J-A07003-16



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellant

                       v.

JONATHAN ANDREW GUZMAN,

                            Appellee                   No. 677 WDA 2015


                     Appeal from the Order March 17, 2015
               In the Court of Common Pleas of Somerset County
              Criminal Division at No(s): CP-56-CR-0000503-2014


BEFORE: BOWES, MUNDY AND JENKINS, JJ.

MEMORANDUM BY BOWES, J.:                                FILED JULY 20, 2016

       The Commonwealth appeals the March 17, 2015 order granting

suppression.1 We affirm.

     The trial court aptly set forth its factual findings, which are supported by

the record, in its opinion.

             On or about May 7, 2014, [Appellee] was traveling
     westbound on the Pennsylvania Turnpike in a white Chevrolet
     Impala. At that same time, Pennsylvania State Police Trooper John
     P. Isoldi (hereinafter, the "Trooper" or "Trooper Isoldi") was in his
     marked patrol vehicle, situated in a parked position, watching
     westbound traffic enter the Allegheny Tunnel.           The Trooper
     observed [Appellee] enter the Allegheny Tunnel without activating
     the vehicle’s headlights, a violation of 75 Pa.C.S.A. § 4302. Based
     on this observation, the Trooper abandoned his parked position,
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1
   The Commonwealth has certified that the order in question will terminate
its prosecution. Hence, we have jurisdiction. Pa.R.A.P. 311(d).
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    followed [Appellee]'s vehicle, and effectuated a traffic stop at or
    near the exit of the tunnel.

    Trooper Isoldi observed that [Appellee]'s vehicle was bearing
    registration from the Commonwealth of Virginia, and was able to
    determine that the vehicle was a rental vehicle. The Trooper then
    approached the vehicle and requested from [Appellee] a driver's
    license and vehicle registration. [Appellee] provided a valid driver's
    license and a rental agreement from Enterprise Rent-A-Car, which
    indicated that the vehicle was restricted to travel within Virginia,
    Washington, D.C., and Maryland. During the course of the traffic
    stop, [Appellee] advised the Trooper that he had picked up the
    vehicle that very morning and was traveling from Virginia to
    Cleveland, Ohio in order to visit a sick relative. During this time,
    the Trooper believed [Appellee] appeared nervous - he was staring
    straight ahead, refusing to make eye contact, and his right hand
    was shaking when he handed the Trooper his driver's license.
    Trooper Isoldi proceeded to run [Appellee]’s information through
    the National Crime Information Center, which revealed that
    [Appellee]'s license was valid and that [Appellee] had been
    convicted of a firearms offense in 2002. Trooper Isoldi then
    requested that [Appellee] exit the vehicle so he could explain to
    [Appellee] the traffic warning. [Appellee] was issued a warning for
    violation of the Vehicle Code, his paperwork was returned, and he
    was advised that he was free to leave.

    Within one second of telling [Appellee] that he was free to leave the
    scene, the Trooper re-engaged [Appellee] for further questioning.
    The Trooper asked for consent to search the vehicle, which was
    denied. [Appellee] was then forced to place his hands on the
    vehicle while Trooper Isoldi performed a weapons search. This
    weapons search occurred within seconds of [Appellee] being
    advised that he was free to leave the scene. As a result of being
    denied consent to search the vehicle, Trooper Isoldi called for a
    canine unit to come to the scene for assistance. Shortly thereafter,
    Trooper Bret Kahler (hereinafter, "Trooper Kahler") and his canine,
    Kubko, arrived at the scene. Trooper Kahler and Kubko performed
    an exterior sniff search of the vehicle, and Kubko alerted to the
    presence of controlled substances near the driver's side door.

Trial Court Opinion, 03/18/15, at 2-3.     As a result of the canine alert,

Trooper Isoldi applied for a search warrant, which was granted.              The

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subsequent search yielded, inter alia, a pistol with obliterated serial numbers

and a digital scale with powder residue. Id. at 3.

      On November 18, 2014, a hearing was held on a motion to suppress.

