J-A11024-18 & J-A11025-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                      Appellant                :
                                               :
                                               :
               v.                              :
                                               :
                                               :
    DAMIEN OMAR SEALS                          :   No. 1352 MDA 2017

                  Appeal from the Order Entered July 25, 2017
     In the Court of Common Pleas of Lancaster County Criminal Division at
                       No(s): CP-36-CR-0000725-2017


    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                        Appellant              :
                                               :
                                               :
                v.                             :
                                               :
                                               :
    SHALON JABRYLLE DEAN                       :   No. 1353 MDA 2017

                  Appeal from the Order Entered August 7, 2017
      In the Court of Common Pleas of Lancaster County Criminal Division at
                        No(s): CP-36-CR-0000907-2017

BEFORE:      STABILE, J., NICHOLS, J., and PLATT, J.*

MEMORANDUM BY NICHOLS, J.:                         FILED NOVEMBER 30, 2018

        The Commonwealth appeals1 from the orders granting the motions to

suppress evidence filed by Appellees Damien Omar Seals and Shalon Jabrylle


____________________________________________


*   Retired Senior Judge assigned to the Superior Court.

1   See Pa.R.A.P. 311(d).
J-A11024-18 & J-A11025-18



Dean.2    The Commonwealth claims the trial court erred in concluding that

there was no basis to detain and search the vehicle in which Appellees were

traveling.3   Additionally, the Commonwealth claims that the court erred in

suppressing the evidence discovered in the vehicle when Appellees lacked a

reasonable expectation of privacy in the vehicle and the search of the vehicle

was supported by reasonable suspicion. We conclude that the Commonwealth

failed to establish that the traffic stop was reasonable under the circumstances

of this case and therefore affirm the trial court’s order.

       The Commonwealth presented the following evidence at the suppression

hearing regarding the detention of Appellees. Officer James Boas testified

that on January 25, 2017, he was on duty with the Selective Enforcement Unit

(SEU) of the Lancaster City Police Department. N.T., Suppression, 7/25/17,

at 7. Both he and his partner, Officer Steven Reich, were working undercover

on a “buy/walk” detail.4 Id. at 8.

       At approximately 3:45 p.m., Officers Boas and Reich were walking south

on Queen Street and then turned east onto the 500 block of Howard Avenue.

At that time, Officer Boas testified that he heard loud music coming from

____________________________________________


2 Because these appeals regard the same facts and raise identical legal issues,
they have been consolidated for the purpose of disposition.

3 The Commonwealth’s claims have been reordered for the purposes of this
disposition.

4In a “buy/walk” detail, SEU utilizes undercover police officers to make drug
buys from subjects throughout Lancaster City. See N.T. at 7. The SEU detail
began at 12:00 or 1:00 p.m. that day. Id. at 14.

                                           -2-
J-A11024-18 & J-A11025-18



further down the block. Id. at 8. The officers determined that the music was

coming from a gray Mazda 3 sedan (the Mazda) parked on the south side

Howard Avenue. Id.

      Officer Boas estimated that the Mazda was approximately 100 feet away

when he first heard the music. Id. at 11. The officers walked by the Mazda

and recognized two of the occupants, Appellee Seals, who was in the front

passenger seat, and Maurice McNeil, who was the rear driver side passenger,

as “known drug dealers.” Id. at 5, 9, 11, 20. Officer Boas testified that after

walking past the Mazda, he could still hear the music from a distance of 200

feet. Id. at 12.

      Officer Boas testified that Officer Reich was wearing a wire transmitter,

which relayed the officers’ conversations to their primary surveillance officer.

Id. at 9. According to Officer Boas, he and Officer Reich used the transmitter

to provide information that they “heard loud music, ordinance violation,

coming from the Mazda . . . .” Id. Officer Reich reported “the location of the

vehicle, the known occupants of the vehicle, and the description of the

vehicle.” Id.

      Officer Boas explained that he and Officer Reich reported the noise

ordinance violation because it was

      a quality of life issue which is part of what we address. We weren’t
      able to buy any drugs from any subjects on the street at that time.
      There was nobody out in the block so we just g[a]ve [the
      surveillance officers] that information, you know, let them know
      that there [was] a noise ordinance violation in the area and g[a]ve
      them the determination of whether they want[ed] to stop the


                                     -3-
J-A11024-18 & J-A11025-18


       vehicle or not or they want[ed] us to continue to try and find
       subjects to purchase drugs from.

Id. at 11.

       On cross-examination, when asked whether he directed backup officers

to the Mazda to search for drugs, Officer Boas testified:

       I just want to make it clear that I did not direct them to stop
       anyone that day. I simply -- or Officer Reich actually simply
       advised the primary surveillance officer of the noise ordinance
       violation and we gave them the description of the vehicle and
       where it was parked. That’s what we did. We didn’t tell anyone to
       stop anybody, myself or Officer Reich.

Id. at 15. On redirect examination, Officer Boas again explained that he did

not direct other officers to stop the vehicle because he recognized two of the

occupants as drug dealers.5 Id. at 19-20.

       Sergeant Anthony Weaver testified that he was assigned to the SEU

detail in a “contact or arrest car” with his partner Detective Thomas Ginder.

Id. at 23. Sergeant Weaver and Detective Ginder’s vehicle was a marked

police vehicle and both were in full uniform with their badges on display. Id.

at 23. Sergeant Weaver and Detective Ginder were parked “a ways out” from

the 500 block of Howard Avenue. Id. at 26. Detective Ginder was driving the

police vehicle.

       Sergeant Weaver testified that around 3:45 p.m., he and Detective

Ginder received radio transmission from an SEU officer reporting that a vehicle

____________________________________________


5 The Commonwealth did not present evidence at the suppression hearing
supporting the allegation that Appellee Seals and McNeil were “known” drug
dealers.

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J-A11024-18 & J-A11025-18



violated the Lancaster City noise ordinance and requesting that they “stop that

vehicle.” Id. at 25. According to Sergeant Weaver, the report indicated that

there “were two subjects that were known to them as drug dealers” inside the

car. Id. at 26. Sergeant Weaver testified that the information relayed about

the two occupants “was purely an officer safety recommendation to us at that

point.”6 Id.

       Sergeant Weaver testified that after receiving the broadcast, Detective

Ginder began driving towards the 500 block of Howard Avenue, but traffic was

extremely heavy.        Sergeant Weaver stated that he and Detective Ginder

received information that “the Mazda was on the move” and were “directed to

the movement of that vehicle.” Id. at 48. Detective Ginder caught up to the

vehicle on the 500 block of East King Street.     Id.   On cross-examination,

Officer Weaver noted that he did not “see the car” until “entering the 500

block of East King” but knew where the Mazda was because “[i]t was being

followed by a surveillance vehicle.” Id.

