J-A17030-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37


    COMMONWEALTH OF PENNSYLVANIA           :   IN THE SUPERIOR COURT OF
                                           :        PENNSYLVANIA
                                           :
              v.                           :
                                           :
                                           :
    MORRIS MONTANEZ                        :
                                           :
                    Appellant              :   No. 1239 EDA 2019

         Appeal from the Judgment of Sentence Entered April 12, 2019
     In the Court of Common Pleas of Delaware County Criminal Division at
                       No(s): CP-23-CR-0002957-2018

BEFORE: BOWES, J., McCAFFERY, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY McCAFFERY, J.:                        FILED AUGUST 17, 2020

        Morris Montanez (Appellant) appeals from the judgment of sentence

entered in the Delaware County Court of Common Pleas following his

stipulated bench trial wherein he was convicted of three counts of possession

of a controlled substance with intent to deliver (PWID)1 methamphetamine,

heroin, and cocaine.     Appellant argues that his suppression motion was

erroneously denied. For the reasons below, we affirm.

        The trial court summarized the facts presented at Appellant’s motion to

suppress hearing and stipulated bench trial as follows:

              On February 14, 2017 [at] approximately 9:45 p.m., Officer
        Costello (employed with the Chester City Police Department at the
        time) was conducting a check of an area considered “high crime”
        by the Chester City Police Department. This area is considered



1   35 Pa.C.S. § 780-113(a)(30).
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      “high crime” due to frequently occurring homicides, open-air drug
      sales, drug investigations, and shootings.

            Officer Costello was traveling north on the 90[0] block of
      Clover [Lane] approaching 10th Street at this time. Officer
      Costello watched as a silver sedan traveling east on 10th Street
      disregarded the stop sign posted at Clover Lane. Officer Costello
      proceed[ed] to follow the vehicle, where he witnessed the car
      disregard yet another stop sign at 10th and Booth Street[s].
      Officer Costello proceeded to activate his lights and pulled the
      vehicle over midway down the block on the 1000 block of Harwick
      [Street].

            As Officer Costello approached the vehicle, he smelled what
      he recognized to be burnt marijuana seven or eight feet from the
      vehicle. Officer Costello perceived the driver, [Appellant], to be
      nervous, breathing heavily and sweating despite the cold weather.
      Officer Costello introduced himself to [Appellant], told him the
      reason for the stop, and asked for his credentials. Officer Costello
      told [Appellant] he smelled [burnt, not fresh] marijuana and
      [Appellant] replied that he had been smoking in the car earlier.[2]
      Officer Costello discussed with [Appellant] that he had presented
      his state-issued identification card instead of a driver’s license.[3]
      Officer Costello then asked [Appellant] if he would mind stepping
      out of the car so that he could conduct an investigation in the rear
      of the vehicle. [Appellant] complied and stepped out of the
      vehicle. Back-up officers had arrived by this time.

             After [Appellant] stepped out of his vehicle, Officer Costello
      asked [Appellant] if he would be okay with patting him down for
      officer safety to make sure [Appellant] didn’t have any firearms
      or anything that could hurt the officer on him. [Appellant]
      consented and told the Officer that he didn’t have to worry about
      anything being in the car. During the pat-down, Officer Costello
      felt a large bag concealed in [Appellant’s] pants around his belt
      buckle area, the front of his pelvis. Because of Officer Costello’s




2 Officer Costello testified that he suspected Appellant might have marijuana
in his car or on his person. N.T., 10/25/18, at 42.

3 Officer Costello testified that he took Appellant’s identification and put it
directly into his uniform pocket. N.T., 10/25/18, at 14.

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        training, he knew specifically that what he felt was bundles of
        [heroin].

               Officer Costello proceeded to put [Appellant] in handcuffs
        and asked [Appellant] whether he wanted to tell him about what
        he felt in [Appellant’s] pants. [Appellant] mentioned that it could
        be a bag of cocaine in his pants, turned around, and started
        running away from the Officer westbound across Harwick Street.
        Officer Costello chased [Appellant], apprehended him, and
        retrieved the bag from his pelvis area. After Officer Costello stood
        [Appellant] up and walked him back to the car, [Appellant] started
        running away again, this time southward down Harwick [Street].
        Officer Costello, with the help of the other officers, apprehended
        [Appellant] again, told him to stop running, and placed him in the
        back of the [police] vehicle. Officer Costello inspected the bag
        and discovered multiple bundles of heroin, bags of crystal meth,
        and bags of cocaine. Officer Costello also discovered a large
        quantity of cash in [Appellant’s] pocket, approximately $790. A
        search of [Appellant’s] vehicle revealed six cellphones and mini
        rubber bands.

