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HomeMy WebLinkAboutCP-21-CR-1303-2011 COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : v. : : : CHRISTOPHER M. RAMIREZ : CP-21-CR-1303-2011 IN RE: MOTION TO SUPPRESS OPINION and ORDER For consideration at this time is Defendant’s Motion to Suppress Physical Evidence. (Defendant’s Motion to Suppress Evidence, filed Aug. 1, 2011). Subsequent to a traffic stop, Defendant was charged with the following: at Count I: Unlawful Delivery, Manufacture, Possession with Intent to Deliver a Schedule I Controlled Substance – Marijuana, a violation of 35 P.S. 780-113(a)(30); and at Count II: Unlawful Possession of a Schedule I Controlled Substance, a violation of 35 P.S. 780-113(a)(16). Defendant has filed the instant suppression motion asserting, first, that the stop of his vehicle was pretextual in nature, second, various constitutional issues arising out of an asserted unreasonable and excessive detention which occurred after the initial traffic stop, and, third, that the Pennsylvania State Police lacked reasonable suspicion to implement a drug dog sniff of his vehicle prior to applying for a search warrant. As a result, Defendant requests that all evidence obtained as a result of the traffic stop, detention, and search be suppressed. For the reasons that follow, Defendant’s Motion will be granted. A suppression hearing on Defendant’s Motion was held on February 3, 2012, where the Commonwealth presented the testimony of Pennsylvania State Trooper Luke Straniere. This testimony, along with Trooper Straniere’s video recording of the traffic stop, established the following: On April 12, 2011, at approximately 11:00 a.m., Pennsylvania State Trooper Luke Straniere was monitoring the westbound acceleration ramp of the Pennsylvania Turnpike at mile post 226. (Notes of Testimony, 8, In Re: Transcript of Proceedings Omnibus Pretrial Motion, Feb. 3, 2012 (hereinafter N.T. __)). At that same time, Defendant Christopher M. Ramirez (hereinafter “Defendant”) was operating a black Cadillac Escalade SUV bearing taxi registration plates from the State of New York and was traveling westbound along the turnpike. (N.T. 9). Trooper Straniere observed Defendant’s vehicle, waited a few minutes, and decided to follow the vehicle. (N.T. 9, 72). The trooper testified at the suppression hearing that he made the decision to follow the vehicle based upon the fact that it was an SUV with out of state taxi/limo plates and, insofar as could be determined in passing, contained no passengers within. (N.T. 42-44). After following Defendant’s vehicle for several miles, Trooper Straniere clocked the vehicle at a rate of speed of sixty-five miles per hour in a posted fifty-five mile per hour zone in violation of the Pennsylvania Motor Vehicle Code. (N.T. 10). The trooper testified that, as a result of inclement weather, he was unable to utilize radar to determine the speed of the vehicle; instead, the trooper established a set distance behind Defendant’s vehicle and operated his State Police car at a speed of sixty-five miles per hour, observing that the distance between the two vehicles neither increased nor decreased for approximately one mile. (N.T. 10). Because State Police vehicles are speed-tested and calibrated yearly, Trooper Straniere was able to determine that Defendant was operating his vehicle in excess of the posted fifty-five mile per hour speed limit. (N.T. 10-12). Based on this apparent vehicle code violation, Trooper Straniere activated his 1 emergency lights and initiated a traffic stop. (N.T. 10-11). 1 Although much of the Pennsylvania Turnpike maintains a posted speed limit of sixty-five miles per hour, Trooper Straniere testified that, as a result of road construction, the posted speed limit had been lowered to fifty-five miles per hour at mile post 223. (N.T. 72-73). The trooper testified that he began to clock Defendant’s speed at mile post 219, roughly four miles into the fifty-five mile per hour zone, and he did so for approximately one mile. (N.T. 73). 2 After Defendant pulled to the side of the roadway, Trooper Straniere approached the vehicle on the passenger’s side and identified himself, whereupon Defendant produced a New York driver’s license, vehicle registration, and certain other identifying documentation indicating 2 that he was a New York limousine driver. (N.T. 14). Defendant inquired into the nature of the traffic stop, and Trooper Straniere responded that he had clocked Defendant’s vehicle traveling sixty-five miles per hour in the posted fifty-five zone. (Commonwealth’s Ex. 3, Video, admitted Feb. 3, 2012). Defendant responded that he is always a “safe driver,” and that his employment as a limousine driver mandates his safe driving practices. (Commonwealth’s Ex. 3, Video, admitted Feb. 3, 2012). Thereafter, Trooper Straniere inquired into the nature of Defendant’s trip, to which Defendant responded that he was traveling to Pittsburgh to visit his mother who had recently moved to that area to open a bar/restaurant. (N.T. 15-17). Defendant was unclear as to exactly where in Pittsburgh his mother had relocated, but referenced “Penn’s Landing” as a potential destination. (N.T. 15). Defendant stated that he intended to spend approximately one week with her as he helped with the new business. (N.T. 16-17). Trooper Straniere testified that, during the initial encounter and conversation, he noticed a pack of cigarettes and two cell phones in the center console. (N.T. 17). The trooper also testified that Defendant appeared “very nervous” and stated that Defendant “fumbl[ed] through his wallet while he looked for his credentials and vehicle information.” (N.T. 16). Upon his return to the patrol car, Trooper Straniere peered into the rear of the vehicle and observed a black garbage bag, a child’s car seat, and other miscellaneous items in the cargo area. (N.T. 17). The trooper testified that he was unable to see any luggage as he passed by, but did testify that, although the front windows were clear, all rear windows had a darker, limousine- 2 A copy of the Pennsylvania State Police video recording of the traffic stop was entered into the record, and the video was reviewed in camera. (Commonwealth’s Ex. 3, Video, admitted Feb. 3, 2012). 