J-S36021-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                   IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                         Appellee

                    v.

ERIK LOPEZ-TORRALBA,

                         Appellant                   No. 2769 EDA 2016


          Appeal from the Judgment of Sentence of August 4, 2016
           In the Court of Common Pleas of Montgomery County
            Criminal Division at No(s): CP-46-CR-0003427-2015


BEFORE: PANELLA, J., OLSON, J., AND FORD ELLIOTT, P.J.E.

MEMORANDUM BY OLSON, J.:                                  Filed July 3, 2017

      Appellant, Erik Lopez-Torralba, appeals from the judgement of

sentence entered August 4, 2016, contending that the trial court erred in

denying his motion to suppress evidence.      Upon careful consideration, we

affirm.

      The trial court summarized the facts of this case as follows:

      Detective James Wood testified that, on April 14, 2015, he was
      participating in the investigation of a large-scale heroin
      trafficking operation in Norristown, Montgomery County,
      Pennsylvania.     At approximately 1:10 p.m. on that date,
      Detective Wood was sitting in an unmarked car in the vicinity of
      Marshall and Arch Streets, waiting for uniformed officers to make
      a traffic stop of a 2005 Acura suspected to be transporting a
      large quantity of heroin. Before the traffic stop could take place,
      the Acura pulled into a parking spot on Arch Street. There were
      three people inside the vehicle: the driver—subsequently
      identified as [Appellant]—and two passengers.
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     Accompanied by two uniformed officers, Detective Wood—who
     was in plain clothes with a bullet-proof vest with the word
     “Police” written on the front—approached the Acura. While the
     uniformed officers dealt with the passengers, Detective Wood
     went to the driver’s side of the Acura, where he encountered
     [Appellant].      The detective identified himself, informed
     [Appellant] that he was conducting a drug investigation, and
     directed [Appellant] to get out of the Acura, following which the
     detective performed a “pat down” of [Appellant] for officer
     safety. The “pat down” did not lead to the discovery of any
     weapons. Detective Wood testified that, although he was armed
     himself, his gun was concealed inside his police vest. The
     detective testified that he did not display his weapon at any
     point during his entire encounter with [Appellant].

     Detective Wood testified that his conversation with [Appellant]
     on Arch Street was conducted in a calm manner, with no threats
     made and no raised voices. The detective testified that he did
     not put his hands on [Appellant] apart from the “pat down.” The
     detective testified that, during the course of this conversation,
     he asked [Appellant] for permission to search the Acura, and
     that [Appellant] verbally consented to the search.

     Detective Wood, however, did not search the Acura at this point,
     but instead directed that [Appellant] be placed inside a marked
     police vehicle and transported to the Norristown Police Station.
     The detective himself then drove [Appellant’s] Acura to the
     police station, a trip of approximately one minute.

     Arriving at the police station at approximately 1:25 p.m.,
     Detective Wood retrieved a pre-printed “consent to search form”
     from another officer. The detective then directed [Appellant] to
     sit in the front passenger seat of the Acura while the detective
     sat in the driver’s seat. Detective Wood testified that he did this
     so that [Appellant] would not feel intimidated by all of the other
     officers moving around the station. Inside the Acura, Detective
     Wood asked [Appellant] if he would be willing to provide a
     written consent to searches of his car, residence and cellular
     telephone. [Appellant] agreed to provide a written consent to
     search.

     Detective Wood handwrote on the form specific identifying
     information for [Appellant’s] Acura, his address, and his cellular
     telephone.    The detective did not testify as to his asking
     [Appellant] for any identifying information concerning the Acura


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     (i.e., the VIN number or registration number), and plainly had
     no reason to do so, as the license number and VIN number were
     readily apparent on the vehicle itself. In regard to [Appellant’s]
     phone, the detective testified that he had noted the presence of
     an iPhone on the center console of the vehicle and had asked
     [Appellant] if it was his. [Appellant] had replied that it was. The
     [Appellant] also provided Detective Wood with his address.

