J-A01023-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    MICHAEL TEIL CHAPMAN                       :
                                               :
                       Appellant               :   No. 1421 EDA 2019

          Appeal from the Judgment of Sentence Entered April 15, 2019
      In the Court of Common Pleas of Monroe County Criminal Division at
                        No(s): CP-45-CR-0002046-2017

BEFORE:      NICHOLS, J., MURRAY, J., and COLINS, J.*

MEMORANDUM BY MURRAY, J.:                           FILED FEBRUARY 04, 2020

        Michael Teil Chapman (Appellant) appeals from the judgment of

sentence imposed after the trial court found him guilty of possession with

intent to manufacture or deliver a controlled substance (PWID).1 On appeal,

Appellant challenges the denial of his suppression motion.         After careful

review, we vacate Appellant’s judgment of sentence, reverse the order

denying the suppression motion, and remand this matter to the trial court.

        The trial court summarized the facts as follows:

           On August 18, 2017, Trooper Joseph Urban of the Pennsylvania
        State Police observed a vehicle traveling on Interstate 380 North
        in the left passing lane for approximately a mile, with the right
        lane readily available.     The vehicle’s speed also fluctuated
        between 65 and 73 miles per hour in a 70 mile per hour zone.
        Trooper Urban made these observations while following
____________________________________________


*   Retired Senior Judge assigned to the Superior Court.

1   35 P.S. § 780-113(a)(30).
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     [Appellant] for about one mile. Trooper Urban pulled the vehicle
     over and initiated a traffic stop. Trooper Urban noticed that the
     registration of the vehicle began with “HPC,” which indicated to
     him that it was a newer registration, even though the vehicle was
     an older model.

        During the stop, Trooper Urban noticed [Appellant] exhibiting
     visible signs of extreme nervousness.        Trooper Urban saw
     [Appellant]’s hand shaking, and several facial tremors.

        Following a discussion with [Appellant], Trooper Urban decided
     to issue a warning in lieu of a citation. Trooper Urban stated to
     [Appellant] that he appeared “overly nervous,” noting that his
     eyelid had quivered and his voice cracked. He immediately asked
     [Appellant] if there was anything illicit in the vehicle. Trooper
     Urban then asked for consent to search the vehicle, and when
     [Appellant] declined[,] Trooper Urban said “You have every right
     to refuse consent,” and “I don’t want to talk you into it,” instead
     indicating he would call for a canine team to come to sniff the
     vehicle. Trooper Urban provided [Appellant] the consent form and
     made efforts to go over it with him, but when [Appellant]
     continued to waiver about consenting to the search, Trooper
     Urban decided to call the canine unit. While waiting, Trooper
     Urban twice had to tell [Appellant] he could not return to his
     vehicle.

         About 45 minutes after calling the canine unit, the dog, Micho,
     and his handler, Corporal Doblovasky, arrived and conducted an
     exterior search of the vehicle. Micho alerted, signaling the
     presence of narcotics. Based upon the alert, Trooper Urban and
     Troopers Sohns and Doblovasky conducted a search of the interior
     of the vehicle. There were groceries in the rear of the vehicle and
     the Troopers noted that even the perishable food items were room
     temperature, indicating to the Troopers to examine them further.
     Upon close inspection of the groceries, the Troopers found
     approximately 220 grams of cocaine in sealed bags inside a plastic
     Folgers coffee container, located in the back of the vehicle.

        On August 18, 2017, a criminal complaint was filed against
     [Appellant]. A preliminary hearing was held on August 30, 2017
     and the charges were bound over. Formal arraignment was held
     on October 11, 2017. On November 6, 2017, [Appellant] filed his
     [suppression motion].    We held a hearing on [Appellant]’s


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      [m]otion on January 18, 2018, briefs were ordered and
      submitted[.]

Trial Court Opinion, 7/6/18, at 1-3 (record citations omitted). On July 6, 2018,

the trial court denied Appellant’s suppression motion.

