J-S95026-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                        IN THE SUPERIOR COURT OF
                                                          PENNSYLVANIA
                            Appellee

                       v.

ANTOINE POTEAT

                            Appellant                   No. 3305 EDA 2015


             Appeal from the Judgment of Sentence October 20, 2015
                 In the Court of Common Pleas of Lehigh County
               Criminal Division at No(s): CP-39-CR-0003752-2014


BEFORE: STABILE, J., MOULTON, J., and MUSMANNO, J.

MEMORANDUM BY MOULTON, J.:                                 FILED MAY 23, 2017

       Antoine Poteat appeals from the October 20, 2015 judgment of

sentence entered in the Lehigh County Court of Common Pleas following his

bench-trial conviction for two counts of possession with intent to deliver a

controlled substance (“PWID”) and two counts of possession of a controlled

substance.1 We affirm.

       The trial court summarized the relevant facts as follows:

               On February 20, 2013, at approximately 1:30 PM, while
            on patrol in full uniform and in an unmarked police vehicle,
            Trooper Gerald Lydon of the Pennsylvania State Police,
            Fogelsville Barracks, was traveling westbound on Route I-
            78 in the area of West Rock Road, Salisbury Township,
            Lehigh County, Pennsylvania, when he observed a grey
            Toyota Camry following a tractor trailer with approximately
            one (1) vehicle length separating it from the tractor trailer.
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       1
           35 P.S. §§ 780-113(a)(30) and (16), respectively.
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       The vehicle was traveling at approximately 60 to 65 miles
       per hour in a posted 55 miles per hour zone. The distance
       between the vehicles was closer than reasonable and
       prudent for the existing conditions, based on the speed,
       the type of roadway, and the fact that the vehicle being
       followed was a tractor trailer. The recommended safe
       distance is approximately 6 to 7 seconds. Nevertheless,
       the grey Toyota Camry was following approximately one-
       half (1/2) second behind the tractor trailer. In fact, the
       operator of the grey Toyota Camry, later identified as
       [Poteat], had to apply the brakes of his vehicle numerous
       times over the course of the mile to mile and [a] half that
       Trooper Lydon was following him.

          Consequently, Trooper Lydon effectuated a traffic stop
       in the area of West Lehigh Street, Allentown, utilizing his
       vehicle’s emergency lights and siren.       Trooper Lydon
       approached the passenger side of the vehicle and observed
       several unopened air fresheners on the passenger seat, as
       well as a couple of opened air fresheners hanging from the
       steering column.     In addition, he saw fabric softener
       sheets and an opened bottle of cologne on the passenger
       seat. Trooper Lydon smelled fresh marijuana emanating
       from the vehicle. Furthermore, Trooper Lydon viewed (2)
       cell phones in the vehicle, one (1) of which was a prepaid
       phone that repeatedly rang over the course of the traffic
       stop.

          Trooper Lydon made verbal contact with the operator of
       the vehicle and advised him that he was being stopped
       because he was traveling too closely behind the tractor
       trailer, in contravention of the Pennsylvania Motor Vehicle
       Code, 75 P.S. § 3310(a).3 [Poteat] appeared extremely
       nervous. Trooper Lydon inquired of the Defendant from
       where he was coming. [Poteat] indicated that he was
       coming from Allentown. This response was inconsistent
       with the direction on which [Poteat] was heading on I-78,
       as he was traveling towards Allentown.         In addition,
       Trooper Lydon noticed a NYC Parking Authority citation in
       the car dated the day before, February 19, 2013. [Poteat]
       denied being in New York the day before and advised the
       trooper that his cousin, Keith, had used the rental vehicle
       on that date.



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              3
               Specifically, § 3310(a) of the Motor Vehicle
              Code provides:

                 (a) General rule. – The driver of a motor
              vehicle shall not follow another vehicle more
              closely than is reasonable and prudent, having
              due regard for the speed of the vehicles and
              the traffic upon and the condition of the
              highway.