     Detective Wood testified that—prior to having [Appellant] sign
     the consent to search form—he read the form aloud to
     [Appellant] and also asked [Appellant] to read it himself. On its
     face, the form stated in pre-printed language:

       I understand that I have the right to refuse the consent to
       search described above and the right to refuse to sign this
       form.

       I further state that no promises, threats, force, physical or
       mental coercion of any kind whatsoever have been used
       against me to get me to consent to the search described
       above or to sign this form.

     Detective Wood testified that he verbally informed [Appellant]
     that he was free to revoke his consent to search. Pressed on
     this issue in cross-examination by [defense counsel], Detective
     Wood testified: “I told him that he could stop the search at any
     time.” [The trial court] fully credited Detective Wood’s testimony
     in its entirety.

     [Appellant] signed the “consent to search” form, which was
     entered into evidence as CS-1. The detective testified that the
     handwritten identification information for the Acura, [Appellant’s]
     address, and the cell phone [were] all written on the form at the
     time [Appellant] signed it[.]

     Detective Wood testified that his entire discussion with
     [Appellant] inside the Acura was conducted calmly, with no
     threats, raised voices, or weapons displayed, and that
     [Appellant] was not handcuffed during the discussion.

     After [Appellant] signed the “consent to search” form,
     [Appellant] and Detective Wood exited the Acura.        With
     [Appellant] standing to the side, Detective Wood and another
     officer conducted a fifteen minute search of the Acura,
     discovering nothing illegal at that time.



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       Retaining [Appellant’s] cellular telephone for a subsequent
       search, Detective Wood then gave [Appellant] the keys to his
       Acura and asked him to drive to his residence for the search to
       which [Appellant] had consented.       [Appellant] agreed, and
       Detective Wood and other officers followed [Appellant] to his
       home in separate vehicles. After arriving at [Appellant’s] home,
       Detective Wood and other officers searched the residence,
       ultimately discovering a large amount of what [] transpired to be
       heroin. A subsequent follow-up search of the Acura led to the
       discovery of more heroin concealed in the vehicle.

Trial Court Opinion, 12/15/2016, at 4-8 (internal citation omitted).

       The relevant procedural history of this case is as follows.     Appellant

was charged with two counts of possession of heroin with intent to deliver, 1

two counts of conspiracy to possess heroin with intent to deliver,2 and one

count of possession of drug paraphernalia.3         On February 26, 2016,

Appellant filed an omnibus pre-trial motion, which included a motion to

suppress the evidence found in his vehicle, cellular telephone, and residence.

On March 22, 2016, a suppression hearing was held. By written order that

same date, the suppression court denied Appellant’s motion to suppress. On

March 30, 2016, a jury convicted Appellant on all charges.      On August 4,




____________________________________________


1
    35 P.S. § 780-113(A)(30).
2
    18 Pa.C.S.A. § 903(a)(1).
3
    35 P.S. § 780-113(a)(32).




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2016, the trial court imposed an aggregate sentence of not less than nine

nor more than 18 years’ imprisonment. This timely appeal followed.4

       Appellant raises two issues for our review:

       Did the [trial] [c]ourt commit reversible error by failing to grant
       a motion to suppress evidence on a theory that [] Appellant
       failed to make a knowing, voluntary and intelligent consent for
       the police to search his residence, automobile and cellular
       telephone (which searches resulted in the Commonwealth
       obtaining incriminating evidence)[?]

       Did the [trial] court commit reversible error by failing to
       suppress evidence on a theory that [] Appellant was not
       appropriately advised of his rights pursuant to Miranda v.
       Arizona, 384 U.S. 436 (1966) and its Pennsylvania progeny
       prior to being asked to provide incriminating information (i.e.,
       information regarding the Appellant’s residence, automobile and
       cellular telephone which resulted in the Commonwealth obtaining
       incriminating evidence)[?]

Appellant’s Brief at 2.

