J-S69034-17

                                  2017 PA Super 402


    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                      Appellant                :
                                               :
                                               :
               v.                              :
                                               :
                                               :
    TATIAHNA AFRICA HARRIS                     :   No. 686 WDA 2017

                       Appeal from the Order April 24, 2017
     In the Court of Common Pleas of Westmoreland County Criminal Division
                        at No(s): CP-65-CR-0006281-2016


BEFORE:      BOWES, J., RANSOM, J., and STEVENS*, P.J.E.

OPINION BY STEVENS, P.J.E.:                          FILED DECEMBER 20, 2017

        The Commonwealth appeals from the order entered in the Court of

Common Pleas of Westmoreland County granting the pre-trial suppression

motion filed by Appellee Tatiahna Africa Harris. After a careful review, we

reverse and remand for further proceedings.

        The relevant facts and procedural history are as follows: Appellee was

arrested, and he was charged with receiving stolen property, criminal use of

a communication facility, firearms not to be carried without a license,

possession with the intent to deliver a controlled substance, and possession

of drug paraphernalia.1 On February 24, 2017, Appellee filed a counseled,

pre-trial motion seeking to suppress the physical evidence seized by the
____________________________________________


1
 18 Pa.C.S.A. §§ 3925, 7512, 6106, and 35 P.S. §§ 780-112(a)(30), (16),
and (32), respectively.


____________________________________
* Former Justice specially assigned to the Superior Court.
J-S69034-17


police from his vehicle and person. Specifically, Appellee averred a police

officer improperly stopped his vehicle based solely on unreliable allegations

made to the officer from a confidential informant (“CI”). Further, Appellee

averred that, prior to a K-9 sniff of his car, the police officer arrested

Appellee without probable cause.   Accordingly, Appellee contended that all

physical evidence seized by the police should be suppressed as “fruit of the

poisonous tree.”

     On April 24, 2017, the matter proceeded to a suppression hearing at

which the sole testifying witness was Greensburg Police Officer Garret

McNamara.     Specifically, Officer McNamara testified that he has been a

police officer with the Greensburg Police Department for three years and,

throughout this time, a certain CI has provided information to the police

department with regard to illegal drugs.      N.T., 4/24/17, at 5.    Officer

McNamara indicated that he has personally received information from the CI

in five other cases, four of which have led to convictions and one of which

was pending. Id. at 5-6.

     On November 5, 2016, during the afternoon, Officer McNamara

received information from the CI indicating that, later in the day, a black

male in a white sedan would be coming from a gym to sell crack cocaine at a

residence on Euclid Avenue and then returning to Jeanette. Id. at 6-7. The

officer knew the CI frequently stayed at the residence on Euclid Avenue, and

the CI told him he was currently staying at the residence. Id. at 7. Officer


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McNamara also knew the CI, as well as other people who resided at the

residence on Euclid Avenue, “to be user[s] of crack cocaine[.]” Id. at 8.

      The CI indicated that he would be willing to provide additional

information with regard to the sale of the crack cocaine; however, he was

concerned someone in the house might overhear him on the telephone. Id.

at 8-9.   Accordingly, Officer McNamara and the CI agreed that when the

male dealer “would be leaving the residence, [the CI] was going to call

dispatch and hang-up and dispatch would know the phone number and they

would inform [Officer McNamara] that meant that the male, [who] was

selling the crack cocaine, was leaving the residence.” Id.

      Later that day, Officer McNamara, who was in the area of Euclid

Avenue, received a dispatch informing him that the awaited for “hang-up

phone call had come in[.]” Id. at 9.     Officer McNamara testified that, less

than 30 seconds later, he saw a white sedan matching the description

provided to him by the CI leaving Euclid Avenue and travelling towards

Jeannette. Id. at 9-10. In response, Officer McNamara provided the plate

number to the police dispatch, who replied that the vehicle was registered to

“Destiny Wise out of Herminie.”    Id. at 10, 17-18. Based on his training,

Officer McNamara was aware that “it is common for individuals selling drugs

to use other people’s vehicles[.]” Id. at 18.

      Officer McNamara indicated that, as he followed the vehicle, he

“observed window tint on the vehicle and [he] initiated a traffic stop.” Id. at


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10.   He testified the window tint, which covered all of the vehicle’s side

windows, was “extremely dark” and, as a result, he could not see inside of

the vehicle through the passenger side of the vehicle. Id.     He noted that,

when looking through the passenger-side window, he could not determine

whether a male or female was driving the vehicle. Id.

      Officer McNamara effectuated a traffic stop of the vehicle “just outside

of the city,” and identified the sole occupant, Appellee, who was driving the

vehicle. Id. at 10-11. Appellee informed him that “he was coming from the

gym and he was going to go back home towards Jeannette.”            Id. at 12.

Appellee denied “ever being on Euclid Avenue.” Id. Officer McNamara, who

had just followed Appellee’s vehicle from Euclid Avenue, informed Appellee

that he had just seen him on Euclid Avenue; however, Appellee continued to

deny that he had been on Euclid Avenue. Id.