Following post-hearing memoranda by the parties, the trial court granted

suppression on March 17, 2015. The order was accompanied by an opinion,

wherein the trial court concluded Trooper Isoldi lacked reasonable suspicion

to detain Appellee.

      The Commonwealth filed a timely notice of appeal and complied with

the trial court’s order to prepare a Pa.R.A.P. 1925(b) statement.            The

Commonwealth raises two issues for our consideration:

      1. Whether the lower court erred in finding that the officer in this
      matter did not possess the requisite reasonable suspicion to
      justify an investigative detention of [Appellee]?

      2. Whether the lower erred in not finding that the officer in this
      matter possessed the requisite reasonable suspicion to validate a
      canine sniff of [Appellee]’s vehicle?

Appellant’s brief at 4.

      Our standard of review when considering an order denying a

suppression motion is well-settled. We consider

      only the Commonwealth's evidence 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 record supports the
      factual findings of the trial court, the appellate court is bound by
      those facts and may reverse only if the legal conclusions drawn
      therefrom are in error. However, it is also well settled that the
      appellate court is not bound by the suppression court's
      conclusions of law.



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Commonwealth v. Tam Thanh Nguyen, 116 A.3d 657, 663-64 (Pa.Super.

2015) (citations omitted).

       The parties concede Appellant was subjected to a lawful traffic stop.

The Commonwealth contends that the totality of the circumstances

throughout     the   entire   encounter,       including   Appellee’s responses   and

behavior upon being told he could depart, create reasonable suspicion to

continue the interrogation.        Appellee, on the other hand, argues that the

trooper lacked reasonable suspicion to continue the detention.             Appellee’s

brief at 7.

       We agree with Appellee. Once a traffic stop is complete, reasonable

suspicion of criminal activity must exist to justify any continued detention:

       [W]here the purpose of an initial traffic stop has ended and a
       reasonable person would not have believed that he was free to
       leave, the law characterizes a subsequent round of questioning
       by the police as an investigative detention or arrest. In the
       absence of either reasonable suspicion to support the
       investigative detention or probable cause to support the arrest,
       the citizen is considered unlawfully detained.

Commonwealth v. By, 812 A.2d 1250, 1256 (Pa.Super. 2002) (citation

omitted).     Thus, once Trooper Isoldi issued the warning and informed

Appellee he was free to leave, the continued detention 2 required reasonable


____________________________________________


2
       We note that the issue of whether this detention is viewed as
comprising two distinct seizures or merely one continuous seizure is
irrelevant to our analysis as Appellee was clearly not free to leave. We
(Footnote Continued Next Page)


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suspicion of a crime unrelated to the traffic stop. See Commonwealth v.

Freeman, 757 A.2d 903, 907 (Pa. 2000) (“Since the trooper had

accomplished the purpose of the stop, as he expressly indicated, [defendant]

would have been entirely within her rights to drive away at that point.”)

      To establish reasonable suspicion, the officer must “articulate specific

observations which, in conjunction with reasonable inferences derived from

those observations, led him to reasonably conclude, in light of his

experience, that criminal activity was afoot[.]” Commonwealth v. Caban,

60 A.3d 120, 128 (Pa.Super. 2012) (citations omitted). The Commonwealth

points to the following observations of the officer in support of reasonable

suspicion:

      (1) [Appellee] was driving a rental vehicle outside of the
      contractually allowed area for the vehicle; (2) [Appellee] had a
      prior firearm violation; (3) [Appellee] was exhibiting nervous
      behaviors; (4) [Appellee] was travelling to Cleveland, a known
      hub for drug trafficking; and (5) [Appellee]’s explanation for the
      trip seemed fabricated[.]

Appellant’s brief at 10. We discuss these factors seriatim.

      The government cites Commonwealth v. Kemp, 961 A.2d 1247

(Pa.Super. 2008) (en banc), for the proposition that operating a third-party

vehicle is commonly associated with drug trafficking.     In Kemp, a State

Trooper stopped a vehicle for improperly-tinted windows.      The car did not
                       _______________________
(Footnote Continued)

therefore address the reasonable suspicion in light of everything known to
the officer at the time he prevented Appellee from departing in his vehicle.