3 style tint. (N.T. 17). The trooper testified that his suspicions were aroused for several reasons: specifically, he found it to be suspicious that a driver was smoking in a “high-end rental, high- end taxi service vehicle,” that no luggage for a week-long trip was observable through the windows, that Defendant possessed two cell phones, that Defendant referenced a “Penn’s 3 Landing” destination for a Pittsburg trip, and that Defendant was nervous. (N.T. 16-18). Trooper Straniere returned to his patrol car and ran Defendant’s information through his patrol car computer system. (N.T. 18). From that inquiry, the trooper obtained information which indicated that the SUV was registered to a company titled VIP Leasing located in Woodside, New York. (N.T. 17). Additionally, Trooper Straniere learned that Defendant’s New York driver’s license was both suspended and expired. (N.T. 18). The trooper also ran a criminal history search which revealed a 2010 forgery arrest and a 2004 DUI arrest, both from the State of New York. (N.T. 18). Because Pennsylvania State Police vehicles are unable to obtain New Jersey “rap sheets” from their in-car computers, Trooper Straniere placed a call to a dispatcher to request the information be brought up on a desk-top computer. (N.T. 19). The trooper testified that this inquiry takes longer than the in-car searches because an officer is required to rely on a dispatcher or someone working at a desk to retrieve the information. (N.T. 19). A search of Defendant’s New Jersey criminal history later revealed multiple charges for 4 narcotics. (N.T. 19). While Defendant’s New Jersey history was being obtained, Pennsylvania State Trooper Kolodzi responded to the scene as backup. (N.T. 19). 3 Trooper Straniere testified that, because he was familiar with the Philadelphia area, he knew Penn’s Landing to be a “suburb right around Philadelphia and not Pittsburgh.” (N.T. 15). 4 The State Police video recording of the traffic stop indicated that Trooper Straniere first ran Defendant’s New York criminal background check at 11:15 a.m. (Commonwealth’s Ex. 3, Video, admitted Feb. 3, 2012). The video recording also indicates that, as of 11:20 a.m., Trooper Straniere was still waiting on the New Jersey criminal background information to be sent to his patrol car. (Commonwealth’s Ex. 3, Video, admitted Feb. 3, 2012). 4 After Trooper Straniere had completed his license and criminal history checks, he re- approached Defendant’s vehicle, this time accompanied by Trooper Kolodzi. (N.T. 20). Upon their re-approach, both troopers continued to peer into the back of the vehicle and took note of some of the personal property located inside the SUV. (Commonwealth’s Ex. 3, Video, admitted Feb. 3, 2012). Trooper Straniere questioned Defendant about his suspended and expired license, and Defendant advised that he had no knowledge that his driver’s license was no longer valid. (N.T. 20). Defendant stated that it was possible that he owed the State of New York for a “ticket or two,” and stated that it was also possible that New York may have suspended his license as a result of non-payment of those tickets. (N.T. 20). Trooper Straniere also questioned Defendant about his employer as the owner of the vehicle. (N.T. 20). Defendant informed the trooper that the SUV was a company vehicle, registered to VIP Leasing, and that he had a lease agreement which entitled him to an owner/operator type contract; as a result of this type of agreement, Defendant informed the trooper that the SUV was not only his work car for limousine purposes, but it was also his everyday driver vehicle for personal purposes. (N.T. 20). Trooper Straniere again continued to question Defendant about the nature of his trip, whereupon Defendant again confirmed that he was on his way to Pittsburgh for “three or four days” to visit his mother who had recently opened a bar/restaurant. (Commonwealth’s Ex. 3, Video, admitted Feb. 3, 2012). Defendant was questioned by Trooper Straniere about his lack of luggage, to which Defendant responded that when his mother moved to Pittsburgh she had taken some of his clothing and belongings with her. (N.T. 21). Trooper Straniere asked Defendant to roll down the passenger side rear window; he peered in, and began to question Defendant about the contents of the vehicle. (Commonwealth’s Ex. 3, Video, admitted Feb. 3, 2012). Defendant stated that he had some clothes, a car seat, and some personal belongings, yet Trooper Straniere 5 again questioned Defendant about his personal use of a company vehicle. (Commonwealth’s Ex. 3, Video, admitted Feb. 3, 2012). Defendant explained that, although he did not get paid when he was not driving for professional reasons, he was entitled to utilize the vehicle as a personal vehicle. (Commonwealth’s Ex. 3, Video, admitted Feb. 3, 2012). Trooper Straniere then requested contact information for VIP Leasing, which Defendant promptly provided. (Commonwealth’s Ex. 3, Video, admitted Feb. 3, 2012). Trooper Straniere instructed Defendant to “hang tight” while he contacted the leasing company and attempted to verify the information Defendant had provided regarding the vehicle. (Commonwealth’s