       Sergeant Weaver described the following “red flags” after observing the

Mazda on the 500 block of East King Street. First, Sergeant Weaver testified

that after locating the Mazda on East King Street, Appellee Dean, who was in
____________________________________________


6   Specifically, Sergeant Weaver explained that the “officer safety
recommendation” meant that “those suspects engaged in dealing narcotics
are often armed, are often involved in violent crime, and SEU was aware that
these subjects were involved in drug dealing and wanted to advise us of that
. . . for our safety during the stop.” N.T. at 27. However, he stated that the
SEU officers did not tell them to approach the vehicle because there were
known drug dealers inside. Id. at 27.


                                           -5-
J-A11024-18 & J-A11025-18



the rear passenger seat of the Mazda, turned around and looked at the police

vehicle. Id. at 28. Immediately thereafter, the Mazda veered from the left

lane to the right travel lane and then to a spot along the right curb. Id. at

28.   Sergeant Weaver explained that in his experience, “subjects who are

engaged in criminal activity try[] to park quickly when police are observed

behind them.” Id. at 28.

      Second, after pulling in behind the Mazda, Sergeant Weaver explained:

      As we pulled in behind the vehicle which was now illegally parked
      in a no parking zone, I observed the two backseat passengers,
      that being again, [Appellee] Dean and the left rear passenger
      [McNeil], both of them made movements in the backseat that
      concerned me. These were movements to the slight left, slight
      right and shoulders rising and dipping.

      Again, I’ve seen those types of movements out of suspects who
      are armed during vehicle stops. I personally observed movements
      like that and have recovered handguns off of subjects, and those
      types of movements when you have a move to the left or the right
      and shoulders dipping up and down is indicative of a subject who
      is armed either removing or placing a handgun into a waistband
      or pocket.

Id. at 29.

      Third, Sergeant Weaver testified that Appellee Seals, the front

passenger, opened his door, which prompted Sergeant Weaver to “forcefully

direct[]” Appellee Seals to close the door and remain inside the vehicle. Id.

Sergeant Weaver testified that in his “nearly 17 years of experience, [he]

observed that type of activity from suspects, again, who are engaged in

criminal activity. Usually what this means is the suspect is trying to get away




                                     -6-
J-A11024-18 & J-A11025-18



from some sort of contraband or items that they want to separate themselves

from.” Id.

      Based on these “red flags” and his experience, Sergeant Weaver

testified he had “an extreme level of concern.” Id. at 27. He also stated that

he “was fairly certain and concerned that there was a handgun in the car.”

Id. at 30. Sergeant Weaver testified that these “red flags” caused “enough

concern that when we stopped the vehicle and I exited, I actually pulled my

duty weapon.” Id. at 28.

      Sergeant Weaver testified that he held his firearm at his chest with the

weapon pointed downward in a “safety circle.” Id. at 28-29. Furthermore,

based on his concerns, he positioned himself with a telephone pole between

himself and the Mazda and directed Detective Ginder to “watch the backseat.”

Id. at 29. Sergeant Weaver testified that he did not hear any music coming

from the Mazda when following the Mazda on East King Street, or immediately

after the stop. Id. at 27.

      The Commonwealth also played a portion of the audio and video

recordings from the motor vehicle recorder (MVR) on Officer Weaver’s vehicle

and admitted the entire recordings into evidence as Commonwealth’s Exhibit

1 (Exhibit 1). The recordings included video of the initial pursuit of the Mazda,

video and audio of the detention and search of the Mazda, and audio of

Appellees’ arrests at the scene.




                                      -7-
J-A11024-18 & J-A11025-18



        As to the detention, Exhibit 1 revealed the following.7 Sergeant Weaver

and Detective Ginder8 were parked along the right curb of a one-way road.

The roadway had two traveling lanes and a third lane for parking along the

right curb. The officers moved from the right parking lane to the right travel

lane and drove straight for approximately two to two and a half blocks in the

right travel lane.

        Thereafter, the Mazda first clearly appeared on the video when, at or

near an intersection, it moved from the right lane to the left lane in front of

Sergeant Weaver’s vehicle. At that point, there were approximately four cars

in the right lane between Sergeant Weaver’s vehicle and the Mazda. Detective

Ginder moved to the left lane. Once the officers moved into the left travel

lane, there were no cars between their police vehicle and the Mazda.9

        Detective Ginder followed the vehicle in the left lane and closed the

distance to the Mazda slightly, passing one of the four cars that had been

between the police vehicle and the Mazda in the right lane.10 Both the police
____________________________________________


7   The MVR recording is time-stamped and starts at 15:49:36.

8 It appears from the MVR recording that Detective Ginder was wearing a
tactical vest marked “Police” and that Sergeant Weaver was wearing a jacket
labelled “Police.”

9   See Ex. 1 at 15:50:16.

10There were irregular spaces between the four other cars in the right lane,
and there was no testimony regarding a more exact distance between the
police vehicle and the Mazda.




                                           -8-
J-A11024-18 & J-A11025-18



vehicle and the Mazda traveled in the left lane for approximately ten seconds,

after which the Mazda began moving into the right lane.11 Exhibit 1 did not

show Appellee Dean, who was in the rear passenger-side seat, looking back

at the police vehicle.      When the Mazda moved into the right travel lane,

Detective Ginder pulled into the right travel lane, remaining approximately

three car lengths away from the Mazda.

        The Mazda next appeared along the right curb in front of a store. The

Mazda was in the right parking lane, but that section of the lane was posted

as no parking. The Mazda was reversing as Detective Ginder pulled behind it.

The emergency lights of the police vehicle were activated as the subject

vehicle was braking,12 and the police vehicle came to a complete stop just

behind the subject vehicle as the Mazda was coming to a stop.13 The driver’s

window of the Mazda was already approximately two-thirds of the way down

as the Detective Ginder pulled behind it. No music could be heard when the

audio portion of the recording began.

        As noted above, Sergeant Weaver testified that based on the “red flags,”

he exited the police vehicle as it stopped, drew his service weapon, and


____________________________________________


11   See id. at 15:50:26.

12 Id. at 15:50:36. The police vehicle first pulled in behind the Mazda by the
right curb at around 15:50:33.

13   Id. at 15:50:40.




                                           -9-
J-A11024-18 & J-A11025-18



positioned himself with a telephone pole between himself and the Mazda.

Exhibit 1 suggested that approximately ten seconds after Detective Ginder

pulled into the far right non-travel lane behind the Mazda, Sergeant Weaver

was heard stating, “[W]atch the backseat.”14         However, there was little

indication in Exhibit 1 that the rear passengers were shifting their shoulders

after Detective Ginder pulled behind the Mazda along the right curb.