          Trooper Lydon requested that [Poteat] produce his
       driver’s license and the registration to the vehicle. At that
       time, [Poteat] informed the trooper that the vehicle was a
       rental from Enterprise Rent-A-Car.        However, he was
       unable to locate the rental agreement. Consequently,
       Trooper Lydon returned to his police vehicle to contact
       Enterprise Rent-A-Car in order to verify the rental of the
       subject vehicle. While waiting for Enterprise Rent-A-Car to
       return his telephone call, the trooper ran a background
       check on [Poteat] and learned that he had previous arrests
       for possession of marijuana and possession with intent to
       deliver marijuana. As a result of the marijuana odor that
       he detected in the vehicle, as well as the masking agents
       in the vehicle, Trooper Lydon called for assistance,
       including a K-9 Unit to perform a drug sniff.

          After approximately twenty (20) minutes, Enterprise
       Rent-A-Car made contact with Trooper Lydon and informed
       him that [Poteat] did have a valid contract with them. At
       this time, Trooper Lydon exited his police vehicle and
       approached [Poteat’s] vehicle once again. He requested
       that [Poteat] exit his vehicle. Then, Trooper Lydon issued
       [Poteat] a warning, citing him for a motor vehicle violation
       under the Pennsylvania Motor Vehicle Code, 75 P.S. §
       3310(a): Following too closely. [Poteat] was then told by
       Trooper Lydon that he was free to leave and the
       documents were returned to [Poteat]. However, Trooper
       Lydon reinitiated contact with [Poteat] by inquiring about
       his not being in New York the previous day. Trooper Lydon
       again advised [Poteat] that he was free to leave, but
       explained that his vehicle was not. [Poteat] refused to
       provide consent to search the rental vehicle.

          Trooper Chad Labour of the Canine Division arrived on
       scene and deployed a drug detection canine to conduct an


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         exterior search of the vehicle. It appeared as if the dog
         displayed positive alert behavior. Based on the totality of
         the circumstances, a search warrant for [Poteat’s] rental
         vehicle was applied for by Trooper Lydon.             After
         approximately forty (40) to forty-five (45) minutes from
         the inception of the vehicle stop, [Poteat] was voluntarily
         taken from the scene and transported to police
         headquarters by Trooper Nicholas Goldsmith so that
         [Poteat]    could      make   arrangements     for   other
         transportation.     An execution of the Search Warrant
         yielded 1,004 grams of cocaine and 90 grams of marijuana
         in the rental vehicle.

Memorandum Opinion, 12/1/15, at 2-5 (“1925(a) Op.”) (emphasis in

original).

      On October 31, 2014, Poteat filed an omnibus pre-trial motion, which

included an application to compel discovery and an application to suppress

the evidence seized from Poteat’s vehicle. On February 12, 2015, the trial

court held a hearing on Poteat’s motion. Trooper Lydon and Poteat testified

at the hearing.    On February 18, 2015, the trial court denied Poteat’s

motion. On May 11, 2015, Poteat filed a motion for reconsideration of the

trial court’s denial of his motion to suppress, which the trial court denied on

May 19, 2015.

      On September 21, 2015, following a bench trial, Poteat was convicted

of two counts of PWID and two counts of possession of a controlled

substance.    On October 20, 2015, the trial court sentenced Poteat to an

aggregate term of 5 to 10 years’ incarceration.       On November 2, 2015,

Poteat filed a timely notice of appeal.

      Poteat raises the following issue on appeal:


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         Did the Trial Court err in denying Antoine Poteat’s Motion
         to Suppress the Evidence, filed after Pennsylvania State
         Police obtained evidence as a result of a search, which
         violated [Poteat’s] rights under the Fourth Amendment to
         the United States Constitution as well as Article I, Section
         VIII, of the Pennsylvania Constitution[?] See USCS Const.
         Amend. 4; Pa. Const. Art. I, § 8.

Poteat’s Br. at 4.

