J-A22027-19

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,            :    IN THE SUPERIOR COURT OF
                                         :          PENNSYLVANIA
                 Appellant               :
                                         :
                   v.                    :
                                         :
ESSENCE STEVENS,                         :
                                         :
                 Appellee                :    No. 881 EDA 2019

             Appeal from the Order Entered February 15, 2019
           in the Court of Common Pleas of Northampton County
            Criminal Division at No(s): CP-48-CR-0003574-2018

BEFORE:    MURRAY, J., STRASSBURGER, J.* and PELLEGRINI, J.*

MEMORANDUM BY STRASSBURGER, J.:         FILED NOVEMBER 20, 2019

     The Commonwealth of Pennsylvania appeals from the February 15,

2019 order granting the omnibus pretrial motion to suppress filed by

Essence Stevens (Stevens).1 Upon review, we vacate the order and remand

for further proceedings consistent with this memorandum.

     In September 2018, subsequent to a traffic stop of a vehicle in which

Stevens was a passenger, Stevens was charged with possession of a



1 The Commonwealth has the right to appeal the trial court’s February 15,
2019 order pursuant to Pa.R.A.P. 311(d), which provides that “[t]he
Commonwealth may take an appeal as of right from an order that does not
end the entire case where the Commonwealth certifies in the notice of
appeal that the order will terminate or substantially handicap the
prosecution.” In this case, the Commonwealth certified in its notice of
appeal that the order granting Stevens’s motion to suppress “terminate[s] or
substantially handicap[s] the prosecution.” Notice of Appeal, 3/15/2019.




*Retired Senior Judge assigned to the Superior Court.
J-A22027-19

controlled substance and possession of drug paraphernalia. On January 9,

2019, Stevens filed an omnibus pretrial motion seeking to suppress

statements she made to police and physical evidence seized during the

traffic stop. Motion to Suppress, 1/9/2019. Specifically, Stevens asserted

that suppression was warranted because the stop “was made without

probable cause or reasonable suspicion … and was done in violation of

[Stevens’s] right to be free from unreasonable searches and seizures[,]” and

that the subsequent questioning by police “was done in violation of

[Stevens’s] right to counsel and her right against self[-]incrimination[.]” Id.

at 1-2 (unnumbered). A hearing on Stevens’s motion was held on February

15, 2019.    At the hearing, the Commonwealth offered the testimony of

police officers Stephen Kunigus and James Connell.          We begin with a

summary of the facts presented at the suppression hearing.

      Officer Kunigus2 testified that on September 2, 2018, he was on

overnight patrol, in uniform, and operating a marked police vehicle. N.T.,

2/15/2019, at 7. At approximately 1:00 a.m., Officer Kunigus observed a


2
  Officer Kunigus testified that, at the time of the hearing, he had been a
police officer for approximately nine years and was the K-9 handler for the
Lower Saucon Police Department. N.T., 2/15/2019, at 5. Officer Kunigus
testified that his current assignment was a patrol officer, assigned to “patrol
through the Township of Lower Saucon. The daily activities [are] answering
calls, normal traffic stops, essentially calls for service, and investigations.”
Id. Officer Kunigus estimated that he has made nearly 100 narcotics arrests
throughout his career and spent time as a detective on the Northampton
County Drug Task Force. Id. at 16.




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gray colored Pontiac (“the vehicle”) pass his location. Id. at 8. At the time

of this observation, Officer Kunigus was in his patrol car, which was

“stationary facing Applebutter Road[,]” surveilling the area.        Id. at 8-9.

Officer Kunigus testified that he observed the vehicle pass him from his right

to his left. Officer Kunigus stated that as it passed he “observed the driver,”

and then “pulled out behind” the vehicle.3 Id. at 9.

      Officer Kunigus testified that after pulling out behind the vehicle, he

ran the vehicle’s registration through Mobile Cop.4        According to Officer

Kunigus, Mobile Cop had indicated that “the owner of the vehicle was

currently under suspension.” Id. at 10. Mobile Cop also gave a description

of the vehicle’s owner, an approximately 20-year-old female.         Id.   Officer

Kunigus testified that the description of the vehicle’s owner given by Mobile

Cop matched the person Officer Kunigus observed operating the vehicle. Id.

at 10-11. At that point, Officer Kunigus initiated a traffic stop.