Ex. 3, Video, admitted Feb. 3, 2012). The trooper was unable to contact anyone; however, during this time, Trooper Straniere received confirmation that Defendant had multiple narcotic charges from years prior originating in the State of New Jersey. (Commonwealth’s Ex. 3, Video, admitted Feb. 3, 2012). After finding everything else in order, the trooper re-approached Defendant and asked him to exit the vehicle. (Commonwealth’s Ex. 3, Video, admitted Feb. 3, 2012). Once Defendant was at the rear of the vehicle, Trooper Straniere requested Defendant to submit to a Terry-style pat down for the trooper’s safety, to which Defendant complied, and Trooper Straniere thereafter returned to Defendant his license and vehicle registration. (Commonwealth’s Ex. 3, Video, admitted Feb. 3, 2012). The trooper explained that, rather than issuing Defendant a speeding ticket, he had instead written a police warning, which Defendant signed. (Commonwealth’s Ex. 3, Video, admitted Feb. 3, 2012). Trooper Straniere then advised Defendant to “stay safe,” after which Defendant began to walk back towards the driver’s door of the vehicle. (Commonwealth’s Ex. 3, Video, admitted Feb. 3, 5 2012). 5 It is noted that the State Police video indicates that initial traffic stop portion of the interaction was approximately 37 minutes long. (Commonwealth’s Ex. 3, Video, admitted Feb. 3, 2012). The video of the traffic stop indicates that 6 Before allowing Defendant to reach the driver’s side door, Trooper Straniere called out to Defendant by name, which prompted Defendant to return to the rear of the vehicle. 6 (Commonwealth’s Ex. 3, Video, admitted Feb. 3, 2012). The trooper advised Defendant that the traffic stop was over, but stated that he still had some questions. (Commonwealth’s Ex. 3, Video, admitted Feb. 3, 2012). Trooper Straniere, again, inquired into the details of Defendant’s travel plans, whereupon Defendant once more indicated that he was traveling to Pittsburgh to visit his mother who had recently moved from Staten Island, New York and had opened a bar/restaurant in the Pittsburgh area. (Commonwealth’s Ex. 3, Video, admitted Feb. 3, 2012). Defendant indicated that this was his first trip to visit his mother at her new residence, and he stated that he intended to help her with her new venture. (Commonwealth’s Ex. 3, Video, admitted Feb. 3, 2012). The trooper then turned the conversation back to Defendant’s employment, inquiring into manner in which Defendant went “on duty” as a limousine driver. (Commonwealth’s Ex. 3, Video, admitted Feb. 3, 2012). Defendant gave a composed and reasonable response, explaining that he calls a phone number and informs the dispatcher that he is available to work. (Commonwealth’s Ex. 3, Video, admitted Feb. 3, 2012). Defendant gave coherent responses to each of Trooper Straniere’s inquisitions into his employment. (Commonwealth’s Ex. 3, Video, admitted Feb. 3, 2012). Additionally, the trooper questioned Defendant about his criminal history, to which Defendant gave a brief, yet composed response. 7 (Commonwealth’s Ex. 3, Video, admitted Feb. 3, 2012). Defendant was cooperative, calm, and rational throughout the initial face-to-face encounter and receipt of the police warning. (Commonwealth’s Ex. 3, Video, admitted Feb. 3, 2012). 6 The State Police video indicates that Trooper Straniere’s second round of questioning, subsequent to the initial traffic stop interaction, began at 11:48 a.m. (Commonwealth’s Ex. 3, Video, admitted Feb. 3, 2012). 7 Defendant did not, however, reference his prior narcotics convictions. (Commonwealth’s Ex. 3, Video, admitted Feb. 3, 2012). 7 Subsequent to this secondary round of questioning, Trooper Straniere asked Defendant whether or not there was anything illegal inside the vehicle, to which Defendant responded, “I 8 would never, I would never do that with the line of work I’m in.” Defendant was asked whether he had any guns, bombs, stolen merchandise, or drugs inside the vehicle, and he responded in the negative to each inquisition. Trooper Straniere then asked, specifically, whether Defendant had any marijuana in the car, and Defendant responded by stating, “No, not at all. I would never put my livelihood at risk.” Defendant was asked if he had drugs of any kind in the car, specifically cocaine, to which Defendant responded, “No, never.” Defendant stated that not only had he been clean and sober for fifteen years, but he also was a volunteer for teenagers as part of a drug-free program. Trooper Straniere then stated to Defendant, “Hypothetically, if I were to search your car, I wouldn’t find anything illegal?” Defendant, again, responded in the negative. Trooper Straniere again requested Defendant’s consent to search the vehicle, which Defendant refused. In doing so, Defendant stated that he simply would not “feel comfortable” giving permission to have his vehicle searched. Trooper Straniere then asked of Defendant the following: “Is there any reason why you wouldn’t want me to search? Is there something in there I’m going to find?” Defendant responded, “No, not at all,” and indicated that from his prior dealings with the police he did not feel comfortable giving his permission to have his vehicle searched. Additionally, Defendant stated that he did not feel comfortable having his work vehicle searched. Again, the trooper asked Defendant if he would give his permission to have the vehicle searched, explaining that the vehicle would not be “taken apart on the side of the highway,” but that the trooper merely wanted to look through the vehicle to make sure there was nothing illegal inside and thereafter “send [him] on [his] way.” Defendant again refused to give 8 The following exchange is summarized directly from the Pennsylvania State Police Video entered as an exhibit at the suppression hearing. (Commonwealth’s Ex. 3, Video, admitted Feb. 3, 2012). 