       Appellant’s claims challenge an order denying his suppression motion.

“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
____________________________________________


4
   On October 12, 2016, the trial court ordered Appellant to file a concise
statement of errors complained of on appeal (“concise statement”). See
Pa.R.A.P. 1925(b). Appellant subsequently requested, and was granted, an
extension of time in which to prepare the concise statement. On November
17, 2016, Appellant filed his concise statement. On December 14, 2016, the
suppression court issued a statement adopting its findings of facts and
conclusions of law. See Pa.R.A.P. 1925(a)(1) (permitting trial court to
request that the judge who ruled on the contested matter issue a Rule 1925
opinion and permitting adoption by reference of previously filed rationale).
Appellant’s two issues on appeal were included in his concise statement.



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conclusions drawn from those facts are correct.” Commonwealth v. Stem,

96 A.3d 407, 409 (Pa. Super. 2014) (citation omitted).      “[O]ur scope of

review is limited to the factual findings and legal conclusions of the

suppression court.”   In re L.J., 79 A.3d 1073, 1080 (Pa. 2013) (citation

omitted).   “We may consider only the Commonwealth’s evidence and so

much of the evidence for the defense as remains uncontradicted when read

in the context of the record as a whole.” Commonwealth v. Gary, 91 A.3d

102, 106 (Pa. 2014) (citation omitted).     On a motion to suppress, the

burden is on the Commonwealth to prove, by a preponderance of the

evidence, that the evidence seized from Appellant was legally obtained. See

Commonwealth v. Howard, 64 A.3d 1082, 1087 (Pa. Super. 2013),

appeal denied, 74 A.3d 118 (Pa. 2013)(citation omitted).

     Appellant contends that the searches of his residence, car, and cellular

telephone were illegal for two reasons. First, he contends that he did not

knowingly, voluntarily, and intelligently consent to such searches. Second,

he asserts that he was not advised of his rights pursuant to Miranda before

being asked to provide incriminating information relating to his residence,

automobile, and cellular telephone.      Thus, Appellant argues that the

incriminating evidence recovered from these searches should have been

suppressed.   Appellant’s Brief at 18.   The Commonwealth contends that

Appellant’s consent was voluntarily given after police informed him verbally




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and in writing that he had the right to refuse consent, and he affirmed in

writing that he was not coerced. Commonwealth’s Brief at 11.

       As this Court has explained, “the Fourth Amendment to the United

States Constitution and Article I, Section 8 of the Pennsylvania Constitution

protects      citizens     from    unreasonable      searches   and     seizures.”

Commonwealth v. Clemens, 66 A.3d 373, 378 (Pa. Super. 2013). Thus, a

search conducted without a warrant is unconstitutional unless an established

exception applies.       See Schneckloth v. Bustamonte, 412 U.S. 218, 219

(1973).      One exception to the requirement of a warrant is a search

conducted pursuant to consent. See id. at 219. If an individual gives valid

consent, then the ensuing search is reasonable and the individual’s

constitutional rights are not violated by police conduct.        See Florida v.

Jimeno, 500 U.S. 248, 250-251 (1991).            “To establish a valid consensual

search, the prosecution must first prove that the consent was given during a

legal police interaction, or if the consent was given during an illegal seizure,

that it was not a result of the illegal seizure; [] second, [the prosecution

must       demonstrate]     that    the    consent    was   given     voluntarily.”

Commonwealth v. Newton, 943 A.2d 278, 283-284 (Pa. Super. 2007).

       Appellant does not dispute that the initial police encounter (an

investigative detention) was lawful or that the detective had reasonable

suspicion to support his actions.         Thus, our analysis focuses solely upon




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whether Appellant’s consent to search his car, residence, and cellular

telephone, given during this detention, was voluntary.

     It is well-settled that the issue of whether a consent to search has

been voluntarily given is a question of fact that is determined on a

case-by-case basis from the totality of the circumstances.          See, e.g.,

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

demonstrate that consent was voluntary, the evidence must establish “[t]hat

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[.]”