           Approximately five seconds after Sergeant Weaver’s warning to “watch

the backseat,” the front passenger door opened. Sergeant Weaver was heard

commanding Appellee Seals to “stay in the car” and close the door.15

           Approximately twenty seconds after Sergeant Weaver directed Appellee

Seals to stay in the car, Detective Ginder appeared in the video behind the

Mazda and used his radio to call in the license plate and description of the

Mazda.16 Approximately ten seconds after calling in the information and fifty

seconds after pulling in behind the Mazda, Detective Ginder approached the

vehicle on the driver side.17 Sergeant Weaver approached on the passenger

side.18
____________________________________________


14   Id. at 15:50:43.

15   Id. at 15:50:48.

16   Id. at 15:51:10.

17   Id. at 15:51:20.

18   Id.




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J-A11024-18 & J-A11025-18



        Sergeant Weaver ordered the backseat passengers to put their hands

on the headrests19 and the front seat passenger to put his hands on the

dashboard.20 Sergeant Weaver told the occupants, “[Y]ou guys were moving

around way too fucking much.”21 At that point, Detective Ginder was standing

by the rear wheel of the Mazda on the driver side, and Sergeant Weaver was

at the rear wheel of the Mazda on the passenger side.

        Detective Ginder was then heard speaking to the driver of the Mazda.

The detective stated that the driver improperly changed lanes in the middle

of an intersection. A voice apparently from the Mazda indicated, “I was just

going to the store.” Sergeant Weaver responded, “We’ll figure it out. When

we were pulling you over, you guys were moving all around making me

nervous.”22    Detective Ginder then approached the driver door and began

collecting paperwork from the driver through the driver’s window. 23 Shortly

thereafter, the rear driver-side window was rolled down approximately half

way, and additional paperwork was passed through the rear driver-side

window.
____________________________________________


19   Id. at 15:51:21.

20   Id. at 15:51:25.

21   Id. at 15:51:28.

22   Id. at 15:51:57.

23   Id. at 15:52:11.




                                          - 11 -
J-A11024-18 & J-A11025-18



        Sergeant Weaver was heard asking for “one more here.”24         A third

officer, wearing a vest labeled “Police K-9,” appeared in the video. Based on

the video and Sergeant Weaver’s testimony, the first K-9 officer on the video

recording was Officer Alexander.25

        The three officers in the video—Sergeant Weaver, Detective Ginder, and

Officer Alexander—stood by the rear of the vehicle waiting for backup.

Sergeant Weaver was then heard stating “I want to pull them all out”26 and to

“pat down all of them.” Three officers approached the vehicle as a fourth

officer, also wearing a “Police K-9” vest, appeared on the edge of the

recording.

        The officers then began the process of removing each occupant from the

car, frisking them, and placing them on the curb one at a time.27 This process

included a police officer opening the door, and having the occupant of the

Mazda step out backwards with his hands on his head. The officer would then

use one hand to hold the occupant’s hands on top of the occupants’ head and

walk the occupant backwards towards Sergeant Weaver’s vehicle. The officer
____________________________________________


24   Id. at 15:52:17.

25   Officer Alexander’s first name was not referenced in the record.

26   Id. at 15:54:32.

27Id. at 15:55:02. Sergeant Weaver estimated that a total of six officers
were at the scene when the process of removing the occupants of the Mazda
began. N.T. at 41.




                                          - 12 -
J-A11024-18 & J-A11025-18



would then continue to hold the occupant’s hands on the occupant’s head

while frisking the occupant with his free hand, then move the occupant to the

curb outside the view of the MVR. At all times, a second officer was in close

proximity to the officer removing and frisking the occupant. The occupants

were removed from the vehicle in the following order: (1) rear driver side

passenger, (2) driver,28 (3) rear passenger side passenger, Appellee Dean,29

and (4) front passenger, Appellee Seals.

       As to the search of the Mazda, the Commonwealth presented the

following evidence at the suppression hearing. Sergeant Weaver testified that

he initially planned to conduct a protective sweep of the Mazda for a weapon.

N.T. at 34. However, Sergeant Weaver stated that he smelled an odor of

burnt marijuana as the officers were removing the occupants of the Mazda.

Id. at 34.

       Officers closed all of the doors of the Mazda, and Officer Alexander and

his canine partner then walked around the exterior of the Mazda.        Officer

Alexander then opened the front door of the Mazda and placed his canine

partner inside the car. At some time during this process, the canine “hit” on

the center console. Sergeant Weaver and Officer Alexander then entered the
____________________________________________


28During the frisk of the driver, an officer recovered a pocket knife. Ex. 1 at
15:57:08; N.T. at 50.

29 Appellee Dean was found to be in possession of “plastic corner tie bag
containing crack cocaine.” See Aff. of Probable Cause, CP-36-CR-0000907-
2017, 1/25/17. It is not clear from the record when or where the cocaine was
recovered from Appellee Dean and there is no indication in Exhibit 1 that the
police discovered the cocaine during the frisk.

                                          - 13 -
J-A11024-18 & J-A11025-18



vehicle and recovered a bag and a grinder from the center console and forty

bags of heroin under the front passenger seat.

      Appellees were arrested as a result of the detention and search and

charged with possession with intent to deliver and conspiracy. Appellees Seals

and Dean filed omnibus pretrial motions on April 3, 2017, and May 10, 2017,

respectively. Appellees asserted that the initial detention of the vehicle was

unlawful and tainted the discovery of the contraband inside the vehicle. See

Appellee Seals’ Omnibus Pretrial Mot., 4/3/17, at 1-2; Appellee Dean’s

Omnibus Pretrial Mot., 5/10/17, at 2-3.

      The trial court held a hearing on both motions on July 25, 2017, at which

the Commonwealth presented the evidence summarized above. Appellees did

not testify or present evidence at the hearing.

      In the arguments on their motions to suppress, counsel for Appellees

argued that the stop and detention of the Mazda was pretextual. N.T. at 52-

53. Counsel for Appellee Seals also noted that the alleged furtive movements

and nervousness did not justify the seizure of Appellees. Id. at 52. Counsel

for Appellee Dean added that the backup officers unnecessarily extended the

stop beyond the stated purposes of the stop. Id. at 53-54.

      The Commonwealth responded that Appellees did not have a reasonable

expectation of privacy in the vehicle. Id. at 54. Moreover, when asked for

the basis of the seizure by the trial court, the Commonwealth engaged in the

following exchange with the court:




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J-A11024-18 & J-A11025-18


      [Commonwealth’s counsel]: . . . You have probable cause because
      of the noise ordinance. So the police go to the vehicle because of
      [probable cause] of the noise ordinance, which is a city ordinance.

      THE COURT: I’ll grant you that they have a basis for pulling the
      vehicle over for the noise ordinance. My question is, when does
      this all morph into probable cause to do all of the rest of the
      things?

      [Commonwealth’s counsel]: Well, it morphs into reasonable
      suspicion which then becomes probable cause based on the
      marijuana.

