J-A09026-16

                                  2016 PA Super 253

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

JASON ROBERT RANDOLPH

                            Appellant                 No. 1246 MDA 2015


              Appeal from the Judgment of Sentence July 14, 2015
                In the Court of Common Pleas of Centre County
              Criminal Division at No(s): CP-14-CR-0000594-2013


BEFORE: FORD ELLIOTT, P.J.E., JENKINS, J., and PLATT, J.*

OPINION BY JENKINS, J.:                          FILED NOVEMBER 16, 2016

        Jason Randolph appeals from his aggregate judgment of sentence of

5½-11 years’ imprisonment for possession with intent to deliver a controlled

substance, possession of a controlled substance, possession of drug

paraphernalia and possession of an instrument of crime.1                 Randolph

contends that the trial court erred in denying his motion to suppress all

evidence that Corporal Brett Hanlon of the State Police seized from a box

welded to his motor vehicle following a traffic stop on Interstate 80.

        Although Corporal Hanlon obtained valid consent from Randolph to

search the vehicle at the scene of the traffic stop, and although the corporal

____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
  35 P.S. § 780-113(a)(30), (a)(16) and (a)(32), and 18 Pa.C.S. § 907(a),
respectively.
J-A09026-16



correctly decided to apply for a warrant to search the box, the application

failed to establish probable cause that the box would contain contraband or

evidence of crime. Therefore, we vacate Randolph’s judgment of sentence

and remand for further proceedings consistent with this opinion.

      On March 7, 2013, Randolph was arrested following a traffic stop on

Interstate 80 and the execution of the search warrant for the box welded to

his motor vehicle.      The trial court held a suppression hearing and

subsequently entered an order denying Randolph’s motion to suppress. The

case proceeded to trial, and a jury found Randolph guilty of all charges.

      On June 14, 2015, the trial court imposed sentence.        On June 20,

2015, Randolph filed a notice of appeal.    Both Randolph and the trial court

complied with Pa.R.A.P. 1925.

      Randolph raises three issues in this appeal:

      1.   Did the suppression court err in holding that the
      Commonwealth presented sufficient evidence that [Randolph’s]
      consent to search was not the product of duress and coercion?

      2. Did the suppression court err in finding that the search
      warrant for [Randolph’s] vehicle contained sufficient probable
      cause to justify its issuance?

      3. Did the trial court err in permitting the Commonwealth to
      present hearsay testimony from a trooper in testifying about
      reports from other troopers that discussed the fingerprint and
      cell phone analysis?

Brief For Appellant, at 4.




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      Preliminarily, we address a jurisdictional issue. On June 24, 2015 --

after Randolph filed his notice of appeal but within ten days after imposition

of sentence -- the Commonwealth filed a motion to modify Randolph’s

sentence.        On   September       18,    2015,     the    trial       court   denied          the

Commonwealth’s motion. In this Court, the Commonwealth has moved to

quash   Randolph’s     appeal    as      premature      due        to    the   filing   of        the

Commonwealth’s motion to modify sentence within ten days after imposition

of sentence.

      We deny the Commonwealth’s motion to quash. Pa.R.A.P. 905(a)(5)

provides:   “A    notice   of   appeal      filed   after    the        announcement         of    a

determination but before the entry of an appealable order shall be treated as

filed after such entry and on the day thereof.” Rule 905(a)(5) applies where

a criminal defendant files an appeal followed by the Commonwealth’s filing

of a timely motion to modify sentence.                 Comment, Pa.R.Crim.P. 720;

Darlington, Pennsylvania Appellate Practice, § 905:3.                      Pursuant to Rule

905(a)(5), we treat Randolph’s appeal as timely filed after entry of the order

denying the Commonwealth’s motion to modify.

      In his first two arguments on appeal, Randolph objects to the denial of

his motion to suppress.         In an appeal from the denial of a motion to

suppress,

      [our] standard of review … 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

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

      Corporal Hanlon was the lone witness at Randolph’s suppression

hearing, and the Commonwealth also submitted a videotape of the traffic

stop into evidence.    The trial court’s findings of fact are consistent with

Corporal Hanlon’s testimony and the videotape.

      Corporal Hanlon, a state trooper for 18 years, was assigned to the

Bureau of Emergency Special Operations in the K-9 unit. On the morning of

March 7, 2013, Corporal Hanlon’s patrol vehicle was parked on I-80. A K-9

dog, Draco, accompanied the corporal in his patrol vehicle.        Suppression

Hearing (“SH”), at 11-12.

      At approximately 10:30 a.m., Randolph drove his Chrysler Town &

Country minivan past the corporal’s parked patrol cruiser on I-80. Corporal

Hanlon initiated a traffic stop because the minivan’s windows contained an

illegal tint and because he could not see the registration on the license plate.

The driver parked the vehicle very close to the fog line.      Corporal Hanlon



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referred to this as “white lining”, a technique he has observed drug

traffickers use to expedite the traffic stop by discouraging the police officer

from approaching the driver side of the vehicle.

