J-S25032-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                        Appellant

                   v.

HUSSEIN SALMAN CHOUMAN

                        Appellee                   No. 1408 WDA 2015


                  Appeal from the Order August 14, 2015
              In the Court of Common Pleas of Mercer County
            Criminal Division at No(s): CP-43-CR-0001721-2014


BEFORE: FORD ELLIOTT, P.J.E., MUNDY, J., and JENKINS, J.

MEMORANDUM BY JENKINS, J.:                          FILED APRIL 12, 2016

      The   Commonwealth     appeals   from   an   order   granting   Hussein

Chouman’s motion to suppress all evidence seized from his motor vehicle

during a traffic stop following the issuance of a written traffic warning. We

affirm.

      On November 4, 2015, Chouman was charged with trademark

counterfeiting under 18 Pa.C.S. § 4119(a)(2) and (7) following discovery of

counterfeit North Face jackets in his car during a traffic stop on Interstate

80.   On May 6, 2015, the trial court held a suppression hearing in which

State Trooper Gary Knott was the lone witness.     The Commonwealth also

submitted a videotape of the traffic stop into evidence. In an order docketed

on August 14, 2015, the trial court granted Chouman’s motion to suppress.
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The   Commonwealth     filed   a   timely   notice   of   appeal,   and   both   the

Commonwealth and the trial court complied with Pa.R.A.P. 1925.

      The Commonwealth raises four issues in this appeal:

      1. Whether the trooper lacked reasonable suspicion that criminal
      activity may have been afoot, such to initiate an investigative
      detention, based upon information elicited and observed by the
      trooper during the traffic stop?

      2. Whether the defendant’s consent to the search of his vehicle
      was tainted by its request having occurred during what the
      suppression court deemed to be an unlawful investigative
      detention?

      3. Whether the stop was unlawful due to the length of the
      investigative detention?

      4. Whether the defendant was under arrest without the requisite
      probable cause?

Brief For Commonwealth, at 4.

      When the Commonwealth appeals from a suppression order,

      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. The
      suppression court’s findings of fact bind an appellate court if the
      record supports those findings. The suppression court’s
      conclusions of law, however, are not binding on an appellate
      court, whose duty is to determine if the suppression court
      properly applied the law to the facts.

Commonwealth v. Wright, 99 A.3d 565, 568 (Pa.Super.2014).

      The trial court made the following findings of fact in its suppression

order. On November 5, 2014, Trooper Gary Knott, an 18-year officer, was

working in full uniform in a special criminal interdiction unit with three other




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state police officers. Findings Of Fact (“FF”), ¶ 1. Trooper Knott has made

thousands of traffic stops in his career and hundreds of arrests. FF, ¶ 2.

      On the morning of November 5, 2014, Trooper Knott observed a

Chevrolet Captiva traveling eastbound on Interstate 80, a two-lane highway

in Mercer County, with a single occupant, later identified as Chouman. FF,

¶¶ 1, 3-4.    While driving behind this vehicle, Trooper Knott observed it

driving in the left-hand lane for .7 miles without overtaking other traffic

traveling in its direction or traveling with the flow of traffic. FF, ¶ 5. The

trooper pulled alongside the vehicle and discovered that it was an Enterprise

rental car by typing in its license plate on his computer database. FF, ¶ 9.

He decided to stop the vehicle for violating 75 Pa.C.S. § 3313(d) due to its

failure to stay in the right-hand lane on a limited access roadway. FF, ¶ 5.

      Prior to making this stop, Trooper Knott had information from various

team meetings and information shared by police officers throughout the

country that the current trend among smugglers was to use rental vehicles

operated by a single person of no particular gender or race.         FF, ¶ 8.

Trooper   Knott’s interdiction unit   used Vehicle    Code   violations   as a

mechanism for attempting to interdict smugglers of contraband, including

guns, drugs and counterfeit merchandise. FF, ¶ 8.

      When Trooper Knott activated his emergency lights, Chouman pulled

over onto the right berm of the highway. FF, ¶ 7. The trooper admitted that




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Chouman was never free to leave the scene from the time that he activated

his emergency lights. FF, ¶ 38.

