J-A12010-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                          Appellee

                     v.

ANDRE DELAYNE TAYLOR

                          Appellant                  No. 529 WDA 2016


       Appeal from the Judgment of Sentence Dated March 15, 2016
            In the Court of Common Pleas of Allegheny County
           Criminal Division at No(s): CP-02-CR-0006230-2015

BEFORE: OLSON, J., SOLANO, J., and RANSOM, J.

MEMORANDUM BY SOLANO, J.:                         FILED OCTOBER 12, 2017

     Appellant Andre Delayne Taylor appeals from the judgment of

sentence imposed after the trial court convicted him of four offenses under

the Controlled Substance, Drug, Device and Cosmetic Act, 35 P.S. § 780-

113(a).    Appellant’s sole claim is that the trial court erred in denying his

motion to suppress evidence obtained from a traffic stop. Upon review, we

reverse.

     The trial court recited the procedural history of this case as follows:

            On April 28, 2015, Appellant, Andre Taylor, was arrested
     and charged with one count of Possession with Intent to Deliver
     a Controlled Substance (PWID), two counts of Possession of a
     Controlled Substance, one count of Possession of Marijuana, and
     one count of Possession of Drug Paraphernalia. The Possession
     of Drug Paraphernalia was dismissed at the Preliminary Hearing.
     Appellant filed a Motion to Suppress on September 2, 2016.
     After a hearing on the motion and careful consideration of
     Appellant’s Brief and the Commonwealth’s Memorandum of Law
     filed on the issue, this Court denied the Motion to Suppress on
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      December 14, 2015. The case proceeded to a stipulated nonjury
      [trial] after which this Court found Appellant guilty of the
      remaining charges. Appellant was sentenced on March 15, 2015
      to 25 to 65 months of incarceration with three years consecutive
      probation at the PWID count and no further penalty on the rest
      of the charges. Appellant filed a Notice of Appeal on April 14,
      2016 and a Statement of Errors Complained of on Appeal on May
      6, 2016.

Trial Court Opinion, 8/31/16, at 2-3 (footnotes omitted).

      On appeal, Appellant presents a single issue for our review:

      Whether the trial court erred in not granting [Appellant’s] motion
      to suppress when the testimony of Officer Gould, the only
      witness called by the Commonwealth at the suppression hearing,
      established that he had extended the otherwise-completed traffic
      stop of the car in which [Appellant] was a passenger even
      though he lacked reasonable suspicion of criminal activity, based
      on specific and articulable facts rather than his mere “intuition”
      and “hunch,” to justify the continued seizure of [Appellant] (as
      well as the car and driver), in violation of his federal and state
      constitutional rights against unreasonable search and seizures?

Appellant’s Brief at 5.

      We preliminary recognize:

      Our 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, we are bound by these findings and
      may reverse only if the court’s legal conclusions are erroneous.
      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 our plenary
      review.

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        Moreover, appellate courts are limited to reviewing only the
        evidence presented at the suppression hearing when examining
        a ruling on a pre-trial motion to suppress.

Commonwealth v. Ranson, 103 A.3d 73, 76 (Pa. Super. 2014) (internal

citations and quotations omitted), appeal denied, 117 A.3d 296 (Pa. 2015).

The Commonwealth carries the burden at suppression and satisfies that

burden if it proves to the satisfaction of the suppression court that the

evidence was properly seized. In re L.J., 79 A.3d 1073, 1086 (Pa. 2013),

citing Commonwealth ex rel. Butler v. Rundle, 239 A.2d 426 (Pa. 1968)

and Pa.R.Crim.P. 581(J) (official comment).

        The Commonwealth presented a single witness at the suppression

hearing.1 McKeesport Police Detective Schelley Gould testified to having 21

years    of   experience     as   a   police   officer   and   stated   that   narcotics

investigations comprised about 30% of his work. N.T., 10/1/15, at 3-4. On

April 28, 2015, Detective Gould initiated a traffic stop of a gray Suzuki

because the vehicle’s inspection had expired. Id. at 4-5. Appellant was a

front seat passenger in the vehicle. Id. Detective Gould testified that the

stop occurred in “a quiet neighborhood” where law enforcement “don’t have

many problems.”2          Id. at 5.       Detective Gould stated that when he

approached the driver, the driver was “shaking really bad.”              Id. at 6. He


____________________________________________
1
    Appellant did not present any witnesses.
2
  Detective Gould also testified, “but where I initially saw them, they were
coming from a high drug trafficking area[.]” N.T., 10/1/16, at 5.


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noted that Appellant “also was shaking really bad, which kind of throws up a

red flag.” Id. at 6. Nonetheless, when Detective Gould obtained the driver’s

license and “called in” the driver’s information, he learned that the license

was valid and the driver was not wanted on any warrants.           Id. at 15.