      Randolph was driving the van along with one passenger.          Corporal

Hanlon requested Randolph’s license, registration, and insurance and

returned to his patrol cruiser with these documents. SH, at 14-18.

      Corporal Hanlon ran Randolph’s information and found that he had a

prior drug trafficking conviction.   After about twenty minutes, the corporal

returned to Randolph’s vehicle and directed him to exit the van.           The

corporal observed that there were no rear seats in the van.          While he

explained the Vehicle Code violations to Randolph, a second trooper, Trooper

Rowland, operating a marked patrol cruiser, arrived on scene and joined the

conversation. Corporal Hanlon advised Randolph that he was issuing a

written warning and told Randolph that he was free to leave. SH, at 19, 22.

      Moments later, however, Corporal Hanlon asked whether he could ask

Randolph additional questions about his trip.      The corporal did not tell

Randolph that he did not have to answer any further questions. Randolph

told the corporal that he and his wife had just moved from South Carolina to

New Jersey, which was why there were no seats in his van. He said that she

had just had a baby, and that he was travelling from Newark, New Jersey to

Columbus, Ohio to visit a family member in the hospital. He added that his

aunt’s grandmother was in a car accident and was hospitalized with a broken


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J-A09026-16


leg. When he repeated his account, however, he said that that he was going

to visit his aunt instead of his aunt’s grandmother. Randolph stated he had

no luggage in the van and did not plan on staying the night in Columbus,

even though it was a 16-hour round trip. When asked, Randolph could not

name the hospital in Columbus that he was visiting. Trooper Hanlon found it

strange that Randolph was traveling far away from home without his wife or

their baby. Randolph admitted that he had a prior drug-related conviction.

Trooper SH, at 23-28.

     During this conversation, Trooper Rowland approached the passenger

in the minivan and questioned him. The passenger claimed to be from New

York, which Corporal Hanlon found strange because Randolph was from

South Carolina. SH, at 23-28.

     Corporal Hanlon asked Randolph for consent to search the minivan,

and Randolph consented.    Both Defendant and the passenger were patted

down and asked to stand in front of the vehicle. The K-9, Draco, searched

the vehicle but did not alert to anything.   Corporal Hanlon and Trooper

Rowland then searched the vehicle. Corporal Hanlon saw no luggage in the

minivan, but he heard multiple cell phones ringing and seized the cell

phones.   When he checked between the driver and passenger seats, he

observed a steel box extending downward from the floor that was welded to

the vehicle.   The box did not match the remainder of the undercarriage.

Suspecting that the box contained drugs, Trooper Hanlon questioned


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Randolph about the box, and Randolph’s demeanor immediately became

defensive. The corporal impounded the vehicle and obtained a warrant to

search the compartment. SH, at 28-35.

         It took considerable effort to open the compartment, which was only

accessible through a door underneath the passenger seat of the minivan.

The door was battery powered and could only be opened by removing the

passenger door and applying power through wires connected to the door.

The corporal managed to open the compartment by attaching alligator clips

to the door and applying power. Inside the compartment were 550 grams of

cocaine and a digital scale. SH, at 35-39.

         Preliminarily, Randolph does not dispute that the initial traffic stop was

legal.     Nor could he, because the evidence demonstrates that Corporal

Hanlon had probable cause to believe that Randolph violated the Vehicle

Code by driving with tinted windows.          See 75 Pa.C.S. § 4524(e)(1) (“no

person shall drive any motor vehicle with any sun screening device or other

material which does not permit a person to see or view the inside of the

vehicle through the windshield, side wing or side window of the vehicle”).

         We conclude that Randolph’s consent to search his vehicle was valid,

because the traffic stop had become a mere encounter by the time Corporal

Hanlon obtained Randolph’s consent, and because Randolph’s consent was

voluntary.




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J-A09026-16


     Mere encounter. The Fourth Amendment to the United States

Constitution and Article I, Section 8 of the Pennsylvania Constitution both

protect against unreasonable searches and seizures. U.S. Const. amend. IV;

Pa. Const. art. I, § 8; Schneckloth v. Bustamonte, 412 U.S. 218, 219

(1973); Commonwealth v. Cleckley, 738 A.2d 427, 433 (Pa.1999). A

search conducted without a warrant is constitutionally impermissible unless

an established exception applies. Commonwealth v. Slaton, 608 A.2d 5,

8–9 (Pa.1992). A consensual search is one such exception, and the central

inquiries in consensual search cases entail assessment of the constitutional

validity of the citizen/police encounter giving rise to the consent, and the

voluntariness of the consent given. Cleckley, 738 A.2d at 433. To establish

a valid consensual search, the Commonwealth must first prove that the

individual consented during a legal police interaction.   Commonwealth v.

Strickler, 757 A.2d 884, 889 (Pa.2000). Where the interaction is lawful, the

voluntariness   of   the   consent   becomes   the   exclusive   focus.   Id.;

Commonwealth v. Acosta, 815 A.2d 1078, 1083 (Pa.Super.2003) (en

banc ).

