J.S07045-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37


COMMONWEALTH OF PENNSYLVANIA,                  :       IN THE SUPERIOR COURT OF
                                               :            PENNSYLVANIA
                          Appellant            :
                                               :
                    v.                         :
                                               :
MIGUEL A. LIRIANO,                             :
                                               :
                          Appellee             :       No. 959 MDA 2015

                  Appeal from the Order Entered May 18, 2015
         in the Court of Common Pleas of Berks County Criminal Division
                        at No(s): CP-06-CR-0005975-2014

BEFORE: BOWES, OTT, and FITZGERALD,* JJ.

MEMORANDUM BY FITZGERALD, J.:                           FILED JANUARY 29, 2016

        The Commonwealth appeals from the order of the Berks County Court

of Common Pleas granting Appellee Miguel A. Liriano’s motion to suppress

statements and evidence obtained by police officers following a traffic stop.

The     Commonwealth      claims     the   officers’   interactions   with   Appellee

constituted a lawful investigative detention and the challenged evidence was

discovered during a proper consensual search of the vehicle. We reverse.

        The facts underlying this appeal are not in dispute.

              On December 7th, 2014, at approximately 1:00 am,
           Police Officer Danny Voorhies and Officer Joseph Ring of
           the Reading Police Department were on patrol in the area
           of the Italian Garden parking lot in the 800 block of Court
           Street. The officers observed a male[, Appellee,] exit

*
    Former Justice specially assigned to the Superior Court.
J.S07045-16


           [from the driver’s seat1] of a maroon Ford 500 parked in
           the lot. Officer Voorhies ran the license plate of the
           vehicle and discovered the tag had an insurance
           cancellation. The Officers parked their patrol vehicle and
           waited until the maroon Ford 500 exited the parking lot [at
           approximately 2:00 am] and followed the vehicle . . . .

              Officer Voorhies conducted a traffic stop and identified
           the driver as [Appellee]. During the traffic stop, Officer
           Voorhies received documentation on the vehicle and
           discovered that [Appellee] did not own the vehicle. Officer
           Ring[, who was standing outside passenger’s side door2]
           noticed an open beer bottle in the driver’s side door in
           plain view. Officer Voorhies also noticed a black rubber
           band near the center console of the vehicle.[3] Officer
           Voorhies suspected that the rubber band is used to
           package heroin. Officer Voorhies asked [Appellee] to exit
           the vehicle. Officer Voorhies conducted a pat down and
           asked [Appellee] questions about the beer and black
           rubber band in the vehicle.       After the conversation,
           [Appellee] gave consent to search the vehicle and drug
           contraband[4] was found in the center console. [Appellee]
           was placed under arrest and the Officers took him to the
           Central Processing Center and then to the DUI center for
           drug testing. [Appellee] refused to submit to a blood test.




1
 There was reference to a passenger exiting the vehicle in the parking lot.
N.T. Suppression H’rg, 4/10/15, at 20. There were no indications that a
passenger was in the vehicle at the time of the stop.
2
    Id. at 31.
3
  Officer Voorhies testified he used his flashlight to illuminate the inside of
the vehicle. Id. at 23.
4
   “Valtox” tests of the suspected narcotics were positive for
methamphetamine and heroin. Id. at 19. However, laboratory tests were
pending at the time of the hearing. Id.



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J.S07045-16


Trial Ct. Op., 8/11/15, at 2; see also Findings of Fact and Conclusions of

Law Pursuant to Pa.R.Crim.P. 581(I), 5/18/15, at 1.               Officer Voorhies

described the evidence recovered from the vehicle:

           In the center console . . . there was a clear sandwich
           baggie.

                                     *    *     *

           In the sandwich baggie, there were fourteen (14) bags of
           methamphetamine, it was broken down into different
           denominations. There were four (4) bigger, clear Ziploc
           baggies, there were five (5) smaller, clear Ziploc baggies
           and then there were five (5) red tinted Ziploc baggies,
           however, it was still clear enough that you could see into
           the bags. There were—also inside of that bag was a
           separate clear sandwich bag inside of that was bundles of
           suspected heroin. Those bundles, there were three (3)
           bundles which there were three (3) to a bundle and there
           was one (1) loose cellophane bag.            The bundles
           themselves were secured with small black rubber bands,
           the same kind of rubber band that was in plain view . . . .