Trial Ct. Op., 7/19/19, at 2-4 (references to notes of testimony omitted).4

        Appellant presents three arguments for our review: (1) the trial court

erred in finding that the officer had reasonable suspicion to conduct a Terry5

frisk of the Appellant, see Appellant’s Brief at 8-12; (2) the trial court erred

in finding that the officer’s search of Appellant, notably reaching into his pants,

did not exceed the scope of a Terry frisk and was supported by probable




4 Appellant was convicted at a stipulated bench trial on April 12, 2019, and
immediately sentenced to an aggregate term of 18 to 36 months’
imprisonment with a four-year probationary tail; the trial incorporated
testimony from a suppression hearing on October 25, 2018. On April 16th,
he filed the present appeal, and on May 30th he filed a timely statement per
Pa.R.A.P. 1925(b).

5   Terry v. Ohio, 392 U.S. 1 (1968).

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cause; id. at 12-16; and (3) while Appellant may have consented to the

searches that led to his arrest, his consent was not willful — rather, he was

coerced into giving Officer Costello permission. Id. at 17-22.

      The Commonwealth responds that the trial court did not err in its

findings and conclusions, Officer Costello properly conducted a Terry frisk,

and Appellant consented willingly and without coercion. See Commonwealth’s

Brief at 8-19. Finally, the Commonwealth argues that in any event, discovery

was inevitable and therefore suppression would have been error. Id. at 20-

22.

      The trial court determined Officer Costello had reasonable suspicion to

conduct a Terry frisk on Appellant. Trial Ct. Op. at 4-5. The trial court also

found that Officer Costello’s search of Appellant did not exceed the scope of a

Terry frisk and was supported by probable cause, and Appellant voluntarily

consented to a search of his person. Id. at 5-12.

      We adhere to the following standard:

            Our 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, we are bound by these findings and may
      reverse only if the court’s legal conclusions are erroneous. The
      suppression court’s legal conclusions are not binding on an
      appellate court, whose duty is to determine if the suppression


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      court properly applied the law to the [trial court’s] facts. Thus,
      the conclusions of law are subject to our plenary review.

Commonwealth v. Shreffler, 201 A.3d 757, 763 (Pa. Super. 2018) (citation

omitted).

      The main purpose of both the Fourth Amendment to the United States

Constitution and Article I, Section 8 of the Pennsylvania Constitution is to

protect citizens from unreasonable searches and seizures. Commonwealth

v. Hill, 874 A.2d 1214, 1217 (Pa. Super. 2005).           “Not every encounter

between citizens and the police is so intrusive as to amount to a ‘seizure’

triggering constitutional concerns.” Id.

      Traditionally, this Court has recognized three categories of
      encounters between citizens and the police. These categories
      include (1) a mere encounter, (2) an investigative detention, and
      (3) custodial detentions. The first of these, a “mere encounter”
      (or request for information), [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 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. Collins, 950 A.2d 1041, 1046 (Pa. Super. 2008) (citation

omitted).

      Officers have the right to conduct traffic stops for violations of our motor

vehicle code; therefore, the officer was justified in pulling Appellant over for

disregarding two stop signs. See Commonwealth v. Mack, 953 A.2d 587,

589 (Pa. Super. 2008). An officer has the right to check vehicle registration,


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the driver’s license, and any other information required to enforce the motor

vehicle code, and to ask the occupants to exit the vehicle. See id. at 589.

An officer who observes unusual and suspicious behavior that leads the officer

to a reasonable belief that the individual may be armed and dangerous has

the right to pat down the individual’s outer garments for weapons. See id. at

590.

       To justify a frisk, an officer must establish reasonable suspicion by

articulating specific facts from which the officer could reasonably infer that the

individual was armed and dangerous. See id. When this Court assesses the

frisk, we examine the totality of the circumstances, giving due consideration

to reasonable inferences that the officer can draw from the facts in light of his

experience. See id.

       Factors like the time of day also impact the “totality of the

circumstances” analysis.      This encounter was at night, and this Court has

observed that such encounters carry more inherent risk.               See, e.g.,

Commonwealth v. Cooper, 994 A.2d 589, 594 (Pa. Super. 2010)

(distinguishing faulty pat-down during the day from several valid ones

occurring “late at night”).