      THE COURT: Well, based on that, where does it morph into
      reasonable suspicion?

      [Commonwealth’s counsel]: That is when Detective Ginder and
      Sergeant Weaver are in the car following the Mazda and they see
      the furtive movements and the dipping, the shoulders dipping and
      the movement in the backseat.

      And you heard Sergeant Weaver testify that based on his training
      and experience, he knows that that is probably indicative of
      criminal activity because he knows they’re drug dealers.

      Drug dealers, based on his training and experience, usually carry
      weapons. What are these people doing in the backseat? They’re
      making furtive movements which are consistent with the police
      knowing that these are known drug dealers and making their
      furtive movements. That turns into reasonable suspicion.

Id. at 57-58.

      In further exchanges with the Commonwealth, the trial court dismissed

Sergeant Weaver’s opinion that the Mazda took evasive action when it moved

from the left travel lane of East King Street to the right curb:


      THE COURT: How is that evasive? I mean, that -- I heard Officer
      -- [S]ergeant Weaver testify to that. I don’t see that there's
      anything evasive about that whatsoever. As soon as they see
      there’s a police car behind them, they pull over to the right and
      stop. How is that evasive?


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J-A11024-18 & J-A11025-18


      [Commonwealth’s counsel]: The lights weren’t on on a marked
      police car.

      THE COURT: I didn’t say they were on. You’re saying that’s
      somehow evasive. Evasive is trying to elude these police officers,
      and that conduct is anything but, as I see it.

Id. at 59. Additionally, the trial court indicated that the fact that Appellee

Seals opened the front passenger-side door was not suspicious. Id. (“And

that’s questionable for some reason? How many times have drivers done the

same thing? You’ve seen it, I’ve seen it. That’s not at all an uncommon

reaction.”)

      At the conclusion of the hearing, the trial court suggested that the basis

for the stop was the information that there were two known drug dealers in

the Mazda. Id. at 61. The trial court granted Appellees’ suppression motion.

The court asserted that it did “not find justification for the stop made in this

situation, [and] certainly not for the search which ensued.” Id. at 61.

      The Commonwealth timely appealed and filed a court-ordered Pa.R.A.P.

1925(b) statement.     The trial court filed a responsive Pa.R.A.P. 1925(a)

opinion requesting that its ruling be affirmed.

      In its Rule 1925(a) opinion, the trial court suggested:

      Here, it is clear that the police had neither reasonable suspicion
      to[] stop the car, nor probable cause to search the car. The initial
      stop of the vehicle seemed to be predicated on an alleged noise
      violation, and the fact that two of the passengers in the vehicle
      were recognized by the officer as known drug dealers. Officer Boas
      testified that he heard loud music coming from the . . . vehicle in
      violation of city ordinance 198-4(B)(1)(b) while working a walking
      detail in an undercover capacity. He and his partner relayed the
      information to the primary surveillance officer. The actual vehicle


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J-A11024-18 & J-A11025-18


      stop occurred eight to ten blocks away from where Officer Boas
      first heard the noise violation.

      The officer who made the vehicle stop, [Sergeant] Weaver,
      testified that he was “contacted via radio and advised to stop a
      vehicle which had violated a city noise ordinance, and that there
      were two passengers in the vehicle that were known drug
      dealers.” [Sergeant] Weaver further testified that he did not hear
      any music from the car, but continued to follow the vehicle until it
      pulled over to the side of the road.” [Sergeant] Weaver said that
      he was concerned because of passenger behavior that raised “red
      flags”, specifically movements that he believed were indicative of
      a person who is armed either removing or placing a handgun into
      a waistband or pocket. The original intent of the stop was to give
      the driver a citation for violation of the noise ordinance, but based
      on these “red flags”; [Sergeant] Weaver drew his weapon, called
      for backup and removed the passengers. [Sergeant] Weaver
      further testified that he never informed the passengers of the
      vehicle that the stop was for a noise violation.

      It is clear based on these facts that the police lacked both the
      reasonable suspicion to stop the vehicle and the probable cause
      to search. First, it is settled that police may stop a vehicle for
      investigatory purposes where they have reasonable suspicion that
      criminal activity is afoot. That does not appear in the facts here,
      as [Sergeant] Weaver testified that just before they pulled over
      the vehicle, they did not hear music. Furthermore, [Sergeant]
      Weaver never told any occupants of the vehicle that they were
      being stopped for a violation of the noise ordinance. Instead, the
      stop seemed to be based on the “red flags” that [Sergeant]
      Weaver observed, and the fact that he was aware that there were
      known drug dealers in the vehicle.

Trial Ct. Op., 11/1/17, at 4-5 (unpaginated).

      The Commonwealth presents three issues, which have been reordered

as follows:

      1. Whether the suppression court erroneously granted
      suppression where the suppression court although initially finding
      that the police had a legal basis for stopping the vehicle in
      question due to the noise ordinance, shortly thereafter improperly
      determined there was no justification for the stop?

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J-A11024-18 & J-A11025-18


       2. Whether the suppression court erroneously determined there
       was no legitimate basis for searching the vehicle?

       3. Whether the suppression court erroneously granted
       suppression of the evidence because [Appellees] did not have an
       expectation of privacy in a vehicle as it was not owned nor
       operated by [them]?

Commonwealth’s Brief at 3.30

       The standards governing our review of an order granting suppression

are well settled.

       When the Commonwealth appeals from a suppression order, we
       follow a clearly defined standard of review and consider 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. The suppression court’s
       findings of fact bind an appellate court if the record supports those
       findings. The suppression court’s conclusions of law, however, are
       not binding on an appellate court, whose duty is to determine if
       the suppression court properly applied the law to the facts.

Commonwealth v. Vetter, 149 A.3d 71, 75 (Pa. Super. 2016), appeal

denied, 169 A.3d 577 (Pa. 2017).

       The Commonwealth first claims that the officer who detained Appellees

“had probable cause to stop and detain” the vehicle in which they were

traveling based on a violation of the Lancaster City noise ordinance.

Commonwealth’s Brief at 18.           The Commonwealth notes that undercover




____________________________________________


30 The Commonwealth’s briefs in 1352 and 1353 MDA 2017 are substantially
identical except for the names of the Appellees, and this decision will refer to
the briefs as the “Commonwealth’s Brief.”

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J-A11024-18 & J-A11025-18



officers first heard loud music coming from the parked vehicle from

approximately 100 feet away. Id. at 17. According to the Commonwealth,

      when the police do encounter this noise violation, the [o]fficers
      now have probable cause in which to detain the vehicle to issue a
      citation. The aforementioned vehicle . . . leaves where it is parked
      and proceeds to drive. The act of the car moving however, does
      not extinguish the probable cause to stop or detain the vehicle for
      the noise violation. This situation is analogous to when law
      enforcement sees a speeding car in violation of posted speed
      limits. Although the speeding vehicle may slow down before the
      police stop the car, the driver can still be legally cited for speeding.