8 his consent, even offering to roll down his windows for the trooper to look through. Trooper Straniere asked Defendant to open the trunk, and Defendant again stated he was uncomfortable 9 having the trooper search and declined to give his permission. At this point, Trooper Straniere instructed Defendant to “have a seat on [the] bumper” and stated that Defendant was not to re-enter the vehicle. When Defendant asked if he could retrieve his phone and cigarettes from the vehicle, the trooper stated that he could not. Defendant, seemingly confused by the course of events the “traffic stop” had taken, asked Trooper Straniere whether or not the warning he received for speeding was still valid, to which the trooper replied, “I told you the stop was completed. So just hang out here.” Defendant was again denied access to his vehicle to retrieve his cigarettes; instead, Trooper Straniere opened the passenger side door, picked up the cigarettes, and handed them to Defendant. The trooper then 10 again instructed Defendant to sit on the rear of his vehicle. Trooper Straniere returned to his patrol car, and the audio from the State Police video indicated that the troopers discussed Defendant’s refusal to give consent to search and decided to “get the dog started.” While they waited, Trooper Straniere went back to continue his discussion with Defendant and requested a phone number whereby Defendant’s mother could be reached. Trooper Straniere detained Defendant at the rear of the vehicle while the trooper retrieved Defendant’s cell phone from the interior of the car. Defendant then provided a phone number, and Trooper Straniere thereafter returned to his patrol car to place the call. As it turned out, however, the phone number which Defendant had provided was the phone number for Defendant’s wife. Trooper Straniere asked Defendant’s wife for the phone number for 9 The State Police video indicates that this second round of questioning and requests for permission to search lasted approximately 7 minutes in length. (Commonwealth’s Ex. 3, Video, admitted Feb. 3, 2012). 10 The State Police video indicates that from the time the traffic stop “ended” until the time Trooper Straniere instructed Defendant to sit on the rear of his bumper and returned to his patrol car was approximately ten minutes. (Commonwealth’s Ex. 3, Video, admitted Feb. 3, 2012). 9 Defendant’s mother, which she provided. Additionally, the wife was able to verify that Defendant was on his way to visit his mother who had recently purchased a hotel and restaurant in Pittsburgh. The trooper then placed a call to Defendant’s mother, who also confirmed that her son was on his way to visit her at her new home in Pittsburgh. Trooper Straniere re-approached Defendant and informed him that he had noticed “multiple indicators of criminal activity” and stated that he was going to have a police canine conduct a sniff of the vehicle. When asked if the dog was going to “hit” on the vehicle, Defendant replied, “Not at all.” Trooper Straniere responded by stating, “My hang up is, if there is nothing to hide in the vehicle, the purpose of not letting me search is a head-scratcher to me. I don’t understand that.” Defendant again responded that he was simply uncomfortable giving permission to have his vehicle searched by the police. Defendant explained that he was uncomfortable as a result of his prior interactions with police and a prior history with racial profiling. Additionally, Defendant questioned why he was still being held if all of his information checked out as Trooper Straniere had indicated. The trooper responded by stating that Defendant was “free to leave,” but the vehicle was going to stay in order for canine sniff to 11 be implemented. At approximately 12:29 p.m., Trooper Straniere informed Defendant that the dog had arrived to do the sniff, and Defendant was directed to the rear of the patrol car. The drug dog sniff was implemented, and, at 12:33 p.m., Defendant was informed that the dog had alerted. Defendant was thereafter placed in handcuffs and transported to the barracks. Based on the information detailed above, Trooper Straniere applied for and received a search warrant for the 11 The suggestion that the defendant was “free to leave,” implying that he could drive away after a mere warning, is particularly curious in light of the fact that the trooper knew that the defendant’s driver’s license was under suspension. 10 vehicle. A subsequent search resulted in the discovery of two bags of marijuana with a combined weight of approximately two pounds. To summarize, at the suppression hearing Trooper Straniere provided the following list of “indicators” which he maintained provided him with reasonable suspicion to believe that Defendant may have been engaged in criminal activity: (1)Defendant acted with “extreme nervousness” throughout the interaction; (2)Defendant was smoking inside a high-end taxi vehicle; (3)Drinking water; (4)Shaking lips and hands; (5)Conflicting statements; (6)New York is a “source area” for drugs; (7)Defendant’s trip was not a “cost-effective” trip; (8)The reason for the trip did not “make sense”; (9)Defendant referenced “Penn’s Landing” as his potential destination; (10)Defendant was driving an SUV; (11)Defendant was using a company car for personal purposes; (12)Two cell phones; (13)Large amount of cash; (14)Criminal history for drugs; (15)“Denied” criminal history; (16)No luggage for a multi-day trip; and (17)Defendant provided his wife’s phone number when his mother’s had been requested. (N.T. 34, 