J-S37029-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA                           IN THE SUPERIOR COURT
                                                                  OF
                                                             PENNSYLVANIA
                             Appellee

                        v.

 EDGAR PINEDA-PITA

                             Appellant                    No. 1333 MDA 2016


               Appeal from the Judgment of Sentence July 26, 2016
                 In the Court of Common Pleas of Centre County
               Criminal Division at No(s): CP-14-CR-0000212-2015


BEFORE: STABILE, J., MOULTON, J., and MUSMANNO, J.

MEMORANDUM BY MOULTON, J.:                        FILED NOVEMBER 20, 2017

       Edgar Pineda-Pita appeals from the July 26, 2016 judgment of sentence

entered in the Centre County Court of Common Pleas following his convictions

for possession with intent to deliver (“PWID”), possession of a controlled

substance, and possession of drug paraphernalia.1 We affirm.

       The trial court set forth the following facts:

            1. At approximately 11:13 a.m. on January 23, 2015,
            Corporal Reed Grenci was doing drug interdiction work on
            Interstate 80 near mile marker 151, at which time he
            observed a white Ford Explorer traveling east with what he
            descri[b]ed as having heavily tinted, aftermarket sun
            screening material.

            2. Corporal Grenci initiated a traffic stop on the Ford
            Explorer near mile marker 154 eastbound.
____________________________________________


       1   35 P.S. § 780-113(a)(30), (a)(16), and (a)(32), respectively.
J-S37029-17


       3. Corporal Grenci approached the passenger side of the
       vehicle and made contact with the occupants, at which time
       he requested identification from the driver and each of the
       passengers.

       4. The driver was identified as Frank Garcia by his Florida
       identification card. The front passenger, Edgar Pineda-Pita,
       was identified through his Michigan license as the owner of
       the vehicle, and the rear seat passenger, who was asleep at
       the time of the stop, was identified as Diego Contreras
       through his Michigan license.

       5. Corporal Grenci identified Michigan and Florida as
       common source areas for drugs, specifically Michigan
       because it is a medical marijuana state, and the combination
       was suspicious based on his training and experience.

       6. Corporal Grenci testified that upon interaction with the
       occupants of the vehicle, they were overly friendly, often an
       indicator of suspicious activity.

       7. After obtaining identification, Corporal Grenci returned to
       his patrol vehicle and ran a criminal record check on the
       driver, Frank J. Garcia, at which time it was discovered that
       Mr. Garcia had an active warrant in Pennsylvania for felony
       drug trafficking violations.

       8. Corporal Grenci called for backup and several other
       members of the Pennsylvania State Police arrived at the
       scene.

       9. About twenty to thirty minutes later, Corporal Grenci then
       removed Mr. Garcia from the vehicle and took him into
       custody pursuant to the outstanding warrant.

       10. At this time, Mr. Pineda-Pita got out of the vehicle and
       walked back toward the police car. Trooper Jeremy Hoy
       ordered him to get back inside the vehicle.

       11. After securing Mr. Garcia, Corporal Grenci asked Mr.
       Pineda-Pita to exit the vehicle. The Corporal explained to
       him what was going on with Mr. Garcia and why [Mr. Garcia]
       was taken into custody.

       12. Corporal Grenci then asked about Mr. Pineda-Pita’s
       travel plans. Mr. Pineda-Pita paused with an “uhhhh,” and


                                   -2-
J-S37029-17


       seemed unsure but stated the group was heading to Union
       City, New Jersey for Mr. Contrera[s’] cousin’s wedding.

       13. Corporal Grenci then asked Mr. Pineda-Pita if he could
       search the vehicle. Mr. Pineda-Pita again responded with
       “uhhhh,” and in what the Trooper described as a deflated
       tone asked “Really?”

       14. Mr. Pineda-Pita continued to stall the conversation and
       then looked under the rear of the vehicle where the spare
       tire is located and uttered the word “shit.” This stood out to
       the Corporal as an indicator of criminal activity and that Mr.
       Pineda-Pita knew exactly what was located under the
       vehicle.

       15. Mr. Pineda-Pita then asked the Corporal how long the
       search would take. Corporal Grenci told him the search
       could happen right now, it wouldn’t take very long, and if
       everything was fine they could follow him back to the
       station.