Id. The Commonwealth provides no further discussion of the noise ordinance

and does not cite any legal authority supporting its analogy between a vehicle

stop for a noise ordinance violation and for speeding.

      As to the Commonwealth’s specific argument that a noise violation

justified the stop of the Mazda, both Appellees Seals and Dean maintain that

the stop was pretextual. Additionally, Appellee Seals notes,

      [t]here is no authority to arrest someone in Lancaster,
      Pennsylvania for a violation of the noise ordinance at 198-
      4.B(1)(b). Lancaster, Pennsylvania is a 3rd class city. 42 Pa.
      §8902(c) authorizes arrest without a warrant for violations of city
      ordinances for second class cities.[fn8] There was no indication that
      any of the occupants of the motor vehicle were involved in any
      crime.

            Though not contained in the record, Mr. Seals asks this
         [fn8]

         Honorable Court to take judicial notice of this fact.

Appellee Seals’ Brief at 16 (some footnotes omitted).

      Appellee Dean acknowledges that Officer Boas testified he heard a noise

violation, but notes Sergeant Weaver testified that “at no time in his pursuit



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of the vehicle, or when the vehicle was stopped, did he hear any noise or

music coming from the vehicle.” Appellee Dean’s Brief at 13. Appellee Dean

observes that the trial court, in its Rule 1925(a) opinion, referred to an

“alleged noise” violation and did not “accept as fact that an actual noise

violation . . . occurred.” Id. at 14. Appellee Dean emphasizes that the trial

court was under no obligation to credit Officer Boas’ testimony regarding the

noise violation. Id. (citing Commonwealth v. Santiago, 980 A.2d 659, 664

(Pa. Super. 2009), for the proposition that “it is the sole province of the

suppression court to weigh the credibility of the witnesses.        Further, the

suppression court judge is entitled to believe all, part or none of the evidence

presented” (citation omitted)).

      At the outset, Appellee Dean correctly notes that the trial court could

have found Officer Boas’ testimony that he heard a noise violation to be

incredible. See Santiago, 980 A.2d at 664. However, at the suppression

hearing, the trial court indicated that the Commonwealth presented “a basis

for pulling the vehicle over for the noise ordinance.” N.T. at 57. The trial

court only later referred to an “alleged noise violation” in its Rule 1925(a)

opinion.   Therefore, absent a clear indication that the trial court rejected

Officer Boas’ credibility at the suppression hearing, the use of the term

“alleged” in the trial court’s opinion does not evince a sufficiently clear

rejection of Officer Boas’ testimony. See Vetter, 149 A.3d at 75; Santiago,

980 A.2d at 664. Put differently, given the uncontradicted testimony at the

suppression hearing and the trial court’s initial finding, a legal analysis of the

                                      - 20 -
J-A11024-18 & J-A11025-18



validity of the stop must consider that Officer Boas, in fact, heard the noise

violation.

      Because the Commonwealth relies on that violation to justify the initial

detention of the vehicle, it is necessary to summarize the law regarding the

enforcement of Lancaster City’s noise ordinance. Lancaster City Ordinance

Chapter 198 provides in relevant part:

      B. Specific prohibitions. The following acts and the causing
      thereof are declared to be noise disturbances and therefore in
      violation of this chapter:

         (1) Radios, television sets, musical instruments and similar
         devices. Operating, playing or permitting the operation or
         playing of any . . . automobile radio, automobile stereo, high-
         fidelity equipment or similar device which produces,
         reproduces or amplifies sound:

                                    ***

         (b) In such a manner as to create a noise disturbance across
         a property line (boundary), or at 50 feet from such device,
         whichever is less, when the device is operated in or on a motor
         vehicle, or hand carried, on a public right-of-way or public
         space[.]

City of Lancaster Ordinance § 198-4B(1)(b). The penalty provision of Chapter

198 states:

      Whoever violates any provisions of this chapter shall, upon
      conviction thereof in a summary proceeding, be fined for a first
      offense, not less than $150 and not more than $1,000; for a
      second offense be fined not less than $300 and not more than
      $1,000; for a third offense be fined not less than $500 and not
      more than $1,000, to be collected as other fines and costs are by
      law collectible, or imprisoned for not more than 90 days, or both.
      Whoever violates any provision in this chapter for a fourth offense
      and for any subsequent conviction shall, upon conviction thereof

                                    - 21 -
J-A11024-18 & J-A11025-18


      in a summary proceeding, be fined $1,000, to be collected as
      other fines and costs are by law collectible, and be sentenced to a
      term of imprisonment of not less than five nor more than 90 days.
      ...

City of Lancaster Ordinance § 198-4A. The ordinance states that it “shall be

enforced by the Bureau of Police. In addition, the Animal Law Enforcement

Officer shall be authorized to enforce § 198-4B(6) [relating to noise from

animals and birds] and in so doing shall have the powers of a police officer

except the power of arrest.”          City of Lancaster Ordinance § 198-8

(emphasis added).

      Section 12005 of the Third Class City Code further provides:

      . . . A police officer may, without warrant and upon
      view, arrest and commit for hearing any and all individuals:

                                      ***

         (3) Violating any of the ordinances of the city for the violation
         of which a fine or penalty is imposed.

11 Pa.C.S. § 12005(3).

      Pennsylvania Rule of Criminal Procedure 400 provides that a summary

proceeding “shall be instituted either by: (1) issuing a citation to the

defendant; or (2) filing a citation; or (3) filing a complaint; or (4) arresting

without a warrant when arrest is specifically authorized by law.” Pa.R.Crim.P.

400. As to the issuance of a citation, Pa.R.Crim.P. 405 states:

      (1) the law enforcement officer who issues the citation shall
      exhibit an official sign of the officer’s authority; and




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J-A11024-18 & J-A11025-18


        (2) the law enforcement officer contemporaneously shall give the
        defendant a paper copy of the citation containing all the
        information required by Rule 403.[31]

Pa.R.Crim.P. 405. The comments to Rule 405 recognize that

        [a] law enforcement officer may issue a citation based upon
        information that the defendant has committed a summary
        violation, which information may be received from a personal
        observation of the commission of the offense; a witness; another
        police officer; investigation; or speed-timing equipment,
        including radar.

Pa.R.Crim.P. 405 cmt. (emphasis added); see also Commonwealth v.

Lockridge, 810 A.2d 1191, 1196 (Pa. 2002).