      On March 1, 2019, following a bench trial, the trial court found Appellant

guilty of PWID. On April 15, 2019, the trial court sentenced Appellant to 4 to

24 months minus one day of incarceration. On May 7, 2019, Appellant timely

appealed to this Court.

      Appellant presents the following issues for review:

      A. Did the trial court err in finding that the traffic stop was valid
      based on “reasonable suspicion” that [Appellant] had committed
      a non-investigable traffic offense?

      B. Did the trial court err in finding that the police had “reasonable
      suspicion” to detain [Appellant] after the traffic stop?

      C. Did the trial court err in finding that it was reasonable to detain
      [Appellant] for over 1 hour when he didn’t even receive a citation?

Appellant’s Brief at 4.

      Each of Appellant’s three issues challenge the trial court’s denial of his

suppression motion. Therefore, we address these issues together, mindful of

the following:

      [An appellate court’s] 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

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       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, 121 A.3d 524, 526-27 (Pa. Super. 2015) (citation

omitted). Importantly, our scope of review from a suppression ruling is limited

to the evidentiary record that was created at the suppression hearing. In re

L.J., 79 A.3d 1073, 1087 (Pa. 2013).

       First, Appellant argues that the trial court erred in determining his traffic

stop was constitutional.     Specifically, Appellant asserts that the trial court

wrongly concluded that Trooper Urban had reasonable suspicion to stop

Appellant’s vehicle for violating 75 Pa.C.S.A. § 3313(d)(1) of the Pennsylvania

Vehicle Code. Appellant contends that a police officer must have probable

cause to stop an individual suspected of violating Section 3313(d)(1).

       “The Fourth Amendment of the Federal Constitution and Article I,

Section   8   of   the   Pennsylvania    Constitution    protect   individuals   from

unreasonable searches and seizures.” Commonwealth v. Walls, 53 A.3d

889, 892 (Pa. Super. 2012). “To secure the right of citizens to be free from

such   [unreasonable]      intrusions,   courts   in    Pennsylvania   require    law

enforcement officers to demonstrate ascending levels of suspicion to justify

their interactions with citizens as those interactions become more intrusive.”

Commonwealth v. Pratt, 930 A.2d 561, 563 (Pa. Super. 2007). Courts in

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this Commonwealth have recognized three types of interactions between the

police and a citizen:   a mere encounter, an investigative detention, and a

custodial detention.

      A mere encounter between police and a citizen need not be
      supported by any level of suspicion, and carr[ies] no official
      compulsion on the part of the citizen to stop or to respond. An
      investigatory stop, which subjects a suspect to a stop and a period
      of detention . . . requires a reasonable suspicion that criminal
      activity is afoot. A custodial search is an arrest and must be
      supported by probable cause.

Commonwealth v. Newsome, 170 A.3d 1151, 1154 (Pa. Super. 2017).

      With respect to the quantum of cause necessary to conduct a traffic

stop, the relevant statutory authority is Section 6308(b) of the Pennsylvania

Vehicle Code, which provides:

      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.A. § 6308(b).

      Section 6308(b) requires only reasonable suspicion in support of a

vehicle stop for gathering information necessary to enforce the Vehicle Code

violation. However, a police officer must have probable cause to support a

vehicle stop where the officer’s investigation following the stop serves no

“investigatory purpose relevant to the suspected [Motor Vehicle Code]




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violation.”   Commonwealth v. Feczko, 10 A.3d 1285, 1291 (Pa. Super.

2010) (en banc), appeal denied, 25 A.3d 397 (Pa. 2011).

        Our Supreme Court explained:

        Indeed, the language of § 6308 reflects this very intent. Stops
        based on reasonable suspicion are allowed for a stated
        investigatory purpose: “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). This is conceptually
        equivalent to the purpose of a Terry[2] stop. It does not allow all
        stops to be based on the lower quantum – it merely allows this for
        investigatory stops, consistent with the requirements of both
        federal and state constitutions. We interpret the legislature’s
        modification of § 6308 as merely eliminating the statutory
        requirement of a greater level of information for a stop under the
        Vehicle Code than is constitutionally required for all other stops.