      According to Officer Kunigus, the vehicle pulled over immediately and

Officer Kunigus proceeded to exit his patrol car and approach the vehicle.

Id. at 11. Officer Kunigus testified that he “approached the driver[’s] side of



3 Because of the positioning of Officer Kunigus’s patrol car, as the vehicle
passed, the driver’s side of the vehicle was the side closer to the officer. Id.
at 9.

4
  Officer Kunigus explained that “Mobile Cop is a system that is [used] to run
license plates or drivers through PennDOT records.” Id. at 10.




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the vehicle and made contact with the driver, and advised her why she was

stopped. At that point she handed [the officer] identification, which matched

the same as the owner of the vehicle.” Id.        Officer Kunigus testified that

during his interaction with the driver, he observed two additional occupants,

later identified as the driver’s mother and Stevens, who was seated in the

back of the vehicle. Id. at 12. Upon confirming that the driver’s license was

suspended,    Officer   Kunigus    requested   identification   from   the   other

occupants “to see if anybody else ha[d] a valid license to operate the

vehicle.”   Id.   The driver’s mother and Stevens provided Officer Kunigus

identification, who then returned to his patrol car, “and ran everything

through dispatch.”      Id.   At that time, Officer Kunigus “requested Officer

Connell to assist as backup.”     Id.   Officer Kunigus eventually learned that

both the driver’s mother and Stevens had suspended licenses, and that

Stevens had “prior arrests for narcotics.” Id. at 13.

      Officer Kunigus returned to the vehicle and asked the driver to exit the

vehicle. Id. at 15. The driver obliged and Officer Kunigus explained that he

was issuing her a citation for driving with a suspended license.         He also

inquired about “her travels” that evening. Id. The driver explained that she

left a carnival in Bucks County and had eventually gotten lost. Id. Officer

Kunigus testified that the driver appeared “slightly nervous,” and he found

her explanation about her travels “odd” because: (1) she said she had just

left a carnival but it was “nearly 1:00[a.m.;]” and (2) “she came from the



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east and she[ was] headed back east.”          Id. at 15-16. Officer Kunigus

testified that after speaking with the driver, he asked for her permission to

speak with the other occupants of the vehicle, “to confirm or basically check

[the driver’s] story of her whereabouts [that] evening.” Id. at 17.

         Officer Kunigus then made contact with Stevens, asked her to exit the

vehicle, and she obliged.     Officer Kunigus testified that Stevens appeared

“very nervous, like extremely nervous[.]” Id. According to Officer Kunigus,

Stevens was making “extremely fast movements, couldn’t stand still, talking

fast.”    Id. Officer Kunigus asked Stevens about her prior narcotics arrests

and she confirmed that she had previously been arrested.          Id.   Officer

Kunigus stated that based on “her admission to prior drug use” and her

“overly-nervous demeanor[,]” he asked Stevens “if she would consent to a

search of her person.” Id. at 18. Officer Kunigus testified that in response

to that question, Stevens opened her purse and said, “sure, you can search

it.”5 Id. According to Officer Kunigus, he observed “a digital scale on the

top of the inside of the purse.” Id. Officer Kunigus testified that on the top

of the scale he observed “a white-specked substance.” Id. Officer Kunigus

stated that “through [his] experience and training in narcotic-related



5
  Officer Kunigus testified that in conjunction with asking an individual to
consent to a search, he typically tells the person that “they can say no to a
search. They can stop a search at any time.” Id. at 18-19. In this case,
Officer Kunigus testified that despite informing Stevens of the foregoing,
Stevens still proceeded to hand Officer Kunigus her purse. Id. at 19.



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offenses, [he] observed that the scale is used in conjunction [with] the

weighing of narcotics.” Id. Officer Kunigus then asked Stevens “what her

drug of choice was[,]” and she responded “meth.” Id. at 21

      Officer Kunigus testified that at that time, he then “met back with the

driver and asked for consent to search the vehicle.”       Id.   Officer Kunigus

testified that he “explained to the driver basically the fact that, listen, I

observed -- had these observations with the scale and prior arrest and

overly-nervous behaviors, at this time I would like permission to search the

vehicle. You can say no, or you can stop the search at any time.” Id. Officer

Kunigus testified that the driver consented to the search. During the search

of the vehicle, Officer Kunigus recovered a “syringe that was sticking

partially out of where the back of the seat meets the base of the seat[,]

behind the driver where [Stevens] was seated[.]” Id. at 21. The syringe

was “fully-loaded” with a “clear-type liquid.” Id. A field test performed by

Officer Kunigus confirmed that the substance was methamphetamine. Id. at

22.   Officer Kunigus testified that the entire interaction lasted about an

hour.6 Id. at 30.