____________________________________________


31   Pa.R.Crim.P. 403 requires, in relevant part, that a citation contain:

        (1) the name and address of the organization, and badge number,
        if any, of the law enforcement officer;

        (2) the name and address of the defendant;

        (3) a notation if the defendant is under 18 years of age and
        whether the parents or guardians have been notified of the
        charge(s);

        (4) the date and time when the offense is alleged to have been
        committed, provided however, if the day of the week is an
        essential element of the offense charged, such day must be
        specifically set forth;

        (5) the place where the offense is alleged to have been
        committed;

        (6) a citation of the specific section and subsection of the statute
        or ordinance allegedly violated, together with a summary of the
        facts sufficient to advise the defendant of the nature of the offense
        charged;

        (7) the date of issuance . . .

Pa.R.Crim.P. 403(A)(1)-(7).

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J-A11024-18 & J-A11025-18



        In Lockridge, the Pennsylvania Supreme Court observed that the rules

governing the institution of a summary proceeding

        are designed to favor the least intrusive means of commencing a
        summary proceeding, and contemplate that summary cases will
        be instituted, not by arrest, but by the handing of a citation to a
        defendant at the time the offense is allegedly committed. These
        procedures also recognize, however, that the immediate issuance
        of a citation to a defendant is not always feasible, and provide for
        the filing of a citation with a district justice.

Lockridge, 810 A.2d at 1195 (citations omitted) (discussing introductory

comments to Chapter 4 of the Pennsylvania Rules of Criminal Procedure).

        As to an arrest, Pa.R.Crim.P. 440 states: “When an arrest without a

warrant in a summary case is authorized by law, a police officer who exhibits

some sign of authority may institute proceedings by such an arrest.”

Pa.R.Crim.P. 440. The comments to Rule 440 provide: “It is intended that

these    proceedings    will   be   instituted   by   arrest   only   in   exceptional

circumstances such as those involving violence, or the imminent threat of

violence, or those involving a danger that the defendant will flee.”            Pa.R.

Crim.P. 440 cmt.       The arresting officer must also “promptly release” the

individual unless the individual poses a threat of immediate physical harm or

there are grounds to believe that the individual will not appear to answer the

citation. Pa.R.Crim.P. 441.

        Therefore, under the relevant statutes, rules, and ordinances, a

Lancaster City police officer possess the authority to arrest an individual

without a warrant “upon view” of a violation of Chapter 198 and under



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J-A11024-18 & J-A11025-18



execeptional circumstances, including flight.      See 11 Pa.C.S. § 12005(3);

Pa.R.Crim.P. 400(4); cf. City of Lancaster Ordinance § 198-8. An officer may

issue a citation for a violation of Chapter 198 based on information obtained

from another police officer. See Pa.R.Crim.P. 400(1)-(2), 405 cmt. In the

instant case, the remaining question is whether an officer may stop a vehicle

to issue a citation for a noise violation when there is no dispute that the noise

violation ended by the time of the traffic stop.

      The Commonwealth’s analogy to a “speeding car in violation of posted

speed limits” provides little guidance. We note that the Pennsylvania Supreme

Court has recognized that “‘[w]hen vesting a group with police powers and

duties, the Legislature does so with specificity.’” Commonwealth v. Bullers,

599 A.2d 662, 666 (Pa. Super. 1991).          Violations such as speeding are

governed by Motor Vehicle Code, which contains the following specific

enforcement provision:

      Whenever a police officer is engaged in a systematic program of
      checking vehicles or drivers or has reasonable suspicion that a
      violation of this title is occurring or has occurred, he may
      stop a vehicle, upon request or signal, for the purpose of
      checking the vehicle’s registration, proof of financial
      responsibility, vehicle identification number or engine number or
      the driver’s license, or to secure such other information as the
      officer may reasonably believe to be necessary to enforce the
      provisions of this title.

75 Pa.C.S. § 6308(b) (emphasis added).         As noted above, Rule 400 also

permits the commencement of summary proceeding by issuing a citation. See

Pa.R.Crim.P. 400. Therefore, when read together, 75 Pa.C.S. § 6308(b) and


                                     - 25 -
J-A11024-18 & J-A11025-18



Rule 400 authorize an officer to stop a vehicle for present and past violations

of the Motor Vehicle Code to issue a citation. Accordingly, without more, the

Commonwealth’s analogy does not validate the stop for the noise violation

under the facts of this case. See Bullers, 599 A.2d at 666.

      There is one published decision in Pennsylvania, in which an officer

stopped a vehicle for a violation of a noise ordinance. See Commonwealth

v. Scott, 878 A.2d 874 (Pa. Super. 2005). However, the officer stopping the

defendant’s vehicle in Scott personally observed the offense. Scott, 878 A.2d

at 876. Furthermore, the defendant only challenged the constitutionality of

Philadelphia’s noise ordinance, which was promulgated under the Philadelphia

Traffic Code, as vague and overbroad. Id. at 878-80. Therefore, Scott is of

little guidance, and in the absence of controlling statute, rule of procedure, or

case law, it is necessary to consider the general constitutional principles that

govern seizures.

      It is well settled that: “Article I, § 8 of the Pennsylvania Constitution and

the Fourth Amendment to the United States Constitution both protect the

people from unreasonable searches and seizures. Jurisprudence arising under

both charters has led to the development of three categories of interactions

between citizens and police.” Commonwealth v. Lyles, 97 A.3d 298, 302

(Pa. 2014) (citations omitted).

      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

                                      - 26 -
J-A11024-18 & J-A11025-18


     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.

Commonwealth v. Pakacki, 901 A.2d 983, 987 (Pa. 2006) (citations

omitted).

     As to an investigative detention, this Court has stated:

     the Terry “stop and frisk,” permits a police officer to briefly detain
     a citizen for investigatory purposes if the officer “observes unusual
     conduct which leads him to reasonably conclude, in light of his
     experience, that criminal activity may be afoot.” [Terry v. Ohio,
     392 U.S. 1, 30 (1968)].

     Terry further held that “[w]hen an officer is justified in believing
     that the individual whose suspicious behavior he is investigating
     at close range is armed and presently dangerous to the officer or
     to others” the officer may conduct a pat down search “to
     determine whether the person is in fact carrying a weapon.” “The
     purpose of this limited search is not to discover evidence of crime,
     but to allow the officer to pursue his investigation without fear of
     violence.”

     . . . In order to determine whether the police had reasonable
     suspicion, the totality of the circumstances—the whole picture—
     must be considered. “Based upon that whole picture the detaining
     officers must have a particularized and objective basis for
     suspecting the particular person stopped of criminal activity.” To
     conduct a pat down for weapons, a limited search or “frisk” of the
     suspect, the officer must reasonably believe that his safety or the
     safety of others is threatened. If either the seizure (the initial
     stop) or the search (the frisk) is found to be unreasonable, the
     remedy is to exclude all evidence derived from the illegal
     government activity.