     Pennsylvania case law recognizes three categories of interaction

between police officers and citizens. The first is a “mere encounter,” which

need not be supported by any level of suspicion. Acosta, 815 A.2d at 1082.

The second is an “investigative detention,” which must be supported by

reasonable suspicion. Id. This interaction “subjects a suspect to a stop and


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J-A09026-16


a period of detention, but does not involve such coercive conditions as to

constitute the functional equivalent of an arrest.” Commonwealth v.

Phinn, 761 A.2d 176, 181 (Pa.Super.2000). The third category, a “custodial

detention,” must be supported by probable cause.       Id.   “The police have

probable cause where the facts and circumstances within the officer’s

knowledge are sufficient to warrant a person of reasonable caution in the

belief that an offense has been or is being committed.” Commonwealth v.

Hernandez, 935 A.2d 1275, 1284 (Pa.2007).

      In Commonwealth v. Strickler, 757 A.2d 884 (2000), our Supreme

Court analyzed when a police interdiction can devolve into a mere encounter

following a traffic stop where police continue to question an individual after

the reason for the traffic stop has concluded.    The Court ruled that after

police finish processing a traffic infraction, the determination of whether a

continuing interdiction constitutes a mere encounter or a constitutional

seizure centers upon whether the individual would objectively believe that he

was free to end the encounter and refuse a request to answer questions.

The Court adopted a totality-of-the-circumstances approach and articulated

a non-exclusive list of factors to be used in making this assessment. These

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;


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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. With regard to the last two

factors, Strickler observed:

      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, is a pertinent
      factor … ‘[F]ew motorists would feel free ... to leave the scene of
      a traffic stop without being told they might do so.’ While
      recognizing … that the admonition to a motorist that he is free to
      leave is not a constitutional imperative, the presence or absence
      of such a clear, identified endpoint to the lawful seizure remains
      a significant, salient factor in the totality assessment.

Id. at 898-99.

      In this case, the trial court held that the traffic stop had devolved into

a mere encounter when Corporal Hanlon told Randolph that he was free to

leave.   Corporal Hanlon’s questions to Randolph after telling him that he

was free to leave took place during a mere encounter, not a detention. The

trial court reasoned:

      The interaction occurred in the mid-morning. Corporal Hanlon
      did not have sirens on his vehicle. The initial investigative
      detention described by Corporal Hanlon was not coercive in
      nature and the interaction between the Corporal and [Randolph]
      was calm and cordial. There was no physical contact prior to

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J-A09026-16


       consent for the search being given and [Randolph’s] movements
       were minimally directed in that he was asked to step out of the
       vehicle to the rear to receive the warning. [Randolph] was given
       a written warning and told that he was free to leave. It was only
       after both were headed toward their vehicles that Corporal
       Hanlon again spoke to [Randolph].

Pa.R.A.P. 1925 Opinion, at 5.                  We agree with this analysis.   See

Commonwealth v. By, 812 A.2d 1250, 1258 (Pa.Super.2002) (following

valid traffic stop at night, and after telling defendant he was free to leave,

officer’s continued questioning took place during mere encounter, where

officer spoke casually and non-threateningly to passengers, stood on the

passenger's side of the vehicle instead of near driver's door or in front of the

vehicle, and had no contact with defendant before telling him that he was

free to leave).2


____________________________________________


2
  Had the interaction between Corporal Hanlon and Randolph not devolved
into a mere encounter, Corporal Hanlon would have needed reasonable
suspicion to continue questioning Randolph after telling him that he was free
to leave. We note, by way of dicta, that the circumstances of this case
provided Trooper Hanlon with reasonable suspicion to continue questioning
Randolph.

During a traffic stop, an officer may develop reasonable suspicion to detain
the vehicle occupants for further investigation. We have defined “reasonable
suspicion” as follows:

       [T]he officer must articulate specific observations which, in
       conjunction with reasonable inferences derived from these
       observations, led him reasonably to conclude, in light of his
       experience, that criminal activity was afoot … In order to
       determine whether the police officer had reasonable suspicion,
       the totality of the circumstances must be considered. In making
(Footnote Continued Next Page)


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J-A09026-16


                       _______________________
(Footnote Continued)

      this determination, we must give due weight … to the specific
      reasonable inferences [the police officer] is entitled to draw from
      the facts in light of his experience. Also, the totality of the
      circumstances test does not limit our inquiry to an examination
      of only those facts that clearly indicate criminal conduct. Rather,
      even a combination of innocent facts, when taken together, may
      warrant further investigation by the police officer.

