of
      [Rowan], Officer Space felt an approximate one (1) inch lump in
      her right jean pocket. Based on his training and experience, the
      lump felt to him like narcotics packaging, but he could not say
      specifically what kind of narcotics.

      When Officer Space asked [Rowan] what the lump was, [Rowan]
      replied that it was money. Officer Space knew this to be false
      and responded to [Rowan] that it certainly was not money.

      At that point, [Rowan] began to back away from the officer.
      Believing that [Rowan] had lied to him and was now going to try
      to run away, Officer Space grabbed [Rowan’s] arm. [Rowan]
      then admitted that the lump in her pocket was drugs. Officer
      Space recovered approximately ten (10) packages of marked
      and stamped heroin from [Rowan]. Officer Space found no
      contraband on the other individuals in the vehicle. There was a
      firearm located on the rear passenger but Officer Space
      determined that it was legally possessed.

      [Rowan filed a Pre-Trial Motion to Suppress.] Following a review
      of the record and the relevant law, the court denied [Rowan’s]
      Omnibus Pre-Trial Motion to Suppress on January 12, 2016.
      [Rowan] proceeded to a stipulated bench trial on January 21,
      2016, wherein the Commonwealth introduced the transcript of
      the suppression hearing and the affidavit of probable cause and
      rested. [Rowan] did not introduce any evidence. Following
      closing arguments, the court found [Rowan] guilty and imposed
      [a sentence of two years of probation.] [Rowan] filed a [N]otice
      of appeal on February 2, 2016.        The [trial court] directed
      [Rowan] to file a Concise Statement of the Matters Complained
      of on Appeal, pursuant to Pa.R.A.P. 1925(b) (“Statement”) by
      [O]rder dated February 16, 2016. [Rowan] filed her Statement
      on March 8, 2016.

Trial Court Opinion, 5/31/17, at 2-4 (citations omitted).

      On appeal, Rowan raises the following questions for our review:

      1. Whether the suppression court erred in determining that the
         facts and circumstances available to Officer Space at the time

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         he patted down [Rowan] were sufficient to warrant a
         reasonable belief that [Rowan] may have been armed and
         dangerous; … whether the trial court erred in finding that
         [Rowan] was lawfully seized pursuant to the plain feel
         doctrine[?]

      2. Whether, in denying [Rowan’s] Motion to Suppress, the
         suppression court improperly considered hearsay statements
         attributed to the driver of the vehicle; and … whether the
         record supports the suppression court’s finding that the
         driver’s hearsay statement “suggested the possibility of
         contraband in the vehicle or in a passenger’s possession[?]”

Brief for Appellant at 8 (some capitalization omitted).

      The standard of review for the denial of a motion to suppress evidence

is settled:

      An appellate court’s standard of review in addressing a challenge
      to the denial of a suppression motion is limited to determining
      whether the suppression court’s factual findings are supported
      by the record and whether the legal conclusions drawn from
      those facts are correct. Because the Commonwealth prevailed
      before the suppression court, we may consider only the evidence
      of the Commonwealth 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 suppression court’s factual
      findings are supported by the record, the appellate court is
      bound by those findings and may reverse only if the court’s legal
      conclusions are erroneous.         Where the appeal of the
      determination of the suppression court turns on allegations of
      legal error, the suppression court’s legal conclusions are not
      binding on an appellate court, whose duty it is to determine if
      the suppression court properly applied the law to the facts.
      Thus, the conclusions of law of the courts below are subject to
      plenary review.

Commonwealth v. Smith, 164 A.3d 1255, 1257 (Pa. Super. 2017)

(citation and brackets omitted).




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      In her first claim, Rowan contends that her Motion to Suppress should

have been granted. Brief for Appellant at 16, 35. Rowan argues that Officer

Space did not have sufficient facts to reasonably believe that Rowan may

have been armed and dangerous.        Id. at 16, 17, 22, 24-25, 27-28, 35.

Rowan avers that her alleged nervousness, her movement of her purse, and

the driver’s statements to Officer Space did not create a viable basis for the

pat-down search. Id. at 17, 20-21, 22-23, 28-29, 30, 32, 34; see also id.

at 19, 24, 32 (noting that Rowan was not wearing bulky clothing under

which a weapon could be hidden).

