J-A28043-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    TASJUAN DELAJIS WASHINGTON                 :
                                               :
                       Appellant               :   No. 853 MDA 2018

             Appeal from the Judgment of Sentence May 14, 2018
      In the Court of Common Pleas of Adams County Criminal Division at
                        No(s): CP-01-CR-0000340-2016


BEFORE: LAZARUS, J., OLSON, J., and MUSMANNO, J.

MEMORANDUM BY LAZARUS, J.:                          FILED NOVEMBER 16, 2018

       Tasjuan Delajis Washington appeals from the judgment of sentence,

entered in the Court of Common Pleas of Adams County, following his

conviction for driving under the influence of a controlled substance 1 and a

related offense.       Washington claims that the trial court should have

suppressed statements he made to police during the course of a traffic stop,


____________________________________________


1 75 Pa.C.S. § 3802(d)(2). Washington was also found guilty of the summary
offense of “turning movements and required signals,” 75 Pa.C.S. § 3334(a),
for his failure to use turn signal during the incident. Two other charges, counts
1 & 2, were withdrawn due to Washington’s blood tests being deemed
inadmissible under Birchfield v. North Dakota, 136 S.Ct. 2160 (2016)
(invalidating any criminal sanction assessed for refusing to submit to blood
test in absence of a warrant; U.S. Supreme Court determined police must
either seek warrant or show exigent circumstances for such blood tests).
Washington was also found not guilty of driving on roadways laned for traffic
because there was no testimony that Washington’s crossing of the center line
of traffic prior to the stop was unsafe or presentence a danger to motorists or
property.
J-A28043-18



where he had not been given his Miranda warnings before making the

statements.   After careful review, we affirm.

     The trial court aptly stated the facts underlying this case as follows:

     [O]n March 23, 2018, Gettysburg Borough Officer Shannon
     Hilliard testified that he has undergone special training pertinent
     to detecting and enforcing driving under the influence laws.
     Specifically, Officer Hilliard completed the ARIDE seminar, which
     is primarily geared towards the detection of drug impairment.
     Officer Hilliard testified that he has made approximately 475 DUI
     arrests and that of these 475 DUI arrests, about 30% of them
     involved drug impairment.

     On the evening of January 30, 2016, Officer Hilliard was working
     an overnight shift and was in full uniform and was operating a
     marked police vehicle. Around 2:00 A.M. Officer Hilliard testified
     that he witnessed [Washington] fail to utilize a turning signal when
     pulling out of a parallel parking space and the car appeared to
     have dark tinted windows. Officer Hilliard witnessed the driver of
     the vehicle participate in suspicious behavior when he turned off
     of Stratton Street, onto Hazel Alley, which has no main attractions
     other than the S[tate] C[riminal] A[lien] A[ssistance] P[rogram]
     building. Almost immediately thereafter, the vehicle reemerged
     on Stratton Street. Officer Hilliard testified that he began to follow
     the car and witnessed the car cross over the center line dividing
     traffic at least three times. Officer Hilliard testified that he did not
     observe anything on the roadway that would cause the Appellant
     to swerve to avoid hitting something.

     Officer Hilliard activated his vehicle’s emergency equipment after
     witnessing the vehicle cross over the center line for the third time.
     When Officer Hilliard approached the vehicle, he noticed that
     [Washington] was driving the vehicle and one passenger was in
     the car.       Officer Hilliard testified that he observed that
     [Washington] had bloodshot and glassy eyes and detected a
     strong odor of burnt marijuana. Officer Hilliard obtained
     [Washington’s] driver’s license, registration, and insurance. Upon
     Officer Hilliard approaching the car to return the documents to
     [Washington], he noticed that an overpowering odor of cologne
     was emanating from the car. He testified that this smell was not
     detected when he originally approached the vehicle. At this point,


                                      -2-
J-A28043-18


     Officer Hilliard asked [Washington] to step out of the car and
     perform field sobriety testing.

     [Washington] performed both the Romberg balance test and the
     one-leg stand test. During the Romberg test Officer Hilliard was
     looking for eyelid tremors, swaying, balance, and to see how close
     to thirty seconds [Washington] was able to estimate. In this case,
     Officer Hilliard testified that he observed eyelid tremors, swaying
     back and forth, and completion of the test after 23 seconds.
     Officer Hilliard testified that he was trained that all of these
     observations are indications of impairment.