      Officer McNamara requested assistance from the K-9 unit and twice

requested Appellee to exit the vehicle.    Id. at 13, 21.   Appellee refused,

resulting in Officer McNamara opening the driver’s side door, grabbing

Appellee’s arm, and removing him from the vehicle.          Id. at 21.    After

Appellee was out of the vehicle, he was handcuffed and the K-9 sniffed the

exterior of the vehicle, alerting the police to the front driver’s seat and the

front headlight. Id. at 13.

      As a result, Officer McNamara conducted a search of the vehicle,

discovering a handgun under a pile of clothes on the rear driver’s seat,


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$265.00 in U.S. currency, two cell phones, and an Altoids container, which

the officer believed contained drug residue.      Id. at 14-15.    The officer

provided the serial number of the gun to police dispatch, who responded

that the handgun had been reported stolen, and Officer McNamara

determined that Appellee did not have a valid license to carry a firearm in a

vehicle. Id. at 15-17.

      At this point, the officer placed Appellee in the back of the police

cruiser, indicating he was under arrest, and subsequently conducted an

inventory search of Appellee at the police station.   Id. at 17.   During this

search, the officer discovered Appellee had crack cocaine inside of his boxer

briefs, as well as additional currency on his person. Id.   Subsequent testing

revealed the Altoids container did not contain drug residue.

      On cross-examination, Officer McNamara confirmed that he did not

observe the white sedan arrive at the Euclid Avenue address, but “30

seconds later [he saw] the vehicle, that [he] believe[d] was described by the

[CI], leave the residence in that area[.]” Id. at 24.       Officer McNamara

indicated he followed the sedan for roughly one mile before effectuating a

traffic stop. Id. Officer McNamara confirmed the sedan had dark window

tint and the license plate information indicated the sedan belonged to

Destiny Wise. Id.




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      Officer McNamara clarified that, prior to stopping the sedan, he was

aware that a black male, and not a female, was driving the sedan. Id. at

25. Specifically, he testified:

      Q: But you don’t know if Destiny Wise is driving the car at this
      point?
      A: Well, it was a black male driving that vehicle, sir.
      Q: Well, how do you know that? You didn’t see a black male
      driving the vehicle, did you?
      A: Yes, I did.
      Q: And when was that?
      A: Whenever he was coming up Euclid, coming passed [sic].
      Q: You were able to see through the window tint and identify a
      black male?
      A: His driver window was down. The passenger window was the
      window that was up.
      Q: So his driver window was down, and at that point you’re able
      to see a black male?
      A: Yes, sir, at that time.
      Q: And that confirms         the    information   you   had   received
      previously, correct?
      A: Yes.

Id. at 24-25.

      Further, on cross-examination, as to the reason he stopped the

vehicle, Officer McNamara testified as follows:

      Q: So at some point you do initiate a motor vehicle stop, but this
      would be for the window tint that you have observed, correct?
      A: Yes, sir.
      Q: Okay. Then, you follow up by approaching the vehicle, right?
      A: Yes, sir.
      Q: At that point you observed a black male driving the car?


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J-S69034-17


                                       ***
      Did you inform him why he was being pulled over at that point?
      A: I told him window tint.

Id. at 26-27.

      Officer McNamara confirmed that he determined Appellee had a valid

driver’s license but asked him to step out of the vehicle. Id. at 28. Officer

McNamara noted Appellee twice refused, so he assisted him out of the sedan

and handcuffed him as he waited for the K-9 unit. Id. at 29-32. Although

Appellee was handcuffed, Officer McNamara indicated that Appellee was

permitted to stand behind the white sedan and he was not placed in the

police cruiser at this time. Id. at 32. The K-9 sniff occurred approximately

fifteen minutes later. Id. at 29-32.

      As to whether Officer McNamara had evidence that the search of the

sedan would yield contraband, the relevant exchange occurred:

      Q: At this point [when you remove Appellee from the vehicle and
      handcuff him,] you have no evidence that [Appellee] has any
      drugs on his person, do you?
      A: Besides my reliable informant, no, sir.
      Q: And you don’t see any kind of drugs in the vehicle?
      A: Not in—no, not in plain view.
      Q: And you don’t see a firearm sitting in the rear, do you?
      A: I can’t see through that tint, sir.
      Q: So at this point [before the K-9 sniff] there’s really nothing
      more than the [CI’s] word and the fact that [Appellee’s car]
      windows are tinted, correct?
      A: Correct.
      Q: Okay. So the dog does eventually arrive on scene, right?


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J-S69034-17


      A: Yes, sir.
      Q: And it gives some indication that there [is] some form of
      narcotics in the vehicle, right?
      A: Yes, sir.
                                  ***
      Q: So, after the dog makes the hits, you actually open up the
      vehicle, right, to perform a search?
      A: Yes, sir. We searched the vehicle.
      Q: And at that point you find the firearm, correct?
      A: Yes, sir, the handgun.