      Rowan further asserts that the drugs were not lawfully seized pursuant

to the plain feel doctrine. Id. at 16, 24, 25-26. Rowan claims that Officer

Space’s testimony that he “couldn’t say for sure” what was in Rowan’s

pocket demonstrated that the plain feel doctrine was inapplicable.      Id. at

25-27, 29, 35; see also id. at 29, 35 (stating that the fact that Officer

Space had to ask Rowan what was in her pocket evidenced an admission

that he could not immediately identify the object).       Rowan argues that

because the plain feel doctrine did not apply, her incriminating statement,

made after Officer Space had grabbed her, was inadmissible and did not

allow for the seizure of the drugs. Id. at 26-27, 31.

      There are three categories of interactions between police and a citizen

evaluated pursuant to Article I, Section 8 of the Pennsylvania Constitution:

      The first of these is a “mere encounter” (or request for
      information)[,] which need not be supported by any level of

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      suspicion, but carries no official compulsion to stop or to
      respond. The second, an “investigative detention[,]” must be
      supported by 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. Downey, 39 A.3d 401, 405 (Pa. Super. 2012) (citation

omitted).

      When evaluating the legality of investigative detentions, Pennsylvania

has adopted the holding of Terry v. Ohio, 392 U.S. 1 (1968), noting the

following:

      [T]he Terry “stop and frisk[]” permits a police officer to briefly
      detain a citizen for investigatory purposes if the officer observes
      unusual conduct which leads him to reasonably conclude, in light
      of his experience, that criminal activity may be afoot.
      Terry further held that when an officer is justified in believing
      that the individual[,] whose suspicious behavior he is
      investigating at close range[,] is armed and presently dangerous
      to the officer or to others[,] the officer may conduct a
      pat[-]down search to determine whether the person is in fact
      carrying a weapon. The purpose of this limited search is not to
      discover evidence of crime, but to allow the officer to pursue his
      investigation without fear of violence.

      In order to conduct an investigatory stop, the police must have
      reasonable suspicion that criminal activity is afoot. In order to
      determine whether the police had reasonable suspicion, the
      totality of the circumstances — the whole picture — must be
      considered. Based upon that whole picture[,] the detaining
      officers must have a particularized and objective basis for
      suspecting the particular person stopped of criminal activity. To
      conduct a pat[-]down for weapons, a limited search or “frisk” of
      the suspect, the officer must reasonably believe that his safety
      or the safety of others is threatened.




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Commonwealth        v.    Simmons,        17      A.3d    399,   402-03      (Pa.   Super.

2011) (citations, quotation marks, and some paragraph breaks omitted).

However, “[t]he officer need not be absolutely certain that the individual is

armed; the issue is whether a reasonably prudent man in the circumstances

would be warranted in the belief that his safety or the safety of others was

in danger.”     Commonwealth v. Taylor, 771 A.2d 1261, 1268-69 (Pa.

2001).     Moreover,     in    conducting     a   reasonable     suspicion     inquiry,   a

suppression court is required to “afford due weight to the specific,

reasonable inferences drawn from the facts in light of the officer’s

experience[.]” Commonwealth v. Brown, 996 A.2d 473, 477 (Pa. 2010).

       If weapons are found as a result of the pat-down search, the police

officer may seize them. Commonwealth v. Thompson, 939 A.2d 371, 376

(Pa.   Super.   2007).        Additionally,    officers   may    seize   nonthreatening

contraband “if it is discovered in compliance with the plain feel doctrine[.]”

Id. Under the plain feel doctrine,

       a police officer may seize non-threatening contraband detected
       through the officer’s sense of touch during a Terry frisk if the
       officer is lawfully in a position to detect the presence of
       contraband[;] the incriminating nature of the contraband is
       immediately apparent from its tactile impression[;] and the
       officer has a lawful right of access to the object.