6
  Officer Kunigus further clarified why the traffic stop lasted as long as it did.
Officer Kunigus explained that after confirming the driver, her mother, and
Stevens all had suspended licenses, he continued to detain them because
“there was no licensed driver to operate the vehicle[,]” and he was allowing
“the driver to obtain a lawful driver [to] come get the vehicle while it was off
the side of the road.” Id. at 37. The officer stated “it took an extended
(Footnote Continued Next Page)


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      Next, Officer Connell testified. Officer Connell testified that he was on

patrol on September 2, 2018, when he received a request for backup. Id. at

39-40. Officer Connell testified that when he arrived at the scene, all three

occupants were outside of the vehicle and Officer Kunigus was speaking with

Stevens.    Id. at 40-41.          According to Officer Connell, Officer Kunigus was

polite and not yelling at Stevens, whom he observed “was acting nervous.”

Id. at 41-42.

      At the conclusion of the hearing,7 the trial court set forth several

findings of fact. Pertinent to this appeal, the trial court found that despite

observing no violation to the Crimes Code or Motor Vehicle Code, Officer

Kunigus

      nonetheless took it upon himself to pull out behind th[e vehicle],
      in which [Stevens] was a passenger in the rear seat, observe the
      license plate, and beg[i]n a series of investigative activities to
      determine the owner of the car and whether or not the owner of
      the car’s license had been suspended.

Id. at 53. The trial court concluded that, because Officer Kunigus did not

observe any violation “at the time he first observed the car in which

(Footnote Continued)   _______________________



period of time until we could get rides for these people in the middle of
nowhere. Obviously, we can’t leave them there.” Id.
7
  The defense did not present any witnesses. Following the testimony of the
officers, the Commonwealth and defense counsel presented brief arguments
to the Court. In pertinent part, defense counsel argued that based on the
time of night and the speed the vehicle was travelling, Officer Kunigus could
not have had the requisite reasonable suspicion or probable cause required
to stop the vehicle. Id. at 44-45.



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[Stevens] was a passenger,” the officer’s investigation and subsequent stop

violated Stevens’s “rights to be free from unwarranted searches and

seizures[.]” Id. Based upon the foregoing findings, the trial court granted

Stevens’s motion to suppress.8

      This appeal followed.9     On appeal, the Commonwealth presents one

issue for our review: “Whether the trial court erred in granting [Stevens’s]

motion for suppression as [Officer Kunigus] had reasonable suspicion to

effect a traffic stop on the vehicle and the narcotics [and] contraband

[Stevens] was charged with possessing was located during consensual

searches?” Commonwealth’s Brief at 4 (unnecessary capitalization omitted).

            When the Commonwealth appeals from a suppression
      order, this Court follows a clearly defined scope and standard of
      review. We consider only the evidence from the defendant’s
      witnesses together with the evidence of the prosecution that,
      when read in the context of the entire record, remains
      uncontradicted. This Court must first determine whether the
      record supports the factual findings of the suppression court and
      then determine the reasonableness of the inferences and legal
      conclusions drawn from those findings.


8
   Presumably in light of its finding that the traffic stop was unlawful based
upon the fact that Officer Kunigus did not observe any violations before it
ran the vehicle’s license plate, the trial court did not address whether, after
determining that the vehicle’s owner had a suspended license, Officer
Kunigus had reasonable suspicion or probable cause to stop the vehicle.
Likewise, the trial court did not address the interactions between Officer
Kunigus and Stevens subsequent to the stop.
9
 The Commonwealth complied with the trial court’s request to file a concise
statement and in response, the trial court submitted an order stating it relied
“on the record” and believed “that no further statement is necessary.” See
Order, 4/9/2019. For the reasons set forth infra, we do not agree.



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Commonwealth v. Arthur, 62 A.3d 424, 427 (Pa. Super. 2013) (quotation

marks and citations omitted).

