J-S02011-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA            :   IN THE SUPERIOR COURT OF
                                        :        PENNSYLVANIA
                                        :
             v.                         :
                                        :
                                        :
STEPHEN RILEY QUAGLIARELLO              :
                                        :
                    Appellant           :   No. 1449 EDA 2017

           Appeal from the Judgment of Sentence March 28, 2017
   In the Court of Common Pleas of Delaware County Criminal Division at
                     No(s): CP-23-CR-0006240-2015


BEFORE: BOWES, J., NICHOLS, J., and RANSOM, J.*

MEMORANDUM BY BOWES, J.:                             FILED JUNE 18, 2018

      Stephen Riley Quagliarello appeals from the judgment of sentence

imposed following his conviction of possession of a controlled substance and

possession with intent to deliver. Specifically, he challenges the September

20, 2016 amended order denying his motion to suppress evidence.           We

vacate Appellant’s judgment of sentence, reverse the order denying

suppression, and remand for further proceedings consistent with this

memorandum.

      In support of it suppression ruling, the trial court made the following

findings of fact:

            Officer Jonathan Lakose is employed by Haverford
      Township Police Department. He has been a police officer for 16
      years[, and] has been involved in over 100 drug investigations.
      [He] is aware of certain areas of Haverford Township that are
      high-crime and high-drug areas. Officer Lakose is familiar with
      Barnaby’s of America, located at 1901 Old West Chester Pike in
* Retired Senior Judge Assigned to the Superior Court.
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     Haverford Township[, but] would not specify Barnaby’s or its
     adjacent parking lots as high-crime or high-drug areas[, and]
     does not know of previous observations by the narcotics unit of
     that area. Officer Lakose has previously made arrests for drug
     possession in the parking lot of Barbaby’s, the most recent for
     possession of marijuana.

           On the night of September 26, 2015, Officer Lakose was
     on assignment, in full uniform and in a marked “ghost” police
     vehicle parked in the parking lot located between 200 and 300
     feet away from Barnaby’s.           “Ghost” police vehicles are
     characterized by reflective “POLICE” lettering printed on the side
     of a vehicle that is otherwise unmarked. At that time[,] Officer
     La[k]ose observed a single male exit the bar and enter a dark-
     colored Infiniti. Officer La[k]ose observed the vehicle for several
     moments and the vehicle did not start nor appear as if it was
     going to leave. Several moments later, two other individuals
     exited the bar and entered the vehicle Officer Lakose was
     watching. Officer La[k]ose continued to watch the vehicle for
     several minutes.      The vehicle did not start throughout the
     duration of Officer La[k]ose’s observation. After observing the
     vehicle[,] Officer [L]a[k]ose determined the vehicle was not
     intending to leave. Based on [his] experience and training[,] he
     suspected the occupants of the vehicle were engaged in illegal
     narcotics activity.

            Officer La[k]ose approached the vehicle in his car. He did
     not activate his overhead lights. [He] parked his vehicle behind
     the dark-colored car, “in a manner that the vehicle could have
     backed out if it intended to or needed to ….” [He] got out of his
     vehicle and approached the driver’s side and engaged the driver
     in conversation. [He] did not have his gun drawn. [He] asked
     the occupants of the car what they were doing[, and] observed
     the driver’s hands shaking, lips quivering and a very apparent
     appearance of nervousness. Officer La[k]ose did not recall the
     driver appearing drunk o[r] intoxicated in any way. At that
     point, Officer La[k]ose highly suspected that there was criminal
     activity going on and he requested backup. Several other units
     responded.      The vehicle’s ownership was connected to the
     driver.

          [Appellant] was sitting in the front passenger seat. At
     some point after backup had arrived, while Officer La[k]ose was
     speaking with the driver, Officer Lakose could clearly see

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       [Appellant] concealing something under the front passenger
       seat. At that time, fearful that [Appellant] may have been
       attempting to conceal a weapon, Officer La[k]ose requested
       [Appellant] to exit the vehicle. Based on [Appellant’s] body
       language and Officer Lakose’s experience, Officer Lakose
       believed [Appellant] was going to flee on foot. For officer safety
       and to continue the investigation, Officer La[k]ose detained and
       handcuffed [Appellant] and then continued to question the
       driver. Officer La[k]ose had previously made many arrests for
       weapons possession while working in the City of Coatesville, and
       he was “familiar with the types of furtive movements that people
       who are concealing things [make]. Underneath the seat is a
       very common place to conceal objects such as weapons.” After
       [Appellant] was detained, Officer La[k]ose searched the area
       where [Appellant] was seated. The search produced several
       baggies of cocaine. [Appellant] was then arrested and taken to
       the police station to be processed. [Appellant] was not the
       owner of the dark-colored car.