Commonwealth v. Wilson, 927 A.2d 279, 287 (Pa. Super. 2007).                         “The

contraband is immediately apparent when the officer readily perceives,

without further exploration or searching, that what he is feeling is

contraband.” Commonwealth v. Parker, 957 A.2d 311, 315 (Pa. Super.

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2008) (citation and quotation marks omitted); see also Commonwealth v.

Guillespie, 745 A.2d 654, 658 (Pa. Super. 2000) (stating that a “Terry frisk

will only support the seizure of contraband discovered via the officer’s plain

feel when the incriminating nature of that contraband is immediately

apparent to the officer, based solely on the officer’s initial pat-down of the

suspect’s outer garments.”) (citation omitted). “If, after feeling the object,

the officer lacks probable cause to believe that the object is contraband

without    conducting   some   further   search,   the   immediately    apparent

requirement has not been met and the plain feel doctrine cannot justify the

seizure    of the object.”     Thompson, 939        A.2d at 376; see also

Commonwealth v. Zahir, 751 A.2d 1153, 1163 (Pa. 2000) (noting that an

officer’s subjective belief that an item is contraband is not sufficient unless it

is objectively reasonable in light of the facts and circumstances that

attended the frisk).

      Officer Space testified that on September 21, 2013, at 2:15 a.m., he

was on foot patrol in the Glenside section of Abington Township.            N.T.,

6/10/15, at 6. Officer Space stated that he had observed a black Pontiac,

containing four individuals, park in a 7-Eleven parking lot. Id. at 7. Officer

Space stopped the vehicle after observing that the inspection stickers were

expired.    Id.   As Officer Space spoke with the driver of the vehicle, he

noticed Rowan and another passenger

      displaying excessive signs of nervousness. They were shaking;
      there was heavy breathing. Both [the passenger] and [] Rowan

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      were fidgeting in the backseat. At one point, I observed []
      Rowan – I was looking towards her and she was looking towards
      me, and she took a purse that was in a position where I could
      see it and relocated it to an area to the other side of her body[.]

Id. at 8. Officer Space then asked the driver to exit the vehicle and go to

the rear of the vehicle. Id. at 9. Officer Space questioned the driver about

the rear passengers, who explained that he knew the male passenger, but

had just met Rowan at a dance club. Id. at 10. Officer Space asked the

driver if there was any contraband in the vehicle, to which the driver replied

“not that I know of,” but that “[y]ou’re welcome to search the car.” Id. at

10-11.

      At this point, Officer Space asked the three passengers to exit the

vehicle. Id. at 11. Because backup had not arrived, Officer Space decided

to conduct a safety pat-down search of the individuals, beginning with

Rowan.     Id.   Regarding the pat-down search of Rowan, Officer Space

testified as follows:

      [A.] … I began conducting a pat-down of [] Rowan, and during
      that pat-down I felt a -- like a lump, a small lump about 1 inch
      in her right jean pocket.

      Q. Officer, when you felt that lump, what did you believe it to
      be?

      A. I couldn’t say for sure. I mean when I first felt the lump, it
      felt consistent to me with narcotics packaging, but I couldn’t
      specifically say what kind.

      I did not go in and retrieve the package. I asked [] Rowan what
      it was, and she stated to me it was money, and I stated to her
      very clearly that it was certainly not money. And she began to
      back away, and I thought she was going to try to run, and I

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     grabbed her arm.    And she said -- she finally admitted it was
     drugs.

                                    ***

     Q. Now, when you patted her down, you said you weren’t sure
     what it was. It was just a lump; is that correct?

     A. I specifically said that I believed from my experience that it
     was consistent with narcotics packaging. Exactly what type of
     narcotics I couldn’t say, but at the very least I have a reasonable
     suspicion to detain her there.

     Q. But you couldn’t say for sure? All you saw was the plastic; is
     that correct?

     A. Correct.

                                    ***

     Q. And you said that when you touched the outside of her
     pocket, you believed it to be narcotics packaging; is that
     correct?

     A. What I felt was most certainly consistent with narcotics
     packaging.

Id. at 12, 15, 16-17 (emphasis added).

