J-S28011-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
                                          :        PENNSYLVANIA
                                          :
              v.                          :
                                          :
                                          :
 WILLIAM ALBERTO DELIZ, JR.               :
                                          :
                    Appellant             :   No. 1900 MDA 2018

       Appeal from the Judgment of Sentence Entered June 18, 2018
     In the Court of Common Pleas of Berks County Criminal Division at
                      No(s): CP-06-CR-0002965-2017


BEFORE:    BOWES, J., McLAUGHLIN, J., and STRASSBURGER*, J.

MEMORANDUM BY BOWES, J.:                            FILED AUGUST 14, 2019

      William Alberto Deliz, Jr. appeals from the judgment of sentence of thirty

months to eight years of imprisonment followed by two years of probation.

Sentence was imposed after he was convicted of one count of possession with

the intent to distribute (“PWID”) (cocaine), two counts of possession (cocaine

and fentanyl), and one count each of possession of drug paraphernalia and

firearms not to be carried without a license. Appellant challenges the trial

court’s denial of his motion to suppress. After thorough review, we affirm.

      The facts giving rise to the charges are gleaned from the record of the

suppression hearing. On February 24, 2017, at approximately 10:50 a.m.,

Pennsylvania State Trooper Justin Hope was patrolling the Pennsylvania

Turnpike in the eastbound direction in Caernarvon Township, Berks County,

when he observed Appellant driving a newly-registered black Honda with “very


____________________________________
* Retired Senior Judge assigned to the Superior Court.
J-S28011-19


dark” tinted windows. Trooper Hope ran the license plate on the vehicle and

discovered it was registered to a woman. Trooper Hope activated his lights

and sirens to signal to Appellant that he should pull over. Appellant initially

stopped his vehicle just short of the pullover area in a location the trooper

deemed to be unsafe.     Trooper Hope, a sixteen-year veteran of the State

Police with experience in drug interdiction, identified this immediate stop in

an unsafe area as a tactic used to speed up traffic stops and deter troopers

from doing a thorough search of a vehicle. When Trooper Hope signaled for

Appellant to move the vehicle into the pullover area, Appellant complied.

      Dash camera video documented the stop. Trooper Hope approached

Appellant’s vehicle and advised that he had stopped him due to the heavily

tinted windows. Although the windows were too dark, the trooper informed

Appellant that he was only going to write him a warning. He asked Appellant

to identify the owner of the vehicle and Appellant replied that the vehicle

belonged to his sister. Appellant complied with the trooper’s request for his

license, vehicle registration, and insurance.   As Appellant handed over the

documentation, Trooper Hope noticed that Appellant’s hand was visibly

shaking.   Appellant’s nervousness prompted the trooper to inquire where

Appellant was going, and Appellant replied that he was on the way to the King

of Prussia Mall to meet a friend for lunch at the Cheesecake Factory, and

denied that he had plans to shop. While standing adjacent to the car, Trooper

Hope observed that there were two cell phones in the cup holder. There were


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also several air fresheners in the front of the vehicle that, in the trooper’s

experience, often were used to mask the odor of drugs.

      Trooper    Hope   returned   to   his   vehicle   to   check   Appellant’s

documentation.    Upon learning that Appellant had an extensive criminal

history that included drug felonies in both Pennsylvania and Maryland, Trooper

Hope radioed for backup. The trooper returned to Appellant’s vehicle and,

without returning his documentation or issuing the written warning, asked

Appellant to step out of the vehicle to talk to him. Appellant complied. When

Trooper Hope asked Appellant again about the purpose of his trip, Appellant

offered a different story, namely, that he was going to the Gucci store at the

King of Prussia Mall to buy a belt. He denied having any drugs, weapons, or

other illegal items in the vehicle. When asked whether he was ever in trouble

with the law, Appellant stated that he had a conviction for a small amount of

marijuana fifteen years before, which was inconsistent with the trooper’s

information. Trooper Hope asked Appellant if he would consent to a search of

the vehicle, but Appellant declined.

      The trooper called several K-9 units for a vehicle sniff, and a unit

responded in approximately forty-five minutes. The K-9 officer alerted to the

vehicle, signaling the presence of contraband. A subsequent search yielded

four small baggies of cocaine, two baggies of heroin, a skull mask, one baggie

of fentanyl, one individual packet of heroin, a .9 millimeter handgun loaded

with jacketed hollow point bullets, a law-enforcement-only magazine, and a


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third cell phone. Appellant refused to answer any questions when the trooper

asked if he had a license to carry the firearm.