Amended Order, 9/20/16, at 1-5 (paragraph numbers omitted, formatting

altered, and citations to the record omitted).1

       Appellant was subsequently charged with possession of a controlled

substance and possession with intent to deliver. He filed an omnibus pretrial

motion, which included a motion to suppress the cocaine found under the

passenger seat.      The trial court conducted a suppression hearing and, on

July 15, 2016, entered an order denying the motion to suppress. Appellant

filed a motion for reconsideration, and the trial court conducted another

hearing. On September 20, 2016, the trial court entered an amended order

again denying the motion to suppress. In its amended order, the trial court

____________________________________________


1 We discuss infra how this recitation of facts is not supported by the
record.



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determined that, while Appellant had standing to assert a constitutional

violation, he nevertheless could not prevail on a suppression motion

challenging the constitutionality of the search because he did not establish a

reasonable expectation of privacy in the passenger area of the vehicle.

      Following a bench trial held on January 10, 2017, the trial court found

Appellant guilty of possession of a controlled substance and possession with

intent to deliver. On March 28, 2017, the trial court sentenced Appellant to

an aggregate term of three to twenty-three months incarceration. Appellant

filed a timely notice of appeal and a court-ordered Pa.R.A.P. 1925(b) concise

statement of matters complained of on appeal. This matter is now ready for

our review.

      Appellant raises the following issues:

      I.      Whether the suppression court erred when it did not find
              Appellant was seized in violation of the Pennsylvania and
              United States Constitutions when Officer Lakose ordered
              Appellant back into the vehicle, which required reasonable
              suspicion or probable cause, and, at the time of Appellant’s
              seizure[,] Officer Lakose articulated only that Appellant
              exited a bar with two other individuals, sat in the
              passenger seat of a vehicle which remained stationary,
              appeared nervous, and attempted to exit the vehicle?

      II.     Whether the suppression court erred in failing to suppress
              evidence obtained in violation of the Pennsylvania and
              United States Constitutions on the basis that Appellant had
              no reasonable expectation of privacy in the vehicle where
              evidence was discover[ed] subsequent to Appellant[’]s
              unlawful seizure?

Appellant’s brief at 2 (capitalization omitted).

      On appeal from the denial of a suppression motion,

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            Our standard of review . . . is whether the record supports
      the trial court’s factual findings and whether the legal
      conclusions drawn therefrom are free from error. Our scope of
      review is limited; we may consider only the evidence of the
      prosecution and so much of the evidence for the defense as
      remains uncontradicted when read in the context of the record
      as a whole. Where the record supports the findings of the
      suppression court, we are bound by those facts and may reverse
      only if the court erred in reaching its legal conclusions based
      upon the facts.

Commonwealth v. Galendez, 27 A.3d 1042, 1045 (Pa.Super. 2011) (en

banc) (citation omitted).      Additionally, “appellate courts are limited to

reviewing only the evidence presented at the suppression hearing when

examining a ruling on a pretrial motion to suppress.” Commonwealth v.

Bush, 166 A.3d 1278, 1281-82 (Pa.Super. 2017) (citation omitted). “It is

within the suppression court’s sole province as fact-finder to pass on the

credibility of witnesses and the weight to be given their testimony.” Id. at

1282 (citation omitted).

      To secure the right of citizens to be free from unreasonable search and

seizure,   courts   in   Pennsylvania   require   law   enforcement   officers   to

demonstrate ascending levels of suspicion to justify their interactions with

citizens to the extent those interactions compromise individual liberty. See

Commonwealth v. Reppert, 814 A.2d 1196, 1201 (Pa.Super. 2002) (en

banc). For this purpose, courts in Pennsylvania have defined three types of

police interaction: a mere encounter, an investigative detention, and a

custodial detention.     A mere encounter is characterized by limited police

presence, and police conduct and questions that are not suggestive of


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coercion.   Such encounters do not obligate the citizen to stop or respond

and, consequently, need not be supported by any level of suspicion. See id.

Thus, the hallmark of a mere encounter is that the subject is free to decline

to interact with the police or to answer questions, and is also free to leave at

any time. See Commonwealth v. DeHart, 745 A.2d 633, 636 (Pa.Super.

2000).