     Based on the totality of the circumstances, we conclude that Officer

Space articulated sufficient facts from which he could conduct a Terry frisk

of the occupants of the vehicle. The driver of the vehicle provided Officer

Space with consent to search the vehicle during the stop. Thus, as Rowan

concedes, Officer Space had the authority to order the passengers to exit

the vehicle to assure his safety by conducting a Terry frisk.              See

Commonwealth v. Reppert, 814 A.2d 1196, 1202 (Pa. Super. 2002) (en

banc); see also Simmons, 17 A.3d at 403 (noting that “the principles of

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Terry apply to all occupants of the stopped vehicle, not just the driver.”).

Thus, based upon the evidence presented, Officer Space was justified in

removing the occupants of the vehicle and subjecting Rowan to a Terry

frisk.

         Having concluded Officer Space could conduct a Terry frisk, we must

determine whether he exceeded the scope of a permissible pat-down. Upon

review, it is difficult for us to perceive how the one-inch lump described by

Officer Space, in and of itself, and sight unseen, could have a “contour or

mass” that was immediately recognizable as a controlled substance.             See

Commonwealth v. E.M., 735 A.2d 654, 663 (Pa. 1999) (holding that

testimony from officer that the bulge in defendant’s pocket “may have been

contraband” did not meet the “immediately apparent” standard necessary to

seize the object pursuant to the plain feel doctrine as the officer “offered no

testimony indicating what it was about the mass or contour of this soft bulge

which would support a finding that the feeling of the bulge made it

immediately apparent to him that the bulge was contraband,” or state what

type of contraband was in the pocket); Commonwealth v. Stevenson, 744

A.2d 1261, 1265-68 (Pa. 2000) (holding that the evidence seized under the

plain feel doctrine should be suppressed as the illegal nature of the item in

question     was   not   immediately   apparent   to   the   officer);   see   also

Commonwealth v. Thompson, 985 A.2d 928, 935 (Pa. 2009) (stating that

“a court cannot simply conclude that probable cause existed based upon


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nothing more than the number of years an officer has spent on the force.

Rather, the officer must demonstrate a nexus between his experience and

the search, arrest, or seizure of evidence.”) (citation omitted).

      Further, Officer Space explicitly testified that he did not immediately

recognize the incriminating nature of the item in Rowan’s pocket, but instead

stated that it was “consistent with narcotics packaging.” N.T., 6/10/15, at

12, 15, 17.      Officer Space’s vague and ambiguous testimony regarding

“narcotics packaging” is also insufficient to meet the immediately apparent

requirement of the plain feel doctrine. See Stevenson, 744 A.2d at 1268

(stating that officer’s testimony that the cardboard he felt in the defendant’s

pocket was contraband as he had previously seen drugs packaged in

cardboard does not meet the immediately apparent requirement); id.

(noting that “[t]he mere fact that an officer has seen others use an object to

package drugs, however, does not mean that once the officer feels that

object during a pat-down search of a different individual, he automatically

acquires probable cause to seize the object under the plain feel doctrine as

something that is ‘immediately apparent’ as contraband.”); see also

Commonwealth v. Smith, 685 A.2d 1030, 1034 (Pa. Super. 1996)

(holding that the plain feel exception did not apply to contraband recovered

during Terry frisk when record failed to indicate what it was about the

envelope felt by officer that made it immediately apparent to officer that the

envelope was contraband); Commonwealth v. Stackfield, 651 A.2d 558,


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562 (Pa. Super. 1994) (stating that officer’s testimony that he felt packaging

material or zip-lock baggies did not meet the plain feel doctrine, as a zip-

lock baggie is not per se contraband and the officer did not articulate

whether the contour or mass made it immediately apparent that he was

feeling contraband).

      However, this does not end our analysis as we must determine

whether Officer Space’s questioning concerning the contents of Rowan’s

pocket during the pat-down search, and Rowan’s subsequent admission,

allowed for the legal seizure of the drugs. The trial court found that

      [a]fter feeling the lump in [Rowan’s] pants’ pocket and believing
      it to be narcotics packaging, based on Officer Space’s years of
      training and experience, Officer Space was justified in
      questioning [Rowan] about that lump. After [Rowan] told Officer
      Space that the lump was money and backing away and blading
      as if to run when [] Officer [Space] discounted her answer,
      Officer Space had reasonable suspicion to further detain
      [Rowan]. [Rowan] then admitted to Officer Space that the lump
      in her pocket was drugs, and Officer Space had probable cause
      to arrest.

