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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA            :   IN THE SUPERIOR COURT OF
                                         :        PENNSYLVANIA
                   Appellant             :
                                         :
                                         :
              v.                         :
                                         :
                                         :
 ARMON JORDAN MATEO                      :   No. 470 MDA 2018

             Appeal from the Order Entered February 14, 2018
  In the Court of Common Pleas of York County Criminal Division at No(s):
                        CP-67-CR-0006008-2017


BEFORE: LAZARUS, J., DUBOW, J., and NICHOLS, J.

MEMORANDUM BY LAZARUS, J.:                      FILED FEBRUARY 13, 2019

      The Commonwealth of Pennsylvania appeals from the trial court’s order

granting Defendant’s motion to suppress drugs and firearms uncovered

following the stop and search of Defendant’s car. After careful review, we

affirm.

      On August 17, 2017, at 2:14 p.m., Officers Daniel Craven and

Christopher Martin of the York City Police Department were working detail, in

a marked patrol vehicle, for recent shootings and gang violence in the city. A

detective told them that he had a tip that a group of individuals who possibly

possessed firearms were in a parking lot, just east of a local public park,

“standing around an orange pick-up truck and a black Chrysler sedan.” N.T.

Omnibus Pre-Trial Hearing, 12/18/17, at 3. The tip also indicated that one

particular individual in the group, Anton Hampton, was the specific target who

had a weapon. Id. at 3-4. Within minutes, the officers arrived on the scene
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and observed five individuals standing around an orange truck and black

Chrysler sedan. Id. at 5. For safety reasons, the officers quickly alighted

from their vehicle with their service weapons drawn, handcuffed the

individuals and ordered them to lie on their stomachs on the ground. Id. at

6. The officers then conducted pat-downs of each of the five suspects. No

contraband or firearms were found as a result of the frisks. After patting down

the individuals, Officer Craven collected their identifications and “tr[ied] to

figure out who everyone was.” Id. At the same time, Officer Martin looked

into the front driver’s-side window of the locked, black Chrysler and observed

a bag of marijuana on the driver’s side floor. After retrieving the keys from

the Defendant’s pocket and opening the car door, the officers found a silver

revolver on the driver’s side floor mat. The officers then performed a search

of the vehicle and found a black Glock semi-automatic pistol under the driver’s

seat.1

         Prior to trial, Defendant filed an omnibus motion seeking to suppress

the evidence uncovered from the warrantless search of his car.           After a

hearing, the court granted the motion.           The Commonwealth filed a timely

notice of appeal from that order, as well as a certification under Pa.R.A.P.

311(d)2 and complied with the trial court’s order for a Pa.R.A.P. 1925(b)
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1 After the search of the car, officers ran a check for outstanding warrants on
the suspects and to confirm their identities. The officers testified that they
did not believe any of the individuals had outstanding warrants.

2 The Commonwealth has certified that the order will terminate or
substantially handicap the prosecution. See Pa.R.A.P. 311(d).

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concise statement of errors complained of on appeal. The Commonwealth

presents the following issues for our consideration:

      (1)   Whether the trial court erred in granting the Defendant’s
            Omnibus Pretrial Motion suppressing the evidence in its
            findings that the initial police seizure of the Defendant
            constituted a custodial detention, rather than an
            investigatory detention that was supported by reasonable
            suspicion.

      (2)   Even if police exceeded the scope of the investigatory
            detention by its duration, whether the trial court erred in
            granting the Defendant’s Omnibus Pretrial Motion [and]
            suppressing as fruits of the poisonous tree the marijuana
            and firearms seized from inside the Defendant’s vehicle,
            where that vehicle was parked on a public street and police
            observed the evidence in plain view independently of the
            Defendant’s detention, thereby having an independent basis
            to conduct a warrantless search of the vehicle, supported by
            probable cause and exigent circumstances.

      (3)   Whether the trial court erred in granting the Defendant’s
            Omnibus Pretrial Motion [and] suppressing [as] fruits of the
            poisonous tree the marijuana and firearms seized from
            inside the Defendant’s vehicle, where the evidence was
            legally seized under the Inevitable Discovery doctrine, as
            the police possessed probable cause and exigent
            circumstances to enter the Defendant’s vehicle and seize the
            evidence without a warrant, and could have done so without
            obtaining and using the Defendant’s car key.

Appellant’s Brief, at 3 (renumbered for ease of disposition).

      When the Commonwealth appeals from a suppression order, the
      Superior Court of Pennsylvania follows a clearly defined scope and
      standard of review: the appellate court considers 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.




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Commonwealth v. Thorne, 191 A.3d 901, 903 (Pa. Super. 2018) (citation

omitted).