     During the one[-]leg stand test[,] Officer Hilliard testified [he] was
     looking for raising of the arms to maintain balance, if the individual
     is actually watching the raised foot, if the foot is parallel to the
     ground, if the foot is about six inches off of the ground, if the
     individual is swaying, and if the individual’s counting is aligned
     with the Officer’s timing. Officer Hilliard testified that he observed
     [Washington] swaying back and forth and his hands were raised
     at shoulder height to maintain balance. Officer Hilliard testified
     that these are indications of impairment.

     Officer Hilliard testified that the one-leg stand test can be
     indicative of alcohol impairment and drug impairment and the
     Romberg balance test is one of the primary indicators of marijuana
     impairment.

     After he made these observations[,] Officer Hilliard asked
     [Washington] if he had consumed marijuana within the past 12
     hours. [Washington] indicated that he had. Officer Hilliard next
     asked [Washington] how recently. [Washington] replied that it
     was within the past four hours. [Washington] was not read his
     Miranda rights before these two questions were asked. At the
     time these two questions were asked, two additional officers were
     five feet away from Officer Hilliard and [Washington]. Officer
     Hilliard testified that to his knowledge, neither of the officers
     interacted with [Washington] in any way during this time. Officer
     Hilliard testified that at the time these questions were asked, he
     was standing with [Washington] in between [Washington’s]
     vehicle and his police cruiser. [Washington] was not handcuffed
     at this time and he was not told that he was not free to leave, and
     he was not told that he was under arrest. Approximately six to
     eight minutes had passed from the time the stop was initiated to
     the time these two questions were asked.



                                     -3-
J-A28043-18


        Officer Hilliard testified that these questions were asked to confirm
        his suspicions that [Washington had] used marijuana.

Trial Court Opinion, 6/25/18, at 1-3.

        The trial court concluded that the stop did not evolve into a custodial

interrogation warranting the administration of Miranda warnings prior to

Officer Hillard asking Washington if he had been smoking marijuana.

Accordingly, the court denied Washington’s motion to suppress and proceeded

to a bench trial, after which Washington was found guilty of the above-

mentioned offenses.2       On May 14, 2018, Washington was sentenced to 72

hours to six months of confinement in county prison and ordered to pay fines;

he was immediately eligible for work release. Washington filed a timely notice

of appeal and court-ordered Pa.R.A.P. 1925(b) concise statement of errors

____________________________________________


2   We remind the trial court 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 the 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 trial judge noted, at the
conclusion of the suppression hearing, “time circumstances don’t allow for an
on-the-record recitation of findings of fact. We will prepare those later today,
if necessary, but the bottom line is I reviewed the case law cited by the
Commonwealth, and based on that, legal precedent would agree with the
Commonwealth that this was not a custodial interrogation.” N.T. Suppression
Hearing/Non-Jury Trial, 3/23/18, at 28. We do not believe that the cursory
on-the-record analysis performed by the trial court supplants the more
detailed and thoughtful process espoused by Rule 581.




                                           -4-
J-A28043-18



complained of on appeal. This appeal follows, in which Washington presents

one issue for our review:

       Did the lower court err in failing to suppress [Washington’s] self-
       incriminating statements where he was stopped by police, had his
       documentation taken from him, was made to exit his vehicle in
       [the] dead of winter to perform field sobriety tests, was not told
       that he was free to leave, and was subjected to interrogation in
       the presence of three uniformed police officers, without being
       given Miranda[3] warnings?

       Washington contends that no reasonable person would have believed

that he or she was free to leave at the time Officer Hilldale elicited

incriminating statements from him in the middle of a cold winter night, at 2:00

AM, on an Adams County roadway. Thus, he contends it was incumbent upon

Officer Hillard to have given him his Miranda rights prior to interrogating him.