Detective Gould then returned the driver’s information to him, and

“proceeded over to” Appellant and asked him for his information and

“informed him to stop moving around.” Id. At that point, Detective Gould,

who “knew there was another [police] car coming,” “got on the radio and

told them to expedite.” Id. at 16. Detective Gould stated:

      I remained at the rear of the vehicle until the [police] cars got
      there. . . . . I didn’t [give a traffic citation to the vehicle’s
      driver] until I got another car there. I had two very nervous
      grown men in a car and no clue as to what’s going on inside this
      car.

Id. at 17. Detective Gould testified “[i]n my 21 years of experience, I had

an intuition that crime was at foot.”      Id. (emphasis added).    On cross-

examination, he conceded that he never saw a weapon or drugs, but relied

on his intuition and a hunch.    Id. at 19.   When Detective Gould’s fellow

officer arrived, Detective Gould then approached Appellant and “asked

[Appellant] is there anything on your person I need to be concerned about.”

Id. at 8. At that point, Appellant replied that he had “a little bit of weed,”

and the officers arrested him. Id. at 9.

      It is well-settled that there are three categories of interaction between

citizens and police officers. Our Supreme Court has summarized:


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      The first of these is a “mere encounter” (or request for
      information) which need not be supported by any level of
      suspicion, but carries no official compulsion to stop or to
      respond. The second, an “investigative detention[,]” must be
      supported by a reasonable suspicion; it subjects a suspect to a
      stop and a period of detention, but does not involve such
      coercive conditions as to constitute the functional equivalent of
      an arrest. Finally, an arrest or “custodial detention” must be
      supported by probable cause.

Ranson, 103 A.3d at 76–77.

      Instantly, the parties do not dispute that the initial traffic stop was

lawful.    However, Appellant argues that he was subjected to an illegal

investigative detention after Detective Gould completed the “tasks tied to

the traffic infraction,” because the officer lacked reasonable suspicion to

continue the detention.     Appellant’s Brief at 13-14.   The Commonwealth

counters    that   Appellant’s   “continued   movement”   and   the   “extreme

nervousness exhibited by [A]ppellant and the driver” created reasonable

suspicion for Detective Gould to continue the investigation. Commonwealth

Brief at 8. After careful review of the record, we disagree.

      We have explained:

      [W]here the purpose of an initial traffic stop has ended and a
      reasonable person would not have believed that he was free to
      leave, the law characterizes a subsequent round of questioning
      by the police as an investigative detention or arrest. In the
      absence of either reasonable suspicion to support the
      investigative detention or probable cause to support the arrest,
      the citizen is considered unlawfully detained.

Commonwealth v. By, 812 A.2d 1250, 1256 (Pa. Super. 2002) (citation

omitted), appeal denied, 839 A.2d 350 (Pa. 2003). Appellant’s argument



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is that he was illegally detained after the initial traffic stop “simply because

[the driver and Appellant] were ‘shaking really bad.’” Appellant’s Brief at 30,

citing N.T., 10/1/15, at 6. In support of his contention that the traffic stop

was improperly extended, Appellant cites Rodriguez v. United States, 135

S. Ct. 1609 (2015) and Commonwealth v. Reppert, 814 A.2d 1196, 1204

(Pa. Super. 2002) (en banc). Appellant’s Brief at 20-30. In Rodriguez, the

United States Supreme Court held that where police officers lack reasonable

suspicion of criminal activity, they may not extend a traffic stop beyond its

intended purpose. Rodriguez, 135 S. Ct at 1616. In Reppert, this Court

explained:

             Our Supreme Court has mandated that law enforcement
      officers, prior to subjecting a citizen to an investigatory
      detention, must harbor at least a reasonable suspicion that the
      person seized is then engaged in unlawful activity. 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 the officer
      who initiated the stop had a “particularized and objective basis”
      for suspecting the individual stopped. Thus, to establish grounds
      for reasonable suspicion, the officer must articulate specific
      observations which, in conjunction with reasonable inferences
      derived from those observations, led him reasonably to
      conclude, in light of his experience, that criminal activity was
      afoot and that the person he stopped was involved in that
      activity.

            Although a police officer’s knowledge and length of
      experience weigh heavily in determining whether reasonable
      suspicion existed, our Courts remain mindful that the officer’s
      judgment is necessarily colored by his or her primary
      involvement in “the often competitive enterprise of ferreting out
      crime.” Therefore, the fundamental inquiry of a reviewing court
      must be an objective one, “namely, whether ‘the facts available
      to the officer at the moment of the [intrusion] warrant a man of

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     reasonable caution in the belief that the action taken was
     appropriate.’” This inquiry will not be satisfied by an
     officer's hunch or unparticularized suspicion.

Reppert, 814 A.2d at 1203–1204 (citations omitted).