       16. At this point, Mr. Pineda-Pita stated, “Go ahead.”
       Corporal Grenci clarified and asked “Are you sure?” Mr.
       Pineda-Pita said “Yeah.” Corporal Grenci clarified again,
       “That’s a yes?” Mr. Pineda-Pita responded “Yeah.”

       17. At no time did Corporal Grenci display his badge, draw
       his weapon, or use any sign of force or aggression.

       18. Corporal Grenci then went to the driver’s side rear door
       to get Mr. Contreras out of the vehicle before starting his
       search.

       19. Upon opening the door, Corporal Grenci immediately
       smelled a very strong odor of fresh marijuana coming from
       the vehicle, as well as on Mr. Contreras as he was patting
       him down.

       20. Corporal Grenci then searched the vehicle. Before
       conducting an interior search, however, the Corporal started
       with the spare tire because of Mr. Pineda-Pita’s previous
       actions.

       21. Corporal Grenci crawled under the vehicle and looked up
       at the spare tire. In plain view through the holes in the
       wheel well he could see black garbage bags wrapped in gray
       duct tape.

                                   -3-
J-S37029-17


         22. Corporal Grenci was immediately suspicious of the
         materials, recognizing it as consistent with illegal drug
         packaging he has seen in the past.

         23. At this point, Mr. Pineda-Pita and Mr. Contreras were
         taken into custody and Corporal Grenci had the vehicle
         towed to PSP Rockview for the search to be conducted off
         the highway for safety reasons.

         24. The vehicle was searched almost immediately after
         getting to the station. Under the spare tire, troopers found
         four pounds of marijuana inside the black garbage bags.

         25. Upon further search of the vehicle, another four pounds
         of marijuana w[ere] found in a speaker box in the rear cargo
         area, and another three pounds of marijuana laying on the
         floor behind the middle row seat and under the folded down
         third row seat.

         26. Also during the search of the vehicle, Corporal Grenci
         notice[d] multiple air fresheners laying on the dashboard
         close to the windshield where the defrost air vents are
         located. In addition, the sun roof was open despite it being
         January and extremely cold outside.

         27. The black packaging material was then sent out for
         testing. Fingerprint testing confirmed one of Mr. Pineda-
         Pita’s thumbprints was found on one of the packages of
         marijuana.

Trial Ct. Op., 9/18/15, at 1-5.

      On March 27, 2015, Pineda-Pita filed an omnibus pre-trial motion, which

included a motion to suppress. Following a hearing, the trial court denied

Pineda-Pita’s motion to suppress on September 18, 2015. On May 9, 2016,

following a jury trial, Pineda-Pita was convicted of the aforementioned

offenses. On July 26, 2016, the trial court sentenced him to 90 days to 23½

months’ incarceration and a consecutive 1 year of probation. Pineda-Pita did




                                    -4-
J-S37029-17


not file a post-sentence motion and, on August 10, 2017, filed a timely notice

of appeal.

      Pineda-Pita raises the following issues on appeal:

         I.     Whether the trial court erred in denying [Pineda-
                Pita]’s motion to suppress when the search and
                seizure at the heart of the matter occurred in the
                absence of a search warrant and without legally
                sufficient basis.

         II.    Whether the trial court erred in concluding that
                [Pineda-Pita] gave voluntary consent to search his
                vehicle when said consent was not unequivocal and
                purportedly was offered in the midst of an unlawful
                seizure, during which [Pineda-Pita] was not advised
                that he was free to leave or that he could withhold
                consent.

         III.   Whether the trial court erred in extending the holding
                of Commonwealth v. Gary, 91 A.3d 102 (Pa.
                2014)[,] to a situation involving the immobilization of
                a vehicle without knowledge of any contraband, the
                towing of said vehicle to police barracks, and a
                warrantless search and seizure of said vehicle and its
                contents at the barracks.

Pineda-Pita’s Br. at 4 (full capitalization omitted).

      In reviewing the denial of a suppression motion, we must determine:

         whether the suppression court’s factual findings are
         supported by the record and whether the legal conclusions
         drawn from those facts are correct. Because the
         Commonwealth prevailed before the suppression court, we
         may consider only the evidence of the Commonwealth 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 suppression court’s factual findings are
         supported by the record, we are bound by these findings
         and may reverse only if the court’s legal conclusions are
         erroneous. Where, as here, the appeal of the determination
         of the suppression court turns on allegations of legal error,
         the suppression court’s legal conclusions are not binding on

                                       -5-
J-S37029-17


           an appellate court, whose duty it is to determine if the
           suppression court properly applied the law to the facts.
           Thus, the conclusions of law of the courts below are subject
           to our plenary review.

