J-A13009-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    DANIEL STILLWELL                           :
                                               :
                       Appellant               :   No. 565 EDA 2019

        Appeal from the Judgment of Sentence Entered February 4, 2019
     In the Court of Common Pleas of Montgomery County Criminal Division
                       at No(s): CP-46-CR-0001960-2018


BEFORE:      BENDER, P.J.E., LAZARUS, J., and STRASSBURGER, J.*

MEMORANDUM BY BENDER, P.J.E.:                          FILED AUGUST 05, 2020

        Appellant, Daniel Stillwell, appeals from his aggregate judgment of

sentence of 6½ to 13 years’ incarceration, followed by 5 years’ probation,

imposed after he was convicted of carrying a firearm without a license, 18

Pa.C.S. § 6106(a)(1), and possession of a firearm by a person prohibited, 18

Pa.C.S. § 6105(a)(1).        Appellant challenges the trial court’s denial of his

pretrial motion to suppress. After careful review, we affirm.

        Briefly, Appellant was arrested and charged with the above-stated

offenses, as well as several others, after a vehicle he was driving was stopped

by police and searched pursuant to a warrant, revealing a gun and a small

amount of marijuana. Prior to trial, Appellant filed a motion to suppress the

gun and drugs, contending that the search warrant for his vehicle was not

____________________________________________


*   Retired Senior Judge assigned to the Superior Court.
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supported by probable cause. Appellant also sought to suppress statements

he made to police during the traffic stop, claiming that the officers

interrogated him without providing Miranda1 warnings. On June 6, 2018, the

court conducted a suppression hearing and ultimately denied Appellant’s

motion to suppress.

        Appellant’s case proceeded to a bifurcated jury/non-jury trial, at the

close of which the jury convicted him of carrying a firearm without a license,

and the court found him guilty of possession of a firearm by a person

prohibited. The court also convicted Appellant of driving the wrong way down

a one-way street and possession of a small amount of marijuana. On February

4, 2019, Appellant was sentenced to the aggregate term stated supra. He

filed a timely notice of appeal, and he also complied with the trial court’s order

to file a Pa.R.A.P. 1925(b) concise statement of errors complained of on

appeal. Herein, Appellant states two issues for our review:

        A. Did the [trial c]ourt err in denying Appellant’s motion to
        suppress physical evidence, in determining there was probable
        cause to detain Appellant [and] seize his car[,] and that the four
        corners of the search warrant established probable cause?

        B. Did the [trial c]ourt err in denying Appellant’s motion to
        suppress statements, in determining Appellant was no[t] subject
        to custodial interrogation, where Appellant was not free to leave,
        and police were asking questions for the purpose of investigating
        potential crimes?

Appellant’s Brief at 4.


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1   Miranda v. Arizona, 384 U.S. 436 (1966).


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       Initially, we note that:
             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 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. Smith, 164 A.3d 1255, 1257 (Pa. Super. 2017) (cleaned

up).

       In this case, we begin by setting forth the facts established at the

suppression hearing, which Appellant does not dispute:

              [O]n March 31, 2017, Officer [Daniel] Prior[, of the Abington
       Township Police Department,] observed [Appellant’s] vehicle
       traveling in the wrong direction on a one-way street and initiated
       a traffic stop. (N.T. [Suppression Hearing], 6/6/18, at 30). When
       Officer Prior made contact with [Appellant] at the driver’s side
       window of the vehicle, he smelled the odor of marijuana
       emanating from the car. (Id. at 34). The officer indicated this
       was the odor of burnt marijuana. (Id. at 45). Officer Prior did
       not display his weapon or demonstrate any use of force[,] and he
       was the only officer present at the scene during this initial
       encounter. (Id. at 35).

             The officer inquired as to whether [Appellant] owned this
       vehicle and [Appellant] responded that it was a rental vehicle.
       (Id. at 36). Officer Prior asked how long [Appellant] was in
       possession of the vehicle and [Appellant] indicated it had been


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     approximately thirty (30) days.       (Id. at 32).     The officer
     subsequently asked [Appellant] if anyone else had driven the
     vehicle during this time[-]period[,] and [Appellant] indicated he
     was the only driver. (Id.)[] No other officers were at the scene
     during this encounter and Officer Prior asked these questions in a
     “conversational” tone.     (Id. at 33).     [Appellant] was also
     cooperative at this time and answered all the officer’s questions.
     (Id.)[] [Appellant] was unable to produce a driver’s license but
     did provide his name and date of birth. (Id. at 36). [Appellant]
     also provided the rental agreement for the vehicle. (Id. at 57).