      If, however, a police presence becomes too intrusive, the interaction

must be deemed an investigative detention or seizure.           An investigative

detention, by implication, carries an official compulsion to stop and respond.

Id.   Since this interaction has elements of official compulsion it requires

“reasonable suspicion” of unlawful activity.       Id.       Finally, a custodial

detention   occurs   when   the   nature,   duration   and    conditions   of   an

investigative detention become so coercive as to be, practically speaking,

the functional equivalent of an arrest. Id.

      To decide whether a seizure has occurred, a court must consider all

the circumstances surrounding the encounter to determine whether the

demeanor and conduct of the police would have communicated to a

reasonable person that he or she was not free to decline the officer’s request

or otherwise terminate the encounter. Thus, the focal point of our inquiry

must be whether, considering the circumstances surrounding the incident, a

reasonable person would have thought he was being restrained had he been

in the defendant’s shoes.     Reppert, supra, at 1201-02.           Examples of


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circumstances that might indicate a seizure include the threatening presence

of several officers or the use of language or tone of voice indicating that

compliance    with   the   officer’s    request    might   be   compelled.      See

Commonwealth v. McClease, 750 A.2d 320, 324-25 (Pa.Super. 2000).

      Initially, we conclude that the trial court’s factual findings are not

supported by the evidence presented at the suppression hearing, and we are

therefore not bound by them.           In its factual findings, as set forth in the

amended order, the trial court misconstrued the order of events, as

presented at the suppression hearing.          Specifically, Officer Lakose testified

that, after he had initially approached the vehicle, and began speaking with

the driver, Appellant briefly exited the vehicle before Officer Lakose,

believing Appellant was about to flee, ordered him to get back in the vehicle.

See N.T. Suppression, 6/3/16, at 12-14, 36-37. The trial court overlooked

Officer Lakose’s testimony that only after Appellant had been ordered to get

back in the vehicle did he see Appellant reach under the passenger seat. Id.

at 18-20. According to Officer Lakose, upon viewing this action, he removed

Appellant from the vehicle, placed him in handcuffs, and the area under the

passenger seat was searched, resulting in the discovery of the cocaine. Id.

at 19-20.    The trial court’s omission of Officer Lakose’s directive and its

erroneous recitation of the facts is fatal to its analysis, and critical to our

determination herein.




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      Notably, Officer Lakose’s statement to Appellant was neither a

question nor a suggestion. Rather, he “ordered” Appellant to get back in the

vehicle.   See N.T. Suppression, 6/3/16, at 14, 36-37.      Moreover, Officer

Lakose’s show of authority was bolstered by the presence of several other

police officers that he had summoned to the scene. See id. at 18; see also

id. at 37-38 (wherein Officer Lakose stated that at least three or four other

officers had arrived at the scene, in three or four other police vehicles).

Under these circumstances, no reasonable person would have felt free to

disregard Officer Lakose’s order and leave the scene. Rather, a reasonable

person in Appellant’s situation would no doubt conclude that any attempt to

leave the scene after Officer Lakose’s order to stay in the car would have

invoked compulsion by the officers. See McClease, supra at 325. Indeed,

Officer Lakose conceded that, upon ordering Appellant to get back into the

vehicle, he was “not free to go.”     See N.T. Suppression, 6/3/16, at 37.

Accordingly, we conclude that, upon Officer Lakose’s utterance of this order,

Appellant was seized and an investigative detention commenced. See id.

      Having concluded that a seizure occurred, we must next determine

whether the Commonwealth demonstrated that there was reasonable

suspicion to support it.   An investigatory detention is justified only if the

detaining officer can point to specific and articulable facts which, in

conjunction with rational inferences derived from those facts, give rise to a

reasonable suspicion of criminal activity and therefore warrant the intrusion.


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Commonwealth v. Hall, 735 A.2d 654, 659 (Pa. 1999). The officer “must

be able to articulate something more than an inchoate and unparticularized

suspicion or hunch.”    United States v. Sokolow, 490 U.S. 1, 7 (1989)

(internal quotation marks and citation omitted).

      Appellant cites to Commonwealth v. DeWitt, 608 A.2d 1030 (Pa.