56-57). Initially, we note the existence of the well-established burden placed upon the Commonwealth in suppression matters to establish, by a preponderance of the evidence, that the challenged evidence is admissible. Commonwealth v. Joseph, 2011 PA Super 273, 34 A.3d 855, 860 (citing Commonwealth v. Simmons, 2011 PA Super 43, 17 A.3d 399, 402). In the first instance, Defendant challenges the legitimacy of the traffic stop. He objects on the ground that Trooper Straniere based his decision to initiate the stop, not for reasons of reasonable suspicion or probable cause to believe that a vehicle code violation had occurred, but, rather, for reasons pretextual in nature, and, therefore, Defendant asserts that the subsequent 11 seizure and search of the vehicle and Defendant himself was illegal and in violation of the Fourth Amendment to the United States Constitution and Article I, Section 8 of the Pennsylvania Constitution. We disagree. The standards concerning the requisite quantum of cause needed for an officer to initiate a traffic stop of a vehicle in the Commonwealth are well-settled; specifically, where there exists reasonable suspicion to believe either (1) that criminal activity is afoot, or (2) that a stop will serve an investigatory purpose in determining whether there has been a violation of the vehicle code, then in those instances reasonable suspicion is the minimum quantum of cause needed to initiate a traffic stop. Commonwealth v. Feczko, 2010 PA Super 239, 10 A.3d 1285, 1290-91. However, where a traffic stop would serve no further investigatory purpose in relation to the suspected violation, as is the case with a speeding violation, then in those instances reasonable suspicion will not justify the detention; instead, an officer must have probable cause to believe that a violation of the vehicle code has occurred. Id. (“Mere reasonable suspicion will not justify a vehicle stop when the driver’s detention cannot serve an investigatory purpose relevant to the suspected violation.”) (see also Commonwealth v. Chase, 599 Pa. 80, 960 A.2d 108 (2008) (holding that probable cause of a Vehicle Code violation is needed for a non-investigatory stop)). It is axiomatic that our Motor Vehicle Code provides for certain maximum speed limits to be established, over which no person shall drive a vehicle at a speed in excess thereof. 75 P.S. § 3362(a). Police officers, charged with the duty of enforcing the speed limits of our roadways, are statutorily authorized to time the rate of speed of any vehicle by means of the use of a vehicle equipped with a tested and calibrated speedometer, provided that the speed is timed for a distance of not less than three-tenths of a mile. 75 P.S. § 3368(a), (b). 12 Here, Trooper Straniere followed Defendant’s SUV in a posted fifty-five mile per hour zone, and established a set distance between his own State Police vehicle and Defendant’s vehicle. He operated his patrol car at a speed of sixty-five miles per hour, observing that, for approximately one mile, the distance between the two vehicles neither increased nor decreased. Trooper Straniere testified that his State Police vehicle is speed-tested and calibrated yearly, and, as a result, he was able to determine that Defendant was operating his vehicle in excess of the posted fifty-five mile per hour speed limit. Based on the these observations, Trooper Straniere had probable cause to believe that Defendant was in violation of the Motor Vehicle Code and initiated a legitimate traffic stop. Defendant contends that Trooper Straniere initiated the traffic stop of his vehicle, not for reasons based on reasonable suspicion or probable cause, but instead for pretextual reasons. Defendant’s bald assertion is unsupported by the facts of record, and his contention that he simply was not speeding is given little weight. Indeed, the trooper testified at the suppression hearing that when he first observed Defendant’s vehicle in passing he was able to see only a “white guy with a baseball hat,” and, specifically, the trooper testified that race had “nothing to do with the traffic stop.” Additionally, Trooper Straniere can be heard on the State Police video informing Defendant that race played no role in the stop, and stating that Defendant was pulled over for traveling at a speed in excess of the posted fifty-five mile per hour limit. For these reasons, we find that the stop of Defendant’s vehicle was not pretextual in nature, and Trooper Straniere possessed the requisite probable cause to initiate a legitimate traffic stop. Defendant also raises several other reasons why the evidence obtained from the SUV should be suppressed. He claims that: the Pennsylvania State Police lacked reasonable suspicion to implement a drug dog sniff of his vehicle prior to applying for a search warrant, and, also, that 13 the duration of the traffic stop, in its entirety, was excessive, rendering it unreasonable and, thus, illegal. Because at the core of these contentions lies an assertion of a lack of reasonable suspicion, an examination conducted by viewing the totality of the circumstances, we will address these issues together. The Fourth Amendment to the United States Constitution as well as Article I, Section 8 of the Pennsylvania Constitution protects citizens from “unreasonable searches and seizures.” U.S. C. amend. IV; P.A. C. Art. I, §8. Warrantless searches and seizures are ONSTONST proscribed as unreasonable per se, unless conducted pursuant to one of the specifically established and well-delineated exceptions to the warrant requirement. Simmons, 2011 PA Super 43, 17 A.3d at 403 (citing Katz v. United States. 