       We conclude the trial court was right that the arresting officer had

reasonable suspicion, sufficient to support a Terry-level encounter, when

Appellant confirmed that his car smelled like burnt marijuana because he had

smoked in the car earlier. At this point, the officer already knew that Appellant


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disregarded two stop signs and was likely under the influence of an intoxicant

while driving.   There is no doubt the officer was justified in pulling over

Appellant’s vehicle when he observed him disregard two stop signs — not even

Appellant argues against this.   In Commonwealth v. Simmons, 17 A.3d

399, 401 (Pa. Super. 2011), this Court affirmed the denial of suppression

where police pulled the defendant over for a minor traffic violation in a high-

crime area. The arresting officers observed the defendant move to conceal

something on his person as they approached. Id. This conduct was enough

to justify a protective pat-down under Terry and its progeny. Id. at 403-04.

During that pat-down, the officer felt numerous small cylinders, which he

knew to be consistent with drug packaging. Id. at 401.

      Appellant’s situation is analogous to Simmons. Both the defendant in

Simmons and Appellant were pulled over for traffic violations in high-crime

areas.   While the defendant in Simmons (unlike Appellant) was spotted

moving to conceal something, both were subjected to a Terry frisk in which

both officers recognized common narcotics packaging.        In Simmons, the

containers were vials, and here the containers were wax paper bundles.6 See

N.T., 10/25/18, at 55-57. Unlike in Simmons, here Appellant acknowledged




6 The Commonwealth’s expert estimated that the street value of the narcotics
in Appellant’s pocket was approximately $2,000. N.T., 5/9/18, at 22.
Appellant was carrying 105 individual bags of heroin, in addition to cocaine
and methamphetamine. Id.

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having smoked an intoxicant in the car, and had smoked it recently enough

that the car still bore a strong smell of burnt marijuana.

      Appellant argues that a high-crime area alone does little to establish

reasonable suspicion. Appellant’s Brief at 10. Appellant is correct to say that

a high-crime area alone does not establish reasonable suspicion; however,

here, the officer had more than just the fact of a high-crime area to support

his reasonable suspicion. The officer noted Appellant was unable to give a

good explanation of where he was coming from. See N.T., 10/25/18, at 41.

The officer also observed Appellant breathing heavily, appearing nervous, and

sweating despite the cold weather.      See id. at 40.       Further, Appellant

confessed at the beginning of the interaction with the officer that he had

smoked an intoxicant in the vehicle earlier.     See id. at 13.    The officer’s

observations, combined with Appellant’s confession, established reasonable

suspicion.

      Appellant himself established that he was likely driving under the

influence of an intoxicant (DUI), and thus the officer was fully justified in

prolonging the interaction to ensure the safety of all involved, including

Appellant.7 A DUI stop necessarily involves interactions that are long enough

for the investigating officer to determine whether there is probable cause for




7Although Appellant was not ultimately charged with a violation of 75 Pa.C.S.
§ 3802, our DUI statute, it is nevertheless relevant to assessing probable
cause.


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an arrest. During this prolonged investigation, an officer may need to conduct

a roadside sobriety test and engage in conversation meant to gauge the

driver’s ability to maintain alertness and presence of mind.             These

investigations must be conducted in close proximity to allow the officer to look

for bloodshot eyes or dilated pupils and to smell intoxicants if present on a

driver’s breath. With these close-up and prolonged interactions, an officer is

at risk due to the unpredictable behavior of someone whose judgment is

potentially impaired.8   The impaired individual may react poorly to the

investigation, and because of this an officer may have to perform Terry pat-

downs during DUI-related traffic stops.

      Furthermore, the arresting officer did not actually reach into Appellant’s

pocket until he had already attempted to run from the scene of the traffic

stop, after telling the officer that there were narcotics in his pants. At each

step of the encounter, Appellant gave accurate and incriminating responses to

the officer’s reasonable questions. Here, the officer’s experience led him to

conclude immediately that the bundle in Appellant’s pocket was packaged

narcotics, but first he asked Appellant about it. Appellant responded that it




8 Our Supreme Court has recognized the dangers inherent to the field sobriety
testing scenario. See, e.g., Commonwealth v. Revere, 888 A.2d 694, 704
n.12 (Pa. 2005), citing Commonwealth v. Blais, 428 Mass. 294, 701 N.E.2d
314, 316–17 (1998) (safety reasons warrant moving alleged drunk driver to
administer sobriety test).


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“could be” cocaine.9    Certainly, no one could dispute that the officer had

probable cause at that point.     Appellant argues that going into his pocket

exceeded the bounds of a Terry frisk, but can cite no authority to get around

the fact that Appellant was remarkably forthcoming about the narcotics in his

pocket, and his statement certainly established sufficient grounds for his

arrest and search incident to arrest.