           Officer Prior returned to his patrol car at this time and ran
     [Appellant’s] information through his computer system. (Id. at
     36-37). A second officer arrived at the scene during this time[-]
     period. (Id. at 37). Officer Prior again approached [Appellant’s]
     vehicle after running his information through the computer.
     (Id.)[] The officer returned to [Appellant’s] vehicle to return
     [Appellant’s] rental agreement and to notify him of the disposition
     of the traffic infraction. (Id. at 57).

            The officer also stated[,] “I’m just going to be honest with
     you. I smell marijuana inside the car.” (Id. at 37). [Appellant]
     responded[,] “no, you don’t[.” Appellant]’s demeanor changed at
     this time. (Id. at 38). A third officer also arrived on the scene
     during this time[-]period. (Id. at 35). Officer Prior subsequently
     asked [Appellant] if he would consent to a search of the vehicle
     and [Appellant] refused to provide consent. (Id. at 37). The
     officer advised [Appellant] that he was free to leave and [that] the
     vehicle was going to be impounded pending the officer’s
     application for a search warrant. (Id. at 37). [Appellant] left the
     vehicle, provided Officer Prior with a key … to the vehicle[,] and
     subsequently walked away. (Id. at 35, 38). At no time did
     authorities place [Appellant] in the back of a police car or handcuff
     him. (Id. at 38).

                                     ***

            [O]fficer [Prior] obtained a search warrant and[,] during a
     search of the vehicle[,] authorities located a semiautomatic hand
     gun under the driver’s seat, a clear plastic bag containing
     marijuana in the glove compartment, a silver “butterfly” style
     knife in the center console[,] and a silver kitchen knife with a black
     handle on the floor in the rear passenger compartment of the
     vehicle.

Trial Court Opinion (TCO), 7/16/19, at 8-9.

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      On appeal, Appellant first contends that Officer Prior’s smelling burnt

marijuana was insufficient to establish probable cause to seize Appellant’s

vehicle and obtain a warrant to search it. He claims that this case is “easily

distinguishable” from Commonwealth v. Scott, 210 A.3d 359 (Pa. Super.

2019), and Commonwealth v. Copeland, 955 A.2d 396 (Pa. Super. 2008).

Appellant’s Brief at 8.     In those cases, this Court found that officers had

probable cause to conduct warrantless vehicle searches based on factors in

addition to a smell of burnt marijuana, such as smoke emanating from the

vehicle, furtive movements by the defendants, and/or contraband in plain

view. See Scott, 210 A.3d at 361, 364; Copeland, 955 A.2d at 402-03.

Appellant avers that this case is not like Scott or Copeland, explaining:

            Officer Prior testified that he smelled burnt marijuana. He
      did not testify as to any furtive movements made by Appellant.
      He did not suspect Appellant to be under the influence and he was
      not investigating a DUI. Furthermore, although he did say the
      marijuana had to be smoked recently, he could not say if it was
      hours or days ago.

             Given Officer Prior’s testimony that the marijuana could
      have been smoked days ago, and no indication of it being smoked
      at the time of the traffic stop, there was insufficient probable
      cause to seize Appellant’s vehicle, and insufficient probable cause
      to issue a warrant to search that vehicle.

Appellant’s Brief at 8-9.

      Notably, Appellant’s entire argument in support of his first issue consists

of just eight sentences. See id. At no point in his argument does Appellant

discuss the search warrant in any depth. For instance, he does not state what

facts were set forth in the affidavit of probable cause, present any argument


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that those facts were insufficient to issue the warrant, or cite any legal

authority in support of this claim.    Accordingly, Appellant has waived any

challenge to the probable cause underlying the search warrant for lack of

meaningful development.      See Commonwealth v. Hardy, 918 A.2d 766,

771 (Pa. Super. 2007) (“When briefing the various issues that have been

preserved, it is an appellant’s duty to present arguments that are sufficiently

developed for our review. The brief must support the claims with pertinent

discussion, with references to the record and with citations to legal authorities.