N.T. Suppression H’rg, 4/10/15, at 15-16.           The officer also recovered $33

and a cellphone during a search of Appellee after he was taken into custody.

Id. at 17.

        Appellee was charged with two counts each of possession and

possession with intent to deliver controlled substances5 and four counts of

driving under the influence.6       Appellee filed an omnibus pretrial motion,



5
    35 P.S. § 780-113(a)(16), (30).
6
    75 Pa.C.S. § 3802(a)(1), (d)(1)(i)-(iii).




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J.S07045-16


including a motion to suppress all evidence obtained from the traffic stop.

The trial court held a hearing on April 10, 2014.

        On May 18, 2015, the trial court granted Appellee’s suppression

motion.     The court determined that “the questions asked by the officer

constitute[d a] custodial interrogation.”    Trial Ct. Op. at 5.    “[S]ince no

Miranda[7] warnings had been given at that time . . . the questioning on the

part of the officer was a violation of Appellee’s Fifth Amendment rights.” Id.

The court thus concluded, “Appellee’s statements are inadmissible as

evidence and the seizure of the contraband found in the center console did

occur in violation of [Appellee’s] constitutional rights . . . .” Id. This timely

appeal followed.8

        The Commonwealth presents the following question for review:

          Did the trial court err in suppressing evidence obtained as
          a result of a lawful consensual search of the vehicle
          [Appellant] was driving?

Commonwealth’s Brief at 4.       The Commonwealth asserts Appellee “was

subject to an investigative detention[,]” namely, a traffic stop “to determine

whether the insurance on the vehicle was cancelled.”          Id. at 14.     The

Commonwealth further contends “[n]othing in the record suggests that the



7
    Miranda v. Arizona, 384 U.S. 436 (1966).
8
 The Commonwealth included a Pa.R.A.P. 311(d) certification in its June 2,
2015 notice of appeal and submitted a Pa.R.A.P. 1925(b) statement on June
15th. The trial court filed a responsive opinion.



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J.S07045-16


consent to search given by [Appellee] was a product of duress or coercion.”

Id. at 15. We agree and find relief is due.

        The principles governing our review are as follows:

              Our standard of review when the Commonwealth
           appeals from a suppression order is well-settled. [W]hen
           an appellate court reviews the ruling of a suppression
           court, 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. We must “first ascertain whether
           the record supports the factual findings of the suppression
           court, and then determine the reasonableness of the
           inferences and legal conclusions drawn therefrom.”

Commonwealth v. Rosas, 875 A.2d 341, 346 (Pa. Super. 2005) (citations

omitted). “[W]here the appeal of the determination of the suppression court

turns on allegations of legal error, ‘the suppression court’s conclusions of law

are not binding on an appellate court, whose duty it is to determine if the

suppression court properly applied the law to the facts.’” Commonwealth

v. Kemp, 961 A.2d 1247, 1253 (Pa. Super. 2008) (en banc) (citations

omitted).

        It is well settled that

           [v]alid citizen/police interactions which constitute seizures
           generally fall within two categories, distinguished
           according to the degree of restraint upon a citizen’s
           liberty: the investigative detention or Terry[9] stop, which
           subjects an individual to a stop and a period of detention
           but is not so coercive as to constitute the functional
           equivalent of an arrest; and a custodial detention or
           arrest, the more restrictive form of permissible encounters.

9
    Terry v. Ohio, 392 U.S. 1 (1968).



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        To maintain constitutional validity, an investigative
        detention must be supported by a reasonable and
        articulable suspicion that the person seized is engaged in
        criminal activity and may continue only so long as is
        necessary to confirm or dispel such suspicion; whereas, a
        custodial detention is legal only if based on probable
        cause.

Commonwealth v. Strickler, 757 A.2d 884, 889 (Pa. 2000) (citations

omitted).