     Here, Detective Gould testified that he stopped the vehicle in which

Appellant was a passenger for an expired inspection sticker. N.T., 10/1/15,

at 4, 12. He testified that the driver pulled over immediately, and “the area

where the stop was is a quiet neighborhood” where the police “don’t have

many problems.” Id. at 5, 12. The driver of the vehicle was “shaking really

bad” and Appellant was “moving around a lot in the front” of the vehicle.

Id. at 6-7. Officer Gould said that a “red flag went up” because “you have

two people who are very nervous inside the car, as bad as they were

shaking, it just gave me an indication there was something in the car.” Id.

at 7. However, Detective Gould also testified that when he “ran” information

from both the driver and Appellant, the driver had a valid license and “both

came back no warrants.” Id. at 7, 15.

     Upon further questioning, Detective Gould stated the following:

     [Defense counsel]: So you said they were nervous and they
     were shaking and you had no clue what was going on inside the
     vehicle?

     OFFICER GOULD: In my 21 years of experience, I had an
     intuition that a crime was at foot. I did not know whether
     there was a weapon in the car and I wasn't about to take
     any chances.

     [Defense counsel]: You never saw a weapon?

     OFFICER GOULD: No, sir.

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      [Defense counsel]: Never saw any drugs?

      OFFICER GOULD: No, sir.

      [Defense counsel]: You relied on your intuition?

      OFFICER GOULD: Yes, sir.

      [Defense counsel]: A hunch, correct?

      OFFICER GOULD: Yes, sir.

N.T., 10/1/15, at 17-18 (emphasis added). By the officer’s own admission,

he based the continued detention of Appellant not on a particularized

reasonable suspicion of a crime, but rather on his “intuition,” a “hunch,” and

a desire “not to take any chances.”        Under our case law, that is not a

sufficient basis for an investigative detention.

      In an attempt to distinguish Rodriguez, the trial court states that the

vehicle stop was not “unduly delayed by . . . justifiable concerns for officer

safety” and that Detective Gould’s questioning of Appellant was “related to

immediate roadway and officer safety.” Trial Court Opinion, 8/31/16, at 6.

Those factors are not sufficient to validate Detective Gould’s detention of

Appellant.    We recognize that officers making traffic stops may have

justifiable safety concerns.   See Rodriguez, 135 S. Ct. at 1616. But the

question here is not whether the facts facing Detective Gould could possibly

give rise to a reasonable suspicion of dangerous criminal activity; it is

whether, based on the testimony, Detective Gould acted on a particularized

objective assessment, rather than mere intuition. By Detective Gould’s own

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admission, he had no more than his intuition and a hunch, and the law is

clear that a police officer may not reach a conclusion that criminal activity is

afoot based upon an “unparticularized suspicion” or “hunch.”               See

Commonwealth v. Arch, 654 A.2d 1141, 1144 (Pa. Super. 1995), citing

Terry v. Ohio, 392 U.S. 1, 27 (1968).

      Reasonable suspicion requires that the officer “articulate specific

observations which, in conjunction with reasonable inferences derived from

those observations, led him to reasonably conclude, in light of his

experience, that criminal activity was afoot and that the person he stopped

was involved in that activity.”    Reppert, 814 A.2d at 1204.         The only

specific observation articulated by Detective Gould was the nervous behavior

and movement exhibited by the driver of the vehicle and Appellant. As we

stated in Reppert, “[a] police officer’s observation of a citizen’s nervous

demeanor and furtive movements, without more, establishes nothing more

than a ‘hunch,’ employing speculation about the citizen’s motive in the place

of fact.” Reppert, 814 A.2d at 1206. We will not find reasonable suspicion

based on “law enforcement officers’ wholly subjective interpretation[s] of

inoffensive conduct[.]” Id.

      In addition, “a police stop exceeding the time needed to handle the

matter for which the stop was made violates the Constitution’s shield against

unreasonable seizures.” Rodriguez, 135 S. Ct. at 1612. An officer cannot

“prolong the stop, absent the reasonable suspicion ordinarily demanded to


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justify detaining an individual.” Id. at 1615. Here, there was no reasonable

suspicion to justify the investigative detention that ensued when Detective

Gould asked Appellant whether “there was anything” Detective Gould

needed to be concerned about.              N.T., 10/1/15, at 8.             See, e.g.,

Commonwealth v. Dales, 820 A.2d 807, 814-815 (Pa. Super. 2003)

(where purpose of traffic stop had been completed, behaviors learned during

“second round of questioning” cannot be considered in reasonable suspicion

analysis).

      Based   on   our    precedents,    we      agree   with   Appellant    that    the

Commonwealth failed to establish reasonable suspicion to support Detective

Gould’s extension of Appellant’s lawful detention, and thus reverse the trial

court’s suppression order and remand for a new trial.

      Judgment of sentence vacated.           Suppression order reversed.           Case

remanded for further proceedings consistent with this memorandum.

Jurisdiction relinquished.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/12/2017



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