… [W]hen defects in a brief impede our ability to conduct meaningful appellate

review, we may dismiss the appeal entirely or find certain issues to be

waived.”).

      Additionally, Appellant has also waived his claim that Officer Prior lacked

probable cause to seize his car while the officer obtained the search warrant.

As the Commonwealth stresses, in Appellant’s motion to suppress the physical

evidence recovered from his vehicle, he solely argued that the affidavit of

probable cause contained a misstatement that he “had been arrested by the

Abington Police Department more than 4 times since 2011 for possession of

marijuana and related offenses.” Omnibus Pretrial Motion for Relief, 6/4/18,

at 3. Appellant claimed that this information was false and, without it, the

affidavit failed to set forth sufficient facts to establish probable cause for the

warrant.     Id. at 3-4.   At the suppression hearing, the Commonwealth

conceded that the language, “since 2011,” was incorrect. N.T. Suppression




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Hearing at 5.2      Thus, Appellant indicated that the singular issue before the

court regarding the suppression of the physical evidence was “whether [the

court should] … exclude simply ‘since 2011,’ or [whether] [it should] exclude

that sentence in its entirety[,]” in deciding whether the warrant was supported

by probable cause. Id. at 5. Appellant argued that the court must exclude

the entire sentence from its probable cause determination.            Id.   At the

conclusion of the hearing, the court ruled that it could consider the entire

sentence because the error in the affidavit of probable cause was not material,

and the mistake was not made in bad faith. Id. at 67. Ultimately, the court

found that the search warrant was supported by probable cause. Id.

       It is apparent from this record that Appellant only sought the

suppression of the physical evidence on the basis that the affidavit of probable

cause contained an erroneous fact which, if omitted, resulted in a lack of

probable cause to issue the warrant.           This is not the claim Appellant now

presents on appeal, wherein he solely contends that Officer Prior’s smelling

burnt marijuana was insufficient to provide the officer with probable cause to

seize his vehicle while obtaining the search warrant. The suppression court

never ruled on this issue below.               Consequently, we agree with the

Commonwealth that it is waived. See Pa.R.A.P. 302(a) (“Issues not raised in

the lower court are waived and cannot be raised for the first time on appeal.”).
____________________________________________


2 Officer Prior testified that the affidavit should have read: “Since 2010,
[Appellant] was arrested by the Abington Police Department four times for
marijuana and related offenses, and he was also arrested for dealing
marijuana two times.” Id. at 23-24.

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      In Appellant’s second issue, he contends that the trial court erred by

denying his motion to suppress statements he made to Officer Prior because

he was not provided with Miranda warnings prior to making those remarks.

Appellant begins his three-paragraph argument with boilerplate case law

pertaining to investigative detentions. See Appellant’s Brief at 9. He then

states:

             In the present case, at the time Officer Prior questioned
      Appellant, Appellant was not free to leave. The encounter had
      just begun. At that moment in time, Officer Prior had witnessed
      a traffic violation and smelled the odor of burnt marijuana. His
      questions however were not designed to investigate the traffic
      violation.    His questions[,] which he said were department
      policy[,] were designed to explore “other possible crimes that may
      be occurring.” (N.T. [Hearing at] … 30-31.) Other officers were
      on the way to the traffic stop, and Officer Prior’s radio was on and
      the volume turned up so he could be in contact with those officers.
      ([Id. at] 41). It wasn’t until some time thereafter, when Appellant
      refused consent to [a] search[,] that he was free to leave.

            It is clear from the record that Officer Prior’s questions were
      intended to explore other crimes, and asked at a time when
      Appellant was not free to leave. As such the [t]rial [c]ourt erred
      in denying Appellant’s motion to suppress these statements.

Id. at 10.

      Appellant’s argument is unconvincing.

