J-S09027-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                            Appellee

                       v.

ARMANDO GONZALEZ

                            Appellant              No. 1315 MDA 2015


              Appeal from the Judgment of Sentence July 28, 2015
                 In the Court of Common Pleas of Berks County
              Criminal Division at No(s): CP-06-CR-0005142-2014


BEFORE: PANELLA, J., LAZARUS, J., and JENKINS, J.

MEMORANDUM BY LAZARUS, J.:                         FILED MARCH 04, 2016

        Armando Gonzalez appeals from the judgment of sentence entered in

the Court of Common Pleas of Berks County after the Honorable Stephen B.

Lieberman found him guilty, in a nonjury trial, of possession of a controlled

substance.1      Upon careful review, we reverse Gonzalez’s judgment of

sentence.

        At approximately 6:15 p.m. on March 21, 2014, City of Reading Police

Officer Zachary Martz was on patrol in full uniform with his partner, Officer

White, in the 300 block of North Tenth Street when he observed Gonzalez

walking on a sidewalk carrying an open container of Coors Light beer. He

stopped his marked patrol vehicle approximately fifteen feet in front of

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1
    35 P.S. § 780-113(a)(16).
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Gonzalez, exited, and began speaking with Gonzalez. Gonzalez placed the

open container on the front stoop of a residence, after which Officer Martz

instructed him to “have a seat.” N.T. Suppression Hearing, 1/30/15, at 6.

Officer Martz asked Gonzalez for identification, at which time Gonzalez

“seemed a little nervous. His hands were a little shaky as he was reaching

for his ID.” Id. at 7. In Officer Martz’s experience, this behavior indicated

“a possibility that he might be holding some sort of contraband or illegal

substance.”   Id.   Officer Martz asked Gonzalez if he was in possession of

anything illegal.   Gonzalez, while avoiding eye contact with Officer Martz,

said “no.” Because Gonzalez had previously been making eye contact when

speaking to Officer Martz, Officer Martz believed that Gonzalez’s behavior

may have been “deceitful.”     Id. at 7-8.   Accordingly, Officer Martz asked

Gonzalez again if he had anything illegal on his person and told him “he

should be honest with me.” Id. at 8. Gonzalez admitted he had cocaine in

his pocket, which he turned over to Officer Martz. Officer Martz testified that

his entire interaction lasted approximately five to seven minutes.

      On cross-examination by Gonzalez’s counsel, Officer Martz testified

that, during his interaction with Gonzalez, a second individual walked up to

them. Officer Martz stated that the individual was not cooperative and was

behaving in an unpleasant manner.        Gonzalez testified that the second

individual, his friend, was drunk and “running at the mouth.”        Id. at 18.

Gonzalez stated that his friend’s disruptive behavior, and not the fact that he




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was carrying cocaine, had caused the nervousness observed by Officer

Martz.   See id. at 18-19.2

       On August 15, 2014, Officer Martz filed a criminal complaint charging

Gonzalez with possession of cocaine and consumption of alcohol in public

places in violation of a Reading city ordinance.     Gonzalez filed a pre-trial

motion to suppress all evidence obtained as a result of his detention on

March 21, 2014, asserting that Officer Martz lacked either reasonable

suspicion or probable cause. Following a hearing and briefing by the parties,

the trial court denied Gonzalez’s suppression motion by order dated May 29,

2015. Gonzalez proceeded to a nonjury trial on July 28, 2015, at which time

the parties incorporated the notes of testimony from the suppression hearing

and rested.      Judge Lieberman found Gonzalez guilty of possession of a

controlled substance.3       Gonzalez proceeded immediately to sentencing, at

which time the court imposed a period of incarceration of six to twelve

months, with credit for time served.

       Gonzalez did not file postsentence motions.        On July 31, 2015,

Gonzalez filed a timely notice of appeal to this Court, followed by a court-
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2
  Gonzalez testified as follows: “I was nervous, because I’m getting stopped
and the beer container and I’m hoping I don’t got, you know, what you call
it, no warrants for my arrest, knowing that my friend did, and he’s drunk
and he’s running his mouth.” N.T. Suppression Hearing, 1/30/15, at 18.
3
  Because the substance contained in the Coors Light can was never
admitted into evidence or identified by a laboratory report as alcohol, the
court acquitted Gonzalez of the ordinance violation.



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ordered statement of errors complained of on appeal pursuant to Pa.R.A.P.

1925(b). Gonzalez raises the following issue for our review:

      Whether Officer Zachary Martz possessed probable cause to
      detain, question, search and arrest [Gonzalez] following the
      original lawful interaction for a violation of an open container
      ordinance?

Brief of Appellant, at [4].

      Gonzalez challenges the trial court’s denial of his suppression motion.

Our standard of review of the denial of a motion to suppress is well-settled:

      Our standard of review in addressing a challenge to the denial of
      a suppression motion is limited to determining 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 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. Potts, 73 A.3d 1275, 1280 (Pa. Super. 2013) (citation

omitted).

      Article I, § 8 of the Pennsylvania Constitution provides that “the people

shall be secure in their persons, houses, papers and possessions from

unreasonable searches and seizures[.]”       The Fourth Amendment to the



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United States Constitution provides that “the right of the people to be secure

in their persons, houses, papers, and effects, against unreasonable searches

and seizures, shall not be violated[.]”

        Not all interactions between police and citizens involve seizures of

persons.     Commonwealth v. Hoak, 700 A.2d 1263, 1266 (Pa. Super.