Commonwealth v. Chase, 960 A.2d 108, 116 (Pa. 2008). “[I]f the officer

has a legitimate expectation of investigatory results, the existence of

reasonable suspicion will allow the stop – if the officer has no such

expectations of learning additional relevant information concerning the

suspected criminal activity, the stop cannot be constitutionally permitted on

the basis of mere suspicion.” Id. at 115. Therefore, “when the existence of

reasonable suspicion combines with the expectation that the stop will allow

light to be shed on the relevant matters, the stop is not unconstitutional.” Id.

        Trooper Urban stopped Appellant based on his determination that

Appellant had violated Section 3313(d)(1) of the Pennsylvania Vehicle Code.

Section 3313(d)(1) provides:


____________________________________________


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

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      (d) Driving in right lane.--

         (1) Except as provided in paragraph (2) and unless otherwise
         posted, upon all limited access highways having two or more
         lanes for traffic moving in the same direction, all vehicles shall
         be driven in the right-hand lanes when available for traffic
         except when any of the following conditions exist:

            (i) When overtaking and passing another vehicle proceeding
            in the same direction.

            (ii) When traveling at a speed greater than the traffic flow.

            (iii) When moving left to allow traffic to merge.

            (iv) When preparing for a left turn at an intersection, exit or
            into a private road or driveway when such left turn is legally
            permitted.

75 Pa.C.S.A. § 3313(d)(1).

      With this authority in mind, we conclude that the trial court improperly

determined that reasonable suspicion was the necessary quantum of cause

for stopping Appellant under Section 3313(d)(1).       Instead, Trooper Urban

needed probable cause to stop Appellant for violating Section 3313(d)(1), as

Trooper Urban could not have possessed a legitimate expectation of learning

additional relevant information concerning whether Appellant was driving in

the appropriate lane during the stop.       See Chase, 960 A.2d at 115-16.

Although the trial court incorrectly determined reasonable suspicion was the

appropriate standard in this case, Appellant’s traffic stop was nevertheless

constitutional because it was supported by probable cause.

      Probable cause exists “where the facts and circumstances within the

officers’ knowledge are sufficient to warrant a person of reasonable caution in

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

v. Stultz, 114 A.3d 865, 883 (Pa. Super. 2015). Trooper Urban testified at

Appellant’s suppression hearing to observing the following:

      [Trooper Urban]: Upon catching up to [Appellant’s] vehicle, I
      observed the vehicle traveling in the left lane when the right lane
      was readily available for travel. The vehicle was not passing
      anybody, did not exit on the left, never allowed any cars to merge
      on from the right.

      Q. Did it pass any entrance ramps?       You said there were no
      entrance ramps?

      A. There were no entrance ramps -- there are no exit ramps when
      you exit on the left. This occurred for approximately one mile I
      observed this violation.     So as a result of the violation,
      Pennsylvania Vehicle Code 3313(d)(1), I initiated a traffic stop.

N.T., 1/18/18, at 9.

      The record reflects that Trooper Urban observed Appellant violating

Section 3313(d)(1) for approximately one mile. Thus, although the trial court

improperly identified reasonable suspicion as the appropriate quantum of

cause necessary to stop Appellant in this case, Trooper Urban nevertheless

had probable cause to stop Appellant for violating Section 3313(d)(1).

Accordingly, Appellant’s argument that his traffic stop was unconstitutional is

meritless.

      For his second and third issues, Appellant argues that Trooper Urban

impermissibly extended the traffic stop and improperly conducted a canine

sniff of the vehicle. Appellant contends that Trooper Urban lacked reasonable




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suspicion of criminal activity beyond the initial reason for the stop and

therefore, could not detain Appellant and his vehicle for a canine sniff.

      During a traffic stop, an officer “may ask the detainee a moderate

number of questions to determine his identity and to try to obtain information

confirming or dispelling the officer’s suspicions.” Berkemer v. McCarty, 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.”   Chase, 960 A.2d at 115 n.5.       This Court has held that such

investigations, including a canine sniff of the exterior of a vehicle, must be

supported by reasonable suspicion.      Commonwealth v. Harris, 176 A.3d

1009, 1021 (Pa. Super. 2017) (“[C]onsidering the relatively minor privacy

interest in the exterior of the vehicle and the minimal intrusion occasioned by

a canine sniff, . . . mere reasonable suspicion, rather than probable cause, [is]

required prior to [a dog] sniffing the exterior of [a] vehicle.”).