Id. at 901.   This Court has set forth numerous factors to consider when

determining if consent were voluntary. Specifically, we consider:

     1) the presence or absence of police excesses; 2) whether there
     was physical contact; 3) whether police directed the citizen’s
     movements; 4) police demeanor and manner of expression; 5)
     the location 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 the person has been told that he is free to leave; and
     9) whether the citizen has been informed that he is not required
     to consent to the search.

Commonwealth v. Kemp, 961 A.2d 1247, 1261 (Pa. Super. 2008) (noting

overlap of analysis in assessing whether consent was voluntary and whether

seizure occurred). We consider those factors seriatim.

     For the first factor, the record does not disclose police excesses. At

the traffic stop, two uniformed officers accompanied the detective.      N.T.,

3/22/16, at 18.   The detective was dressed in plainclothes and wearing a


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bullet-proof vest with the word “Police” written across the chest. Id. at 17.

There was at least one, perhaps two, marked police vehicles and two

unmarked vehicles at the scene.         Id. at 18-19.       Appellant was not

surrounded by a swat team, or even several officers, and was approached

only by the detective on the driver’s side. Id. at 20-21. While there was

undoubtedly a police presence, this did not amount to police excess.

Therefore, this factor weighs in favor of voluntariness.

      With regard to the second factor, there was no physical contact

between Appellant and the police. The detective testified that he did not

make physical contact with Appellant apart from the “pat-down” conducted

for officer safety. Id. at 22-24.      The detective does not remember if

Appellant were handcuffed in the back of the police vehicle while being

transported to the Norristown Police Station. See Id. at 25. Since the trial

court credited the detective’s testimony that there was no physical contact

with Appellant apart from the pat-down search, this factor weighs in favor of

voluntariness.

      As to the third factor, there is evidence that the detective controlled

and directed Appellant’s movements. The detective ordered the Appellant

out of his vehicle to perform the “pat-down.”      N.T., 3/22/16, at 22.   The

detective also directed Appellant to be placed inside a marked police vehicle

and transported to the Norristown Police Station.          Trial Court Opinion,

12/15/2016, at 5.    Once at the police station, the detective directed that


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Appellant sit in the front passenger seat of Appellant’s vehicle, while the

detective sat in the driver’s seat. Id. at 6. Because the detective retained

control over Appellant and directed his movements, this factor weighs

against voluntariness.

      Regarding the fourth factor, this Court concludes that the demeanor of

the police was not coercive. The detective informed Appellant that he was

conducting a drug investigation and his conversation with Appellant was

conducted in a calm manner, with no threats made and no raised voices.

N.T., 3/22/16, at 22. Although the detective was armed, he never displayed

his weapon, and to the contrary, his gun was concealed in his vest and not

visible. Id. 23. Additionally, the detective testified that he placed Appellant

in the Acura when they arrived at the police station specifically so he would

not feel intimidated by the other officers moving around the premises. Id.

27.   The detective testified that his entire discussion with the Appellant

inside the Acura was conducted calmly, with no threats, raised voices, or

weapons displayed, and that Appellant was not handcuffed during the

discussion.      Trial Court Opinion, 12/15/2016, at 7.        Therefore, the

detective’s   demeanor    and   manner   of   expression   weigh   in   favor   of

voluntariness.

      The fifth factor, i.e., location of the encounter, weighs in favor of

voluntariness.     Specifically, the initial encounter occurred in the early

afternoon on a public street, where the Appellant was plainly visible to


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pedestrians and motorists. N.T., 3/22/16, at 18.      During this encounter,

Appellant gave verbal consent for the detective to search his car. Id. at 24.

Subsequently, the Appellant was transferred to the police station, but was

never taken inside. Id. at 27. Instead, he was placed in his own car and

given a written consent form authorizing a search of his car, residence, and

cellular telephone. Id. at 27-29. There are no factors that lead this Court to

conclude that the location of the        encounter somehow overwhelmed

Appellant’s capacity to make an unconstrained choice. Therefore, this factor

weighs in favor of voluntariness.