       Trooper Knott approached the vehicle, leaned into the open passenger

side window space and saw that the vehicle was full of items such as

clothing, six Red Bull cans and other energy drinks. FF, ¶¶ 11, 15. Behind

the passenger seat was a black duffle bag with black plastic garbage bags

underneath.     FF, ¶ 11.    Trooper Knott testified that he believed criminal

activity was afoot (but was unsure of what type of criminal activity) because

(1) there was one individual in the car, (2) the black bags were similar to a

recent counterfeiting stop he had made on the other side of Pennsylvania,

(3) the trooper knew from his experience and training that counterfeit

traffickers use energy drinks to drive longer distances, (4) Chouman

appeared more nervous than most individuals that Trooper Knott has pulled

over for traffic stops, and (5) Chouman stated he was returning to New

Jersey after visiting his sister in Dearborn, Michigan, and the trooper knew

from   experience   and     training   that   counterfeit   merchandise   often   is

transported west on I-80 with proceeds therefrom traveling back east. FF,

¶¶ 12, 14-18.

       Trooper Knott took Chouman’s license back to his cruiser and entered

Chouman’s name into various databases.            FF, ¶ 22.   The trooper learned

that Chouman had a prior federal offense from 1988 for counterfeiting

clothing, but that there were no warrants for his arrest. FF, ¶ 28.


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      Trooper Knott went back to Chouman’s vehicle, returned Chouman’s

license to him, gave him a written warning and asked him to sign it. FF, ¶¶

28, 52. At this point, eleven minutes had gone by since Chouman’s vehicle

had stopped along the berm. Chouman complied with the directive to sign

the warning, but he also asked about the nature of the alleged traffic

violation.   FF, ¶ 28.   It appeared that he did not understand the law

restricting travel in the left lane on a limited access roadway.   Id.   The

trooper believed that Chouman continued to appear nervous.         FF, ¶ 29.

Without leaving Chouman’s car, the trooper asked if he could search

Chouman’s vehicle. FF, ¶ 29. Chouman answered: “Yes.” Id. The trooper

conceded that Chouman was never free to leave after his license was

returned to him. FF, ¶ 52.

      Trooper Knott asked if Chouman had any criminal record, and

Chouman answered that he had a problem operating too close to something

as a street vendor but did not divulge his federal conviction. FF, ¶ 29. The

trooper asked if Chouman had any large amounts of cash in the car, and he

said: “No.” FF, ¶ 31. The trooper again asked Chouman if he could search

the car, and Chouman responded that he had no problem with him searching

the car. FF, ¶ 32. The trooper did not ask Chouman if he could search any

packages or containers in the car.   FF, ¶ 33.   Trooper Knott was the only

trooper present at the time of Chouman’s consent, but three other state




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troopers arrived at different times during the ensuing search. FF, ¶¶ 29, 33,

37.

      Trooper Knott retrieved the black duffle bag from behind the

passenger seat, removed a container from within the bag, and found over

$80,000.00 in cash inside the container. FF, ¶ 40. The trooper then found

about 25 jackets behind the passenger’s seat bearing a North Face

trademark, most of which were marked at $165.00, and one of which was

marked at $409.00. FF, ¶ 41.

      At about 11:34 a.m., the troopers and Chouman drove their respective

vehicles to the State Police barracks.   FF, ¶ 48.   At the barracks, Trooper

Knott learned that the jackets were counterfeit and placed Chouman

formally under arrest. FF, ¶ 42.

      The suppression court held that Trooper Knott did not have reasonable

suspicion to believe that Chouman was smuggling anything illegal. Trooper

Knott’s perception that smugglers tend to use rental vehicles and travel

alone, the court wrote, were part of a generalized and long discredited drug

courier and/or smuggler profile.   Conclusions of Law (“CL”), at 3-4.    The

court rejected the trooper’s claim that Chouman was nervous, rattled,

evasive or defensive. CL, at 6-7. To the contrary, the video recording of the

stop showed that Chouman appeared calm and casual but merely was

confused about the nature of his alleged Vehicle Code violation. Id. He did

not understand why he could not drive in the left lane when he was not


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passing anyone.       Id.   As for the trooper’s focus on the number of energy

drinks, the court found that this “is just another non-individualized fact that

is entitled to very little weight despite the trooper’s claim that illegal

traffickers typically drink these during hard travel.”       CL, at 7. Nor did the

trooper have any reports of criminal activity involving this vehicle or

occupant.     CL, at 1.     Finally, the court was unconvinced by the trooper’s

testimony that smugglers transport counterfeit goods westbound on I-80

and return eastbound with money.                 The court found this observation

irrelevant because Chouman was traveling eastbound on I-80, and there was

no money visible when the trooper first spoke with Chouman or issued the

traffic warning. FF, ¶¶ 11-12, 14-18.

       Based on our review of the evidence of record, including the videotape

of the traffic stop, we conclude that the record supports the suppression

court’s findings of fact.