1992), in support of his argument that Officer Lakose lacked reasonable

suspicion to seize him. In DeWitt, our Supreme Court considered whether

furtive movements of vehicle occupants, together with other allegedly

suspicious circumstances, created reasonable suspicion.       In that case, the

defendant was seated in a legally parked vehicle with others when the police

approached the vehicle, ostensibly to investigate the potential involvement

of the occupants in criminal activity reported in that area.      As the police

neared the vehicle, they observed the occupants inside making furtive

movements as if they were trying to hide something.          When the officers

reached the vehicle, the defendant attempted to flee on foot and the officers

gave chase. When the officers captured and searched the defendant, they

discovered on his person marijuana, other controlled substances, and drug

paraphernalia.   On review, our Supreme Court held that the seizure was

illegal because even the combined circumstances of furtive movements, late

time of night, previous reports of criminal activity in the area, and flight, did

not establish an adequate basis for reasonable suspicion. See id. at 1034.




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      The facts of this case are also akin to those in McClease, wherein the

defendant was stopped late at night in an area that had previous reports of

criminal activity.   Prior to the stop, police officers driving by noticed the

defendant sitting in his legally parked car with his head down as if he were

looking at his hands. As the police vehicle passed the defendant’s vehicle,

he raised his head and looked at the officers. As he did so, his eyebrows

raised, his eyes got wider, and he immediately lowered his body.        Upon

observing these movements, the officers exited their vehicle and approached

the defendant’s vehicle. One officer noticed the defendant was attempting

to exit the vehicle, at which point the officer ordered him to stay in the

vehicle.   The defendant complied, but attempted to discreetly toss a

marijuana blunt under the car. As the officers drew near the vehicle, they

noticed an open container of alcohol and a large amount of cash in the

ashtray. They later found cocaine and marijuana in the trunk. On review,

we concluded that as soon as the officer ordered the defendant to get back

in the vehicle, he was seized, and an investigative detention commenced.

McClease, supra at 325.       We further determined the seizure was illegal

because a motorist’s furtive movements upon the approach of police, even

late at night in an area of reported criminal activity, did not establish

reasonable suspicion for an investigatory detention. See id. at 326.

      In the instant case, Officer Lakose had fewer facts to establish

reasonable suspicion than did the officers in DeWitt and McClease.


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Although Officer Lakose was concerned that Appellant might be attempting

to flee, our Supreme Court has ruled that flight, in and of itself, does not

constitute reasonable suspicion of criminal conduct.              DeWitt, supra at

1034. Moreover, as Officer Lakose conceded, the parking lot in question was

not considered by police to be a high-crime or high-drug area, nor had it

been previously subject to surveillance by the narcotics unit.              See N.T.

Suppression, 6/3/16, at 9-10, 25-26.               Officer Lakose observed no illegal

activity, weapons or contraband.               Id. at 34-35.   The vehicle in which

Appellant was located was lawfully parked in a public parking lot for patrons

of the bar from which Appellant and the other individuals in the vehicle had

exited only two to three minutes earlier.            Id. at 26-27, 29.   While Officer

Lakose described the driver of the vehicle as “extremely nervous” with

shaking hands and lips, see id. at 14, he made no such observations with

regard to Appellant.2         Rather, the only articulated bases for ordering

Appellant to get back in the vehicle were Officer Lakose’s statements that “in

my experience, when multiple subjects are sitting in a vehicle that time of

night outside of a bar . . . my suspicions were aroused that something was


____________________________________________


2  Even if Officer Lakose had made the same observations regarding
Appellant, it would not, in and of itself, suffice to create reasonable suspicion
to support an investigative detention. See Reppert, supra, at 1205 (“Our
courts have determined, on several occasions, that . . . excessive
nervousness [does not] provide a sufficient basis upon which to conduct an
investigatory detention.”).



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afoot[,]” and “I was very concerned that he was going to flee on foot, based

on his body and my experience.” Id. at 13-14, 15.

       Applying our Supreme Court jurisprudence to the facts of the instant

case, the specific and articulable facts observed by Officer Lakose, and any

rational inferences drawn therefrom, are insufficient for us to conclude that

he possessed the requisite reasonable suspicion to support an investigative

detention.    Instead, Officer Lakose’s suspicion amounted to nothing more

than an “unparticularized . . . hunch.” Sokolow, supra at 7. Consequently,

the seizure of Appellant was illegal.