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

Court set forth the relevant standard of review for an appeal of a suppression

order:

       In an appeal from the denial of a motion to suppress, [the]
       Pennsylvania [S]uperior [C]ourt’s role is to determine whether the
       record supports the suppression court's factual findings and the
       legitimacy of the inferences and legal conclusions drawn from
       those findings. In making this determination, the court may
       consider only the evidence of the prosecution’s witnesses and so
       much of the defense as, fairly read in the context of the record as
       a whole, remains uncontradicted. When the evidence supports
       the factual findings of the suppression court, the reviewing court
       may reverse only if there is an error in the legal conclusions drawn
       from those factual findings. As a reviewing court, it is, therefore,
       not bound by the legal conclusions of the suppression court and
____________________________________________


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



                                           -5-
J-A28043-18


       must reverse that court’s determination if the conclusions are in
       error or the law is misapplied.

Id. at 972-73.

       There are two requirements that must be met before Miranda will apply

to a given situation:         custody and interrogation.    Commonwealth v.

Whitehead, 629 A.2d 142 (Pa. Super. 1993).                 Police detentions are

considered custodial, when “under a totality of the circumstances, the

conditions and/or duration of the detention become so coercive as to

constitute the functional equivalent of arrest.” Commonwealth v. Ellis, 549

A.2d 1323, 1332 (Pa. Super. 1988) (citation omitted).          A court uses the

following factors to determine whether a detention has become so coercive as

to constitute the functional equivalent of a formal arrest: (1) the basis for the

detention; (2) the duration of the detention; (3) the location of the detention;

(4) whether the suspect was transferred against his will, how far, and why;

(5) whether restraints were used; (6) the show, threat, or use of force; and

(7) the methods of investigation used to confirm or dispel an officer’s

suspicions. Commonwealth v. Williams, 941 A.2d 14, 31 (Pa. Super. 2008)

(citations omitted).

       Here, Washington was properly subjected to a traffic stop4 when officer

Hillard observed him fail to use a turn signal as he pulled out of a parallel
____________________________________________


4 Although not an issue on appeal, we note that if the alleged basis of a
vehicular stop is to determine whether there has been compliance with the
Commonwealth’s Vehicle Code, it is incumbent upon the officer to articulate
specific facts possessed by him, at the time of the questioned stop, which



                                           -6-
J-A28043-18



parking space, Washington’s car appeared to have heavily tinted windows,

and he saw the vehicle cross over the center dividing line of the road several

times. N.T. Suppression Hearing/Non-Jury Trial, 3/23/18, at 6- 9. At this

point,   the   officer   activated    his      emergency    equipment   and   stopped

Washington’s vehicle on a public roadway.                  Id. at 10.   Officer Hillard

____________________________________________


would provide probable cause to believe that the vehicle or the driver was in
violation of some provision of the code. Commonwealth v. Spieler, 887
A.2d 1271 (Pa. Super. 2005). However, if an officer stops a vehicle for the
purpose of obtaining necessary information to enforce the provisions of the
Code, the stop need only be based on reasonable suspicion that a violation of
the Code has occurred. 75 Pa.C.S. § 6308(b).

Instantly, among other things, Officer Hillard stopped Washington’s vehicle
because he had failed to use his turn signal as he entered the lane of traffic
from a parking spot. Under section 3334:

          (a) General rule. -- Upon a roadway no person shall turn
          a vehicle or move from one traffic lane to another or enter
          the traffic stream from a parked position unless and
          until the movement can be made with reasonable safety nor
          without giving an appropriate signal in the manner
          provided in this section.

          (b) Signals on turning and starting. -- At speeds of less than
          35 miles per hour, an appropriate signal of intention to turn
          right or left shall be given continuously during not less than
          the last 100 feet traveled by the vehicle before turning. The
          signal shall be given during not less than the last 300 feet
          at speeds in excess of 35 miles per hour. The signal shall
          also be given prior to entry of the vehicle into the traffic
          stream from a parked position.

75 Pa.C.S. § 3334 (emphasis added). Officer Hillard had probable cause to
stop Washington because he did not need any more information to confirm
that he reasonably believed Washington had violated section 3334 of the
Vehicle Code by failing to use his turn signal.




                                            -7-
J-A28043-18



approached Washington’s vehicle, at which point he noticed that Washington

had bloodshot, glassy eyes and detected a strong odor of burnt marijuana

emanating from the open driver’s side window of the vehicle. Id. Officer

Hillard testified that the marijuana odor grew stronger when Washington

spoke. Id. Officer Hillard retrieved Washington’s license, registration and

insurance information and ran them through the police data base system. The

data base information indicated that Washington’s license was valid and his

vehicle registration active. Id. at 11. Officer Hillard returned to Washington’s

vehicle,5 where he detected an “overpowering odor of . . . a body spray or

cologne” in the vehicle that had not been present when he first approached it.