Commonwealth v. Smith, 917 A.2d 848, 852 (Pa.Super.2007) (citations
omitted).     The officer “may ask the detainee a moderate number of
questions” during a traffic stop “to determine his identity and to try to obtain
information confirming or dispelling the officer’s suspicions.” Berkemer v.
McCarthy, 468 U.S. 420, 439 (1984). “[I]f there is a legitimate stop for a
traffic violation … additional suspicion may arise before the initial stop’s
purpose has been fulfilled; then, detention may be permissible to investigate
the new suspicions.” Commonwealth v. Chase, 960 A.2d 108, 115 n.5
(Pa.2008). Even innocent factors, viewed together, may create reasonable
suspicion that criminal activity is afoot. See Commonwealth v. Caban, 60
A.3d 120, 129-30 (Pa.Super.2012) (following valid traffic stop for speeding,
officer had reasonable suspicion of criminal activity to justify continued
detention of driver and passenger; driver acted nervously, car was owned by
third party not present in vehicle, answers provided by driver and passenger
to basic questions regarding their destination were inconsistent, and various
masking agents, including air fresheners, canisters of perfume, and bottle of
odor eliminator, were present in vehicle).

Corporal Hanlon observed several factors that gave him reasonable suspicion
to believe that criminal activity was afoot. Randolph parked very close to
the fog line, which Corporal Hanlon testified was a technique used by drug
traffickers to discourage officers from approaching the driver side of the
vehicle. Although Randolph was driving from Newark to Columbus, there
were no suitcases or back seats in the vehicle, an odd circumstance for such
a long trip. In addition, Randolph had a prior drug trafficking conviction.
This combination of factors provided reasonable suspicion to detain Randolph
and continue an investigation into possible criminal wrongdoing.         See
Caban, 60 A.3d at 129-30.

We also note that decisions from other jurisdictions indicate that a prior
conviction, by itself, does not create reasonable suspicion. See, e.g.,
United States v. Foster, 634 F.3d 243 (4th Cir.2011) (defendant's
“criminal record” not sufficient basis for stop, even with generalized
(Footnote Continued Next Page)


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      Consent.3    The Commonwealth bears the burden of proving that the

defendant consented to a warrantless search.        See Commonwealth v.

Acosta, 815 A.2d 1078, 1083 (Pa.Super.2003) (en banc).         To establish a

voluntary consensual search, the Commonwealth must prove “that a consent

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.” Strickler, 757 A.2d at 901.

      There is no shortage of decisions relating to consent.    A convenient

starting point is two decisions issued on the same date by our Supreme

Court: Strickler        and Commonwealth v. Freeman,          757   A.2d 903

(Pa.2000).

      In Strickler, a police officer observed a car parked along a country

road. Two men were standing near the car and appeared to be urinating.

After questioning the men and verifying the documentation for the vehicle

and the driver, the officer returned the documents to the driver.     At that

                       _______________________
(Footnote Continued)

conclusory assertion defendant presently “under investigation”).      Here,
however, there were other suspicious details in addition to Randolph’s prior
conviction.
3
  As a threshold matter, when, as here, the defendant is accused of a
possessory crime, he must establish a legally cognizable expectation of
privacy in the area searched. Caban, 60 A.3d at 126. In this case, the
record demonstrates that Randolph was the registered owner of the vehicle
that was the subject of the search. Accordingly, Randolph had a reasonable
expectation of privacy in the areas of the vehicle that Corporal Hanlon and
Trooper Rowland searched.



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time, the officer informed Strickler that it was not appropriate to stop along

the road and urinate on someone’s property. The officer began walking back

to his cruiser when he turned and asked Strickler if there was anything

illegal in the vehicle. When Strickler stated that there was not, the officer

requested Strickler’s consent to search the vehicle. The officer told Strickler

that he was free to withhold his consent. Strickler consented to the search,

which disclosed a marijuana smoking pipe.

      Applying the nine-factor test delineated above, our Supreme Court

held that Strickler’s consent was voluntary, even though the officer never

expressly told Strickler that he was free to leave following the initial lawful

detention. Strickler, 757 A.2d at 900. The Court opined: “[T]he officer did

not touch Strickler or direct his movements; there is no evidence of any use

of coercive language or tone by the officer.    We also deem significant the

arresting officer’s admonition to Strickler that he was not required to

consent to the search.”   Id. at 900 (emphasis added). Thus, the officer’s

admonition that Strickler could refuse consent outweighed the officer’s

failure to expressly advise the defendant that he was free to leave following

the initial detention. Id. at 901-02.

      In Freeman, a state trooper stopped Freeman for making improper

lane changes in what appeared to be a “cat and mouse” game with another

car on the highway. Freeman denied having any problem with the other car.




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The trooper gave Freeman a written warning and advised that she was free

to leave, but the events that followed

      were inconsistent with [the trooper’s] statement to Freeman that
      she was free to leave …: [the trooper] returned to Freeman’s
      vehicle; questioned her about the second vehicle; pointed out
      the inconsistent statements from the vehicle’s occupants when
      she denied traveling with that vehicle; and, ultimately and most
      significantly, asked her to step out of the vehicle prior to the
      request for consent. Such directive constituted a greater show of
      authority than had previously been made (other than the
      physical stop of Freeman’s vehicle itself).