        As set forth supra, in this case, the trial court found that, because

Officer Kunigus did not observe any violation “at the time he first observed

the car in which [Stevens] was a passenger,” the officer’s investigation of

the vehicle was unlawful. N.T., 2/15/2019, at 53. In Commonwealth v.

Bolton, 831 A.2d 734 (Pa. Super. 2003), this Court addressed whether an

officer, while patrolling highways and roads, is required to have any level of

suspicion before running a vehicle registration through a mobile database.

The Bolton Court noted that

        [t]wo competing interests guide the formulation of the laws
        governing state agents performing stops of vehicles on the road:
        (1) the Commonwealth’s interest in protecting the safety of
        those who travel its highways and roads through the use of
        safety rules and regulations; and (2) the reasonable expectation
        of privacy by the individual.

Id. at 736.

        With, inter alia, the foregoing in mind, this Court rejected Bolton’s

contention that

        the charging officer must have some level of suspicion in order
        to run a license plate on the road through the NCIC[10] computer,
        [Bolton] cites no authority to support this contention. Further,
        our review of the case law has found no support for this



10
     National Crime Information Center.




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      argument. Additionally, we fail to see the need for some level of
      suspicion to check a license plate which is clearly in plain view.

Id. at 737.

      Pursuant to Bolton, we conclude the trial court erred in finding that

the traffic stop was unlawful. Officer Kunigus was not required to have any

level of suspicion that a violation was occurring prior to deciding to run the

vehicle’s information through Mobile Cop.

      Although we find the trial court erred in determining that the traffic

stop was illegal based solely on the fact that Officer Kunigus did not first

observe a violation before running the vehicle’s registration through Mobile

Cop, our inquiry does not end there.         We must now determine whether

Officer Kunigus had the requisite information needed before initiating a stop

of the vehicle.   We begin by setting forth the relevant principles of law

regarding traffic stops. The authority of a police officer to stop a vehicle is

governed by 75 Pa.C.S. § 6308(b), and provides the following:

      Whenever a police officer is engaged in a systematic program of
      checking vehicles or drivers or has reasonable suspicion that a
      violation of this title is occurring or has occurred, he may stop a
      vehicle, upon request or signal, for the purpose of checking the
      vehicle’s registration, proof of financial responsibility, vehicle
      identification number or engine number or the driver’s license, or
      to secure such other information as the officer may reasonably
      believe to be necessary to enforce the provisions of this title.

75 Pa.C.S. § 6308(b).

           Thus, § 6308(b) requires only reasonable suspicion in
      support of a stop for the purpose of gathering information
      necessary to enforce the Vehicle Code violation. However, in
      [Commonwealth v. Feczko, 10 A.3d 1285, 1291 (Pa. Super.

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      2010) (en banc),] this Court held that a police officer must have
      probable cause to support a vehicle stop where the officer’s
      investigation subsequent to the stop serves no “investigatory
      purpose relevant to the suspected [Vehicle Code] violation.”
      In Feczko, the police officer observed the defendant’s vehicle
      cross over the double yellow median line and the fog line.
      During the ensuing vehicle stop, the officer noticed the scent of
      alcohol on the defendant’s breath. Importantly, the officer did
      not testify that the stop was based on suspicion of DUI. The
      defendant was convicted of DUI and a motor vehicle code
      violation, and argued on appeal that the vehicle stop was illegal.


            This Court noted the distinction between “the investigative
      potential of a vehicle stop based on a reasonable suspicion of
      DUI as compared to other suspected violations of the Motor
      Vehicle    Code.” Id. at   1289     (citing Commonwealth       v.
      Sands, 887 A.2d 261, 270 (Pa. Super. 2005)). Whereas a
      vehicle stop for suspected DUI may lead to further incriminating
      evidence such as an odor of alcohol or slurred speech, a stop for
      suspected speeding is unlikely to lead to further evidence
      relevant to that offense. Therefore:
               [A] vehicle stop based solely on offenses not
               ‘investigatable’ cannot be justified by a mere
               reasonable suspicion, because the purposes of
               a Terry 1 stop do not exist—maintaining the status
               quo while investigating is inapplicable where there is
               nothing further to investigate. An officer must have
               probable     cause    to   make     a    constitutional
               vehicle stop for such offenses.
      ______

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


Commonwealth v. Landis, 89 A.3d 694, 702–03 (Pa. Super. 2014) (some

citations omitted).