        A law enforcement officer must administer Miranda
        warnings prior to custodial interrogation. The standard for
        determining whether an encounter with the police is
        deemed “custodial” or police have initiated a custodial
        interrogation is an objective one based on a totality of the
        circumstances, with due consideration given to the
        reasonable     impression    conveyed      to   the    person
        interrogated. Custodial interrogation has been defined as
        “questioning initiated by law enforcement officers after a
        person has been taken into custody or otherwise deprived
        of his [or her] freedom of action in any significant way.”
        “Interrogation” is police conduct calculated to, expected to,
        or likely to evoke admission. When a person’s inculpatory
        statement is not made in response to custodial
        interrogation, the statement is classified as gratuitous, and
        is not subject to suppression for lack of warnings.

                                *    *    *

        The test for determining whether a suspect is being
        subjected to custodial interrogation so as to necessitate
        Miranda warnings is whether he is physically deprived of
        his freedom in any significant way or is placed in a
        situation in which he reasonably believes that his freedom
        of action or movement is restricted by such interrogation.
        Said another way, police detentions become custodial
        when, under the totality of the circumstances, the
        conditions and/or duration of the detention become so
        coercive as to constitute the functional equivalent of
        arrest.




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J.S07045-16


             The factors a court utilizes to determine, under the
             totality of the circumstances, whether a detention
             has become so coercive as to constitute the
             functional equivalent of arrest include: the basis for
             the detention; its length; its location; whether the
             suspect was transported against his or her will, how
             far, and why; whether restraints were used; whether
             the law enforcement officer showed, threatened or
             used force; and the investigative methods employed
             to confirm or dispel suspicions. The fact that a police
             investigation has focused on a particular individual
             does not automatically trigger “custody,” thus
             requiring Miranda warnings.

Commonwealth v. Schwing, 964 A.2d 8, 11-12 (Pa. Super. 2008)

(citation omitted).

      Generally, a routine traffic stop constitutes an investigative detention.

Cf. Commonwealth v. Chase, 960 A.2d 108, 113 (Pa. 2008).                “Thus, in

the typical situation in which a motorist is temporarily ordered to remain by

the side of his car, Miranda warnings are not essential.” Commonwealth

v. Sullivan, 581 A.2d 956, 958 (Pa. Super. 1990) (citation omitted).

Miranda may apply “when the suspect is placed under arrest or when the

questioning of the suspect is so prolonged or coercive as to approximate the

atmosphere     of     a   station   house   interrogation.”   Id.;     see   also

Commonwealth v. Turner, 772 A.2d 970, 974-976 (Pa. Super. 2001) (en

banc) (holding detention was custodial when, inter alia, officer detained

defendant in patrol car until second officer arrived, and second officer

questioned defendant while blocking doorway and leaning into backseat).




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J.S07045-16


      Instantly, the initial traffic stop was proper. See 75 Pa.C.S. § 6308(b)

(“Whenever a police officer . . . 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.”); see also 75 Pa.C.S. § 1786(a) (“Every motor vehicle

of the type required to be registered under this title which is operated or

currently   registered   shall   be   covered     by   financial   responsibility”);

Commonwealth v. Bolton, 831 A.2d 734, 736-37 (Pa. Super. 2003).

Further, under the totality of the circumstances, Officer Voorhies possessed

specific facts to conduct a further investigation given the presence of an

open beer bottle, as well as the rubber band, in plain view. That the officer

ordered Appellee out of the car, directed him to the rear of the vehicle, and

conducted a pat-down search in anticipation of field sobriety tests did not

transform a proper investigative detention into a custodial detention.          See

Rosas, 875 A.2d at 348, 350 (noting facts that state trooper ordered

defendant out of vehicle and handcuffed him did not support conclusion that

defendant was under arrest); Sullivan, 581 A.2d at 957-58 (holding

defendant not in custody after he was directed to perform simple sobriety

tests).

      Moreover,   Officer   Voorhies,    during    direct   examination    by   the

Commonwealth, described the interaction as follows:



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J.S07045-16


       [Commonwealth]: So, officer, after you had noticed the
       open bottle and the rubber bands, what did you do next?

