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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37


COMMONWEALTH OF PENNSYLVANIA,             :     IN THE SUPERIOR COURT OF
                                          :          PENNSYLVANIA
                        Appellant         :
                  v.                      :
                                          :
                                          :
YAMILE RUIZ,                              :
                                          :
                        Appellee          :     No. 933 EDA 2016

                  Appeal from the Order February 17, 2016
            In the Court of Common Pleas of Philadelphia County
            Criminal Division at No(s): CP-51-CR-0000829-2015

BEFORE: BENDER, P.J.E., DUBOW, J., and SOLANO, J.

MEMORANDUM BY DUBOW, J.:                            FILED MARCH 29, 2017

      The Commonwealth appeals from the February 17, 2016 Order

entered in the Philadelphia County Court of Common Pleas granting the

Motion to Suppress filed by Appellee, Yamile Ruiz. After careful review, we

conclude that an officer’s testimony that he ran a motorist’s tags and

“believe[s]” that the results came back “inconclusive” does not provide

reasonable suspicion to believe that the motorist has committed a violation

of the Motor Vehicle Code so as to support the seizure of evidence

subsequently obtained. We, therefore, affirm.

      On January 7, 2015, Appellee was arrested and charged with

Possession With Intent to Distribute and other related offenses after police

officers discovered marijuana in her vehicle following a traffic stop. Appellee

filed a Motion to Suppress, arguing that officers lacked reasonable suspicion
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or probable cause to effectuate a car stop. On February 17, 2016, the trial

court heard testimony on the Motion to Suppress. In its Pa.R.A.P. 1925(a)

Opinion, the trial court summarized the testimony adduced at the hearing as

follows:

      According to the testimony of Police Officers Timothy Bogan and
      Jose Candelaria, on January 7, 2015, at approximately 12:10
      p.m., Officers Bogan, Candelaria, and Devo[,] who were
      assigned to the Narcotics Bureau[,] were in an unmarked police
      vehicle in plain clothes on the 500 block of Allengrove Street in
      the City and County of Philadelphia in an [sic] narcotics
      surveillance unrelated to [Appellee].     While Officers Bogan,
      Candelaria, and Devo were conducting their unrelated narcotics
      surveillance they observed an unknown black male on his cell
      phone counting an unknown amount of United States Currency
      [(“USC”)]. According to police officers[,] this unknown black
      male was also looking into vehicles as they passed and
      approximately three (3) minutes later he entered a Toyota
      Camry driven by [Appellee]. Merely due to the aforementioned
      observations, Officers Bogan, Candelaria, and Devo decided to
      follow [Appellee] driving her Toyota Camry with this unknown
      black male passenger. According to the officers’ testimony,
      [Appellee] stopped at the end of the block after picking up her
      passenger and the unknown black male exited the vehicle. The
      unknown black male was never stopped by any police officer.

      Thereafter, Officers Bogan, Candelaria, and Devo continued
      following [Appellee] for several blocks as she made multiple
      turns on unknown side streets. While the officers were following
      [Appellee], Officer Bogan attempted to have [Appellee] stopped
      by utilizing police radio [and] requesting a marked vehicle to
      stop the Toyota Camry; however, there were no marked vehicles
      in the area. Thus, police continued to follow [Appellee,] who
      drove through a mall parking lot and exited on to another street.
      At this point, Officer Bogan again requested a marked police
      vehicle over radio to stop the Toyota Camry; however, once
      again there were no marked vehicles available. The officers
      continued following [Appellee,] who drove to a mall on Cottman
      Avenue where she parked her car in front of a Macy’s and went
      inside. [The officers followed Appellee into the Macy’s.] Once
      inside, Officers Bogan, Candelaria, and Devo continued to follow


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      her and observed her pick out items from the Polo section and
      proceed[] to the checkout counter where she paid for the
      selected items. At some point (before reaching Macy’s but after
      police officer’s [sic] initial request for an unmarked [patrol car]
      to stop [Appellee]), Officer Bogan [testified that he believes he]
      ran the tag of the Toyota Camry and “the tag came back
      inconclusive;” the computer inquiry yielded no recorded owner3
      for the tag.
         3
           Police officers never testified nor were any explanations
         given as to how the computer could yield such a result as
         all tags should reasonably be issued to some entity.