Id. at 34-35. Officer McNamara indicated that Appellee was then informed

he was under arrest and placed in the police cruiser. Id. at 36.

      On re-direct examination, Officer McNamara reiterated that, prior to

initiating the traffic stop, he was able to view the driver through the driver’s

side window, which was rolled down, and that the driver and vehicle

matched the description provided to him by the CI. Id. at 38. The relevant

exchange occurred between Officer McNamara and the prosecutor:

      Q: At some point, I guess, when you’re dealing with this
      informant, on the other occasions when you’ve dealt with this
      person, had they told you identifying information that they knew
      about an individual who was going to be selling drugs or having
      drugs----
      A: Yes, sir.
      Q: --if the informant knew the person?
      A: Yes, sir.
      Q: Did you investigate at all or talk at all with the informant
      about whether or not they knew any identifying information
      about this person?
      A: I did.
      Q: Okay. And did the informant know any identifying information
      about who was coming to sell crack that day?

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J-S69034-17


     A: He did not. He wasn’t really privy to that information.     He
     just knew that a black male in a white sedan was coming.
     Q: Okay. Did he advise you whether he or someone else in the
     home had ordered up, for lack of a better term, the drugs that
     day?
     A: Yes, sir.      Another resident he told me was purchasing
     cocaine.
     Q: Okay. So the information he got from that person was what
     he relayed to you, and it didn’t include the name or anything
     identifying, other than black male in white sedan?
     A: Correct.

Id. at 38-39.

     Upon questioning by the suppression court, Officer McNamara clarified

the CI contacted him and in an initial conversation the CI reported a male

was “coming to Euclid to sell.” Id. at 40. He believed the CI identified the

buyer at that time as “Juanita.” Id. at 41. In a second conversation, which

occurred approximately half an hour later, the CI reported the buyer was

going to be a black male driving a white sedan.        Id. at 43.    Officer

McNamara admitted that he did not ask the CI how he knew this

information, and the CI did not unilaterally provide him with such

information.    Id.   He noted that, during the second conversation, they

devised the plan whereby the CI would call dispatch and hang-up as a signal

that the sedan was leaving the Euclid Avenue residence with “the deal just

being done.” Id. at 44.

     Upon further redirect examination, Officer McNamara confirmed that

he was aware the CI had acted as an informant for the Greensburg Police in



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J-S69034-17


the past. Id. at 47. Moreover, Officer McNamara noted that the CI had told

him that the other residents of Euclid Avenue did not “trust him.” Id. Thus,

the CI told the officer that, when drug deals occurred at the residence, he

was put in the bathroom with the door shut so that all he could see was the

car arriving. Id. at 48.

      Officer McNamara again confirmed that he was posted near the subject

Euclid residence and, within 30 seconds of being contacted by dispatch

regarding the pre-arranged hang-up signal, he observed the white sedan

leaving Euclid Avenue.     Id. at 49.   The officer noted that he knew the

“Juanita” to whom the CI referred, Juanita was a user of drugs, and, in fact,

Juanita had been arrested and prosecuted successfully based on past

information provided to the officer from the CI. Id.

      At the conclusion of the suppression hearing, the suppression court

granted Appellee’s motion to suppress, and the Commonwealth filed a timely

notice of appeal, certifying therein that the suppression court’s order would

terminate or substantially handicap the prosecution of Appellee.         See

Pa.R.A.P. 311(d) (permitting the Commonwealth to           appeal from an

interlocutory order if it certifies the order will terminate or substantially

handicap the prosecution). The lower court ordered the Commonwealth to

file a Pa.R.A.P. 1925(b) statement, and the Commonwealth timely complied.

The suppression court filed a Pa.R.A.P. 1925(a) opinion explaining the




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J-S69034-17


reasons for its suppression ruling. Specifically, the court relevantly indicated

the following:

            There was insufficient probable cause to justify the stop of
      the vehicle and the warrantless arrest of its occupant.
             In In re O.A., 552 Pa. 666, 717 A.2d 490
      (1998)[(plurality, Cappy, J.)] because the informant did not
      establish probable cause, coupled with the lack of independent
      corroboration by the arresting officer, the evidence seized as a
      result of the warrantless search was suppressed. [In that case,]
      like the case at bar, the CI provided no information as to when
      he saw drugs in the defendant’s possession, or if he observed
      any drug transaction.
             The court [in In re O.A.] noted that the case involved the
      convergence of a warrantless search with a warrantless arrest.
      A warrantless search is presumed unreasonable unless incident
      to probable cause. Id. at 495. Probable cause exists at the
      moment the arrest occurs where the facts and circumstances
      within the officer’s knowledge are sufficient to warrant a person
      of reasonable caution in the belief that an offense has been or is
      being committed. Mere suspicion is not a substitute for probable
      cause. Commonwealth v. Stokes, 480 Pa. 38, 389 A.2d 74
      (1978). Where the officer’s actions resulted from information
      gleaned from an informant, the informant’s veracity, reliability,
      and basis of knowledge must be assessed. In Stokes, the
      informant had been told by a third party that the defendant
      admitted to a shooting. This hearsay information was deemed
      insufficient to establish probable cause.
             The lower court in In re O.A. relied on the assertion that
      the informant provided reliable information in the past-the
      officer claimed that the CI had provided tips leading to 50
      arrests. The Supreme Court, however, concluded that an
      assertion by a police officer as to an informant’s reliability, with
      no objective facts to substantiate his assertions, is insufficient to
      support a finding of probable cause. Id. at 496. The court
      found that where police are acting solely on the basis of an
      informant’s tip, and the reliability of the CI is not established by
      objective facts, it is essential that the tip provide adequate
      communication that the informant has actual knowledge that
      criminal conduct is occurring or has occurred at the time the
      warrantless arrest is made. Id. at 497.