       A I asked [Appellee] to step out of the vehicle, I was going
       to administer field sobriety tests.

       Q And what occurred after he stepped out of the vehicle?

       A He stepped out of the car, I performed a pat down for
       weapons, no weapons were found on the person, and then
       he walked to the rear of the vehicle.

       Q And now, at this point can you kind of describe the
       scene for the court? How many officers were involved?

       A Just myself and Officer Ring.

       Q And I’m assuming it was dark out?

       A Yes, it was two in the morning.

       Q Could you describe—well, we’ll get to that in a minute,
       I’m sorry. After he had gone to the back of the vehicle,
       What occurred then?

       A At that point I was informing him of why I had him step
       out of the car. I informed him he had an open container of
       beer in the car and I observed the small rubber band in
       the center console area. I asked him, I said, There’s
       nothing else in your car? He said, No, and he said, You
       can check. I didn’t ask him, he just said, You can check.

          At that point I then asked him again, I said, So you
       don’t mind if I look in your car, and I believe his exact
       words were—as close to—There shouldn’t be anything in
       there, but you can go ahead and look.

       Q Could you describe your tone of voice at this time?

       A We were having a normal conversation like we’re having
       right now.




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J.S07045-16


          Q At this point you had testified previously that you had
          asked him for his driver’s license were you still in
          possession of that document?

          A Yes, I was.

          Q After he had told you that you could check the vehicle,
          what did you do?

          A At that point I took him up on the offer and I went in
          and checked the inside of the vehicle.

N.T. at 13-14.

     On     cross-examination   by   Appellee’s   counsel,   Officer    Voorhies

acknowledged that Appellee was “in custody” and not “free to walk away[.]”

Id. at 32. However, as to the circumstances of the interaction, the following

exchange occurred:

          [Appellee’s counsel]: So, at that point then you talk about
          the, whether you can look in the car and search the car?

          A At that point I was explaining to him why he was
          removed from the car.

          Q All right. You would agree with me, would you not, that
          he was in your custody and couldn’t just walk off?

          A That’s correct.

          Q And at that point you didn’t explain to him his Miranda
          warnings, is that correct?

          A Correct.

          Q But you continued to have dialogue with him about
          these items you saw in the car, right?

          A There was only one sentence that was interchanged
          between the two of us.



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J.S07045-16


        Q So, I’ll take that as a “yes”.

           And then the discussion about consenting search in the
        car took place, right?

        A No question was asked, he offered consent, correct.

        Q The vehicle that he didn’t own to your knowledge, right?

        A Correct.

        Q Now, where was Officer Ring standing when that
        discussion took place?

        A I believe he was off to my right side.

        Q Were you both standing there in the same general area
        where [Appellee] was?

        A No, I was standing talking to him as contact, he would
        have been cover, standing off to the right-hand side.

        Q How far from where you were standing?

        A Far enough that when I was speaking to him, I didn’t
        notice him in my peripheral vision, but as far as feet, I
        can’t testify to how far that was.

        Q You conducted a search of the vehicle?

        A Right.

        Q Where was [Appellee] when you were searching the
        vehicle?

        A He was at the back of the car with Officer Ring.

        Q At any point in time when he was standing outside the
        vehicle was he placed into handcuffs?

        A No.

N.T. at 32-34.



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J.S07045-16


     In light of the uncontradicted evidence regarding the interaction, we

conclude the detention was not custodial.   See Schwing, 964 A.2d at 11-

12; Rosas, 875 A.2d at 349-50; Sullivan, 581 A.2d at 958. Moreover, the

exchange leading to Appellee’s consent to a search was not an interrogation.

Thus, Miranda was not implicated. See Schwing, 964 A.2d at 11-12;

Rosas, 875 A.2d at 349-50; Sullivan, 581 A.2d at 958. Lastly, we discern

no basis in the record to conclude that Appellee’s consent was coerced by

the officers or involuntarily offered. Accordingly, we must reverse the trial

court’s order granting suppression and remand this matter for further

proceedings.

     Order reversed. Case remanded. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 1/29/2016




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