      As [Appellee] was inside Macy’s with Officers Candelaria and
      Devo surveilling, Officer Bogan stepped outside to check on the
      status of the requested marked vehicle in the area and learned
      that in fact one was available. Thereafter, [Appellee] exited
      Macy’s, entered her vehicle, and as she approached the parking
      lot exit[,] the requested marked police vehicle stopped
      [Appellee]. Officers Bogan, Candelaria, and Devo immediately
      approach[ed] [Appellee’s] vehicle. According to Officers Bogan
      and Candelaria, as they approached [Appellee’s] vehicle they
      “smelled a strong odor of marijuana” emanating from inside the
      vehicle. Officer Bogan directed [Appellee] to step out of her car
      and noticed that the headliner4 had a bulge. Officer Bogan ran
      his hand along the headliner and felt a plastic baggie which he
      pulled out and found seven (7) grams of marijuana. Thereafter,
      [Appellee] was arrested and recovered incident to the arrest was
      a cell phone, $385 USC, additional bags of marijuana, and a
      scale.
         4
           Officer Bogan described the “headliner” to be the place
         where the interior car roof meets the interior portion of
         the windshield.

Trial Court Opinion, filed 5/3/16, at 1-3 (unpaginated) (references to the

record omitted).

      At the close of the hearing, the trial court granted Appellee’s Motion to

Suppress, stating that the reason for the stop testified to by the officer “is




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not equal to reasonable suspicion and/or probable cause.” N.T., 2/17/16, at

27.

      The Commonwealth filed a timely Notice of Appeal.              Both the

Commonwealth and the trial court complied with Pa.R.A.P. 1925.1

      The Commonwealth raises the following issue for our review:

      Did the lower court err in suppressing the eleven packets of
      drugs, scale, and other evidence recovered from the car driven
      by [Appellee], where officers had reasonable suspicion to stop
      the vehicle after a police computer inquiry revealed that it had
      no registered owner, and where the totality of the
      circumstances—above all, the strong odor of marijuana detected
      by the officers upon approaching the vehicle—created probable
      cause to search the car and arrest [Appellee]?

Commonwealth’s Brief at 4.

      We begin by noting that the trial court found that police officers lacked

reasonable suspicion to stop Appellee for two reasons: (i) because the police

officers’ subjective reason for pulling Appellee over was unrelated to the

“inconclusive” results of the tag search;2 and (ii) because the “inconclusive”


1
  On January 13, 2017, the Commonwealth filed a second Application to File
Reply Brief Out of Time as well as an untimely Reply Brief. As the Reply
Brief was submitted contemporaneously with the Application, and this Court
received and reviewed the Reply Brief, we deny the Commonwealth’s
Application as moot.
2
  At the hearing, Officers Bogan and Candelaria both testified that their
subjective reason for stopping Appellee was based on seeing the black male
counting money before briefly entering and then exiting Appellee’s vehicle.
On appeal, the Commonwealth does not argue that these observations
support a finding of reasonable suspicion; instead, the Commonwealth relies
solely on the possible “inconclusive” results to justify the initial stop of
Appellee.



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results of the tag search were insufficient to provide reasonable suspicion to

stop     Appellee.    Trial   Court   Opinion   at   8   (unpaginated).   As   the

Commonwealth correctly points out, the trial court erred in considering the

officers’ subjective intent, rather than applying an objective standard to the

facts.    See Commonwealth v. Zhahir, 751 A.2d 1153, 1156 (Pa. 2000)

(“The fundamental inquiry is an objective one, namely, whether the facts

available to the officer at the moment of the intrusion warrant a man or

reasonable caution in the belief that the action taken was appropriate.”

(citation and quotations omitted)).       Nonetheless, we agree with the trial

court that a police officer’s testimony that he ran a search of Appellee’s tags

that possibly came back “inconclusive” is insufficient to support a finding of

reasonable suspicion to stop a vehicle.

         Our standard of review applicable to suppression determinations is

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 it is
         to determine if the suppression court properly applied the law to
         the facts.

Commonwealth v. Nester, 709 A.2d 879, 880-81 (Pa. 1998).

         The Fourth Amendment of the United States Constitution and Article 1,

Section 8 of our state Constitution protect citizens from unreasonable


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searches and seizures. In re D.M., 781 A.2d 1161, 1163 (Pa. 2001). “To

secure the right of citizens to be free from . . . [unreasonable searches and

seizures], courts in Pennsylvania require law enforcement officers to

demonstrate ascending levels of suspicion to justify their interactions with

citizens as those interactions become more intrusive.” Commonwealth v.