1997), citing Florida v. Bostick, 501 U.S. 429 (1991) and Commonwealth

v. Matos, 672 A.2d 769 (Pa. 1996). There is no constitutional prohibition

against the police questioning an individual in a public place; indeed, so long

as a reasonable person would feel free to go about his or her business, the

encounter is consensual and no reasonable suspicion is required. Hoak, 700

A.2d at 1266. “Only when the officer, by means of physical force or show of

authority, has in some way restrained the liberty of a citizen may we

conclude that a ‘seizure’ has occurred.”     Id. (citations omitted).   “Thus,

individuals have been seized only if there is an objective reason to believe

they are not free to end their conversation with police and proceed on their

way.”      Id. (citations omitted).   Examples of circumstances that might

indicate a seizure, even where the person did not attempt to leave, include

        the threatening presence of several officers, the display of a
        weapon by an officer, some physical touching of the person of
        the citizen, or the use of language or tone of voice indicating
        that compliance with the officer’s request might be compelled.

Id., quoting United States v. Mendenhall, 446 U.S. 544, 553-54 (1980).




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        Valid citizen/police interactions which constitute seizures
        generally fall within two categories, distinguished according to
        the degree of restraint upon a citizen’s liberty: the investigative
        detention or Terry4 stop, which subjects an individual to a stop
        and a period of detention but is not so coercive as to constitute
        the functional equivalent of an arrest; and a custodial detention
        or arrest, the more restrictive form of permissible encounters.
        To maintain constitutional validity, an investigative detention
        must be supported by a reasonable and articulable suspicion that
        the person seized is engaged in criminal activity and may
        continue only so long as is necessary to confirm or dispel such
        suspicion.

Commonwealth v. Strickler, 757 A.2d 884, 889 (Pa. 2000) (internal

citations omitted).

        Here, the trial court concluded that Officer Martz possessed reasonable

suspicion to detain Gonzalez because he observed him to be in possession of

an open container of alcohol in violation of a city ordinance. Thus, the court

concluded, the original detention of Gonzalez was constitutional. We agree

with this portion of the court’s analysis. However, we do not believe it

follows that Officer Martz’s subsequent questioning of Gonzalez regarding his

possession of contraband, which was unrelated to the purpose of the original

stop and led to the discovery of cocaine on his person, also passes

constitutional muster.

        The fact that Officer Martz witnessed Gonzalez walking on a city street

with an open container of beer clearly provided him with reasonable

suspicion to detain Gonzalez for the purpose of investigating whether

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4
    Terry v. Ohio, 392 U.S. 1 (1968).



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Gonzalez was in violation of the open container ordinance.         It did not,

however, provide Officer Martz carte blanche to investigate Gonzalez for any

and all other possible offenses without reasonable suspicion to believe that

additional criminal activity may be occurring.

      Officer Martz testified that, after he directed Gonzalez to be seated on

the stoop, he requested his identification.      At that point, Officer Martz

testified, Gonzalez “seemed a little nervous,” which, to him, indicated that

“he might be holding some sort of contraband or illegal substance” and

“arouse[d his] suspicion.” N.T. Suppression Hearing, 1/30/15, at 7. Based

upon Gonzalez “seem[ing] a little nervous,” Officer Martz proceeded to

inquire as to whether Gonzalez was in possession of contraband.        At this

point, Officer Martz diverged from the original investigation for which he

possessed reasonable suspicion and, essentially, initiated a second, parallel

investigation to determine whether Gonzalez was holding contraband.

Because the new line of questioning exceeded the scope of the original stop,

the Commonwealth was required to demonstrate reasonable suspicion to

support Officer Martz’s new line of inquiry. Our review of the record leads us

to conclude that Officer Martz did not possess the requisite level of suspicion

that contraband-related criminal activity was afoot.

      Here, the sole basis for Officer Martz’s questioning of Gonzalez

regarding his possession of contraband was that he “seemed a little

nervous.”   Id.   This Court has previously addressed the issue of whether

“nervousness” may be used to establish reasonable suspicion as follows:

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      In [Commonwealth v.] Sierra[, 723 A.2d 644 (Pa. 1999)] and
      [Commonwealth v.] DeHart[, 745 A.2d 633 (Pa. Super.
      2000)], our Courts pronounced an officer’s assessment of
      nervous demeanor palpably insufficient to establish reasonable
      suspicion of a citizen’s involvement in criminal activity, even
      when viewed in combination with other indicia of potential
      criminal acts.    We have found furtive movements similarly
      deficient even when they occur in high crime environments in
      the late hours of the night. Thus, we find no basis to conclude
      that excessive nervousness and furtive movements, even
      considered together, give rise to reasonable suspicion of criminal
      activity. A police officer’s observation of a citizen’s nervous
      demeanor and furtive movements, without more, establishes
      nothing more than a “hunch,” employing speculation about the
      citizen’s motive in the place of fact. Were we to validate such a
      practice, we would open every occupant of a motor vehicle in
      this Commonwealth to law enforcement officers’ wholly
      subjective interpretation of inoffensive conduct, and undermine
      our Supreme Court’s time-honored insistence that police officers
      may stop our citizens only on the basis of objective criteria. This
      we cannot do. This we will not do.

Commonwealth v. Reppert, 814 A.2d 1196, 1206 (Pa. Super. 2002)

(internal citations omitted).

      Here, while Officer Martz interpreted Gonzalez’s nervousness as a sign

of wrongdoing or deceit, it is equally likely that Gonzalez’s behavior was

caused by the disruptive behavior of his friend, or simply by the fact that he

had been stopped by a police officer.      Without any additional indicia of

criminal activity, Officer Martz lacked reasonable suspicion to investigate

Gonzalez for anything more than the open carry ordinance violation.

Accordingly, the evidence obtained as a result of Officer Martz’s illegal

interrogation of Gonzalez must be suppressed.




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     Judgment of sentence reversed.       Case remanded for proceedings

consistent with the dictates of this memorandum. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/4/2016




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