      In reviewing the denial of a suppression motion, we must determine:

         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, we are bound by these findings
         and may reverse only if the court’s legal conclusions are
         erroneous. Where, as here, 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 our plenary review.

Commonwealth v. Jones, 988 A.2d 649, 654 (Pa. 2010) (internal

quotations and citations omitted).

      Poteat argues that he was unlawfully seized for a second time after the

conclusion of the traffic stop. Specifically, Poteat submits that “after issuing

a ticket and informing [Poteat] that he was free to leave, the [t]rooper

unlawfully extended the stop when he, again, seized [Poteat].” Poteat’s Br.

at 10. Poteat argues that the trial court should have therefore suppressed

evidence recovered following the allegedly unlawful seizure. Id. at 13. The

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trial court denied Poteat’s motion to suppress, reasoning that Poteat’s

detention was supported by reasonable suspicion and probable cause that a

crime was being committed. 1925(a) Op. at 9.

      The law recognizes three levels of interaction between police officers

and citizens: (1) a mere encounter; (2) an investigative detention; and (3) a

custodial detention.    See Commonwealth v. Downey, 39 A.3d 401, 405

(Pa.Super. 2012). This Court has previously discussed the requirements for

police at each level:

            The first of these [interactions] 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 to respond.
            The second, an “investigative 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.

Id. (quotation omitted).

      “The matter of when a traffic stop has concluded or otherwise given

way to a new interaction does not lend itself to a ‘bright[-]line’ definition.”

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

             In Commonwealth v. Strickler, [] 757 A.2d 884
         ([Pa.] 2000), our Supreme Court analyzed under what
         circumstances a police interdiction can devolve into a mere
         encounter following a traffic stop when police continue to
         question the person after the reason for the traffic stop
         has concluded. The Supreme Court in Strickler ruled that
         after police finish processing a traffic infraction, the
         determination of whether a continuing interdiction


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          constitutes a mere encounter or a constitutional seizure
          centers upon whether an individual would objectively
          believe that he was free to end the encounter and refuse a
          request to answer questions.

              Our Supreme Court adopted a totality-of-the-
          circumstances approach. It delineated a non-exclusive list
          of factors to be used in making this assessment. Those
          factors include 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 and
          time 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,” id. at 898; and 9)
          whether there was an express admonition to the effect
          that the citizen-subject is free to depart, which “is a
          potent, objective factor.” Id. at 899. Our Supreme Court
          also observed that when an individual has been subjected
          to a valid detention but police continue to engage the
          person in conversation, the person is less likely to
          reasonably believe that he is actually free to leave the
          scene.

Commonwealth v. Kemp, 961 A.2d 1247, 1253 (Pa.Super. 2008) (ellipses

in original).

      Furthermore, our Supreme Court has held that reasonable suspicion is

required prior to a canine sniff of the exterior of a vehicle. Commonwealth

v. Rogers, 849 A.2d 1185, 1191 (Pa. 2004). “[T]he law is clear that once a

canine sniff of a vehicle's exterior triggers a positive indication, reasonable

suspicion of contraband in the vehicle ripens into probable cause.”

Commonwealth v. Hernandez, 935 A.2d 1275, 1285 (Pa. 2007).


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        Following the traffic stop, Trooper Lydon returned Poteat’s documents

to him, issued him a warning, and told him that he was free to leave. Poteat

turned around and began to walk to his car. N.T., 2/12/15, at 32. Trooper

Lydon then re-engaged Poteat in conversation seamlessly by immediately

“inquiring about his not being in New York the previous day.” 1925(a) Op.

at 4.       Because Trooper Lydon immediately continued to engage Poteat in

conversation, a reasonable person in Poteat’s position would not reasonably

believe that he was free to leave the scene.2 See Kemp, 961 A.2d at 1253.

In addition, when Trooper Lydon re-initiated contact with Poteat, Poteat was

still outside his vehicle. See id. at 1254 (“[W]hen 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.”). Moreover,

because Trooper Lydon had seen indicia of drug-related activity, it would

have been unlikely that he would have permitted Poteat to leave in his car.