      Concerning the sixth factor, which looks at the communication

between the detective and Appellant, this Court concludes there was no

confusion regarding the requests for consent. The detective, after informing

Appellant that he was conducting a drug investigation, simply asked if he

could search the car, and Appellant agreed. N.T., 3/22/16, at 24. At the

police station, the detective presented Appellant with a consent to search

form, which indicated identifying information regarding Appellant’s car,

residence, and cellular telephone. Id. at 28-33. Prior to Appellant signing

the consent form, the detective verbally explained it to him and read it

aloud. Id. 28. The Appellant also read the form himself before signing it.

Id. Thus, there is nothing present in the interaction between the detective

and Appellant that would create confusion regarding the detective’s




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intentions to search Appellant’s car, residence, and cellular telephone.

Therefore, this factor weighs in favor of voluntariness.

      With regard to the seventh factor, we conclude that the request to

search was directly related to the initial investigative detention.       The

detective was waiting for uniformed officers to make a traffic stop of a 2005

Acura, which he reasonably suspected was involved in transporting a large

quantity of heroin. Trial Court Opinion, 12/15/2016, at 4. Once the car was

pulled over, the officers and detective approached the car and subsequently

informed the Appellant that they were conducting a drug investigation. Id.

at 5. Thus, the detective’s request to search the car, residence and cellular

telephone, was directly related to the investigative detention.    Therefore,

this factor weighs in favor of voluntariness.

      The eighth factor, regarding whether the Appellant was told he was

free to leave, weighs against voluntariness.      There is no indication that

Appellant was told he was free to leave.         The detective testified that

Appellant was not physically able to leave due to the placement of the police

cars and a dumpster around his Acura. N.T., 3/22/16, at 44. The detective

also testified that he did not inform the Appellant that he was free to leave.

Id. Rather, he directed that Appellant be transported to the police station in

the back of a marked police car. Id. at 45. Thereafter, Appellant waited in

the back of the police vehicle for five to ten minutes until he was removed

and placed in the front passenger side of his car. Id. At this point, as the


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detective testified, he was in custody and not free to go. Id. at 47. Thus,

this factor weighs against voluntariness.5

       Finally, the ninth factor, whether the Appellant was informed that he

was not required to consent to the search, weighs in favor of voluntariness.

As our Supreme Court has noted, this factor is especially important.        See

Strickler, 757 A.2d at 901, citing U.S. v. Mendenhall, 446 U.S. 558

(1990); Florida v. Bostick, 501 U.S. 429, 432 (1991).          In this case, the

detective testified that, prior to having Appellant sign the consent form, he

read the form aloud to him and asked Appellant to read it himself, which he

did.   N.T., 3/22/16, at 28.         On its face, the form stated in pre-printed

language:

       I understand that I have the right to refuse the consent to search
       described above and the right to refuse to sign this form.

       I further state that no promises, threats, force, or physical or mental
       coercion of any kind whatsoever have been used against me to get me
       to consent to the search described above or to sign this form.

Commonwealth’s Exhibit CS-1.

       The detective further testified that he verbally informed the Appellant

that he was free to revoke his consent to search.          N.T., 3/22/16, at 48.

Pressed on the issue during cross-examination, the detective testified: “I

told him that he could stop the search at any time.”          Id. at 52.   Thus,
____________________________________________


5
  Although Appellant was never advised he was free to leave during the
encounter, it is equally clear that departure was never used as a bargaining
chip to secure Appellant’s consent.



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Appellant received both a written and verbal instruction that he was free to

refuse to consent to these searches. Furthermore, he was informed verbally

that he could end the searches at any time. Appellant never expressed any

concerns regarding the searches, and willfully led police officers to his house.