       In the instant case, the illegal detention occurred when Officer Lakose

ordered Appellant to get back in the vehicle without any reasonable

suspicion that criminal activity was afoot.           A few minutes later, Appellant

reached under the passenger seat.              Had Officer Lakose not illegally seized

Appellant, he would have been free to leave, and could have done so when

he initially got out of the vehicle. Thus, the illegal detention was clearly the

causative factor in Appellant reaching under the passenger seat, and the

cocaine subsequently found there was fruit of the poisonous tree.                 See

McClease, supra.3

____________________________________________


3 Based on the record before us, it is unclear whether the cocaine was
already under the passenger seat before Appellant reached there, or
whether Appellant placed it there. To the extent that Appellant placed the
cocaine there when he reached under the passenger seat, it is fruit of the
poisonous tree. See McClease, supra at 327 (holding that, when an illegal
(Footnote Continued Next Page)


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      Finally, we address the trial court’s suppression ruling.     Appellant

claims that the trial court further erred in denying his motion to suppress on

the basis that Appellant had no reasonable expectation of privacy in the area

of the vehicle in which the drugs were found. Relying on Commonwealth

v. Shabezz, 166 A.3d 278 (Pa. 2017), Appellant argues that he need not

prove that he had a reasonable expectation of privacy in the vehicle.      He

contends that, under Shabezz, when an illegal detention precedes a vehicle

search, evidence obtained during the search is tainted by the illegal

detention, and is inadmissible against the driver and passengers alike as

fruit of the poisonous tree.

      In Shabezz, our Supreme Court addressed the question of whether,

following an unconstitutional vehicle stop, the Fourth Amendment requires a

passenger to demonstrate a reasonable expectation of privacy in those areas

of the vehicle that are searched and that yield incriminating evidence.

Shabezz, supra at 284. The High Court ruled that a passenger in a vehicle

that was stopped unconstitutionally by police was “seized” under the Fourth
(Footnote Continued) _______________________

detention occurs without reasonable suspicion, and causes the defendant to
abandon contraband, the contraband is considered fruit of the initial
illegality); see also Commonwealth v. Matos, 672 A.2d 769, 774 (Pa.
1996) (stating that the exclusionary rule should be applied to suppress
evidence of abandoned contraband when the contraband was abandoned
after an initially illegal detention); Commonwealth v. Jeffries, 311 A.2d
914, 918 (Pa. 1973) (holding that when the police unlawfully detain a
person, and the unlawful detention motivates the person to abandon
contraband that is then discovered by the police, the evidence is tainted as a
result of the initial illegality).



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Amendment, and had automatic standing to challenge the constitutionality of

the search. Id. at 287. The Court further ruled that “evidence derived from

an illegal automobile search constitutes fruit of the poisonous tree as a

result of the illegal seizure (unless the taint is removed), and that no further

demonstration of a privacy interest in the area from which the evidence was

seized is required by the Fourth Amendment.” Shabezz, supra at 287-89

(rejecting the Commonwealth’s argument that the passenger must also

demonstrate a reasonable expectation of privacy in the areas of the vehicle

within which the incriminating evidence was found). As the Court explained,

when the defendant seeking suppression following an illegal vehicle stop is

the passenger, the dispositive legal issue is the causal relationship between

the traffic stop and the discovery of the evidence, i.e., whether the evidence

found in the car was “fruit” of the illegal stop, and the initial illegality has not

been removed by other circumstances. Id. at 289.

      In this case, the exploitation inquiry is readily satisfied. As we have

already determined, Appellant was seized, and that the seizure was illegal.

Thus, the only remaining inquiry for suppression purposes is the causal

connection between the illegality and the evidence discovered, i.e., whether

the cocaine was obtained by police exploitation of the illegality.            Here,

Appellant was ordered by Officer Lakose to get back in a vehicle that was

surrounded by several police officers. The police saw him reach under the

passenger seat, removed him from the vehicle, handcuffed him, searched


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the passenger area, and found the cocaine.               The search occurred shortly

after Officer Lakose had ordered Appellant to get back in the vehicle. The

discovery of the cocaine was a direct and immediate consequence of the

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

       Additionally, the record is devoid of any indicia that the taint of the

illegal seizure was removed before the police searched the vehicle and found

the cocaine.       See Shabezz, supra at 290 (“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, thereby precluding any viable argument

that the search was sufficiently attenuated from the seizure so as to purge

the taint of the initial illegality. See id. Accordingly, the cocaine is fruit of

the poisonous tree, which should have been suppressed by the trial court.

       We conclude therefore that the seizure of Appellant in this case was

illegal.   The trial court erred in failing to recognize that illegality and in

failing    to   order   suppression   of    the     physical   evidence   it    produced.

Consequently, we vacate Appellant’s judgment of sentence, reverse the

orders denying suppression, and remand for further proceedings consistent

with this memorandum.




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      Judgment of sentence vacated. Orders denying suppression reversed.

Case remanded for further proceedings consistent with this memorandum.

Jurisdiction relinquished.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/18/18




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