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            The police officers in In re O.A. did not personally observe
     any drugs in the defendant’s possession, nor did they observe
     any drug transactions. Thus, the court concluded the record was
     devoid of any facts that would support a finding that the
     informant’s unsubstantiated tip was corroborated by other
     evidence gathered by the arresting officers. [The court in In re
     O.A. held that “a] finding of probable cause in the instant case
     would amount to a finding of probable cause to arrest any
     person on the street corner by the mere assertion of a police
     officer that a CI told him this particular individual was dealing
     drugs and that the CI was reliable.” The court refused to
     condone arrests based upon the bald assertions that an
     informant had proved reliable in the past, without any
     consideration of whether there is a fair probability that the
     person arrested actually committed a crime.
           In Stokes, the court noted that information provided by
     certain classes of persons may be sufficient to establish probable
     cause: the uncorroborated confession of an accomplice, or the
     statement of a victim, or an eyewitness whose identity is known.
     In Stokes, the arresting officer relied upon information by an
     informant who was not an accomplice, eyewitness or victim, and
     which amounted to hearsay by one who had no first-hand
     knowledge of the crime. Because the CI’s information was
     hearsay, and did not establish probable cause, the evidence was
     suppressed.
            In Commonwealth v. Clark, 611 Pa. 601, 28 A.3d 1284
     (2011), the court held that an informant’s tip may constitute
     probable cause where the tip is independently corroborated, or
     where the informant has provided accurate information of
     criminal activity in the past, or where the informant himself
     participated in the criminal activity. In Clark, although the
     affidavit contained no express statement quantifying the CI’s
     reliability or basis of knowledge, the police had corroborated
     significant details of the informant’s tip the day before by
     observing a controlled buy of narcotics. Thus, suppression of the
     evidence was not warranted because police corroborated the
     informant’s tip.
           The court [in Clark] also noted that when a CI is used, the
     affidavit must at the very least contain an averment that the
     informant has provided information which has in the past
     resulted in arrests or convictions. Id. at 1291.
                                 ***


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J-S69034-17


          [T]his court concludes that the stop of [Appellee’s] vehicle
     was without probable cause and his arrest invalid.
            The Commonwealth contends, however, that the stop of
     [Appellee’s] vehicle was due to its tinted windows. While a stop
     based upon this violation of the Motor Vehicle Code is certainly
     reasonable, the same cannot be said when the driver is removed
     from the vehicle, placed in handcuffs, put into the back of a
     police cruiser, and not permitted to leave while a K-9 unit is
     summoned. This conduct makes it clear that the stop for illegal
     tint was merely a pretext to stop the vehicle until it could be
     searched. A stop for tinted windows is based upon probable
     cause, not reasonable suspicion, because there is nothing more
     that needs to be investigated. See Commonwealth v. Sands,
     887 A.2d 261 (Pa.Super. 2005). Thus, [Officer] McNamara’s
     only remaining duty was to issue a citation, not place the driver
     in handcuffs and detain him. This is particularly true in view of
     the fact that [Appellee’s] behavior was not furtive, no
     contraband was in plain view, and his [driver’s] license was
     valid.
            Furthermore, it is unclear whether Officer McNamara was
     able to determine the race of the driver because the windows
     were tinted. A description of a white sedan, located near the
     Euclid Avenue address, and spotted within 30 seconds of the CI’s
     call, was insufficient probable cause to stop the first white car
     this officer observed. This description was too vague and non-
     specific, even if the officer had seen a black man driving the
     vehicle.
           Finally, it is notable that [Officer] McNamara did not seek a
     warrant to search the vehicle. Given the scanty information
     provided by the CI, a neutral and detached magistrate should
     have made a determination of probable cause. Failure to take
     even this step implies that the officer suspected that a warrant
     may not have been issued.
           In summary, the court finds that. . .the motion to suppress
     [is] granted. The hearsay information provided by the CI was
     unsubstantiated and did not establish probable cause to arrest.
     The stop of the vehicle for tinted windows was pretextual and
     once stopped, no additional information was produced to warrant
     a continued detention. Because no search warrant was ever
     obtained, the items seized from the illegal search must be
     suppressed. [Appellee’s] arrest, based upon this seizure, was a



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J-S69034-17


      warrantless arrest without probable cause. Thus, the seizure
      was unlawful and the motion to suppress is granted.