Id. Officer Hillard then asked Washington to step out of the car to perform

field sobriety tests on him. At this point, two more armed, uniformed officers

arrived on the scene in their marked vehicles.       The other officers stood

approximately five feet away from Officer Hillard and Washington on the

sidewalk.     As Officer Hillard performed the tests, Officer Hillard noticed

Washington have eye tremors, sway back and forth, and have trouble

maintaining his balance without raising his arms to shoulder height. Id. at

15. After noticing these obvious signs of impairment, and without first giving

him his Miranda rights, Officer Hillard asked Washington if he had consumed

marijuana in the past twelve hours. Id. at 16. When Washington replied that

____________________________________________


5 The record is unclear as to whether Officer Hillard returned the documents
to Washington before he asked him to exit the vehicle and performed the field
sobriety tests upon him.

                                           -8-
J-A28043-18



he had used marijuana recently, Officer Hillard asked him how recently he had

used the drug. Id. Washington told the officer he had smoked marijuana

within the past four hours. Id. At this point, Officer Hillard placed Washington

under arrest. Id. at 19.

      The fundamental question in this appeal is whether Washington’s

encounter with police, which began as an investigative detention, rose to the

level of a custodial interrogation warranting Miranda warnings prior to the

officer asking Washington any questions. Applying the Williams factors to

determine whether Washington, based upon a reasonable person standard,

would think he was in custody at that time, we note the following: (1) the

officer was detaining Washington to determine whether he was under the

influence of drugs; (2) the detention lasted between 6-8 minutes in total; (3)

the stop occurred on a public roadway at 2:00 AM; (4) Washington was not

transferred anywhere against his will; (5) no restraints were used on

Washington; (6) no show, threat or use of force occurred; and (7) the officer

asked for Washington’s license, registration and insurance information, had

him perform field sobriety tests, and asked him one initial question and one

follow-up question. Williams, supra.

      While the record reveals that there were two other armed, uniformed

officers at the scene, standing five feet from Washington when he was

questioned, Officer Hillard testified that he did not recall these officers

interacting with Washington at all during the stop and there is no evidence to

contradict that recollection. Here, Officer Hillard asked Washington questions

                                     -9-
J-A28043-18



as part of his “investigative responsibilities to establish what occurred[.]”

Proctor, 657 A.2d 8, 13 (Pa. Super. 1995). Washington’s responses to Officer

Hillard’s questions were voluntary; he was never told that he could not leave

the scene or refuse to answer the questions.         Moreover, the conditions

surrounding the stop were not coercive or custodial such that they would have

led a reasonable person to believe that he or she was under arrest.

Commonwealth v. Sullivan, 581 A.2d 956 (Pa. Super. 1990) (where

defendant was not placed under arrest, forced to enter police patrol car,

subjected to coercion or prolonged questioning during traffic stop, Miranda

warnings not necessary where defendant spontaneously uttered “Oh, I’m

drunk.”).

      Viewed under a totality of the circumstances, we believe that the record

supports the trial court’s factual findings and legal conclusion that it was not

necessary for Officer Hillard to administer Washington his Miranda rights prior

to posing limited, relevant questions. See Commonwealth v. Toanone, 553

A.2d 998, 1003 (Pa. Super. 1989) (“police need only give Miranda warnings

while detaining a suspect by the side of a public highway when the suspect is

actually placed under arrest or when the questioning of the suspect is so

prolonged or coercive as to approximate the atmosphere of a station house

interrogation.”) (citations and footnote omitted); see also Proctor, supra

(typically, officer may ask detainee, during routine traffic stop, moderate

number of questions to determine identity and obtain information confirming

or dispelling officer’s suspicion; detainee is not obliged to respond and, if

                                     - 10 -
J-A28043-18



detainee’s answers do not provide officer with probable cause to arrest,

detainee must be released). We find no error. Turner, supra.

     Judgment of sentence affirmed.

     Judge Musmanno joins the Memorandum.

     Judge Olson concurs in the result.




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/16/2018




                                  - 11 -