Commonwealth v. Jones, 988 A.2d 649, 654 (Pa. 2010) (internal quotations

and citations omitted).

       All of Pineda-Pita’s claims challenge the validity of the vehicle search.

First, he claims that he was unlawfully detained, that he should have been

allowed to drive away because he had a valid driver’s license and was the

owner of the vehicle, and that there was no probable cause to search the

vehicle. Next, Pineda-Pita argues that the consent was invalid because it was

obtained during an illegal seizure, the consent was not unequivocal, and he

was not notified that he was free to leave. Pineda-Pita also claims that if we

conclude that the consent was valid, then towing the vehicle to police barracks

to conduct the search exceeded the scope of the consent. Finally, Pineda-Pita

claims that Gary2 does not extend to a situation where the vehicle is towed

and searched at state police barracks.

____________________________________________


       2Gary was decided by a six-justice Supreme Court. The opinion
announcing the judgment of the Court adopted the federal automobile
exception for warrantless vehicle searches – “[t]he prerequisite for a
warrantless search of a motor vehicle is probable cause to search; no exigency
beyond the inherent mobility of a motor vehicle is required.” 91 A.3d at 138.
Justice Saylor authored a concurrence, joining the lead opinion insofar as it
adopted the federal rule. Justice Saylor, however, expressed concerns with
adopting a bright-line rule.    Id. at 139. This Court recently decided
Commonwealth v. Green, wherein we held that “[p]olice 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



                                           -6-
J-S37029-17


       This Court has explained that when conducting a traffic stop, “[a] police

officer has the authority to stop a vehicle when he or she has reasonable

suspicion that a violation of the vehicle code has taken place, for the purpose

of obtaining necessary information to enforce the provisions of the code.”

Commonwealth v. Brown, 64 A.3d 1101, 1105 (Pa.Super. 2013) (emphasis

omitted).    If, however, “the violation is such that it requires no additional

investigation, the officer must have probable cause to initiate the stop.” Id.

(emphasis omitted).

           Put another way, if the officer has a legitimate expectation
           of investigatory results, the existence of reasonable
           suspicion will allow the stop—if the officer has no such
           expectations of learning additional relevant information
           concerning the suspected criminal activity, the stop cannot
           be constitutionally permitted on the basis of mere suspicion.

Id. (quoting Commonwealth v. Chase, 960 A.2d 108, 115 (Pa. 2008)).

       Initially, we note that Pineda-Pita does not dispute the legality of the

traffic stop.    Corporal Grenci testified that he saw the vehicle traveling

eastbound and “all the windows were completely tinted, completely dark. I

couldn’t see anything inside the vehicle.” N.T., 5/18/15, at 10-11. This was

sufficient to establish probable cause3 of a violation of section 4524(e)(1) of

____________________________________________


mobility of a motor vehicle.’” 168 A.3d 180, 186 (Pa.Super. 2017) (quoting
Gary, 91 A.3d at 104).

       In determining the validity of the traffic stop, the trial court applied a
       3

reasonable suspicion standard. However, a traffic stop due to a vehicle having
heavily tinted windows must be supported by probable cause.                  See



                                           -7-
J-S37029-17


the Vehicle Code, 75 Pa.C.S. § 4524(e)(1).                       See Commonwealth v.

Randolph, 151 A.3d 170, 176 (Pa.Super. 2016), app. denied, 168 A.3d 1284

(Pa. 2017).

       Pineda-Pita argues that his continued seizure, following the seizure of

Garcia, was not supported by probable cause and therefore was unlawful.

“The matter of when a traffic stop has concluded or otherwise given way to a

new    interaction    does    not   lend       itself   to   a   ‘bright[-]line’   definition.”

Commonwealth v. Reppert, 814 A.2d 1196, 1202 (Pa.Super. 2002).                              In

Commonwealth v. Strickler, 757 A.2d 884 (Pa. 2000), the Pennsylvania

Supreme Court “analyzed under what circumstances a police interdiction can

devolve into a mere encounter following a traffic stop when police continue to

question the person after the reason for the traffic stop has concluded.”

Commonwealth v. Kemp, 961 A.2d 1247, 1253 (Pa.Super. 2008) (en banc).