      Appellant was placed under arrest and charged as aforementioned. He

filed a counseled omnibus pre-trial motion in which he challenged the legality

of the detention and search, and sought to suppress the contraband seized.

On January 16, 2018, the suppression court issued an order denying

suppression and the case proceeded to a bench trial. On June 11, 2018, the

court found Appellant guilty of all charges and sentenced him seven days later.

Following the denial of his post-sentence motion, Appellant filed this timely

appeal. Both the trial court and Appellant complied with Pa.R.A.P. 1925, and

this matter is ready for our review.

      Appellant raises two issues:

      A. Did the suppression court commit an error of law by denying
         Appellant’s motion to suppress because the police lacked
         sufficient grounds to conduct any investigation for contraband
         and also detained Appellant beyond the initial traffic stop
         thereby illegally extending the stop beyond investigating the
         reason for the initial stop?

      B. Did the suppression court commit an error of law by denying
         Appellant’s motion to suppress because the police lacked
         [grounds] to detain Appellant beyond investigating the initial
         traffic stop and unnecessarily extending it beyond investigating
         the reason for the initial stop given the lack of legal justification
         for doing so?

Appellant’s brief at 3.

      “Our standard of review in addressing a challenge to the denial of a

suppression motion is limited to determining whether the suppression court’s


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factual findings are supported by the record and whether the legal conclusions

drawn from those facts are correct.” Commonwealth v. Jones, 988 A.2d

649, 654 (Pa. 2010).       Since the Commonwealth prevailed before the

suppression court, we may consider only the Commonwealth’s evidence and

so much of the defendant’s evidence as remains uncontradicted. Id.

      Appellant contends first that the trial court erred in denying his motion

to suppress because the trooper, under the totality of the circumstances,

lacked reasonable suspicion to detain him in order to investigate the vehicle

for the presence of contraband. Appellant alleges that nervousness, two cell

phones, air fresheners, an inconsistent story, and a prior criminal history are

legally insufficient to establish reasonable suspicion for an investigative

detention.   Appellant’s brief at 12.   He relies upon Commonwealth v.

Reppert, 814 A.2d 1196 (Pa.Super. 2002) (en banc), where we held that

neither furtive movements nor excessive nervousness provided a sufficient

basis upon which to conduct an investigative detention. He also directs our

attention to Commonwealth v. Dales, 820 A.2d 807 (Pa.Super. 2003), in

which, on similar facts, we held that the smell of Bactine, the presence of

several air fresheners, and defendant’s nervousness and inconsistent answers

did not rise to more than a hunch that criminal activity was afoot. Appellant

argues that the additional circumstances present herein, his years-old criminal

contacts and inconsistencies in his story, were innocuous. Appellant’s brief at

20. He contends that Trooper Hope had only a mere suspicion of criminal


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activity that was insufficient to justify an investigative detention beyond the

traffic stop.   Id. (citing Commonwealth v. Cartegena, 63 A.3d 294

(Pa.Super. 2013)(en banc) (finding no reasonable suspicion to conduct a

protective weapons search based on a nighttime traffic stop, tinted windows,

and the appellant’s nervousness and refusal to put down his windows)).

Appellant argues that here, as in each of the aforementioned cases, the

totality of circumstances fell short of reasonable suspicion for an investigatory

detention.

      Appellant also directs our attention to Commonwealth v. Strickler,

757 A.2d 884 (Pa. 2000), and Commonwealth v. Freeman, 757 A.2d 903

(Pa. 2000), in support of his contention that police may not detain a motorist

after a valid traffic stop ends unless something else occurs thereafter that

warrants justification to do so. Appellant’s brief at 23. Appellant argues that

since the purpose of the initial stop had ended, the subsequent round of police

questioning constituted an illegal detention because the trooper observed no

new circumstances after he ran Appellant’s information through the system

that would supply reasonable suspicion. Id. at 23.

      In further support of his position that the investigatory detention and

subsequent search of the vehicle for contraband herein was unlawful because

the initial traffic stop for tinted windows had ended, and that the facts

gathered during that stop could not be used to provide reasonable suspicion

to support the detention and sniff search, Appellant cites Commonwealth v.


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Ortiz, 786 A.2d 261 (Pa.Super. 2001). Therein, we held that where the officer

informed the defendant he was “free to go,” the officer’s resumption of

questioning “reinitiated an investigative detention without the requisite

reasonable suspicion” and the ensuing search was illegal. Ortiz, supra at

264.