Id. at 907. The Supreme Court held that these events constituted an invalid

seizure, because the trooper had no reasonable suspicion of criminal

activity: “Even if Freeman’s answer to the trooper’s question, contradicting

as it did the information given by the occupants of the other car, could

arguably be viewed as evasive behavior,” the trooper had no more than an

“unparticularized suspicion or ‘hunch’ of criminal activity.” Id. at 908.

      As a result, Freeman’s consent was invalid, mandating suppression of

the fruits of the resulting search:

      The detention that preceded Freeman’s consent to search was
      unlawful, and Freeman’s consent, even if voluntarily given, will
      not justify the otherwise illegal search unless the Commonwealth
      can demonstrate that Freeman’s consent was an independent act
      of free will and not the product of the illegal detention … Here,
      although we do not view the trooper’s actions as flagrant, the
      record does not establish the necessary break in the sequence of
      events that would isolate Freeman’s consent from the prior
      coercive interaction. To the contrary, the evidence supports the
      conclusion that the trooper’s initiation of a second seizure and
      receipt of Freeman’s consent were integrally connected.

Id. at 909.


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       In the wake of Strickler and Freeman, this Court has issued many

decisions relating to the issue of consent during traffic stops. In some, we

held that the totality of circumstances proved voluntary consent;4 in others,

we determined that consent was involuntary.5

____________________________________________


4
   See Caban, 60 A.3d at 131-32 (vehicle passenger’s consent to search of
vehicle that was owned by his father and driven by his friend was voluntary,
where there was no evidence of police abuses, aggressive tactics, physical
contact, or use of physical restraints any time during the detention,
passenger was advised that he was free to leave, passenger initially refused
consent to search, and officer accepted refusal without argument but merely
explained that passenger could either consent or wait for drug-sniffing dog
to arrive); Commonwealth v. Kemp, 961 A.2d 1247, 1261
(Pa.Super.2008) (following valid investigatory stop, defendant voluntarily
consented to search of vehicle, even though investigating officer did not
inform defendant that he could refuse to consent to search; there was no
excessive police conduct, no physical contact occurred between police and
defendant, officer did not display his weapon, officer’s order to defendant’s
companion to exit car was necessitated by fact that companion was not
licensed driver and had to move out of driver’s seat, defendant did not lack
maturity or sophistication and was not intellectually incapable of exercising
free will, and character of initial investigative detention, the traffic stop, was
routine); Commonwealth v. Bell, 871 A.2d 267, 274 (Pa.Super.2005) (en
banc) (defendant voluntarily consented to warrantless search of vehicle,
where defendant understood all of his rights, detective informed defendant
that police knew he was there to deliver drugs and that officer observed
defendant put package on floor of car, detective invited defendant to
cooperate, detective did not coerce defendant into making statement with
threats or actions, defendant, having waived his right to remain silent and to
an attorney, admitted having an ounce of cocaine for delivery to female at
particular location, defendant signed consent form that detective read to him
while defendant appeared to read along, and before signing consent form,
defendant confirmed that he spoke English and was not under influence of
drugs or alcohol); By, 812 A.2d at 1258 (following valid traffic stop at night,
officer obtained defendant’s consent to search vehicle through non-coercive
means; although two other officers were present, officer spoke casually and
non-threateningly, told defendant he was free to leave, did not restrain
defendant’s movement by use or threat of force, asked defendant if he could
(Footnote Continued Next Page)


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J-A09026-16




                       _______________________
(Footnote Continued)

search vehicle, and reminded defendant that he was free to leave prior to
obtaining consent); cf. Commonwealth v. Reid, 811 A.2d 530, 548
(Pa.2002) (defendant’s consent to search his jacket, boots, motel room, and
truck, during consensual encounter at police barracks that involved
questioning about deaths of defendant’s estranged wife and stepdaughter,
was voluntary, where, inter alia, trooper read consent form to defendant
explaining his right to refuse search and defendant signed form).
5
    See Commonwealth v. Tam Thanh Nguyen, 116 A.3d 657, 669
(Pa.Super.2015) (driver’s consent to search vehicle vitiated by taint of illegal
continued investigatory detention of driver and defendant following
conclusion of traffic stop that was not justified by reasonable suspicion of
criminal activity; driver consented to search only moments after state
trooper re-initiated contact with defendant after advising that driver was free
to leave, no intervening circumstances diminished coercive atmosphere of
illegal detention or otherwise justified search, and at time of consent, vehicle
was surrounded by two troopers and trooper had just repeated questions
regarding driver’s excessive nervous and apologetic demeanor);
Commonwealth v. Moyer, 954 A.2d 659, 668-69 (Pa.Super.2008) (en
banc) (defendant’s consent held involuntary following investigatory stop that
itself was not justified by reasonable suspicion; officer reintroduced
questioning after returning defendant’s documents and telling him he was
free, defendant walked from rear of car to car door when officer stopped him
again, there was no precise end to traffic stop, two armed and uniformed
police officers stood near defendant, who was alone and isolated outside car
at night on rural, unlit road when he was asked if he would answer
questions, police had activated flashing lights and directed bright white
police spotlight at car, defendant was not informed that he did not have to
answer further questions, officer told defendant results of his criminal history
check and accused him of past drug activity, and defendant was asked if
there were controlled substances or paraphernalia in his car or on his
person); Commonwealth v. Acosta, 815 A.2d 1078, 1085-87
(Pa.Super.2003) (en banc) (consent held involuntary despite prior valid stop
for suspended license plate, where officer withheld defendant’s vehicular
documentation, other officers and marked police cars were present with
flashing lights in close proximity to defendant, and officer never expressly
informed defendant that he was free to leave or that he was free not to
consent to search of vehicle).