       Our next task is to determine whether the suppression court properly

applied the law to the facts. While the Commonwealth raises four issues in

this appeal, we only find it necessary to address two legal issues – (1)

whether Trooper Knott had probable cause to search Chouman’s vehicle, and

(2) whether Chouman voluntarily consented to the search of his vehicle.1


____________________________________________


1
  Based on our disposition of these issues, we need not address the third and
fourth issues raised in the Commonwealth’s brief (whether the suppression
(Footnote Continued Next Page)


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      To begin with, the initial traffic stop was legal. Both the videotape and

Trooper Knott’s testimony demonstrate that Interstate 80 is a “limited

access highway”, i.e., “a highway in respect to which owners or occupants of

abutting lands and other persons have no legal right of access except at

points and in the manner determined by the authority having jurisdiction

over the highway.” 75 P.S. § 102 (defining “limited access highway”); see

also Commonwealth Exhibit 1 (videotape); N.T., 5/6/15, at 61 (Trooper

Knott’s testimony that I-80 is limited access interstate).     The Traffic Code

provides that in a limited access highway having two lanes or more 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 P.S. § 3313(d).

      The suppression court credited Trooper Knott’s testimony that he

observed Chouman’s vehicle driving in the left-hand lane for .7 miles without

overtaking other traffic traveling in its direction or traveling with the flow of

                       _______________________
(Footnote Continued)

court properly held that the length of Chouman’s detention was excessive
and whether Chouman was under arrest without probable cause).



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traffic. FF, ¶ 5; see also N.T., 5/6/15, at 63. Under these facts, Trooper

Knott had probable cause to stop Chouman’s car for violating section

3313(d).2

        Although the initial traffic stop was legal, the ensuing search of

Chouman’s vehicle was not. The prerequisite for warrantless searches of a

motor vehicle under Article I, section 8 of the Pennsylvania Constitution is

probable cause; no exigency beyond the inherent mobility of a motor vehicle

is necessary.      Commonwealth v. Gary, 91 A.3d 102, 104 (Pa.2014).

Article I, Section 8 affords no greater protection than the Fourth Amendment

to the United States Constitution. Id. The suppression court correctly held

that Trooper Knott had no probable cause to believe that Chouman was

engaging in any illegal conduct besides his minor infraction of the Vehicle

Code.     Other than Chouman’s stale conviction from 1988, almost three

decades ago, Trooper Knott’s suspicions rested on wholly innocent behavior

(a lone driver on an interstate highway in a rental car in possession of

multiple energy drinks, black bags and other lawful items) and his

discredited accusation that Chouman was behaving nervously. This plainly

was insufficient to justify a search of Chouman’s car.   Commonwealth v.

Germann, 621 A.2d 589, 592 (Pa.Super.1993) (“evidence required to


____________________________________________


2
  Moreover, Chouman expressly “do[es] not contest” the legality of the initial
stop under section 3313(d). Brief For Appellant, at 8.



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establish probable cause must be more than a mere suspicion or good faith

on the part of the police officer”).

      We further agree with the suppression court that Chouman’s consent

to search his vehicle was involuntary. The Commonwealth bears the burden

of   proving   that   the   defendant    consented   to   a   warrantless   search.

Commonwealth v. Acosta, 815 A.2d 1078, 1083 (Pa.Super.2003) (en

banc). To establish a voluntary consensual search, the Commonwealth must

prove “that a consent is the product of an essentially free and unconstrained

choice—not the result of duress or coercion, express or implied, or a will

overborne—under the totality of the circumstances.”           Commonwealth v.

Strickler, 757 A.2d 884, 901 (Pa.2000).

      In Strickler, a police officer observed a car parked along a country

road. Two men were standing near the car and appeared to be urinating.

After questioning the men and verifying the documentation for the vehicle

and the driver, the officer returned the documents to the driver.           At that

time, the officer informed Strickler that it was not appropriate to stop along

the road and urinate on someone’s property. The officer began walking back

to his cruiser when he turned and asked Strickler if there was anything

illegal in the vehicle. When Strickler stated that there was not, the officer

requested Strickler’s consent to search the vehicle. The officer told Strickler

that he was free to withhold his consent. Strickler consented to the search,

which disclosed a marijuana smoking pipe.