389 U.S. 347, 357, 88 S.Ct. 507 (1967)). One such exception, known as the “Terry Stop,” permits a police officer to stop and briefly detain a person for investigatory purposes if the officer has reasonable suspicion, based upon specific and articulable facts, to believe that criminal activity may be afoot. Id. at 403 (citing Commonwealth v. Fitzpatrick, 446 Pa.Super. 87, 666 A.2d 323, 325 (1995); Terry v. Ohio, 392 U.S. 1, 30, 88 S.Ct. 1868 (1968)). “Any evidence obtained pursuant to an investigatory stop (also known as a ‘Terry stop’ or a ‘stop and frisk’) that does not meet this exception must be suppressed as ‘fruit of the poisonous tree.’” United States v. Brown, 448 F.3d 239, 244 (3d Cir. 2006) (citing Wong Sun v. United States, 83 S.Ct. 407, 417 (1963)); see also, Simmons, 2011 PA Super 43, 17 A.3d at 403; Commonwealth v. Tither, 448 Pa.Super. 436, 441, 671 A.2d 1156, 1159 (1996). Conversely, there are periods of police questioning, “involving no seizure or detentive aspect (mere or consensual encounters), that need not be supported by any level of suspicion.” Commonwealth v. Strickler, 563 Pa. 47, 57, 757 A.2d 884, 890 (2000). The distinction between interactions which constitute a seizure and those which amount to nothing more than a mere 14 encounter are distinguished according to the degree of restraint placed upon a citizen’s liberty. Id. at 58. “[T]he investigative detention, or Terry 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,” must be supported by reasonable and articulable suspicion that the person seized is engaged in criminal activity, whereas a consensual encounter occurs where an individual is no longer under police domination, but instead remains voluntarily in a non-coercive interaction with the police. Id. Given the totality of the circumstances, the test to determine the nature of the interaction is if a reasonable person would believe he was free to leave. In the context of a traffic stop, the Strickler court noted that while “the admonition to a motorist that he is free to leave is not a constitutional imperative, the presence or absence of such a clear, identified endpoint to the lawful seizure [,i.e. the lawful traffic stop,] remains a significant, salient factor in the totality assessment.” Id. Additionally, “if the police action becomes too intrusive, a mere encounter may escalate into an investigatory detention or seizure.” Commonwealth v. Cauley, 2010 PA Super 217, 10 A.3d 321, 325. An investigative detention is therefore lawful if a police officer has reasonable suspicion to believe that criminal activity is afoot. Simmons, 2011 PA Super 43, 17 A.3d at 403. “To meet the standard of reasonable suspicion, the officer must point to specific and articulable facts which, together with the rational inferences therefrom, reasonably warrant the intrusion.” Cauley, 2010 PA Super 217, 10 A.3d at 326 (quoting Commonwealth v. Smith, 2006 PA Super 174, ¶ 7, 904 A.2d 30, 35)). Often difficult to define, courts have used a variety of expressions to delineate the boundaries of reasonable suspicion; in attempting to so define, the Supreme Court has explained that the “essence” of the doctrine is an examination of the “whole picture”; specifically, looking at the whole picture, a detaining officer must have a “particularized and 15 objective basis for suspecting the particular person stopped of criminal activity.” Simmons, 2011 PA Super 43, 17 A.3d at 403 (quoting United States v. Cortez, 449 U.S. 411, 417-18, 101 S.Ct. 690, 695 (1981)). “Because the level of intrusion may change during the course of the encounter, the record must be carefully scrutinized for any evidence of such changes.” Cauley, 2010 PA Super 217, 10 A.3d at 326. In this case, the initial detention for the Motor Vehicle Code violation ended when Trooper Straniere returned to Defendant his driver documentation and verbally told Defendant to “stay safe.” Defendant received his materials, turned his back on the trooper, and walked back to the driver’s side door of the vehicle. Trooper Straniere only reengaged Defendant after Defendant had begun to make his way back to the vehicle. At that time, Trooper Straniere advised Defendant that the traffic stop was over and he simply had some questions to ask of Defendant. Trooper Straniere made no physical contact with Defendant, nor did he exhibit threatening gestures or an overt display of authority so as to give the impression that Defendant was not free to leave. During the initial portion of this second round of questioning, subsequent to the ending of the traffic stop, Defendant was aware that he was free to leave, yet still, on his own, voluntarily agreed to answer Trooper Straniere’s additional questions. Having considered the circumstances, we conclude that, at least initially, a reasonable person would have felt that he was free to leave. Although at the outset a reasonable person would have felt free to leave and to disregard Trooper Straniere’s inquiries, we conclude that the initial mere encounter between Defendant and the trooper escalated to the point where the interaction became a seizure of Defendant’s person; specifically, the interaction intensified the point where Trooper Straniere effectuated a Terry-style stop of Defendant and his vehicle. After approximately ten minutes of “mere 16 encounter” questioning, Defendant had been repeatedly requested to provide his consent to have his vehicle searched, and each request was denied. Finally, Trooper Straniere asked Defendant the following: “Is there any reason why you wouldn’t want me to search? Is there something in there I’m going to find?” Trooper Straniere explained that the vehicle would not be “taken apart on the side of the highway,” and that he simply wanted to look through the vehicle to make sure there was