      Our Supreme Court has explained:

      A police officer may detain an individual in order to conduct an
      investigation if that officer reasonably suspects that the individual
      is engaging in criminal conduct. Commonwealth v. Cook, [] 735
      A.2d 673, 676 ([Pa.] 1999). “This standard, less stringent than
      probable cause, is commonly known as reasonable suspicion.” Id.
      In order to determine whether the police officer had reasonable
      suspicion, the totality of the circumstances must be considered.
      In re D.M., [] 781 A.2d 1161, 1163 ([Pa.] 2001). In making 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.” Cook, 735 A.2d at 676
      (quoting Terry v. Ohio, 392 U.S. 1, 27 [] (1968)). Also, the

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      totality of the circumstances test does not limit our inquiry to an
      examination of only those facts that clearly indicate criminal
      conduct. Rather, “[e]ven a combination of innocent facts, when
      taken together, may warrant further investigation by the police
      officer.” [Id.]

Commonwealth v. Rogers, 849 A.2d 1185, 1189 (Pa. 2004).

      We conclude that Trooper Urban lacked the reasonable suspicion

necessary to detain Appellant for a canine sniff. Trooper Urban’s testimony

points to three reasons for his determination that he had reasonable suspicion

to detain Appellant for a canine sniff of his vehicle.       First, Appellant was

traveling from Brooklyn, New York, a known source area, west on Interstates

80 and 380, a known drug corridor. N.T., 1/18/18, at 8, 26, 29. Second,

although Appellant’s license plate indicated that his automobile was a newly

registered vehicle, he was actually driving “an older model SUV.” Id. at 7.

Third, Appellant exhibited abnormal and excessive nervousness while

speaking with Trooper Urban. Id. at 26-27.

      On their face, these factors are each innocuous. Although this Court

has frequently stated that even a combination of innocent facts, when

considered together, can warrant further investigation by the police, this case

does not present such a situation. In short, the trial court based its finding of

reasonable suspicion on Appellant becoming nervous after Trooper Urban

pulled him over for driving in the left lane while traveling west from Brooklyn,

New York along Interstates 80 and 380 in a used car. Even considering the

totality of the circumstances, there is no indicia of criminal activity in this fact



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scenario, as these set of facts could apply to any number of the many

individuals who the police stop along Interstates 80 and 380 in Pennsylvania.

      The only fact that arguably could point to criminal activity was

Appellant’s extreme and excessive nervousness. This Court, however, has

repeatedly stated that “while nervous behavior is a relevant factor,

nervousness alone is not dispositive and must be viewed in the totality of the

circumstances.” Commonwealth v. Gray, 896 A.2d 601, 606 n.7 (Pa. Super.

2006). Moreover,

      It is the rare person who is not agitated to some extent when
      stopped by police, even if the driver is a law-abiding citizen who
      simply failed to notice or repair a broken taillight or was unaware
      that he or she was driving above the speed limit. Whether
      described as nervousness, apprehension, concern or otherwise,
      forced interaction with a police officer is not an everyday
      occurrence for the average citizen.

Commonwealth v. Cartagena, 63 A.3d 294, 305-06 (Pa. Super. 2013) (en

banc).

      Based on our review of the certified record on appeal, we conclude that

Trooper Urban lacked reasonable suspicion to extend his traffic stop of

Appellant for a canine sniff. Accordingly, we vacate Appellant’s judgment of

sentence, reverse the order denying Appellant’s suppression motion, and

remand this matter to the trial court for proceedings consistent with this

decision.

      Judgment of sentence vacated.      Suppression order reversed.        Case

remanded. Jurisdiction relinquished.


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     Judge Colins joins the memorandum.

     Judge Nichols concurs in the result.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/4/20




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