Trial Court Opinion, 5/31/17, at 18.

      We disagree with the trial court’s reasoning.    Because the pat-down

search failed to establish probable cause to demonstrate Rowan was carrying

identifiable contraband, Officer Space had no further cause for suspicion to

detain or conduct a search of Rowan based upon the plain feel doctrine. See

E.M., 735 A.2d at 665 (stating that after “the officer determined that the

bulge was not a weapon, and was not contraband, he had no authority to

conduct a search because he had no probable cause justifying such a

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search.”) (citation omitted).   Thus, when Officer Space, while feeling the

lump during the pat-down search, asked Rowan “what it was,” and

physically restrained Rowan, we conclude that Rowan was, at that point,

subject to a custodial interrogation. See Commonwealth v. Ingram, 814

A.2d 264, 270 (Pa. Super. 2002) (stating that “[t]he standard for

determining whether an encounter with the police is deemed ‘custodial’ or

police have initiated a custodial interrogation is an objective one based on a

totality of the circumstances, with due consideration given to the reasonable

impression conveyed to the person interrogated rather than the strictly

subjective view of the officers or the person being seized.”); id. at 270-71

(noting that “[c]ustodial interrogation has been defined as questioning

initiated by law enforcement officers after a person has been taken into

custody or otherwise deprived of his or her freedom of action in any

significant way.   Interrogation occurs where the police should know that

their words or actions are reasonably likely to elicit an incriminating

response from the suspect.”) (citation, quotation marks, brackets, and

emphasis omitted).

      Here, Officer Space removed Rowan from the vehicle, subjected her to

a pat-down search, and after failing to identify the object in Rowan’s pocket,

asked Rowan what was in her pocket, prolonging the stop.         Under these

circumstances, Rowan would have objectively believed that Officer Space

had restricted her freedom of action and she was not free to end the


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encounter. See id. at 271 (stating that appellant would have felt that his

freedom of action was restricted where the officer, who, while feeling an

object in appellant’s pocket during a pat-down search, asked appellant “what

is this?”); see also Commonwealth v. Kemp, 961 A.2d 1247, 1254 (Pa.

Super. 2008) (en banc) (stating that “when a person is standing outside

rather than inside his vehicle, he is less likely to believe that he can actually

leave the area by entering the car and driving away.”).         Further, Officer

Space’s question constituted an interrogation, as it was likely to elicit an

incriminating response.        See Ingram, 814 A.2d at 271 (stating that an

officer’s question during pat-down search as to an object in the appellant’s

pocket was an interrogation). Moreover, prior to Rowan’s admission as to

the contents of her pocket, Officer Space had grabbed her by the arm.

Accordingly, a custodial interrogation occurred, requiring the administration

of Miranda1 warnings.             Because Rowan was not provided Miranda

warnings, her incriminating statement, and the drugs recovered from her

pocket based upon the statement, should have been suppressed.           See id.

(stating that “[b]ecause [a]ppellant was not given Miranda warnings,

[a]ppellant’s admission, and the contraband recovered based on that invalid

admission, should have been suppressed.”); see also Commonwealth v.

Wood, 833 A.2d 740, 746 (Pa. Super. 2003) (en banc) (concluding that the

____________________________________________


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



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defendant’s incriminating statement, which was made only after she had

been detained without reasonable suspicion, was illegally obtained).

       Based upon the foregoing, the trial court abused its discretion in failing

to suppress the drugs seized from Rowan.2

       Judgment      of   sentence     vacated.    Case   remanded   for   further

proceedings. Jurisdiction relinquished.

       President Judge Emeritus Bender joins the memorandum.

       President Judge Emeritus Stevens files a dissenting memorandum.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/28/18




____________________________________________


2Based upon our disposition of Rowan’s first claim, we need not address her
second claim.



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