See id. (noting that “Trooper DeLuca had observed major indicia of drug-

related activity during the course of the traffic stop. It is unlikely that after

returning the documents and telling Appellant to have a nice day, Trooper

DeLuca would have permitted Appellant to enter the car and drive away.”).

Trooper Lydon subsequently told Poteat that he was free to leave, but his
____________________________________________


        2
        Although not dispositive, Poteat testified at the suppression hearing
that he did not believe he was free to leave when Trooper Lydon re-engaged
him in conversation after Poteat had turned around and started walking
towards his vehicle. N.T., 2/12/15, at 44.



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vehicle was not.     1925(a) Op. at 4-5.           In light of the totality of the

circumstances, we conclude that Poteat was not free to leave despite

Trooper Lydon’s statement to the contrary. Instead, Poteat was subjected to

an investigatory detention.

      We must now determine whether the investigative detention was

constitutionally proper.

          The Supreme Court in [Commonwealth v. Freeman, 757
          A.2d 903 (Pa. 2000)] quite plainly stated that in order to
          justify a continued detention beyond the initial valid
          detention, which was the traffic stop, police needed
          reasonable suspicion that the defendant was engaged in
          criminal activity independent of that initial lawful
          detention. In other words, once police process the traffic
          violation, they cannot rely upon the traffic violation to
          prolong the detention; they need other information
          supporting reasonable suspicion.

Kemp, 961 A.2d at 1258.

      In Kemp, an en banc panel of this Court held that facts gathered

during a valid traffic stop can be used to justify a subsequent investigatory

detention occurring after a police officer informs a defendant that he is free

to leave. Id. at 1260.

      In Kemp, this Court concluded that the police officer in question had

sufficient facts at his disposal to establish reasonable suspicion to suspect

that the appellant and his passenger were in possession of a controlled

substance.    Id. at 1254-55.      These facts included: 1) the presence of

masking    agents   (including   dryer    sheets    and   different   types   of   air

fresheners); 2) third-party vehicle ownership; and 3) an odor of fresh


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marijuana indicating that a significant amount of that substance was

present.    Id. at 1255.        “Furthermore, [the passenger] displayed extreme

nervousness, [the] [a]ppellant did not provide the correct name of the car’s

owner, and they were traveling from a source city.” Id.

       The facts of the instant matter are similar to those in Kemp. Trooper

Lydon testified that when he approached the vehicle, he observed several

open air fresheners hanging from the steering column, unopened air

fresheners on either the driver’s or passenger’s seat, and a bottle of

perfume/cologne and an open box of fabric softener sheets on the

passenger’s seat. N.T., 2/12/15, at 14. Poteat’s vehicle was a rental. Id.

at 16.     Trooper Lydon testified that he could smell the odor of fresh

marijuana coming from the vehicle and that Poteat appeared “overly

nervous.”    Id. at 15.      Although Poteat was the only occupant of the car,

Trooper Lydon noticed two cell phones, one of which appeared to be a

prepaid cell phone.       Id.    Furthermore, Trooper Lydon observed a parking

ticket from New York City in Poteat’s vehicle.3 Id. at 33. In light of these

facts, we conclude that Trooper Lydon’s investigative detention of Poteat

was supported by a reasonable suspicion that Poteat was engaged in

criminal activity.
____________________________________________


       3
        In Kemp, the police officer testified that one indicia of drug courier
activity was “whether the car is coming from a source city, such as New
York, Allentown, Lancaster, Reading, Philadelphia, Pittsburgh, or Harrisburg.”
961 A.2d at 1251.



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     Finally, the police applied for and received a search warrant for

Poteat’s vehicle. Because the canine unit dispatched to the scene displayed

positive-alert behavior for the presence of drugs in the vehicle, 1925(a) Op.

at 5, the search warrant was properly supported by probable cause.

     Accordingly, the trial court did not err in denying Poteat’s motion to

suppress.

     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/23/2017




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