      In this case, because further investigation was required to confirm that

the operator of the vehicle was driving with a suspended license, we must

determine only whether Officer Kunigus possessed the requisite level of


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reliable information at the time of the traffic stop to establish that the officer

was acting with reasonable suspicion. In addressing this issue, we find this

Court’s decision in Commonwealth v. Hilliar, 943 A.2d 984 (Pa. Super.

2008), instructive.

      In Hilliar a police officer on routine patrol,

      ran the defendant’s license plate, and determined that the owner
      of the vehicle’s license was under suspension. The officer also
      discovered the owner’s age and that he was a male. From his
      observation of the driver the officer believed that the defendant
      was male, and was about the same age as the owner. Based on
      the officer’s conclusion that it was likely that the person
      operating the vehicle was the owner because he was a male of
      the same age as the owner and had possession of the owner’s
      vehicle, the police officer decided to stop the vehicle for
      suspicion of driving on a suspended license.

Id. at 987–88. After reviewing the facts and evidence presented, the Hilliar

Court determined “that under the facts of this case, the officer’s suspicion

that the driver of the vehicle was also the owner was a reasonable one

because the driver matched the description of the owner as a middle[-]aged

man.” Id. at 990. The foregoing reinforces that an officer may not initiate a

traffic stop based solely on information that the registered owner of the

vehicle has a suspended license. Instead, the officer is required to confirm

that the driver of the vehicle, at a minimum, matches the description of the

vehicle’s owner before making a traffic stop.

      In this case, Officer Kunigus testified that based on his location and

the direction in which the vehicle was travelling, he was clearly able to see

into the vehicle and observe the driver. N.T., 2/15/2019, at 8-11. Officer

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J-A22027-19

Kunigus further testified that the driver of the vehicle matched the

description of the vehicle’s owner provided by Mobile Cop.11        Conversely,

defense   counsel   extensively   questioned    Officer   Kunigus   on   cross-

examination about his ability to observe the vehicle’s driver, given the

lighting conditions and speed of the vehicle, and later argued to the trial

court that these factors impeded Officer Kunigus’s ability to observe the

driver clearly. Id. at 24-29, 44-45.

      As set forth supra, in light of the trial court’s findings with respect to

Officer Kunigus’s initial investigation of the vehicle, the trial court did not

make any findings of fact or conclusions of law regarding Officer Kunigus’s

observations of the driver prior to the stop and whether it found the Officer’s

testimony credible.12   “[I]t is well-established that an appellate court does

not make findings of fact or conclusions of law.”         Commonwealth v.

Grundza, 819 A.2d 66, 68 (Pa. Super. 2003).         As such, we find the trial

court’s failure to set forth its findings of fact and conclusions of law with



11
  In fact, it was later confirmed that the driver was indeed the registered
owner of the vehicle.
12
   During argument before this Court, counsel for Stevens stated that the
trial court granted Stevens’s motion because the court did not believe Officer
Kunigus’s testimony that he was able to see into the vehicle and observe the
driver. We find there is simply nothing in the record to support this
assertion. Nor does counsel direct this Court to anything in the record to
corroborate this claim. As set forth in greater detail supra, the trial court’s
findings of fact addressed only its belief that Officer Kunigus unlawfully
investigated the vehicle without first observing a violation.



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respect to whether Officer Kunigus possessed reasonable suspicion to initiate

a stop of the vehicle significantly impedes our ability to dispose of this

appeal.

     In light of the foregoing, we vacate the trial court’s order and remand

to the trial court for further proceedings.   On remand, the trial court is

directed to make findings of fact and conclusions of law regarding Officer

Kunigus’s testimony and whether it finds: (1) Officer Kunigus’s testimony

credible; and (2) Officer Kunigus had reasonable suspicion to effectuate the

stop. If the trial court finds reasonable suspicion existed, it must than set

forth its findings regarding the legality of the subsequent interaction

between Officer Kunigus and Stevens. The trial court, in its discretion, may

make these determinations based on the existing record, or may opt to

reopen the record for further testimony. Then, the court shall either reenter

the order granting Stevens’s motion to suppress or enter a new order

denying the motion.

     Order vacated. Case Remanded. Jurisdiction Relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 11/20/19




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