nothing illegal inside and thereafter “send [him] on [his] way.” When Defendant again stated he was uncomfortable with a search, Trooper Straniere instructed Defendant to “have a seat on [the] bumper” and stated that Defendant was not to re-enter the vehicle. When Defendant asked if he could retrieve his phone and cigarettes from the vehicle, the trooper stated that he could not. Instead, Trooper Straniere opened the passenger side door, picked up the cigarettes, and handed them to Defendant. The trooper then again instructed Defendant to sit on the rear of his vehicle. By this point, Defendant had been effectively seized within the meaning of “investigative detention.” Defendant’s freedom of movement had been restricted to the point where a reasonable person would not have felt free to leave. Rather, Trooper Straniere controlled Defendant’s movements by not permitting him to re-enter the vehicle to obtain his belongings and also by directing Defendant to remain in various locations. Additionally, the tone of the interaction evolved into an atmosphere beyond what is properly considered a “mere encounter.” Trooper Straniere became notably more agitated with Defendant’s repeated denial of consent, and, finally, stated that Defendant was to wait while the dog “got started.” Additionally, the trooper requested a phone number from Defendant whereby his mother could be reached so that the trooper could further investigate Defendant’s objectives. In the end, the trooper informed Defendant that he had noticed “multiple indicators of criminal activity” and stated that the police 17 canine was going to conduct a sniff of the vehicle. Certainly, by this point in the interaction, an investigative detention of Defendant’s person and his vehicle had occurred whereby a reasonable person would not have felt free to leave. Having determined, first, that Defendant’s vehicle was subjected to a valid stop as a result of a violation of the Pennsylvania Motor Vehicle Code, and also that Defendant was thereafter subject to an investigative detention, we now turn to focus on whether, given the totality of the circumstances, Trooper Straniere witnessed behavior and made observations that could lead him to reasonably believe that Defendant may have been engaged in criminal activity 12 so as to justify not only the detention, but also the canine sniff of the vehicle. Acknowledging that, while certain acts that may be innocent in isolation “or at least susceptible to an innocent interpretation, may collectively amount to reasonable suspicion,” United States v. Nelson, 284 F.2d 472, 480 (3d Cir. 2002) (quoting United States v. Arvizu, 534 U.S. 266, 274-75, 122 S.Ct. 744, 751 (2002), we conclude that, examining the whole picture presented above and viewing the facts collectively, the factors indicated by Trooper Straniere did not create reasonable suspicion of criminal activity sufficient to justify the detention of Defendant and his vehicle nor the subsequent canine sniff. Rather, the facts paint a picture much less suspicious than one which may properly form the basis of an investigative detention followed by a canine sniff. In the instant case, Trooper Straniere identified the following facts that aroused his suspicion: Defendant acted with “extreme nervousness” throughout the interaction; Defendant was smoking inside a high-end taxi vehicle; drinking water; shaking lips and hands; conflicting 12 In Pennsylvania, it is well-settled that a canine narcotics dog may be deployed to sniff a vehicle for narcotics detection on the facts of a case where: “1. the police are able to articulate reasonable grounds for believing that drugs may be present in the place they seek to test; and 2. the police are lawfully present in the place where the canine sniff is conducted.” Commonwealth v. Williams, 2010 PA Super 141, 2 A.3d 611, 621-22 (quoting Commonwealth v. Johnston, 515 Pa. 454, 530 A.2d 74, 79 (1987)). 18 statements; New York is a “source area” for drugs; Defendant’s trip was not a “cost-effective” trip; the reason for the trip did not “make sense”; Defendant referenced “Penn’s Landing” as his potential destination; Defendant was driving an SUV; Defendant was using a company car for personal purposes; two cell phones; large amount of cash; criminal history for drugs; “denied” criminal history; no luggage for a multi-day trip; and Defendant provided his wife’s phone number when his mother’s had been requested. These facts create nothing more than a mere hunch and are not sufficient to create reasonable suspicion. First, we note that after viewing the video of the traffic stop, we do not find that Defendant’s demeanor is properly characterized as “extreme nervousness.” Rather, Defendant remained relatively calm throughout the interaction. Defendant gave composed responses to Trooper Straniere’s inquiries, and, additionally, Defendant gave consistent responses to the trooper’s repeated questioning. Certainly, no one would characterize Defendant as a timid individual, but a boisterous personality is insufficient to constitute reasonable suspicion of criminal activity. Defendant made no quick or sudden movements, at no time did he present any indication that he was so nervous he was preparing to flee, he made consistent eye contact with Trooper Straniere, he gave coherent responses, and he was not given to excessive cursing. Only after Defendant was instructed to “have a seat on the bumper” did he become slightly more agitated and begin to question the direction of the “traffic stop.” Next, with regard to Defendant’s use and dealings with the company SUV, we find it wholly plausible that Defendant’s owner/operator contract with the leasing company entitled him to utilize