J-S47025-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellant

                       v.

MATTHEW NICHOLAS DE LA ROSA

                            Appellee                  No. 2063 MDA 2015


               Appeal from the Order Entered October 26, 2015
                 In the Court of Common Pleas of Berks County
              Criminal Division at No(s): CP-06-CR-0002218-2015


BEFORE: SHOGAN, J., LAZARUS, J., and JENKINS, J.

DISSENTING MEMORANDUM BY LAZARUS, J.: FILED SEPTEMBER 14, 2016

       Because I believe that Officer Cilento subjected De La Rosa to an

unconstitutional detention after the initial, lawful traffic stop1 and pat-down,2

I respectfully dissent.      In my opinion, when Officer Cilento continued his

questioning and asked De La Rosa if he had anything else on his person, an
____________________________________________


1
  Neither party contests that the initial traffic stop was lawful; the stop was
based upon probable cause since an officer observed the driver of the
vehicle run a stop sign. We also note that once a motor vehicle has been
lawfully stopped for a traffic violation, police officers do not violate the
Fourth Amendment by ordering the occupants to get out of the vehicle.
2
  Notably, the pat-down did not produce any weapons. See Terry v. Ohio,
392 U.S. 1, 26 (1968) (sole justification for Terry search is the protection of
the police and others nearby and search must be strictly “limited to that
which is necessary for the discovery of weapons which might be used to
harm the officer or others nearby.”). Therefore, any fear that Officer Cilento
had for his safety should have been dispelled when no weapon was
discovered.
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individual would not objectively believe that he was free to end the

encounter and refuse to answer the officer’s questions. Accordingly, I would

find that at that point the detention had evolved into a constitutional seizure

requiring the administration of Miranda3 warnings.        Because De La Rosa

was not Mirandized at this point, the court properly suppressed the

evidence from the traffic stop. Therefore, I would affirm.

        The majority reasons that the strong odor of burnt marijuana initially

detected by the officers justified an investigatory stop and that Officer

Cilento was permitted to inquire “as to whether [De La Rosa] had any

additional information the officer should know.”      Majority Opinion, at 10.

While the majority correctly states the requisite level of suspicion to conduct

an investigatory detention, it is incorrect in concluding that the further

detention in the instant case was permissible.

        Here, nothing happened after the conclusion of the initial stop and pat-

down (that uncovered no weapons or immediately apparent incriminating

contraband) to give the officer further cause for suspicion.          Compare

Commonwealth v. Pakacki, 901 A.2d 983 (Pa. 2006) (where officer

smelled marijuana emanating from defendant and then during pat-down felt

object immediately apparent to experienced officer as marijuana pipe,

seizure of pipe legal under plain feel doctrine).   Therefore, Officer Cilento’s


____________________________________________


3
    Miranda v. Arizona, 384 U.S. 436 (1966).



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J-S47025-16



further questioning of De La Rosa without Miranda warnings as to whether

“he had anything else on his person” served to objectively prevent De La

Rosa from feeling like he was free to leave.      As a result, any perceived

consent to search his front right pant pocket was also invalid.

      The validity of a new stop arising from an initial traffic violation is

based on the following query:

      [I]n the context of a traffic or similar stop, once the purpose for
      the stop has been completed, the question arises: Does the
      individual have objective reasons to believe that he is (or is not)
      free to end the police/citizen encounter?

Commonwealth v. Strickler, 757 A.2d 884, 891 (Pa. 2000). While traffic

stops in Pennsylvania are generally investigative, they may escalate to

custodial detentions when coercive conditions “comparable to arrest” are

present.   Commonwealth v. Mannion, 725 A.2d 196, 202 (Pa. Super.

1999). The Pennsylvania Supreme Court further stated in Strickler:

      In evaluating the circumstances, the focus is directed toward
      whether, by means of physical force or show of authority, the
      citizen-subject’s movement has in some way been restrained. In
      making this determination, courts must apply the totality-of-the-
      circumstances approach, with no single factor dictating the
      ultimate conclusion as to whether a seizure has occurred.

Strickler, 757 A.2d at 890.

      Under the totality-of-the-circumstances approach, it is clear from the

record that the subsequent questioning of De La Rosa following the

uneventful pat-down constituted interrogation.      While the officers in this

case did not physically restrain De La Rosa, their show of authority (fully

uniformed, sirens blaring) certainly would indicate to a reasonable person

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that he or she was not free to leave the scene. Moreover, although traffic

stops are often considered investigative “since [they are] normally brief and

in public view,” Mannion, supra, in the instant case the initial stop occurred

close to 3:00 a.m., making it highly unlikely that the stop was conducted in

public view.   Additionally, when a person is standing outside rather than

inside a vehicle, he is less likely to believe that he can actually leave the

area by entering the car and driving away. Commonwealth v. Kemp, 961

A.2d 1247 (Pa. Super. 2008) (en banc), citing Commonwealth v. Moyer,

954 A.2d 659 (Pa. Super. 2008). Finally, while the stop would have been

brief had it ended after the initial detainment and pat-down, Officer Cilento’s

choice to continue to interrogate De La Rosa both prolonged the stop, and,

gave the objective impression to De La Rosa that he was not yet free to

leave -- the hallmark of a custodial detention.

      Officer Cilento had some level of reasonable suspicion that illegal

activity may be afoot when he detected the odor of burnt marijuana at the

beginning of the initial traffic stop. However, the subsequent interrogation

of De La Rosa following the uneventful pat-down constituted a custodial

interrogation, especially where Officer Cilento should have known that his

questioning was likely to lead to an incriminating response based upon: (1)

De La Rosa’s admission to Officer Cilento that he had smoked marijuana

earlier; (2) De La Rosa voluntarily showing Officer Cilento marijuana




                                     -4-
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wrappings4 in the car’s cup holder area; and (3) the odor emanating from

the car when it was first stopped. See Commonwealth v. Gonzalez, 979

A.2d 879 (Pa. Super. 2009); see also Commonwealth v. Ingram, 814

A.2d 264 (Pa. Super. 2002). Without being given his Miranda warnings, De

La Rosa’s admission and the contraband recovered on his person and in the

center console of the vehicle should have been suppressed.5

       For these reasons, I respectfully dissent.




____________________________________________


4
  As the majority notes, when De La Rosa pointed to the wrappings he was
indicating to the officer that they were the remnants from smoking
marijuana earlier. N.T. Suppression Hearing, 8/27/25, at 8, 12.
5
  However, we agree with the trial court that any contraband or drug
paraphernalia found in plain view in the car is admissible.



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