J-S71005-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37


COMMONWEALTH OF PENNSYLVANIA,                :    IN THE SUPERIOR COURT OF
                                             :         PENNSYLVANIA
                          Appellee           :
                                             :
                    v.                       :
                                             :
MICHAEL SEAN KEYS, JR.,                      :
                                             :
                          Appellant          :    No. 731 MDA 2014

         Appeal from the Judgment of Sentence Entered April 24, 2014
                 In the Court of Common Pleas of York County
              Criminal Division No(s).: CP-67-CR-0007095-2013

BEFORE: FORD ELLIOTT, P.J.E., PANELLA, and FITZGERALD,* JJ.

DISSENTING MEMORANDUM BY FITZGERALD, J.:              FILED MARCH 27, 2015

        I respectfully dissent.   I agree with the majority that the trial court

properly found the officer had probable cause to initiate the vehicle stop. I

respectfully disagree, however, that Appellant has waived a challenge to the

officer’s demand for his identification and inquiry for criminal information

using his name.

        Because counsel has filed an Anders petition to withdraw, this Court is

tasked with conducting “our own review of the proceedings and mak[ing] an

independent judgment to decide whether the appeal is, in fact, wholly

frivolous.”   See Commonwealth v. Washington, 63 A.3d 797, 800 (Pa.

Super. 2013).



*
    Former Justice specially assigned to the Superior Court.
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     In Commonwealth v. Campbell, 862 A.2d 659 (Pa. Super. 2004),

this Court held “that the officer did not unreasonably intrude on a protected

privacy right of a passenger in a vehicle lawfully stopped when he asked [the

defendant/passenger] to identify himself.” Id. at 665. However, I discern a

further question that has arisen in this case—whether an officer must have

reasonable suspicion or probable cause to then search a police or criminal

database with the passenger’s name.

     In Campbell, the officer asked the defendant/passenger for his name

and date of birth.   Id. at 661.   “When asked whether he recognized” the

defendant’s name, the officer “responded, ‘I thought there might be

warrants for [him]. I checked [him] for warrants.’” Id. “This statement by

[the officer] was not challenged on cross-examination.”         Id.    “Upon

checking, [the officer] discovered that there was an outstanding warrant for

[the defendant’s] arrest.” Id. The demand for the defendant’s identification

was upheld by this Court. Id. at 665.

     In Commonwealth v. Durr, 32 A.3d 781 (Pa. Super. 2011), the

officer attempted to identify the defendant/passenger, consistent with police

department policy “to identify everyone that is in a vehicle during a traffic

stop.” Id. at 783. The defendant gave the name of ‘James Durr,’ which was

a known alias for [him. The officer] received further information regarding a

description of [the d]efendant’s tattoos, which matched [the d]efendant’s

appearance.”   Id.   The officer discovered an outstanding warrant for the


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defendant and arrested him. Id. On appeal, this Court relied on Campbell

and concluded the officer “did not violate [the d]efendant’s Fourth

Amendment rights by requesting that he identify himself.” Id. at 784.

      In Commonwealth v. Reed, 19 A.3d 1163 (Pa. Super. 2011), the

officer found the driver of the vehicle had an outstanding arrest warrant and

arrested her. Id. at 1164. “[T]he police dispatcher told [the officer] that

the vehicle belonged to a man in” another county, and the officer asked the

defendant/passenger whether he was the owner of the vehicle.         Id.    The

defendant gave a fictitious name and date of birth.       Id.   “There was no

police record found regarding that information.         When confronted, [the

defendant] provided his real name and birth date” and the officer

determined there were no outstanding warrants for him. Id. However, the

officer asked the defendant to exit the vehicle and conducted a protective

frisk, in which he recovered a loaded gun. Id. On appeal to this Court, the

defendant claimed, inter alia, “that he was improperly subjected to an

investigatory detention in the absence of reasonable suspicion that criminal

activity was afoot.” Id. at 1165-66. Noting that Campbell held “police may

constitutionally request identification from a passenger during a routine

traffic stop,” this Court denied relief. Id. at 1168.

      In the case sub judice, Officer Tiffany Vogel testified at the

suppression hearing that she observed Appellant in the rear seat of the

vehicle, and he did not have his seat belt on.      N.T., 3/21/14, at 11.   The


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officer testified,

          I did recognize him as Michael Keys, [Appellant.1] I did
          ask him for his name because I didn’t remember off the
          top of my head exactly what his name was. I just know I
          encountered him before. He did give me his name. upon
          running his name for warrants, it was found that he was
          wanted . . . and we had detained him at that time,
          arrested him.

Id.

      On cross-examination, the following exchange occurred:

             [Appellant’s counsel:]   And the reason for you
          speaking to [Appellant] was that he was not wearing a
          seat belt?

             [Officer Vogel:] Yes, that’s the violation. However, I
          always speak to all occupants.

                                  *   *     *

             Q. And in speaking to [Appellant], you recognized that
          passenger as Mr. Keys?

             A. Yes.

             Q. Even though you recognized him, you simply asked
          him for his ID?

            A. I didn’t quite remember part of his name. I don’t
          remember if it was . . . Michael, if I couldn’t remember
          Keys, or vice versa. That’s why I asked him for his name,
          which he gave me his correct name.

            Q. And that’s how you determined he had outstanding
          warrants?

             A. That’s correct.


1
 At this point, Officer Vogel identified Appellant in the courtroom. N.T.,
3/21/14, at 11-12.
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Id. at 20-21.

      We note the following. In Campbell and Durr, the officer had some

additional   facts    or   information   of   wrongdoing   before   checking   the

defendant’s name on police records—in Campbell, a belief that the

defendant had an arrest warrant and in Durr, the officer’s knowledge that

the name given was an alias for the defendant as well as information

regarding his tattoos.2 Durr, 32 A.3d at 783; Campbell, 862 A.2d at 661.

In Reed, the recitation of facts revealed no such additional facts before the

officer checked the name first given by the defendant. See Reed, 19 A.3d

at 1164. Nevertheless, none of these decisions addressed whether an officer

must have reasonable suspicion or probable cause to check police databases

with a name given.

      I believe this issue is properly before us in this appeal.               See

Washington, 63 A.2d at 800. In the instant case, Officer Vogel observed

Appellant did not have on a seatbelt and testified specifically that this was

“the violation.”     N.T. at 20.   The officer also recognized Appellant from a

prior encounter. Id. at 11-20. Accordingly, I would remand for counsel to

file either an amended Anders brief or advocate’s brief addressing this

issue—whether the officer could check Appellant’s name in the police

database. I would also allow the Commonwealth the opportunity to respond.

      For these reasons, I dissent.

2
  There was no further explanation in Durr as to how the officer received the
information about the defendant’s tattoos. See Durr, 132 A.3d at 783.
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