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      Relying on Freeman, Nyugen and Moyer, Randolph argues that it

was improper for Corporal Hanlon to re-initiate questioning after advising

Randolph that he was free to leave. Each of these decisions held that the

defendant’s consent was invalid, because the officer continued to question

the defendant despite lacking reasonable suspicion to detain the defendant

further and despite advising the defendant that he was free to leave.

      In Freeman, Nyugen and Moyer, the interactions between the

defendants and officers did not transform into mere encounters. As a result,

the   officers   needed   (but   lacked)   reasonable   suspicion   to   continue

questioning the defendants. Here, in contrast, Corporal Hanlon’s interaction

with Randolph had become a mere encounter, making further questioning

permissible.     The evidence demonstrates that during this mere encounter,

Randolph gave voluntary consent to search his vehicle. The encounter took

place in an open location on a public highway in broad daylight.             The

questioning was not exceedingly long, and the corporal’s questioning was

not repetitive or deceptive in any way. There were no police abuses or

aggressive tactics. Nor did the officers use threatening demeanor, physical

contact or physical restraints anytime during the detention.

      For these reasons, Randolph’s first argument is devoid of merit.

      In his second issue on appeal, Randolph argues that Corporal Hanlon’s

search warrant application failed to establish probable cause to search the

box welded to the undercarriage of Randolph’s vehicle. We agree.


                                     - 18 -
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      The Fourth Amendment and Article I, Section 8 of the Pennsylvania

Constitution each require that search warrants be supported by probable

cause.   Commonwealth v. Edmunds, 586 A.2d 887, 899 (Pa.1991)

“Probable cause exists where the facts and circumstances within the affiant’s

knowledge and of which he has reasonably trustworthy information are

sufficient in themselves to warrant a man of reasonable caution in the belief

that a search should be conducted.” Commonwealth v. Thomas, 292 A.2d

352, 357 (Pa.1972).

      In Illinois v. Gates, 462 U.S. 213 (1983), the United States Supreme

Court established the “totality of the circumstances” test for determining

whether a request for a search warrant under the Fourth Amendment is

supported by probable cause. In Commonwealth v. Gray, 503 A.2d 921

(Pa.1986), our Supreme Court adopted the totality of the circumstances test

for purposes of making and reviewing probable cause determinations under

Article I, Section 8. Gray described this test as follows:

      Pursuant to the ‘totality of the circumstances’ test set forth by
      the United States Supreme Court in Gates, the task of an
      issuing authority is simply to make a practical, common-sense
      decision whether, given all of the circumstances set forth in the
      affidavit before him, including the veracity and basis of
      knowledge of persons supplying hearsay information, there is a
      fair probability that contraband or evidence of a crime will be
      found in a particular place.... It is the duty of a court reviewing
      an issuing authority’s probable cause determination to ensure
      that the magistrate had a substantial basis for concluding that
      probable cause existed. In so doing, the reviewing court must
      accord deference to the issuing authority’s probable cause
      determination, and must view the information offered to


                                    - 19 -
J-A09026-16


     establish probable cause in a common-sense, non-technical
     manner.

     ***

     [Further,] a reviewing court [is] not to conduct a de novo review
     of the issuing authority’s probable cause determination, but [is]
     simply to determine whether or not there is substantial evidence
     in the record supporting the decision to issue the warrant.

Commonwealth v. Torres, 764 A.2d 532, 537–38, 540 (Pa.2001).               “A

grudging or negative attitude by reviewing courts towards warrants ... is

inconsistent with the Fourth Amendment’s strong preference for searches

conducted pursuant to a warrant; courts should not invalidate warrants by

interpreting affidavits in a hypertechnical, rather than a commonsense,

manner.” Gates, 462 U.S. at 236; see also United States v. Leon, 468

U.S. 897, 914 (1984) (“Reasonable minds frequently may differ on the

question whether a particular affidavit establishes probable cause, and we

have thus concluded that the preference for warrants is most appropriately

effectuated by according ‘great deference’ to a magistrate’s determination”).