Suppression Court Opinion, filed 6/19/17, at 4-8 (citations and bold

omitted).

      On appeal, the Commonwealth avers the suppression court erred in

granting Appellee’s motion to suppress. In this regard, the Commonwealth

specifically argues: (1) Officer McNamara was permitted to stop Appellee’s

vehicle under 75 Pa.C.S.A. § 4524(e), and the court erred by ruling this was

an improper “pretext” for stopping the vehicle; (2) after stopping Appellee’s

vehicle, Officer McNamara was permitted to ask him a few questions, as well

as ask him to exit the vehicle; (3) based on the totality of the

circumstances, Officer McNamara had reasonable suspicion beyond the initial

stop to detain Appellee to permit a K-9 sniff of the exterior of the vehicle;

and (4) following the K-9 sniff, Officer McNamara had probable cause to

make a warrantless arrest of Appellee and conduct a warrantless search of

the vehicle.

      Our review of a Commonwealth appeal from an order granting a

motion to suppress is well-established:

      When the Commonwealth appeals a suppression order, we
      consider only the evidence from [Appellee’s] witnesses together
      with the portion of the Commonwealth’s evidence which is
      uncontroverted. Our standard of review is limited to determining
      whether the suppression court’s factual findings are supported
      by the record, but we exercise de novo review over the
      suppression court’s conclusions of law.




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Commonwealth v. Snyder, 599 Pa. 656, 963 A.2d 396, 400 (2009)

(citations omitted). Further, “[a]ppellate courts are limited to reviewing only

the evidence presented at the suppression hearing when examining a ruling

on a pre-trial motion to suppress.” Commonwealth v. Stilo, 138 A.3d 33,

35–36 (Pa.Super. 2016) (citation omitted).           “It is within the suppression

court’s sole province as factfinder to pass on the credibility of witnesses and

the weight to be given their testimony.”           Commonwealth v. Gallagher,

896 A.2d 583, 585 (Pa.Super. 2006) (quotation marks and quotation

omitted).

       With regard to the Commonwealth’s first specific claim, that Officer

McNamara was permitted to stop Appellee’s vehicle for a violation of 75

Pa.C.S.A. § 4524(e),2 pertaining to sun screening and other materials

prohibited, we note the following relevant legal precepts.




____________________________________________


2
 The Motor Vehicle Code relevantly provides the following:
     § 4524. Windshield obstructions and wipers
                                 ***
           (e) Sun screening and other materials prohibited.--
           (1) No person shall drive any motor vehicle with any sun
     screening device or other material which does not permit a
     person to see or view the inside of the vehicle through the
     windshield, side wing or side window of the vehicle.
75 Pa.C.S.A. § 4524(e)(1) (bold in original).




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       Our analysis of the quantum of cause required for a traffic stop begins

with 75 Pa.C.S.A.§ 6308(b),3 which provides:

       (b) Authority of police officer.—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.A. § 6308(b) (bold in original).

       “Traffic stops based on a reasonable suspicion: either of criminal

activity or a violation of the Motor Vehicle Code under the authority of

Section     6308(b)      must      serve       a    stated   investigatory   purpose.”

Commonwealth v. Feczko, 10 A.3d 1285, 1291 (Pa.Super. 2010) (en

banc) (citation omitted). For a stop based on the observed violation of the

Vehicle Code or otherwise non-investigable offense, an officer must have

probable cause to make a constitutional vehicle stop. Feczko, 10 A.3d at

1291 (“Mere reasonable suspicion will not justify a vehicle stop when the

driver’s detention cannot serve an investigatory purpose relevant to the

suspected violation.”). Pennsylvania law makes clear that a police officer has

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3
  The issue of what quantum of cause a police officer must possess in order
to conduct a vehicle stop based on a possible violation of the Motor Vehicle
Code is a question of law, over which our scope of review is plenary and our
standard of review is de novo. Commonwealth v. Chase, 599 Pa. 80, 960
A.2d 108 (2008).



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probable cause to stop a motor vehicle if the officer observes a traffic code

violation, even if it is a minor offense. Commonwealth v. Chase, 599 Pa.

80, 960 A.2d 108 (2008).

      In   the   case   sub   judice,   the      suppression   court   accepted   the

uncontradicted evidence that Appellee’s vehicle’s windows were darkly tinted

in violation of 75 Pa.C.S.A. § 4524(e). See Suppression Court Opinion, filed

6/19/17, at 3, 7. The suppression court further suggested that, generally,

under such circumstances, Officer McNamara would have had probable cause

to stop Appellee’s vehicle on this basis. See id. However, the suppression

court concluded that “the stop for illegal tint was merely a pretext to stop

the vehicle until it could be searched[,]” and such a stop is impermissible.