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      The trial court suppressed the marijuana pipe on the ground that

Strickler’s consent was not voluntary.   Our Supreme Court held, however,

that Strickler’s consent was voluntary, even though the officer had never

expressly told Strickler that he was free to leave following the initial lawful

detention. Strickler, 757 A.2d at 900. The Court adopted a totality-of-the-

circumstances approach delineating a nonexclusive list of factors to consider

in making this assessment, including: (1) the presence or absence of police

excesses; (2) whether physical contact occurred; (3) whether police directed

the individual’s movements; (4) police demeanor and manner of expression;

(5) the location and time of the interdiction; (6) the content of the questions

and statements; (7) the existence and character of the initial investigative

detention, including its degree of coerciveness; (8) whether and to what

degree the transition between the traffic stop/investigative detention and the

subsequent encounter can be viewed as seamless, thus suggesting to the

individual that his movements may remain subject to police restraint; and

(9) whether the police expressly told the individual that he was free to leave

-- this latter factor being an objective and potent one.      Id. at 898-901.

With regard to the last two factors, Strickler observed:

      The degree to which the transition between the traffic
      stop/investigative detention and the subsequent encounter can
      be viewed as seamless … thus suggesting to a citizen that his
      movements may remain subject to police restraint, is a pertinent
      factor … ‘[F]ew motorists would feel free ... to leave the scene of
      a traffic stop without being told they might do so.’ While
      recognizing … that the admonition to a motorist that he is free to
      leave is not a constitutional imperative, the presence or absence

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      of such a clear, identified endpoint to the lawful seizure remains
      a significant, salient factor in the totality assessment.

Id. at 898-99.

      Strickler focused upon the fact that the officer’s actions suggested to

Strickler and his companion that they were free to leave following the initial

detention, and the officer did nothing to suggest that the subsequent

request for the defendant’s consent to search the vehicle was to be viewed

as a directive. Id. The Court opined: “[T]he officer did not touch Strickler

or direct his movements; there is no evidence of any use of coercive

language or tone by the officer. We also deem significant the arresting

officer’s admonition to Strickler that he was not required to consent to the

search.”      Id. at 900.   Thus, the officer’s admonition that Strickler could

refuse consent outweighed the officer’s failure to expressly advise the

defendant that he was free to leave following the initial detention.     Id. at

901-02.

      The present case is distinguishable from Strickler. Although Trooper

Knott handed Chouman’s license back to him, the trooper simultaneously

requested Chouman’s consent to search the vehicle without telling Chouman

that he was free to leave.        Thus, a factor critical to the disposition in

Strickler – an admonition that the driver could refuse consent – was not

present here. We also find persuasive the suppression court’s reasoning on

this issue:




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       Trooper Knott candidly conceded that once he decided he was
       going to pull this vehicle over because it was a rental unit with a
       sole occupant, the person would not be free to leave until he
       completed his criminal interdiction investigation. Since that
       investigation was never in the view of the suppression court
       supported by reasonable suspicion to support that criminal
       activity was afoot, it was deemed to be illegal. Furthermore,
       while Trooper Knott issued a traffic warning in writing to
       [Chouman] while [he] was seated in the driver seat, there was
       no break between the alleged traffic stop investigation and the
       request to search the vehicle. Trooper Knott was leaning into
       [Chouman]’s vehicle when he returned his paperwork and gave
       him a written warning [but] did not tell [Chouman] that he was
       free to leave. Instead, [the trooper] just continued on without
       even leaving the interior of the police car[3] with his criminal
       interdiction investigation. His failure to have any break between
       the two investigations is evidence that Trooper Knott meant
       what he said when he testified that once the trooper determined
       [Chouman] was alone in a rental car, that [Chouman] would not
       be free to leave until he concluded his criminal interdiction
       investigation.

Pa.R.A.P. 1925(a) Opinion, at 4-5.4



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3
   It appears from the evidence, particularly the videotape, that the
suppression court intended to state that Trooper Knott continued his
investigation without even leaving the interior of Chouman’s car.
4
  Similarly, there is persuasive authority from other jurisdictions that the
defendant’s consent is involuntary when the officer returns the defendant’s
paperwork but continues to ask questions or request that the defendant
answer additional questions. See, e.g., State v. Moore, 283 Kan. 344, 154
P.3d 1, 8-9 (2007) (since videotape shows that officer, “a large, physically
imposing individual,” “sometime after returning the license and registration
and after telling Moore that is ‘all I have for you,’ remained with his face at
the passenger-side window, apparently alternating between leaning on and
nearly touching the frame,” during which time he asked defendant “if he
would answer some questions,” “a reasonable person would not feel free to
leave”).



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      For these reasons, the suppression court properly granted Chouman’s

motion to suppress all evidence seized during the search of his vehicle.

      Order affirmed.

      President Judge Emeritus Ford Elliott joins in the memorandum.

      Judge Mundy concurs in the result.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/12/2016




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