     “A police officer’s experience may fairly be regarded as a relevant

factor in determining probable cause.” Commonwealth v. Thompson, 985

A.2d 928, 935 (Pa.2009).     An officer, however, cannot simply reference

“training and experience abstract from an explanation of their specific

application to the circumstances at hand.”     Id.   “A court cannot simply

conclude that probable cause existed based upon nothing more than the

number of years an officer has spent on the force. Rather, the officer must


                                   - 20 -
J-A09026-16


demonstrate a nexus between his experience and the search, arrest, or

seizure of evidence.” Id. Indeed, a factor becomes relevant only because it

has some connection to the issue at hand.6 Id.

       In this case, after obtaining Randolph’s valid consent to search his

vehicle, Corporal Hanlon searched the vehicle and discovered the box welded

to the undercarriage. Corporal Hanlon then applied for a search warrant to

open the box.       His affidavit of probable cause referenced details that we

have discussed above, such as the absence of rear seats, Randolph’s

inconsistent statements about whom he was visiting in the Columbus, Ohio
____________________________________________


6
  We also find persuasive Professor LaFave’s analysis that a police officer
must do more to establish his level of experience than make a cursory
assertion of its existence and relevance:

       [T]he probable cause determination must ultimately be made by
       a judicial officer, who is not an ‘expert’ in matters of law
       enforcement, and … consequently it is incumbent upon the
       arresting or searching officer to explain the nature of his
       expertise or experience and how it bears upon the facts which
       prompted the officer to arrest or search. For example, if an
       officer at a hearing on a motion to suppress were to say that he
       made the arrest because he saw what he as an expert
       recognized as a marijuana cigarette, this is not a showing of
       probable cause. Under the probable cause standard, it must ‘be
       possible to explain and justify the arrest to an objective third
       party,’ and this is not accomplished by a general claim of
       expertise. On the other hand, if the officer testifies fully
       concerning his prior experience with marijuana cigarettes and
       explains in detail just how it is possible to distinguish such a
       cigarette from other hand-rolled cigarettes, this testimony
       cannot be disregarded by the judge simply because it involves
       expertise not shared by the judge.

LaFave, 2 Search & Seizure § 3.2(c) (5th ed. 2015).



                                          - 21 -
J-A09026-16


hospital, and his inability to name the hospital. The affidavit also included a

detail not mentioned during the suppression hearing: the passenger in the

vehicle told Trooper Rowland that they were going to Cleveland, Ohio, not

Columbus.

      Corporal Hanlon then described the search of Randolph’s vehicle as

follows:

      I … initiated a canine search of the vehicle with [c]anine ‘Draco’.
      During the search, Draco increased his breathing around the
      driver’s seat floor area, but did not indicate. I then initiated a
      hand search of the vehicle with Tpr. Rowland. During the
      search, we located multiple cell phones[,] one of which was
      ringing, [but] no luggage to indicate a long trip. I then looked at
      the undercarriage of the vehicle and observed an aftermarket
      modification between the floor (sic) that did not match the
      remainder of the undercarriage. Based on my training and
      experience[,] I recognized this modification to be a hidden
      compartment commonly used to transport guns, drugs and U.S.
      currency. I related this information to Randolph and noticed a
      drastic change in attitude … Canine Draco is trained and certified
      by the Pennsylvania State Police to detect the odors of cocaine,
      heroin, marijuana and methamphetamines.

SH, Commonwealth Exhibit 3.

      We recognize that we have a duty to examine search warrant

applications through the lens of common sense and not in the manner of

grudging, hypertechnical perfectionists.      But even when construed in this

light, we still conclude that the trooper’s affidavit did not establish probable

cause to search the box.

      The Commonwealth asserts that the following factors created probable

cause: (1) the absence of seats and luggage in the vehicle, (2) the discovery


                                     - 22 -
J-A09026-16


of multiple cell phones, one of which was ringing, (3) Randolph’s inconsistent

accounts of whom he was visiting in Columbus, (4) his inability to name the

hospital he was driving to in Columbus, (5) the passenger’s claim that they

were driving to Cleveland instead of Columbus, and (6) the hidden

compartment welded to the undercarriage of the vehicle, which Trooper

Hanlon claimed was a common device for transporting drugs, weapons and

money. We cannot fault Corporal Hanlon for finding these facts suspicious,

but they did not give rise to probable cause.

       Corporal Hanlon’s averments relating to the hidden compartment were

insufficient for two reasons. First, the police dog, Draco, did not alert when

it sniffed the area in which Corporal Hanlon subsequently discovered the

compartment. While this alone did not defeat probable cause,7 neither did it

elevate the likelihood that the corporal would find contraband or evidence of

crime in the hidden compartment.               Torres, 764 A.2d at 537.   Second,

Corporal Hanlon failed to explain how his “training and experience” led him

to recognize that the compartment was “commonly used to transport guns,

drugs and U.S. currency.” He neglected to list what classes he has attended

or certifications he has received on this subject, the number or type of cases

he has participated in where officers discovered hidden compartments

____________________________________________


7
   Commonwealth v. Brown, 924 A.2d 1283, 1289 (Pa.Super.2007)
(trained dog’s failure to alert “is but one factor to be considered in adjudging
whether the totality of the circumstances establishes probable cause”).