             In Miranda, the United States Supreme Court held that a
      confession given during custodial interrogation is presumptively
      involuntary, unless the accused is first advised of his right against
      self-incrimination. … [Miranda,] 384 U.S. 436…. Miranda
      warnings are not required where the interrogation is not custodial.
      Commonwealth v. Nester, … 709 A.2d 879, 882 n.4 ([Pa.]
      1998) (citations omitted). “A person is in custody for the purposes
      of a custodial interrogation when 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


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     restricted by the interrogation.” Id. (citation omitted). Police
     detentions become custodial when under the totality of the
     circumstances the conditions and/or duration of the detention
     become so coercive as to become the functional equivalent of
     arrest. Commonwealth v. Busch, 713 A.2d 97, 100 (Pa. Super.
     1998) (citing Commonwealth v. Ellis, … 549 A.2d 1323 ([Pa.
     Super.] 1988)).

        Among the factors the court utilizes in determining, under
        the totality of the circumstances, whether the detention
        became so coercive as to constitute the functional
        equivalent of arrest are: the basis for the detention; the
        location; whether the suspect was transported against his
        will; how far, and why; whether restraints were used; the
        show, threat or use of force; and the methods of
        investigation used to confirm or dispel suspicions.

     Busch, 713 A.2d at 101 (quoting Commonwealth v. Peters, …
     642 A.2d 1126, 1130 ([Pa. Super.] 1994) (en banc)).

Commonwealth v. DiStefano, 782 A.2d 574, 579-80 (Pa. Super. 2001).

     Additionally, as the trial court aptly summarized:

     “The usual traffic stop constitutes an investigative rather than a
     custodial detention, unless, under the totality of the
     circumstances, the conditions and duration of the detention
     become the functional equivalent of an arrest.” Commonwealth
     v. Mannion, 725 A.2d 196, 202 (Pa. Super. 1999) (citing
     Commonwealth v. Haupt, 567 A.2d 1074, 1078 (Pa. Super.
     1989)). During these traffic stops, officers are permitted to ask
     basic investigative questions. Pennsylvania v. Bruder, 488 U.S.
     9, 10 … (1988).

           “Since an ordinary traffic stop is typically brief in duration
     and occurs in public view, such a stop is not custodial for Miranda
     purposes.” Mannion, [725 A.2d] at 202. “If a motorist who has
     been detained pursuant to a traffic stop thereafter is subjected to
     treatment that renders him ‘in custody’ for practical purposes, he
     will be entitled to the full panoply of protections prescribed by
     Miranda.” Berkemer v. McCarty, 468 U.S. 420, 440 … (1984).

           “An ordinary traffic stop becomes ‘custodial’ when the stop
     involves coercive conditions, including, but not limited to, the
     suspect being forced into a patrol car and transported from the
     scene or being physically restrained. Such coercive conditions

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      constitute ‘restraints comparable to arrest’ so as to transform the
      investigative nature of an ordinary traffic stop into custodial
      interrogation.[”] Mannion, [725 A.2d] at 202.

TCO at 6-7.

      Applying this law to the present facts, the trial court concluded that no

Miranda warnings were required. It reasoned:

             There is no indication that Officer Prior’s interaction with
      [Appellant] was anything more than an ordinary traffic stop in
      which the officer asked [Appellant] basic investigative questions,
      including questions about his use of the vehicle. Authorities did
      not subject [Appellant] to any coercive conditions[,] such as
      placing him into a patrol car or physically restraining him. Officer
      Prior questioned [Appellant] in plain view of passing motorists and
      no show of force was ever demonstrated by this officer or the
      other officers on the scene. [Appellant] was free to leave and, in
      fact, did walk away from the scene after Officer Prior stated the
      car would be impounded. The totality of the circumstances
      demonstrates [Appellant’s] traffic stop was not a custodial
      detention or the functional equivalent of an arrest[,] and the
      questions asked were merely basic investigative questions which
      did not constitute an interrogation. Therefore, authorities were
      not required to administer Miranda warnings to [Appellant] and
      his statements regarding the exclusive use of his rental car were
      admissible at trial.

Id. at 9-10 (citations omitted).

      We discern no legal error in the court’s analysis. The totality of the

circumstances discussed by the court demonstrate that the traffic stop was

not so coercive as to amount to the functional equivalent of an arrest.

Therefore, no Miranda warnings were required, and the court properly denied

Appellant’s motion to suppress.

      Judgment of sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/5/2020




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