Id. It is with the suppression court’s latter conclusion that we disagree.

      Since an investigation following the traffic stop would have provided

Officer McNamara with no additional information as to whether Appellee

violated Section 4524(e), probable cause was necessary to initiate the stop

on this basis. Feczko, supra. As the suppression court found, there is no

dispute that Appellee’s vehicle’s windows were darkly tinted, in violation of

Section 4524(e), and that Officer McNamara observed the violation.

Accordingly, contrary to the suppression court, we conclude that Officer

McNamara was permitted to stop Appellee’s vehicle on this basis.                  See

Chase, supra.




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      To    the   extent   the   suppression   court   concluded   that   Officer

McNamara’s stop of Appellee’s vehicle was improper since it was merely a

pretext to investigate potential drug crimes, we note that our United States

Supreme Court has held that any violation of the Motor Vehicle Code

legitimizes a stop, even if the stop is merely a pretext for an investigation of

some other crime.      See Whren v. U.S., 517 U.S. 806, 812-13 (1996)

(establishing a bright-line rule that any technical violation of a traffic code

legitimizes a stop, even if the stop is merely a pretext for an investigation of

some other crime); Chase, supra (indicating that if the police can articulate

the necessary quantum of cause a constitutional inquiry into the officer’s

motive for stopping the vehicle is unnecessary). This is true even if, as in

the instant case, the Vehicle Code violation witnessed by the officer is a

minor offense. Chase, 599 Pa. at 89, 960 A.2d at 113 (stating that “[t]he

Fourth Amendment does not prevent police from stopping and questioning

motorists when they witness or suspect a violation of traffic laws, even if it is

a minor offense.”) (citation omitted)).

      Thus, we conclude the suppression court erred in holding that Officer

McNamara’s stop of Appellee’s vehicle for a violation of Section 4524(e) was

improper.   Simply put, having accepted the uncontradicted evidence that

Appellee’s vehicle’s window tinting violated Section 4524(e), and the officer

observed the traffic violation, the suppression court should not have

examined the officer’s subjective motive for stopping Appellee’s vehicle.


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      Having concluded Officer McNamara had probable cause to stop

Appellee’s vehicle, we address the Commonwealth’s next two specific claims,

which are interrelated: that Officer McNamara was permitted to ask Appellee

a few questions during the traffic stop, as well as ask him to exit the vehicle,

and based on the totality of the circumstances, Officer McNamara had

reasonable suspicion to detain Appellee and conduct a K-9 sniff of the

vehicle’s exterior after the initial traffic stop.

      As the Commonwealth notes, the suppression court held that, after

making “a stop for a motor vehicle violation [ ] it only can go in the direction

that a motor vehicle stop is permitted to go.” N.T., 4/24/17, at 71. Further,

the suppression court held that, even if Officer McNamara was permitted to

stop Appellee’s vehicle for a violation of Section 4524(e), Officer McNamara’s

“only remaining duty was to issue a citation [for the traffic offense], not

place [Appellee] in handcuffs and detain him.” Suppression Court Opinion,

filed 6/19/17, at 7. We disagree with the suppression court’s analysis and

conclusions in this regard.

              During a traffic stop, the officer “may ask the detainee a
      moderate number of questions to determine his identity and to
      try to obtain information confirming or dispelling the officer’s
      suspicions.” Berkemer v. McCarty, 468 U.S. 420, 439 (1984).
      “[I]f there is a legitimate stop for a traffic violation. . .additional
      suspicion may arise before the initial stop’s purpose has been
      fulfilled; then, detention may be permissible to investigate the
      new suspicions.” Chase, 599 Pa. 80, 960 A.2d [at] 115 n.5.

Commonwealth v. Valdivia, 145 A.3d 1156, 1162 (Pa.Super. 2016),

appeal granted, 165 A.3d 869 (Pa. 2017).

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J-S69034-17


       Moreover, it is well-established that “when an officer detains a vehicle

for violation of a traffic law, it is inherently reasonable that he or she be

concerned with safety and, as a result, may order the occupants of the

vehicle to alight from the car.” Commonwealth v. Rosas, 875 A.2d 341,

348 (Pa.Super. 2005) (quotation and quotation marks omitted). See

Commonwealth v. Pratt, 930 A.2d 561, 564 (Pa.Super. 2007) (noting that

“following a lawful traffic stop, an officer may order [ ] the driver. . .of a

vehicle to exit the vehicle until the traffic stop is completed, even absent a

reasonable suspicion that criminal activity is afoot.”).