       The Commonwealth argues that the trooper’s observations during the

initial stop for the tinted windows could and did provide reasonable suspicion

of drug activity to justify prolonging the traffic stop to wait for the K-9 unit to

arrive. It points out that Ortiz was overruled for the proposition cited by

Appellant, citing In the Interest of A.A., 195 A.3d 896 (Pa. 2018). Our High

Court held therein that circumstances garnered during the initial traffic stop

may be used to support a finding of reasonable suspicion for an investigative

detention. Id. at 905, 907-10. The Commonwealth notes further that K-9

“sniffs”   only   require    reasonable    suspicion,    not   probable     cause.

Commonwealth v. Rogers, 849 A.2d 1185, 1190 (Pa. 2004).                 Thus, the

Commonwealth maintains, the K-9 sniff that alerted to contraband in

Appellant’s vehicle was lawful.

       Pennsylvania law is well settled that there are three levels of interactions

between police and the public.

       Article I, § 8 of the Pennsylvania Constitution and the Fourth
       Amendment to the United States Constitution both protect the
       people from unreasonable searches and seizures. Jurisprudence
       arising under both charters has led to the development of three
       categories of interactions between citizens and police. The first,
       a “mere encounter,” does not require any level of suspicion or

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       carry any official compulsion to stop or respond. The second,         an
       “investigative detention,” permits the temporary detention of         an
       individual if supported by reasonable suspicion. The third is         an
       arrest or custodial detention, which must be supported                by
       probable cause.

Commonwealth v. Lyles, 97 A.3d 298, 302 (Pa. 2014) (citations omitted).

       At issue herein is whether there was reasonable suspicion to support the

investigative detention for the dog sniff. In Commonwealth v. Cottman,

764 A.2d 595, 598-99 (Pa.Super. 2000), we defined “reasonable suspicion”

as follows:

       The question of whether reasonable suspicion existed at the time
       of an investigatory detention must be answered by examining the
       totality of the circumstances to determine whether there was a
       particularized and objective basis for suspecting the individual
       stopped of criminal activity. Thus, to establish grounds for
       reasonable suspicion, the officer whose impressions formed the
       basis for the stop must articulate specific facts which, in
       conjunction with reasonable inferences derived from those facts,
       led him reasonably to conclude, in light of his experience, that
       criminal activity, was afoot.

As our High Court reasoned in Commonwealth v. Cook, 735 A.2d 673, 677

(Pa. 1999), while “certain facts, taken alone, do not establish reasonable

suspicion . . . a combination of these facts may establish reasonable

suspicion.”

       Appellant’s reliance on Strickler, Freeman,1 and Ortiz is misplaced.

In   A.A.,    supra,     our    Supreme        Court   reaffirmed   our   decision   in


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1In In the Interest of A.A., 195 A.3d 896, 910 (Pa. 2018), our Supreme
Court expressly stated that, “Freeman does not stand for the proposition that



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Commonwealth v. Kemp, 961 A.2d 1247 (Pa.Super. 2008) (en banc),

overruling Ortiz and its progeny “to the extent that they hold that facts

gathered during a valid traffic stop cannot be utilized to justify an investigatory

detention occurring after a police officer has indicated that a defendant is free

to leave.” Kemp, supra at 1260. The “totality of the circumstances approach

allows the court to consider all facts at the officer’s disposal and does not

require the court to disregard those adduced during a valid interdiction.” A.A.,

supra at 907-910.

        In this case, Trooper Hope was a sixteen-year Pennsylvania State Police

veteran with extensive knowledge of drug interdiction involving vehicles. N.T.

Suppression, 8/1/16, at 4-5.           He testified as to the circumstances that

occurred during the traffic stop that provided reasonable suspicion that

criminal activity was afoot. When he first signaled to Appellant to pull over,

Appellant stopped abruptly just short of a wide pull-off area, placing the

trooper in an unsafe location from which to approach Appellant’s vehicle. Id.

at 7.    In his experience, this is a maneuver “commonly used . . . when

someone is involved in criminal activity” and it is calculated to deter police

from asking for consent to search the vehicle. Id. at 8. Although the trooper

immediately advised Appellant that he would receive only a warning for the


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information lawfully gathered during the initial traffic stop cannot be used to
support reasonable suspicion for a second stop.” Thus, facts garnered during
an initial stop can be used to establish reasonable suspicion to justify an
investigative detention even if there has been a “break.”