     The Terry totality of the circumstances test applies to traffic stops
     or roadside encounters in the same way that it applies to typical
     police encounters. Moreover, the principles of Terry apply to all
     occupants of the stopped vehicle, not just the driver. Indeed, as
     we have observed, “roadside encounters, between police and
     suspects are especially hazardous, and that danger may arise


                                    - 27 -
J-A11024-18 & J-A11025-18


      from the possible presence of weapons in the area surrounding a
      suspect.”

Commonwealth v. Simmons, 17 A.3d 399, 403 (Pa. Super. 2011) (citations

omitted).

      “The essential purpose of the proscriptions in the Fourth Amendment is

to impose a standard of ‘reasonableness’[] upon the exercise of discretion by

government officials, including law enforcement agents, in order to safeguard

the privacy and security of individuals against arbitrary invasions . . . .”

Delaware v. Prouse, 440 U.S. 648, 653-54 (1979) (citations and quotation

marks omitted). “In order to determine the reasonableness of a particular

search or seizure a balancing analysis is utilized, wherein the intrusion on the

individual of a particular law enforcement practice is balanced against the

government’s promotion of legitimate interests.”          Commonwealth v.

Blouse, 611 A.2d 1177, 1178 (Pa. 1992) (citations omitted).

      As to pretext, however, courts have generally rejected the notion that a

Terry stop is invalid where there is an objective basis to detain a vehicle or

an individual for even a minor infraction. See Whren v. U.S., 517 U.S. 806,

813 (1996); Commonwealth v. Chase, 960 A.2d 108, 120 (Pa. 2008);

Commonwealth v. Harris, 176 A.3d 1009, 1020 (Pa. Super. 2017).

Therefore, for the purposes of a Fourth Amendment Terry analysis, an

officer’s subjective or actual motivations are not determinative in the

reasonableness of a stop. See Whren, 517 U.S. at 813.




                                     - 28 -
J-A11024-18 & J-A11025-18



      The issuance of a citation necessarily involves a brief period during

which a pedestrian or a subject of a vehicle stop will not be free to leave while

the officer obtains information from an individual. See 75 Pa.C.S. § 6308(b)

(authorizing an officer conducting a traffic stop to check “the vehicle’s

registration, proof of financial responsibility, vehicle identification number or

engine number or the driver’s license, or . . . secure such other information

as the officer may reasonably believe to be necessary to enforce the provisions

of” the Motor Vehicle Code); Pa.R.Crim.P. 403(A)(2) (requiring that a citation

contain the name and address of the defendant).

      It is further settled that there is a “diminished expectation of privacy in

a motor vehicle as compared to a residence or office, due to the pervasive

governmental regulation of, and local law enforcement’s extensive contact

with, motor vehicles.” Commonwealth v. Gary, 91 A.3d 102, 110 (Pa. 2014)

(citation omitted) (discussing United States Supreme Court’s reasoning for

permitting warrantless searches for vehicles); see also id. at 127 (discussing

the diminished expectation of privacy in a vehicle under the Pennsylvania

Constitution). Nevertheless, Pennsylvania courts continue to recognize that

      [a]n individual operating or traveling in an automobile does not
      lose all reasonable expectation of privacy simply because the
      automobile and its use is subject to government regulation.
      Automobile travel is a basic, pervasive, and often necessary mode
      of transportation to and from one’s home, workplace and leisure
      activities. Many people spend more hours each day traveling in
      cars than walking on the streets. Undoubtedly, many find a
      greater sense of security and privacy traveling in an automobile
      than they do in exposing themselves by pedestrian or other modes
      of travel.


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J-A11024-18 & J-A11025-18



Commonweath v. Enick, 70 A.3d 843, 848 n.5 (Pa. Super. 2013) (citation

omitted); see also Prouse, 440 U.S. at 657 (noting traffic stops involve “a

possibly unsettling show of authority[,]” “interfere with freedom of movement,

are inconvenient, and consume time[,]” and may result in “substantial

anxiety” in the individual being stopped).

      From   a   constitutional   perspective,   there   appears    to   be    little

distinguishing between the intrusiveness of a stop of a pedestrian and a stop

of a motor vehicle. See Berkemer v. McCarty, 468 U.S. 420, 439 (1984)

(noting that “the usual traffic stop is more analogous to a so-called ‘Terry

stop[’] than to a formal arrest” and holding that Miranda warnings are not

necessary during an ordinary traffic stop); Simmons, 17 A.3d at 403. As the

Berkemer Court noted:

      [A] detention of a motorist pursuant to a traffic stop is
      presumptively temporary and brief. The vast majority of roadside
      detentions last only a few minutes. A motorist’s expectations,
      when he sees a policeman’s light flashing behind him, are that he
      will be obliged to spend a short period of time answering questions
      and waiting while the officer checks his license and registration,
      that he may then be given a citation, but that in the end he most
      likely will be allowed to continue on his way.[] . . . [The]
      circumstances associated with the typical traffic stop are not such
      that the motorist feels completely at the mercy of the police. To
      be sure, the aura of authority surrounding an armed, uniformed
      officer and the knowledge that the officer has some discretion in
      deciding whether to issue a citation, in combination, exert some
      pressure on the detainee to respond to questions. But other
      aspects of the situation substantially offset these forces. Perhaps
      most importantly, the typical traffic stop is public, at least to some
      degree. Passersby, on foot or in other cars, witness the interaction
      of officer and motorist. This exposure to public view both reduces
      the ability of an unscrupulous policeman to use illegitimate means
      to elicit self-incriminating statements and diminishes the

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J-A11024-18 & J-A11025-18


     motorist’s fear that, if he does not cooperate, he will be subjected
     to abuse. The fact that the detained motorist typically is
     confronted by only one or at most two policemen further mutes
     his sense of vulnerability.

Id. at 437-38.

     A government, in turn, has a legitimate interest in regulating noise

through ordinances.   Furthermore, the government’s interest in enforcing

violations of its laws and regulations is paramount when there is probable

cause to believe a violation occurred or, as here, the violation has been

established.   See Whren, 517 U.S. at 817 (“It is of course true that in

principle every Fourth Amendment case, since it turns upon a ‘reasonableness’

determination, involves a balancing of all relevant factors. With rare

exceptions . . ., however, the result of that balancing is not in doubt where

the search or seizure is based upon probable cause.”).

     Nevertheless, this Court cannot ignore the substantial differences

between a Motor Vehicle Code violation and a violation of a noise ordinance.

With respect to the Motor Vehicle Code, “[t]he state has a vital interest in

maintaining highway safety by ensuring that only qualified drivers are

permitted to operate motor vehicles, and that their vehicles operate safely,

thus assuring that dangerous drivers as well as dangerous automobiles are

kept off the road.”   See Chase, 960 A.2d at 120 (citation omitted).        By

contrast, noise ordinances promote legitimate quality of life issues by




                                    - 31 -
J-A11024-18 & J-A11025-18



regulating excessive noise.32          Those quality of life issues are far less

substantial than the public safety interests in the enforcement of even minor

violations of the Motor Vehicle Code.