The Strickler Court “ruled that after police finish processing a traffic

infraction, the determination of whether a continuing interdiction constitutes

a mere encounter or a constitutional seizure centers upon whether an

individual would objectively believe that he was free to end the encounter and


____________________________________________


Commonwealth v. Randolph, 151 A.3d 170, 176 (Pa.Super. 2016), app.
denied, 168 A.3d 1284 (Pa. 2017). While the trial court applied the wrong
standard, we conclude this error was harmless because the record shows the
traffic stop was supported by probable cause. See Commonwealth v.
Kennedy, 151 A.3d 1117, 1127 n.14 (Pa.Super. 2016) (“It is well-settled that
this Court may affirm a trial court’s ruling on any basis.”).



                                           -8-
J-S37029-17


refuse a request to answer questions.” Id.

       Here, the police had not finished processing the traffic infraction.

Corporal Grenci conducted a traffic stop because of the vehicle’s heavily tinted

windows.       Upon running Garcia’s identification card,4 Corporal Grenci

determined that Garcia did not have a valid driver’s license and had an active

arrest warrant. N.T., 5/18/15, at 13. After Garcia was taken into custody,

Corporal Grenci returned to the vehicle and explained to Pineda-Pita why

Garcia had been taken into custody. Id. at 14-15. Pineda-Pita argues that

he should have been allowed to leave at that point because he had a valid

driver’s license and was the owner of the vehicle. Pineda-Pita’s Br. at 14.

Pineda-Pita ignores, however, that the traffic stop had not concluded.

Corporal Grenci had not yet issued a written warning or traffic citation, N.T.,

5/18/15, at 38, and as long as the traffic stop was still in progress, Corporal

Grenci had no obligation to permit Pineda-Pita to leave.

       Next, we must determine whether Pineda-Pita’s consent for the search

of the vehicle was valid. The Commonwealth bears the burden of proving

“that a consent is the product of an essentially free and unconstrained choice

— not the result of duress or coercion, express or implied, or a will overborne

— under the totality of the circumstances.” Commonwealth v. Powell, 994


____________________________________________


       4 When Corporal Grenci asked Garcia for his driver’s license Garcia
produced an identification card. N.T., 5/18/15, at 11. Garcia stated that he
had a license but did not have it with him at the time. Id.


                                           -9-
J-S37029-17


A.2d 1096, 1101-02 (Pa.Super. 2010) (quoting Kemp, 961 A.2d at 1261).

“While knowledge of the right to refuse to consent to the search is a factor to

be taken into account, the Commonwealth is not required to demonstrate such

knowledge as a prerequisite to establishing a voluntary consent.”            Id.

(quoting Kemp, 961 A.2d at 1261). This Court has set forth several factors

to determine whether a consent is valid:

           1) the presence or absence of police excesses; 2) whether
           there was physical contact; 3) whether police directed the
           citizen’s movements; 4) police demeanor and manner of
           expression; 5) the location of the interdiction; 6) the
           content of the questions and statements; 7) the existence
           and character of the initial investigative detention, including
           the degree of coerciveness; 8) whether the person has been
           told that he is free to leave; and 9) whether the citizen has
           been informed that he is not required to consent to the
           search.

Id. (quoting Kemp, 961 A.2d at 1261).

       We must determine whether Pineda-Pita’s consent was a free and

unconstrained choice under the totality of the circumstances.5 See Powell,

994 A.2d at 1101-02.

       The trial court found that:

           Corporal Grenci’s testimony established that the questioning
           of [Pineda-Pita] took place in the open, no restraints were
           used, no aggressive behavior was shown, and the questions
           were not confusing or prolonged. [Pineda-Pita] argues that
           after Corporal Grenci asked to search the vehicle, and
           [Pineda-Pita] responded “Go ahead”, the fact that the
____________________________________________


       5Because we have concluded the traffic stop was supported by probable
cause and had not ended at the time Pineda-Pita gave his consent, Pineda-
Pita’s argument that the consent was invalid because it was obtained during
an illegal seizure fails.

                                          - 10 -
J-S37029-17


         Corporal followed up with “Are you sure?” and “That’s a
         yes?” means that his consent was not unequivocal or
         specific. This Court does not agree and finds Corporal Grenci
         was ensuring he had consent after [Pineda-Pita] initially
         seemed reluctant to permit a search. Despite the fact that
         Corporal Grenci did not specifically advise [Pineda-Pita] that
         he did not have to consent, or that he was free to leave, this
         Court finds that the totality of the circumstances supports
         the conclusion that the [Pineda-Pita]’s consent was
         voluntary.