the vehicle for personal use. The trooper testified at the suppression hearing that nothing was out of the ordinary regarding the registration for the vehicle, and, indeed, it was properly registered to VIP Leasing out of Woodside, New York, exactly as Defendant had 19 indicated. Although he may not have been engaged in a profitable endeavor at the time he was stopped, Defendant explained to Trooper Straniere that when he desires gainful employment he calls a limousine dispatcher who places him on the call list and directs his daily driving responsibilities. Conversely, Defendant explained that when he does not desire to work he does not go “on-call.” Furthermore, Defendant explained that, although the vehicle is leased through VIP Leasing, he was responsible for the payment of that lease, hence the owner/operator agreement. Defendant also informed the trooper that the SUV was not only his work vehicle, but also his daily driver vehicle. As a result, it comes as no surprise that Defendant had a variety of personal belongings located inside the vehicle and was utilizing the vehicle for personal reasons. Moving on, we find it especially notable that both Defendant’s wife and his mother confirmed his itinerary as well as the back-story regarding his mother’s recent purchase of a bar/restaurant. Although Defendant initially stated he intended to stay a “week or so” and later indicated that he planned to stay for “two or three days,” we do not find those statements to be so “conflicting” so as to give rise to a finding of reasonable suspicion. As noted above, Defendant’s employment did not require his presence except when he desired to work. It is entirely plausible that Defendant had no specific date of return in mind as he made his way to Pittsburgh. In addition, Trooper Straniere stated that his level of suspicion was raised because Defendant originated from a “source area.” Our Superior Court has addressed the “source state” issue and has held that drug courier profiles (frequent and quick trips originating from a “source city,” payment in cash, etc.) alone cannot establish reasonable suspicion of criminal activity. Commonwealth v. Vasquez, 703 A.2d 25, 34 (Pa.Super. 1997). Accordingly, the fact that Defendant originated from New York is not enough for Trooper Straniere to establish reasonable suspicion. Defendant provided not only credible information as to his travel plans, but, as noted 20 above, his itinerary was confirmed by both his wife and his mother. It should also be noted that Defendant was traveling in the middle of day, not under the cover of darkness. Defendant explained his possession of two cell phones by his statement to the trooper that one was used for business purposes and the other was used for personal purposes. That Defendant’s decision to drive to Pittsburgh was not a “cost-effective” manner of traveling is quite simply a matter of personal preference. As opposed to flying, Defendant very well may have been utilizing the most cost-effective manner of traveling to visit his mother. The fact that Defendant had no luggage, at least as far as could be seen from Trooper Straniere’s vantage point outside the vehicle, was explained by Defendant’s assertion that his mother had taken some of his property with her as she moved to Pittsburgh. Moreover, Defendant stated to the trooper that, in fact, he did have a bag of clothing in the vehicle. Lastly, Trooper Straniere stated that his level of suspicion was raised by Defendant’s reference to “Penn’s Landing” as a potential destination while traveling to the Pittsburgh area. Defendant’s confusion as to his destination was explained by his statement to Trooper Straniere that, although he had never visited her before and was not entirely sure exactly where in Pittsburgh his mother had relocated, the address was stored in his G.P.S. system which would provide him with adequate direction. Upon considering the totality of the circumstances, we conclude that Trooper Straniere did not have reasonable suspicion to believe that Defendant was engaged in criminal activity so as to justify the investigative detention and canine sniff of the vehicle. The subsequent search confirmed the Trooper’s hunch. Obviously, the legality of the search does not turn on what was subsequently found. Instead, to warrant the intrusion that accompanies an investigative detention, our Pennsylvania Constitution, as well as the United States Constitution, requires a 21 particularized and objective basis for suspecting the particular person stopped of criminal activity. Such a basis for suspicion was not present in this case. ORDER th AND NOW, this 30 day of March, 2012, upon consideration of Defendant’s Motion to Suppress Physical Evidence, and following a suppression hearing held February 3, 2012, Defendant’s Motion is GRANTED, and any and all evidence obtained as a result of the search of the Cadillac Escalade by the Pennsylvania State Police is hereby suppressed. BY THE COURT, Kevin A. Hess, P.J. Jaime Keating, Esquire First Assistant District Attorney Royce Morris, Esquire For the Defendant :rlm 22 COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : v. : : : CHRISTOPHER M. RAMIREZ : CP-21-CR-1303-2011 IN RE: MOTION TO SUPPRESS ORDER th AND NOW, this 30 day of March, 2012, upon consideration of Defendant’s Motion to Suppress Physical Evidence, and following a suppression hearing held February 3, 2012, Defendant’s Motion is GRANTED, and any and all evidence obtained as a result of the search of the Cadillac Escalade by the Pennsylvania State Police is hereby suppressed. BY THE COURT, Kevin A. Hess, P.J. Jaime Keating, Esquire First Assistant District Attorney Royce Morris, Esquire For the Defendant :rlm