        Further, the governmental interests in enforcing a noise ordinance is

diminished, where, as here, there is no indication that the noise rose to the

level of disorderly conduct.33 There were no reported complaints from the

public, and the individual violating the statute ceased the noise without further

intervention from the public or the police. There was no indication that the

Mazda or its occupants were involved in prior noise violations or noise

complaints.     Indeed, aside from Officer Boas’ testimony that he heard the

noise violation from 100 feet and then 200 feet after passing the Mazda, the

Commonwealth failed to establish how long the noise violation occurred or

whether the violation was ongoing when the Mazda left the 500 block of

Howard Avenue.
____________________________________________


32   Chapter 198 was enacted with the following purpose:

        The Council, finding that excessive levels of sound are detrimental
        to the physical, mental and social well-being of the residents as
        well as to their comfort, living conditions, general welfare and
        safety, and being therefore a public health and welfare hazard,
        hereby declares it to be necessary to provide for the greater
        control and more effective regulation of excessive sound and the
        sources of excessive sound within the City.

City of Lancaster Ordinance § 198-1.

33 See 18 Pa.C.S. § 5503(a)(2) (“A person is guilty of disorderly conduct if,
with intent to cause public inconvenience, annoyance or alarm, or recklessly
creating a risk thereof, he . . . (2) makes unreasonable noise”).

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J-A11024-18 & J-A11025-18



       Under these circumstances, the Commonwealth failed to establish that

the initial stop of the Mazda was reasonable under the circumstances. The

statutes and rules governing the commencement of summary proceedings

express a preference that an officer commence the process at the time of the

offense. See 11 Pa.C.S. § 12005(3) (permitting an arrest upon view of the

offense); Lockridge, 810 A.2d at 1995 (noting the rules for commencing a

summary proceeding favor the use of least restrictive means and contemplate

that in ordinary circumstances, an officer will hand the defendant a citation at

the time of the offense). An officer may issue a citation based on information

obtained    from    another     officer,   see      Pa.R.Crim.P.   405   cmt.;   accord

Commonwealth v. Yong, 177 A.3d 876, 888 (Pa. 2018) (discussing

collective knowledge doctrine). However, there is no express authority for an

officer to stop a motor vehicle based on a noise ordinance violation. Moreover,

the Commonwealth has not established a governmental interest outweighing

the individuals’ interests in the freedom of movement when traveling in the

Mazda.34    To summarize, Officer Boas made brief observation of the noise

violation when the Mazda was parked on the 500 block of Howard Avenue,

there was no indication that the violation was ongoing when the Mazda left

the scene, and Sergeant Weaver stopped the Mazda eight blocks away without


____________________________________________


34The Commonwealth does not suggest that the “red flags” testified to by
Sergeant Weaver constitute an independent basis to stop the vehicle, nor
would there be any support for such an argument. See Commonwealth v.
DeWitt, 608 A.2d 1030, 1034 (Pa. 1992)

                                           - 33 -
J-A11024-18 & J-A11025-18



hearing any music. Accordingly, the trial court properly concluded that that

stop of the Mazda was unreasonable.

       Because we conclude that the Commonwealth failed to establish the

legality of the initial stop, we briefly address the Commonwealth’s further

arguments that there was reasonable suspicion to search the vehicle and that

Appellees failed to establish an expectation of privacy in the Mazda.         See

Commonwealth v. Shabezz, 166 A.3d 278, 290 (Pa. 2017).

       In Shabezz, the Pennsylvania Supreme Court considered “whether the

illegal seizure, by itself, renders all tainted evidence suppressible as fruit of

the poisonous tree . . . .”35 Id. at 287. To answer that question, the Shabezz

Court established the following framework:

       The inquiry simply is whether the evidence was obtained via
       exploitation of the initial illegality. . . . [W]hen the defendant
       seeking suppression following an illegal vehicle stop is the
       passenger, “[t]he dispositive legal issue is the causal relationship
       between the traffic stop and the discovery of the evidence:
       whether the evidence found in the car was ‘fruit’ of the illegal
       stop.” So long as the taint of the initial illegality has not been
       removed by other circumstances, the inquiry involves nothing
       more.

Id. at 289. Applying that framework, the Court concluded:

       [the defendant] was a passenger in a vehicle that was blocked in
       by numerous police vehicles. The police seized the vehicle,
       proceeded to search it, and uncovered contraband. The search
       occurred very shortly after the police prevented the vehicle from
       leaving the lot and arrested the four individuals. The discovery of
       contraband was a direct and immediate consequence of the
____________________________________________


35 In Shabezz, the Court found that the stop of the vehicle in which the
defendant was travelling was illegal. Shabezz, 166 A.3d at 284.

                                          - 34 -
J-A11024-18 & J-A11025-18


     seizure, and, thus, was an “exploitation” of the constitutional
     violation.

     The record is devoid of any indicia that the taint of the illegal
     seizure was removed before the police searched the car and found
     evidence. None of the traditional circumstances that have been
     found to purge the taint of an unconstitutional act, i.e.
     attenuation, inevitable discovery, independent source, or some
     intervening act or event are present in this case. The search
     occurred minutes after the seizure, a lapse in time short enough
     to leave no viable argument that the search was sufficiently
     attenuated from the seizure so as to purge the taint of the initial
     illegality. Additionally, although [the defendant] briefly fled the
     scene and was chased by two officers, other officers remained with
     the vehicle and commenced the search immediately upon [the
     defendant’s] return to the scene. Nothing about [the defendant’s]
     brief flight from the scene broke the direct causal chain between
     the illegal seizure and the search of the vehicle.

     Similarly, the flight itself was insufficient to purge the taint of the
     initial illegality. The flight was brief. [The defendant] was
     apprehended within a few blocks of the 7–11 lot. A minimal
     amount of time passed between the seizure and [the defendant’s]
     subsequent apprehension. Those two events were not sufficiently
     attenuated from one another so as to break the chain of events
     flowing directly from the initial seizure. Flight, standing alone,
     does not ipso facto cure the illegality of a seizure.

Id. at 290.

     Instantly, the Commonwealth does not argue any of the traditional

circumstances that could purge the taint of the initial illegal stop. See id.

Accordingly, because the initial stop was illegal, and in the absence of any

argument that the subsequent actions by the officers were sufficiently

attenuated from the stop, we discern no merit to the Commonwealth’s

arguments that the search was proper or that Appellees were required to

demonstrate an expectation of privacy in the vehicle. See id.

     Orders affirmed.

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J-A11024-18 & J-A11025-18



Judge Stabile concurs in the result

Judge Platt concurs in the result.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/30/2018




                                      - 36 -