Trial Ct. Op., 9/18/15, at 9-10.         We conclude that the trial court’s

determination that Pineda-Pita’s consent was valid is supported by the record.

      We must next determine whether the officers were permitted to

continue the search of the vehicle at police barracks. In Gary, our Supreme

Court clarified that “[t]he prerequisite for a warrantless search [or seizure] of

a motor vehicle is probable cause to search; no exigency beyond the inherent

mobility of the vehicle is required.” 91 A.3d at 138. We have explained:

         “It is only the probability and not a prima facie showing of
         criminal activity that is a standard of probable cause.”
         Commonwealth v. Monaghan, 441 A.2d 1318 (Pa.Super.
         1982) (citation omitted); see also Illinois v. Gates, 462
         U.S. 213, 238 (1983) (holding that probable cause means
         “a fair probability that contraband or evidence of a crime will
         be found.”); Commonwealth v. Lindblom, 854 A.2d 604,
         607 (Pa.Super. 2004) (reciting that probable cause exists
         when criminality is one reasonable inference, not
         necessarily even the most likely inference).

Commonwealth v. Freeman, 128 A.3d 1231, 1242-43 (Pa.Super. 2015)

(quoting Commonwealth v. Dommel, 885 A.2d 998, 1002 (Pa.Super.

2005)) (alterations omitted).

      In conducting the consent search, Corporal Grenci testified that: as he

opened the vehicle’s back door to remove the back-seat passenger, Contreras,

                                     - 11 -
J-S37029-17


he smelled fresh marijuana; he also smelled fresh marijuana on Contreras as

he patted him down; he first searched the spare tire mounted under the car

because of Pineda-Pita’s actions during the request for consent; “in plain

view,” through the holes in the wheel well, he saw black garbage bags

wrapped in gray duct tape; and based on his training and experience, he

determined the packaging was “illegal contraband, most likely drugs.” N.T.,

5/18/15, at 17-19.   These observations, along with the evidence that the

vehicle’s occupants were from common drug source areas; the driver was

wanted for drug trafficking violations; Pineda-Pita seemed unsure when asked

about their travel plans; and, when asked for consent to search the vehicle,

Pineda-Pita looked toward the rear of the vehicle and uttered the word “shit,”

were more than sufficient to establish probable cause. See Commonwealth

v. Nobalez, 805 A.2d 598, 600 (Pa.Super. 2002) (“We do not review the

evidence   piecemeal,   but   consider   the totality of the circumstances   in

assessing whether probable cause existed.”); see also Commonwealth v.

Evans, 661 A.2d 881, 889 (Pa.Super. 1995) (holding that officer had probable

cause when appellee opened the car door and officer saw a brick-shaped

object covered in plastic, the brick-shaped object was partially concealed

under the driver’s seat, and appellee had nervous demeanor”).     Therefore,

once Corporal Grenci had probable cause, the search of the vehicle was

supported by the automobile exception. See Gary, 91 A.3d at 138.




                                    - 12 -
J-S37029-17


       Further, that the inside of the vehicle was searched after it was removed

from the highway and towed to a safe location does not alter our conclusion.

See Gary, 91 A.3d at 110 (“[W]hile a vehicle’s ready mobility was the original

justification for the automobile exception to the warrant requirement, the U.S.

Supreme Court subsequently broadened this justification to encompass those

situations    where    the   vehicle    was    in   police   custody   and   thus   was

immobilized.”); see also Michigan v. Thomas, 458 U.S. 259, 261 (1982)

(“In Chambers v. Maroney, 399 U.S. 42, . . . (1970), we held that when

police officers have probable cause to believe there is contraband inside an

automobile that has been stopped on the road, the officers may conduct a

warrantless search of the vehicle, even after it has been impounded and is in

police custody.”).6

       Accordingly, we conclude that the trial court did not err in denying

Pineda-Pita’s motion to suppress.7

       Judgment of sentence affirmed.




____________________________________________


       6Because we conclude that the automobile exception allowed the
warrantless search of the vehicle once probable cause was established, we
need not reach the question of whether Pineda-Pita’s consent to the search of
the vehicle extended to the towing of the vehicle to police barracks.

       7   See Kennedy, 151 A.3d at 1127 n.14.

                                          - 13 -
J-S37029-17


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/20/2017




                          - 14 -