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excessively tinted windows, Appellant’s right hand was visibly shaking and he

appeared to be extremely nervous. Id. The trooper observed multiple air

fresheners in the front of the vehicle, which, in his experience, were commonly

used to mask the odor of drugs, and two cell phones. Id. at 10-11. The

trooper cited the inconsistencies in Appellant’s stated purpose for traveling to

King of Prussia Mall, his misrepresentation of his criminal history, and the fact

that he had an extensive criminal drug history involving drugs and firearms.

Id. at 11-12.

      The suppression court concluded that Trooper Hope articulated specific

observations that enabled him to reasonably conclude that criminal activity

was afoot and detain Appellant further for investigation.                 We find

distinguishable Reppert, Dales, and Cartagena, relied upon by Appellant,

as Trooper Hope observed additional circumstances herein that contributed in

the aggregate to the suppression court’s findings of reasonable suspicion to

support an investigative detention. For these reasons, we find no error or

abuse of discretion in the suppression court’s finding that the circumstances

articulated by Trooper Hope constituted reasonable suspicion to detain

Appellant while a K-9 unit was summoned to conduct a sniff of the vehicle.

      Appellant’s second issue is that the suppression court erred in denying

his motion to suppress because the detention, even if supported by reasonable

suspicion, was too long. He contends that the one hour and five minutes from

the initial traffic stop to the arrival of the K-9 officer in this case unreasonably


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prolonged the traffic stop, and was therefore unlawful. Appellant’s brief at 32.

Appellant relies on Rodriquez v. United States, ___ U.S. ___, 135 S. Ct.

1609 (2015), in support of his contention that “a traffic stop can become

unlawful if it is prolonged beyond the time reasonably required to complete

the mission of issuing a warning ticket.” Id. at 1615. The Rodriguez Court

further explained that the “mission” included “ordinary inquiries incident to

the stop. . . such inquiries include checking driver’s license, determining

whether there are outstanding warrants against the driver, and inspecting the

automobile’s registration and proof of insurance.” Id.

      Appellant cites United States v. Sharpe, 470 U.S. 675 (1985), as

defining a reasonable legal duration of detention. The Sharpe Court stated,

“In assessing whether a detention is too long in duration . . . we consider it

appropriate to examine whether the police diligently pursued a means of

investigation that was likely to confirm or dispel their suspicions quickly,

during which time it was necessary to detain the defendant.” Id. at 686. He

directs our attention to Commonwealth v. Joseph, 34 A.3d 855 (Pa.Super.

2012) (citing United States v. Place, 462 U.S. 696 (1983)), in support of

his claim that the detention here was too long.

      Appellant’s reliance on Rodriguez, Joseph, and Place misses the

mark. Rodriguez does not address the issue before us as the United States

Supreme Court held that it was indeterminable from the record if there was

reasonable suspicion to conduct a K-9 sniff, and remanded for that


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determination. Joseph involved the seizure of a vehicle, which we held “could

not be constitutionally justified as a ‘Terry stop’ based upon mere reasonable

suspicion.” Joseph, supra, at 862. In Place, the seizure of luggage at an

airport and its transport for an indeterminate amount of time to enable the

police to obtain a search warrant was found to be unreasonable under the

Fourth Amendment where the respondent was not informed where it was

being transported, for how long, and how it would be returned.

      The issue herein is the reasonableness of the length of an investigative

detention supported by reasonable suspicion to allow a K-9 unit to respond

for a vehicle sniff. Our decision in Commonwealth v. Freeman, 150 A.3d

32, 44 (Pa.Super. 2015), relying upon Sharpe, supra, informs our disposition

herein. We held that in determining whether the length of detention is too

long, the proper focus is the officer’s responsibility and diligence.       In

Freeman, the stop occurred in a rural area. Within the first half hour, the

appellant’s vehicle was moved to a safer location, he was informed of the

violation, and he was questioned. At that point, the trooper called for backup

and a canine unit, and once the dog arrived, the search was quickly completed.

We held that the detention for approximately one hour and fifteen minutes

from the initial stop in a rural area was not unreasonable as there was no

evidence that it was prolonged for any improper reason.

      The suppression court found that the forty-five-minute detention of

Appellant while waiting for the canine officer would be excessive for a regular


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traffic stop. However, because Trooper Hope had reasonable suspicion that

criminal activity was afoot, he was justified in detaining Appellant for that time

to allow a K-9 unit to arrive. We view the fact that Trooper Hope contacted

several K-9 units as evidence of both his diligence and that he did not prolong

the stop for an improper reason. We find no abuse of discretion.

      Judgment of sentence affirmed.




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 08/14/2019




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