       Instantly, the trial judge stated his reasons for granting suppression as

follows:

       Here, based on a totality of the circumstances, along with the
       Commonwealth conceding that the officers detained all five (5)
       individuals, this Court finds that the interaction [among] the
       officers and the five (5) individuals constituted a custodial
       detention. In reaching such a conclusion, this Court considered
       the following testimony: first, aside from Officer Craven and
       Officer Martin being present, a number of additional officers
       arrived on the scene during the interaction; second, the officers
       were aggressive with the individuals, immediately ordering them
       to lay on the ground on their stomachs, and notifying them that
       they were not free to leave; third, the interaction occurred in a
       public park, in the middle of the day; fourth, upon arriving in a
       marked patrol vehicle, the officers immediately jumped out and
       brandished their weapons; fifth, the officers patted down the
       individuals for weapons and then immediately detained them in
       handcuffs while the officers ran identification and warrant checks.
       As such, the contact constituted a custodial detention[3] and was
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3 Whether this encounter constituted an investigative detention or rose to the
level of a custodial detention is of no moment to the resolution of the issue on
appeal, as in either case the officers no longer had reasonable suspicion or
probable cause to detain the individuals at the time they conducted the vehicle
search. We note that the following factors may be considered in determining
whether a detention is custodial: (1) the basis for the detention (the crime
suspected and the grounds for suspicion); (2) the duration of the detention;
the location of the detention (public or private); (3) whether the suspect was
transported against his will (how far, why); (4) the method of the detention
(restraints utilized); (5) the show, threat or use of force; and (6) the
investigative methods used to confirm or dispel suspicions. Commonwealth
v. Ellis, 549 A.2d 1323, 1332 (Pa. Super. 1988). We also recognize that the
handcuffing of a suspect, by itself, does not convert an investigative detention
into an arrest. Commonwealth v. Rosas, 875 A.2d 341, 348 (Pa. Super.
2005); see also Commonwealth v. Guillespie, 745 A.2d 654, 660-61 (Pa.



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        required to be supported by probable cause. However, this Court
        finds the Commonwealth failed to establish such.

Trial Court Order and Opinion in Support of Granting Defendant’s Omnibus

Pre-Trial Motion to Suppress Evidence, 2/14/18,4 at 6-8

        The question of when a traffic stop has concluded or otherwise given

way to a new interaction does not lend itself to a “brightline” definition. In

the Interest of J.N., 878 A.2d 82, 85 (Pa. Super. 2005); see generally

Commonwealth v. Rogers, 849 A.3d 1185 (Pa. 2004) (Supreme Court

discussed whether officer “had reasonable suspicion to detain [the defendant]

beyond the initial traffic stop.”). Here, the officers were investigating a tip

that there was “a guy with a gun in a public area.” N.T. Omnibus Pre-Trial
____________________________________________


Super. 2000) (for safety purposes, police officers may handcuff individuals
during investigative detention). Moreover, every Terry stop involves a stop
and period of time during which the suspect is not free to go but is subject to
the control of the police officer detaining him. See Terry v. Ohio, 392 U.S.
1 (1968).

4   We remind the trial judge that pursuant to Pa.R.Crim.P. 581(I):

        At the conclusion of the [suppression] hearing, the judge
        shall enter on the record a statement of findings of fact and
        conclusions of law as to whether the evidence was obtained in
        violation of the defendant’s rights, or in violation of these rules or
        any statute, and shall make an order granting or denying the relief
        sought.

Pa.R.Crim.P. 581(I)(emphasis added). Here, the judge waited almost two
months before issuing his order and accompanying opinion outlining his
findings of facts and conclusions of law. Clearly, the rule’s intended purpose
of immediacy in making findings and conclusions is to protect against fading
memories and credibility determinations made after-the-fact on the cold
record.




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Hearing, 12/18/17, at 22. Once the officers secured the area, handcuffed the

individuals, and conducted pat-downs that uncovered no weapons or drugs on

the suspects,5 they no longer had reasonable suspicion to detain the

individuals, let alone search one of their cars.     At that point, the initial

investigation concluded and the officers needed reasonable suspicion or

probable cause to further detain the individuals. Both were simply lacking.

       The Commonwealth’s argument that the marijuana was in plain view or

would have been inevitably discovered is disingenuous. First, for the plain

view doctrine to apply as an exception to the warrant requirement, the

officers, among other things, must have a lawful right of access to the object.

Commonwealth v. Brown, 23 A.3d 544, 552 (Pa. Super. 2011). Second,

the inevitable discovery rule only applies if the object ultimately would have

been discovered by lawful means. Commonwealth v. Perel, 107 A.3d 185

(Pa. Super. 2014).       Again, because the officers no longer had reasonable

suspicion that the suspects were armed and dangerous, they did not have

lawful access to the Defendant’s vehicle and the drugs and firearms would not


____________________________________________


5 Officer Martin testified that he was conducting “a cursory search [of the
outside] of the vehicles . . . [to] mak[e] sure there were no weapons stashed
on top of tires or under cars or things of that nature.” N.T. Omnibus Pre-Trial
Hearing, 12/18/17, at 23. However, the officers did not testify that they had
reason to believe that their safety was at risk where the detained subjects
were surrounded by officers, handcuffed and lying on the ground on their
stomachs.




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have been inevitably discovered “though lawful means.”           Therefore,

considering 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, Thorne, supra, we conclude that the trial

court properly suppressed the physical evidence uncovered from the illegal,

warrantless search of Defendant’s car.

       Order affirmed.6



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 02/13/2019




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6We note that we may affirm the trial court’s determination on any grounds.
Commonwealth v Gatlos, 76 A.3d 44, 62 n.14 (Pa. Super. 2013).

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