      The officer also asked Appellant whether he could search his car, and

whether he could pat him down.          Appellant consented verbally to both

procedures. Appellant now argues that his consent was coerced rather than

freely given.     However, Appellant’s encounter escalated quickly and

organically,   based   on   the   answers     and   cues   Appellant   was   giving

(nervousness, smell of burnt marijuana, careless driving). The questions he

was asked arose from those cues.

      We evaluate claims that consent was coerced by applying a “totality of

the circumstances” approach.       See Commonwealth v. Kemp, 961 A.2d

1247, 1261 (Pa. Super. 2008), quoting Commonwealth v. Strickler, 757

A.2d 884, 901-02 (Pa. 2000).        Strickler provides a non-exclusive list of

factors to consider:




9 See N.T., 10/25/18, at 19. Appellant argues that the “plain feel” doctrine
was misapplied here, but that doctrine would only apply had the officer gone
straight into the pocket without asking about its contents. That is not what
happened. Once Appellant confessed that it “could be” cocaine, the officer
was no longer relying on plain feel. See id. at 19.

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      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 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)
      whether the person has been told that he is free to leave; and 9)
      whether the citizen has been informed that he is not required to
      consent to the search.

Kemp, 961 A.2d at 1261, citing Strickler, 757 A.2d at 898-99.

      Here, the location of the traffic interdiction and the late hour would tend

to establish the need, on the part of the officer, to keep both parties safe by

directing some movement (to make sure, for instance, they are not

endangered by oncoming traffic). Nothing indicates that the police demeanor

was particularly stern.   The content of the questions and statements was

organic rather than arbitrary, arising as it did from the obvious smell of burnt

narcotics as the officer approached the car. There was physical contact, but

it was, until Appellant attempted to run, the minimum contact that would

accomplish the Terry pat-down.        The initial investigation was minimally

coercive, and is of a character that most drivers will experience at some point

in their lives. On the other hand, Appellant was not informed that he was free

to leave (as he was not — the investigation into his competency to drive was

still ongoing), and although the questions do not appear to have been phrased

in any particularly hostile or coercive manner, they did not contain a warning

that Appellant was free to refuse.




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        Appellant points to two primary factors in alleging that the stop became

coercive: first, that the officer called for backup, and backup arrived by the

time the officer went into his pocket; and second, that the officer kept his

identification in his pocket during the encounter. Appellant is correct that the

retention of an ID is a factor in the “totality of the circumstances” analysis.

See Commonwealth v. Cost, 224 A.3d 641 (Pa. 2020). However, even if

we were to find the officer’s retention of Appellant’s ID to be problematic in

this circumstance, it cannot eclipse the many indicia of probable cause arising

from Appellant’s behavior. Notably, Appellant did not give the officer a driver’s

license; rather, he proffered a state-issued identification card. Trial Ct. Op.

at 3.

        The fact that the officer called for backup shows that he was worried,

upon observing Appellant’s nervousness and learning that he might be under

the influence of an intoxicant (and therefore might need to be taken into

custody for everyone’s safety, including his own), that Appellant might behave

erratically. The officer’s instincts proved useful, as Appellant attempted flight

during the arrest. Appellant conflates the circumstances surrounding freedom

to leave with the circumstances surrounding freedom to refuse.          Further,

Appellant identifies no authority to establish that asking to search a car

coupled with a pat-down during a traffic stop, without more, constitutes

coercion. Although the officer called for backup, Appellant has not established




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that the timing or presence of those backup officers affected his consent or

established coercion.

      The Commonwealth is also correct that, because the arresting officer

could not release a potentially intoxicated driver without further investigation,

discovery of the contraband was inevitable.          Pennsylvania applies the

inevitable discovery doctrine outlined in Nix v. Williams, 467 U.S. 431

(1984).   “[E]vidence which would have been discovered [is] sufficiently

purged of the original illegality to allow [its] admission.” Commonwealth v.

Gonzalez, 979 A.2d 879, 890 (Pa. Super. 2009) (citations omitted).

      Appellant made the decision, after announcing that the bulge in his

pocket could be cocaine, to run. He made an incriminating decision forcing

Officer Costello to escalate the encounter to a full arrest, during which, a

search incident to arrest was indeed inevitable.

      Because the search of Appellant’s person was appropriate, given Officer

Costello’s need to investigate the road-worthiness of a driver who had just

freely admitted recently smoking marijuana in his car, and because Appellant’s

subsequent indication that he was carrying cocaine and attempt at flight made

arrest appropriate and a search inevitable, the trial court correctly denied

Appellant’s suppression motion.

      Judgment of sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/17/20




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