Beasley, 761 A.2d 621, 624 (Pa. Super. 2000).              Our Supreme Court has

defined three levels of interaction between citizens and police officers: (1)

mere encounter, (2) investigative detention, and (3) custodial detention.

See Commonwealth v. Fuller, 940 A.2d 476, 478 (Pa. Super. 2007).

      “[W]hen   the    police   stop   a   vehicle   in   this   Commonwealth    for

investigatory purposes, the vehicle, and its occupants are considered ‘seized’

and this seizure is subject to constitutional constraints.”        Commonwealth

v. Swartz, 787 A.2d 1021, 1024 (Pa. Super. 2001).                  A traffic stop is

justified when police can point to objective facts creating a reasonable

suspicion either that there has been a violation of the Motor Vehicle Code or

that a crime has been or is being committed by its occupants.                   See

Commonwealth v. Hendricks, 927 A.2d 289, 290 (Pa. Super. 2007).

      Importantly, “[o]nce a [M]otion to [S]uppress [E]vidence has been

filed, it is the Commonwealth’s burden to prove, by a preponderance of the

evidence, that the challenged evidence was not obtained in violation of the

defendant’s rights.”    Commonwealth v. Wallace, 42 A.3d 1040, 1047-

1048 (Pa. Super. 2012) (en banc); see also Pa.R.Crim.P. 581(H). “At the



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suppression hearing, the Commonwealth has the primary burden of both

production under 581(H) and persuasion (as the official comment instructs)

to   convince   the   court   that   the   evidence   was   legally   obtained.”

Commonwealth v. Enimpah, 62 A.3d 1028, 1031 (Pa. Super. 2013).

      In the instant case, the Commonwealth relied solely upon the

testimony of Officer Candelaria and Officer Bogan to oppose Appellee’s

Motion to Suppress.     Officer Candelaria made no mention of running a

search of Appellee’s tags.    The entirety of Officer Bogan’s brief testimony

about the tag search was as follows:

      [Commonwealth]:         Now, Officer, when you initially were
      following the car on the side street where there was a lot of
      turns on the side street. What investigation did you do into the
      vehicle you were following?

      [Officer Bogan]: We did run the tag for an owner, and I
      believe the tag came back inconclusive.

      [Commonwealth]:         Now, when you say inconclusive, what
      does that mean?

      [Officer Bogan]: There was no record of an owner of that tag.

N.T., 2/17/16, at 18 (emphasis added).

      We must consider whether a police officer’s testimony, that he

believes he ran a driver’s tags and that the results came back “inconclusive,”

is sufficient to provide reasonable suspicion to stop a vehicle. We conclude

that it does not.




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      First, Officer Bogan did not testify with any certainty about the results

of the tag search.3 The Commonwealth had the burdens of production and

persuasion, and Officer Bogan’s statement that he believes the results were

inconclusive falls short of meeting those burdens. Second, as the trial court

points out, Officer Bogan gave the court almost no context or information

about those search results, including how they are possible, or where they

came from.4     Finally, as the trial court notes, “[t]here is a significant

difference between having an inconclusive result on a tag versus having a

registration that has lapsed[,] or any indication of a stolen car[,] or even an

indication that the car did not match the tag.”      Trial Court Opinion at 8

(unpaginated) (footnote omitted).

      Under these circumstances, we conclude that the Commonwealth did

not satisfy its “burden [of] prov[ing], by a preponderance of the evidence,

that the challenged evidence was not obtained in violation of the defendant’s


3
  In its Pa.R.A.P. 1925(a) Opinion, the trial court expressed its skepticism of
the testimony of Officer Bogan. Id. at 3, n.5. (“Police officers never testified
nor were any explanations given as to how the computer could yield such a
result as all tags should reasonably be issued to some entity.”). The trial
court stops short, however, of providing an explicit finding of the credibility
of Officer Bogan’s testimony. Nonetheless, the trial court’s determination of
credibility is not crucial to the disposition of the issue before us because, as
discussed infra, even if credible, his limited testimony was insufficient to
meet the Commonwealth's burden of establishing that there was reasonable
suspicion to stop Appellee's vehicle.
4
  Although the Commonwealth’s Brief makes multiples references to a
“NCIC” search, Officer Bogan did not clarify where he ran a search of
Appellee’s tags.



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rights.” Wallace, 42 A.3d at 1047-48. The trial court, therefore, did not err

when it granted Appellee’s Motion to Suppress.

     Order affirmed. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 3/29/2017




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