                                          - 23 -
J-A09026-16


containing drugs or weapons, or even how long he has been a law

enforcement officer. Thus, his claim of “knowledge and experience” was an

empty phrase that failed to tilt the scales toward probable cause.

Thompson, 985 A.2d at 935 (officer’s claim of “knowledge and experience”

does not give rise to probable cause without “explanation of their specific

application to the circumstances at hand”).

      Nor did discovery of the hidden compartment establish probable cause

when viewed in conjunction with the other five facts observed by Corporal

Hanlon.   Collectively, these details indicate that Randolph and the other

vehicle occupant were taking a lengthy road trip without luggage or seats in

the rear of the vehicle, but with multiple cell phones in their possession; that

they gave inconsistent accounts about their travel plans and destination;

and that the vehicle had a hidden compartment -- an unusual set of

circumstances, but not enough for a search warrant, because they did not

create a “fair probability” that contraband or evidence of crime would be

found inside the hidden compartment.          Torres, 764 A.2d at 537.      Had

Corporal Hanlon augmented these facts by describing his “knowledge and

experience” vis-à-vis hidden vehicle compartments (or other details that he

found suspicious), his affidavit might well have furnished probable cause.

This subject matter, however, was missing from the affidavit, and we must

judge this affidavit by what it includes, not by what potentially helpful

information it omits.


                                     - 24 -
J-A09026-16


      Judge Platt’s concurring and dissenting statement contends that our

“focus on the level of detail in the recitation of Corporal Hanlon’s training,

knowledge and experience misses the big picture and reweighs the evidence

before the suppression court.” Concurring and Dissenting Statement, at 2.

Judge Platt further asserts that Corporal Hanlon’s experience “may be

regarded as a relevant factor” under Thompson, but that he was not

“required to demonstrate a fact-specific nexus between his experience and

probable cause for the search.” Id. at 3 (emphasis in original).

      Judge Platt obviously is correct that Thompson calls experience “a

relevant factor” (as opposed to “the relevant factor” or “the only relevant

factor”). Thompson, 985 A.2d at 935. And because experience is only “a

relevant factor,” there may be occasions where experience is not critical to

the probable cause calculus. For example, had Draco alerted to the area in

which Corporal Hanlon subsequently discovered the compartment, we doubt

that it would have been necessary for Trooper Hanlon to describe his

experience.   But Draco did not alert, so in the “big picture” of this case,

Corporal Hanlon’s experience was essential to tip the balance from mere

suspicion to probable cause.       What knowledge, training or experience did

Corporal   Hanlon   have    that    reasonably   indicated    that   the   hidden

compartment was used to store criminal contraband?           His affidavit did not

say – and due to this omission, his affidavit only gave rise to suspicion of

criminal activity but not probable cause.


                                      - 25 -
J-A09026-16


      During oral argument, the Commonwealth suggested that even if the

search warrant was deficient, Corporal Hanlon still had the right to open the

hidden compartment by virtue of Randolph’s verbal consent to search the

vehicle.   We do not agree that Randolph’s consent extended this far.     We

have held that general consent to search a vehicle extends to closed, but

readily opened, containers discovered inside the car.    Commonwealth v.

Yedinak, 676 A.2d 1217, 1220 (Pa.Super.1996).           Conceivably, general

consent might also permit opening a closed container by unscrewing several

screws from its cover without causing structural damage.         See United

States v. Saucedo, 688 F.3d 863, 866-68 (7th Cir. 2012) (collecting cases).

Conversely, we do not think it reasonable to conclude that Randolph’s

consent extended to a hidden compartment that he kept locked and

concealed from view and which Corporal Hanlon could open only by

removing the passenger door and applying power through wires connected

to the door.   Cf. Florida v. Jimeno, 500 U.S. 248, 251-52 (1991) (“it is

very likely unreasonable to think that a suspect, by consenting to the search

of his trunk, has agreed to the breaking open of a locked briefcase within the

trunk”).




                                    - 26 -
J-A09026-16


       Accordingly, we hold that the trial court erred by denying Randolph’s

motion to suppress.8

       Judgment      of   sentence      reversed;   case   remanded   for   further

proceedings consistent with this opinion; Commonwealth’s motion to quash

appeal denied; jurisdiction relinquished.

       President Judge Emeritus Ford Elliott joins the opinion.

       Judge Platt files a concurring/dissenting statement.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/16/2016




____________________________________________


8
   In view of this decision, we find it unnecessary to review Randolph’s final
issue on appeal, an argument that the trial court erred in permitting the
Commonwealth to present hearsay testimony from Corporal Hanlon
concerning reports from other troopers relating to forensic analysis of cell
phones seized from Randolph’s vehicle.



                                          - 27 -