Therefore, this Court concludes that the Appellant was informed, more than

once, and understood that he had the right to refuse consent.        Thus, this

factor weighs in favor of voluntariness.

      In light of the foregoing analysis regarding the factors needed to be

considered, and the weight of those factors, we conclude that the

suppression court’s analysis is supported by the record and free of legal

error. Our Supreme Court has repeatedly emphasized the importance of the

fact that a defendant was informed that he could refuse a search.          E.g.,

Commonwealth v. Mack, 796 A.2d 967, 971-972 (Pa. 2002), citing

Strickler, 757 A.2d at 901. In this case, the totality of the circumstances

suggest that Appellant was aware that he had the right to refuse a search of

his car, residence, and cellular telephone, yet, he still elected to consent to

the searches.    This important finding, in combination with several other

factors that support a finding of voluntariness, outweigh the less significant

factors that weigh against voluntariness.     Thus, Appellant’s consent to the

searches was voluntary.

      In sum, the Commonwealth demonstrated that Appellant voluntarily

consented to the challenged searches during a legal police interaction.


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Therefore, the consent is valid and the suppression court correctly denied

Appellant’s motion.

       We turn to Appellant’s second issue, which asserts that he should have

received Miranda warnings before being asked to provide information

relating to his residence, cellular telephone, and car.6

       Statements made during custodial interrogation are presumptively

invalid unless they are preceded by the defendant being informed of his

Miranda rights. See Commonwealth v. Williams, 941 A.2d 14, 30 (Pa.

Super. 2008).      The “standard for determining whether an encounter with

police is custodial or police have initiated custodial interrogation, so as to

trigger Miranda requirements, is [an] objective one based on [the] totality

of   circumstances,     with    due   consideration   given   to   [the]   reasonable

impression conveyed to [the] person interrogated.”             Commonwealth v.

Mannion, 725 A.2d 196, 200 (Pa. Super. 1999). “Custodial interrogation” is

questioning that is likely or expected to elicit a confession or an

incriminating statement. Id. at 200. In order to trigger the safeguards of


____________________________________________


6
  Although Appellant argues that he was entitled to Miranda warnings
before providing information about his residence, cellular telephone and car,
we note that Appellant was not asked to provide information regarding the
phone or his car before consenting to the search. Instead, the police had
possession of the car and the cellular telephone (found on the center console
of the car). Appellant was only asked whether he consented to the search of
those items. Thus, Appellant’s argument regarding the need for Miranda
warnings has no applicability to the phone or the car.



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Miranda,    there    must    be    both      “custody”   and     “interrogation.”

Commonwealth v.Turner, 772 A.2d 970, 973 (Pa.Super. 2001).

     Certain questions asked by authorities do not require Miranda

warnings. For instance, “[b]iographical data necessary to complete booking

or pretrial services” fall within the “routine booking question” exemption of

questions not within Miranda’s protections. Pennsylvania v. Muniz, 496

U.S. 582, 601 (1990).    Here, when Appellant gave verbal consent for the

search of his residence, he was asked to provide his address merely for the

purpose of completing the consent form. This is analogous to information

routinely asked during booking inquiries.

     We agree with the finding of the trial court that the Appellant was not

subjected to custodial interrogation at that time.       Trial Court Opinion,

12/15/2016, at 9. There was no request for a confession and there were no

questions concerning details of the suspected crime(s).        This Court is not

aware of any case law supporting the claim that a police officer may not ask

an individual about his residential address for purposes of securing his

consent to search. Furthermore, Appellant, in his brief, concedes “[t]he case

law does not require that a subject must be advised of his rights under

Miranda prior to consenting to a search.” Appellant’s Brief at 18 (emphasis

omitted). Thus, Appellant’s Miranda claim fails.

     In sum, we conclude that the trial court correctly determined that

Appellant’s consent was knowing, voluntary, and intelligent.        Further, we


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conclude that the detective was not required to give Miranda warnings prior

to obtaining identifying information regarding Appellant’s residence.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/3/2017




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