       Furthermore, for their safety, police officers may handcuff individuals

during an investigative detention.4            See Rosas, supra. Additionally, our

____________________________________________


4
  As our Supreme Court has held:
       Fourth Amendment jurisprudence has led to the development of
       three categories of interactions between citizens and the police.
       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
       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. Ellis, 541 Pa. 285, 662 A.2d 1043, 1047–48 (1995)
(citations omitted). In the case sub judice, we conclude that Appellee, who
was handcuffed for approximately fifteen minutes while awaiting the K-9
sniff, and permitted to stand outside of his vehicle, was subjected to an
investigative detention for which reasonable suspicion was necessary. See
Rosas, 875 A.2d at 348 (“While we acknowledge that [the trooper] ordered
[the appellee] out of the car and placed him in handcuffs, such facts, by
(Footnote Continued Next Page)


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J-S69034-17


Supreme Court has held that “considering the relatively minor privacy

interest in the exterior of the vehicle and the minimal intrusion occasioned

by a canine sniff, . . .mere reasonable suspicion, rather than probable cause,

[is] required prior to [a dog] sniffing the exterior of [a] vehicle.”5

Commonwealth v. Rogers, 578 Pa. 127, 849 A.2d 1185, 1191 (2004).

      We have defined “reasonable suspicion” as follows:

      [T]he officer must articulate specific observations which, in
      conjunction with reasonable inferences derived from these
      observations, led him reasonably to conclude, in light of his
      experience, that criminal activity was afoot. . .In order to
      determine whether the police officer had reasonable suspicion,
      the totality of the circumstances must be considered. In making
      this determination, we must give due weight. . .to the specific
      reasonable inferences [the police officer] is entitled to draw from
      the facts in light of his experience. Also, the totality of the
      circumstances test does not limit our inquiry to an examination
      of only those facts that clearly indicate criminal conduct. Rather,
      even a combination of innocent facts, when taken together, may
      warrant further investigation by the police officer.

Commonwealth v. Smith, 917 A.2d 848, 852 (Pa.Super. 2007) (citations

omitted).

      In the case sub judice, in light of the totality of the circumstances, we

agree with the Commonwealth that Trooper McNamara had reasonable

suspicion to detain Appellee beyond the initial traffic stop and direct a K-9
                       _______________________
(Footnote Continued)

themselves, do not support the conclusion that [the appellee] was under
arrest.”).
5
  “A canine sniff is a search pursuant to Article I, Section 8 of the
Pennsylvania Constitution.” Commonwealth v. Green, 168 A.3d 180, 185
(Pa.Super. 2017) (footnote omitted).



                                           - 21 -
J-S69034-17


sniff of the exterior of Appellee’s vehicle.       Specifically, the uncontradicted

evidence revealed that a CI, who was known to Trooper McNamara and who

had assisted him in five past criminal cases, reported that a woman named

“Juanita”6 was planning to purchase crack cocaine from a certain residence

on Euclid Avenue from a black male who would be driving a white sedan.

While the CI did not know the dealer’s name, he knew the dealer would be

coming from a gym and then travelling back to Jeanette. The officer and CI

agreed upon a pre-arranged signal in the form of a hang-up call to the police

dispatcher, which would alert Officer McNamara that the sale was completed

and the dealer was leaving the area.

       Officer McNamara testified he received the pre-arranged signal and

less than thirty seconds later he saw a white sedan being driven by a black

male leaving Euclid Avenue. As indicated supra, Officer McNamara followed

the vehicle, and observing the window tint violation, he properly initiated a

stop of the vehicle on this basis. See Chase, supra.

       During the traffic stop, consistent with the CI’s information, Appellee

informed the officer that he was “coming from the gym and he was going to

go back home towards Jeannette.” N.T., 4/24/17, at 12. Further, Appellee

denied being on Euclid Avenue, even though Officer McNamara advised him

____________________________________________


6
  It is uncontradicted that the CI had previously provided information to
Trooper McNamara, which had resulted in a successful prosecution as to
Juanita.



                                          - 22 -
J-S69034-17


that he had just followed him from Euclid Avenue.     Moreover, when Officer

McNamara asked Appellee to exit his vehicle, as the officer was permitted to

do, see Rosas, supra, Appellee twice refused, resulting in Officer

McNamara grabbing Appellee’s arm and removing him from the vehicle.

      Based on the aforementioned, including the CI’s tip, Appellee’s

answers to Officer McNamara’s limited questions, and Appellee’s refusal to

alight from his vehicle, we agree with the Commonwealth that Officer

McNamara “articulate[d] specific observations which, in conjunction with

reasonable inferences derived from these observations, led him reasonably

to conclude, in light of his experience, that criminal activity was afoot.”

Smith, 917 A.2d at 852. Thus, Officer McNamara had reasonable suspicion

to detain Appellee and direct a K-9 sniff of the exterior of his vehicle. See

Commonwealth v. Johnson, 849 A.2d 1236, 1238 (Pa.Super. 2004) (“We

also conclude that based on the information given by a CI who had proven to

be reliable in the past, when a man fitting the description arrived at the

appointed location in a car similar to the one that had been described by the

CI, the police had reasonable suspicion that criminal activity was afoot.”);

Commonwealth v. Gray, 784 A.2d 137, 141-42 (Pa.Super. 2001) (holding

that among the factors to be considered in establishing a basis for

reasonable suspicion are tips, the reliability of the informant, and suspicious

activity).