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belong to either occupant, and the trooper testified drug traffickers often use

third-party vehicles to prevent asset forfeiture.         Id. at 1251.     We

enumerated this factor as one of many in finding reasonable suspicion. More

significantly for present purposes, we also stated that the trooper detected a

fresh odor of marijuana when the driver lowered the window, and of a

masking agent consisting of approximately a dozen air fresheners and dryer

sheets.   Id. at 1255.    We described these items as constituting “major

indicia of drug-related activity.” Id. at 1254.

       Kemp thus treats the use of a third-party vehicle as a relevant factor

but requires other indicia of drug use.    Here, there was no odor, masking

agent, or any other indication of drug-related activity. “With respect to [the

officer]’s initial reasonable suspicion, I note that the crowning fact is the

presence of the open boxes of detergent and fabric sheets. These items are

not usually found in an open state in automobiles[.]”     Commonwealth v.

Rogers, 849 A.2d 1185, 1193 (Pa. 2004) (Castille, J., concurring).

Furthermore, the use of the third-party vehicle herein is not accompanied by

any other factor, such as an “inability to provide the correct name of the

car’s owner.” Kemp, supra, at 1255; Commonwealth v. Caban, 60 A.3d

120,   129   (Pa.Super.   2012)   (trooper’s   computer   search   contradicted

defendant’s answers regarding owner of vehicle).

       We next address Appellee’s criminal conviction for aggravated assault

with a firearm from 2002. At the time of the stop, the conviction was over a

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dozen years old. Furthermore, the conviction was not drug-related in any

way.      As such, it has questionable value in arousing suspicion of drug

possession.      See Commonwealth v. Grahame, 7 A.3d 810 (Pa. 2010)

(rejecting a “guns follow drugs” presumption that would justify a protective

weapons search when drugs are seized).

         The third factor is nervous behavior. We do not attach any particular

significance to Appellee’s initial nervousness when stopped, given the

absence of other indicia of drug-related activity.              “A police officer's

observation of a citizen's nervous demeanor and furtive movements, without

more, establishes nothing more than a ‘hunch,’ employing speculation about

the citizen's motive in the place of fact.” Commonwealth v. Reppert, 814

A.2d 1196, 1206 (Pa.Super. 2002) (en banc).

         We address the final two factors together. Trooper Isoldi conceded the

discussion of Cleveland and Appellee’s explanation for his trip was extremely

brief.      N.T., 11/18/14, at 67.       There were no inconsistencies in his

explanation for visiting Cleveland. The officer merely believed Appellee was

lying.      We will not find reasonable suspicion based on “law enforcement

officers’    wholly   subjective   interpretation[s]   of   inoffensive   conduct[.]”

Reppert, supra. Accordingly, these two factors are of little importance.

         For the foregoing reasons, we agree with the suppression court that

there was no reasonable suspicion to detain Appellee after the traffic

infraction was processed.      We also note that, after the traffic stop in this

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case, the United States Supreme Court issued Rodriguez v. United States,

135 S.Ct. 1609 (2015), wherein the Court held that “a police stop exceeding

the time needed to handle the matter for which the stop was made violates

the Constitution’s shield against unreasonable seizures.”   Id. at 1612. An

officer cannot “prolong the stop, absent the reasonable suspicion ordinarily

demanded to justify detaining an individual.”   Id. at 1615.   Once Trooper

Isoldi returned the documents and issued the warning, he lacked reasonable

suspicion to justify the seizure. Therefore, Appellee’s asserted nervousness

after the stop’s purpose was completed is irrelevant. Commonwealth v.

Dales, 820 A.2d 807, 814-15 (Pa.Super. 2003) (where purpose of traffic

stop had been completed, inconsistencies and behaviors learned during

“second round of questioning” cannot be considered in reasonable suspicion

analysis).

      For the foregoing reasons, we agree with the suppression court that

there was no reasonable suspicion to detain Appellee after the traffic

infraction was processed.

      Order affirmed.

      Judge Jenkins joins the memorandum.

      Judge Mundy concurs in the result.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/20/2016




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