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J-S69034-17


       Finally, we address the Commonwealth’s remaining specific argument,

that following the K-9 sniff Officer McNamara had probable cause to conduct

a warrantless search of the vehicle and make a warrantless arrest of

Appellee. As to this issue, in addition to finding a lack of probable cause, the

suppression court held that Officer McNamara was required to secure a

warrant prior to searching the subject vehicle.                We disagree with the

suppression court.

       It is well-settled that a warrantless arrest must be supported by

probable cause.      In re J.G., 145 A.3d 1179 (Pa.Super. 2016).            Moreover,

police may search an automobile without a warrant so long as they have

probable cause to do so, as an automobile search “does not require any

exigency      beyond      the    inherent      mobility   of    a   motor    vehicle.”

Commonwealth v. Gary, 625 Pa. 183, 91 A.3d 102, 104 (2014).7                      Our

____________________________________________


7
 As this Court has held:
     Gary is technically a plurality decision. Former Justice Orie
     Melvin did not participate in the consideration or decision of the
     case, which led to a decision by only six justices of the Court.
     Justice McCaffery wrote the opinion announcing the judgment of
     the Court, which Chief Justice Castille and Justice Eakin joined.
     Justice Todd wrote a dissent that Justice Baer joined. Justice
     Saylor, however, wrote a concurrence, in which he “join[ed] the
     lead Justices in adopting the federal automobile exception.”
     Gary, 91 A.3d at 138 (Saylor, J., concurring). Therefore, Gary
     is binding precedent on this Court with respect to Pennsylvania’s
     adoption of the federal automobile exception to the warrant
     requirement.
Commonwealth v. Green, 168 A.3d 180, 187 (Pa.Super. 2017).




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J-S69034-17


Supreme Court has concluded that Article I, Section 8 of the Pennsylvania

Constitution is co-extensive with the Fourth Amendment to the United States

Constitution, which has long supported a warrant exception for automobile

searches so long as probable cause to search exists. See id. at 108–13.

        With respect to probable cause to search, our Supreme Court

instructs us that:

      [p]robable cause exists where the facts and circumstances within
      the officers’ knowledge are sufficient to warrant a person of
      reasonable caution in the belief that an offense has been or is
      being committed. With respect to probable cause, this [C]ourt
      adopted a “totality of the circumstances” analysis in
      Commonwealth v. Gray, 509 Pa. 476, 503 A.2d 921, 926
      (1985) (relying on Illinois v. Gates, 462 U.S. 213 [103 S.Ct.
      2317, 76 L.Ed.2d 527] (1983)). The totality of the circumstances
      test dictates that we consider all relevant facts, when deciding
      whether [the officer had] probable cause.

Commonwealth v. Luv, 557 Pa. 570, 735 A.2d 87, 90 (1999) (some

citations and quotations omitted).

      In the case sub judice, in considering the totality of the circumstances,

we agree with the Commonwealth that Officer McNamara had probable

cause to conduct a warrantless search of Appellee’s vehicle. In addition to

the factors discussed extensively supra, Officer McNamara testified the K-9

sniff of the exterior of the vehicle positively alerted the police to contraband

being inside the vehicle, the passenger compartment of which Officer

McNamara could not see because of the illegally tinted windows. See Luv,

supra    (defining   probable   cause).   Accordingly, we     conclude   Officer




                                     - 25 -
J-S69034-17


McNamara properly searched Appellee’s vehicle without a warrant and, upon

discovering the handgun, had probable cause to arrest Appellee.8

       For all of the foregoing reasons, we conclude the suppression court

erred in granting Appellee’s motion to suppress.9   Accordingly, we reverse

the suppression court’s order and remand for proceedings consistent with

this decision.

       Order Reversed; Case remanded; Jurisdiction relinquished.

       Judge Bowes joins the Opinion.

       Judge Ransom notes dissent.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 12/20/2017
____________________________________________


8
  Appellee was subsequently properly searched incident to the arrest.
Commonwealth v. Simonson, 148 A.3d 792 (Pa.Super. 2016) (holding a
defendant may be searched incident to an arrest).
9
   It is noteworthy that the cases relied upon and analyzed by the
suppression court in granting Appellee’s motion to suppress are
distinguishable from the instant case in which Appellee’s vehicle was
properly stopped for a motor vehicle violation. For instance, in In re O.A.,
supra, the issue was whether the police had probable cause to make a
warrantless arrest of a defendant in an abandoned garage based on a CI’s
tip; in Stokes, supra, the issue was whether the police had probable cause
to make a warrantless arrest of a defendant at his home based on a tip; and
in Clark, supra, the issue was whether the police had probable cause for a
search warrant based on a tip from a CI.



                                          - 26 -
