Commonwealth v. Freeman

J-A24031-16

2016 PA Super 235

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

v.

SHAUN BERKLEY FREEMAN

Appellant No. 3740 EDA 2015

Appeal from the Judgment of Sentence dated September 28, 2015

In the Court of Common Pleas of Monroe County

Criminal Division at No(s): CP-45-CR-0000488-2014

BEFORE: BOWES, J., OTT, J., and SOLANO, J.

OPINION BY SOLANO, J.: FILED OCTOBER 31, 2016

Appellant, Shaun Berkley Freeman, appeals from the judgment of

sentence imposed after the trial court convicted him of possession with

intent to deliver (marijuana), possession of a controlled substance

(marijuana), and possession of drug paraphernalia.1 Appellant claims the

trial court erred in denying his motion to suppress evidence obtained as a

result of a vehicle stop. After careful review, we affirm.

The trial court recounted the factual background as follows:

On February 25, 2014, [Appellant] was stopped by

Pennsylvania State Police Trooper Jonathan Gerken (“Trooper

Gerken”) on Interstate Route 80 (“I80”). Trooper Gerken was in

full uniform on roving patrol in an unmarked vehicle. He

observed a white Chevrolet Malibu traveling westbound on I80 in

the right lane following a FedEx truck. Trooper Gerken stated

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1

35 P.S. §§ 780-113(a)(30), (16), and (32).

J-A24031-16

that the Malibu was traveling too closely . . . and then the Malibu

made several unsafe lane changes. He then initiated a traffic

stop of [Appellant’s] vehicle on Interstate Route 380 (“I380”).

Upon approaching the vehicle, Trooper Gerken noticed an

overwhelming odor of air fresheners coming from the vehicle.

Trooper Gerken then questioned [Appellant] on his travels and

he noticed that [Appellant] was acting nervous and somewhat

short in his responses.

After running a CLEAN/NCIC check,[2] Trooper Gerken

determined that [Appellant] had a valid license. However, a

criminal background check indicated that [Appellant] had a 2005

arrest for a weapon out of New York. Trooper Gerken obtained a

copy of the rental car agreement (“agreement”) which was a

one-day rental from Hertz, New Rochelle, New York. The

agreement required the vehicle to be returned to the same

location on February 26, 2014 at 8 a.m. Trooper Gerken

questioned [Appellant] further about his travel plans and

[Appellant] changed his statement. Trooper Gerken then

contacted his dispatcher for backup. Trooper Lindsay was

dispatched and he arrived on scene a few minutes later. After

[Appellant] denied a request to search the vehicle, Trooper

Gerken requested a K9 unit to perform an exterior search of the

vehicle due to suspicion of criminal activity. Trooper Doblovasky

and his K9, Micho, performed a perimeter search, at which time

Micho indicated on the vehicle. [Appellant] was then transported

back [to] the police barracks and an application for search

warrant was made. After the search warrant was issued,

[Appellant’s] vehicle was searched and 80 pounds of marijuana

was discovered along with other paraphernalia. [Appellant] was

charged with [the three aforesaid drug offenses]. On April 21,

2014, [Appellant] filed [an] Omnibus Pretrial Motion [seeking

suppression]. On January 12, 2015, [the trial court] held a

hearing[.]

Trial Court Opinion, 4/2/15, at 1-2.

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2

CLEAN is the Commonwealth Law Enforcement Assistance Network. NCIC

is the FBI’s National Crime Information Center.

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On April 1, 2015, the trial court denied Appellant’s suppression motion.

The case proceeded to trial on August 4, 2015, at the conclusion of which

the trial court rendered its guilty verdicts. On September 28, 2015, the trial

court sentenced Appellant to 12 months less a day to 24 months less a day,

with three years of probation, for possession with intent to deliver. The

possession charge merged with the charge for possession with intent to

deliver, such that no sentence was imposed for that conviction. With respect

to possession of drug paraphernalia, the court imposed a sentence of one

year of probation, to run concurrently with the three years of probation

imposed for possession with intent to deliver.

Appellant filed a post-sentence motion October 6, 2015, which the trial

court denied on November 23, 2015. Appellant filed this timely appeal on

December 7, 2015.3

On appeal, Appellant presents two issues for our review.

1. Has the Commonwealth carried its burden of proof at a

suppression hearing where a defendant alleges that the

vehicle stop was unlawfully made in violation of his rights

under the Fourth Amendment and Article I Section 8 of the

Pennsylvania Constitution, and the trooper offers conclusory

testimony that a defendant’s vehicle was following too closely

for conditions and made unsafe lane changes?

2. Should a canine sniff of a vehicle be suppressed when a

defendant and his vehicle are forced to await the arrival of

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3

Appellant’s appeal is timely because it was filed within 30 days of the trial

court’s denial of his timely post-sentence motion. Pa.R.Crim.P.

720(A)(2)(a).

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the canine unit while standing alongside an Interstate for over

an hour in the February cold without a jacket and without

reasonable suspicion or probable cause to suspect a crime

had been committed, all in violation of a defendant’s rights

under the Fourth Amendment and Article I Section 8 of the

Pennsylvania Constitution?

Appellant's Brief at 6.

Preliminarily, we reference our standard of review:

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.

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.

Moreover, appellate courts are limited to reviewing only the

evidence presented at the suppression hearing when examining

a ruling on a pre-trial motion to suppress.

Commonwealth v. Ranson, 103 A.3d 73, 76 (Pa. Super. 2014) (internal

citations and quotations omitted).

We further note:

It is well-established that there are three categories of

interaction between citizens and police officers. As our Supreme

Court has clearly articulated:

The first of these is a “mere encounter” (or request for

information) which need not be supported by any level of

suspicion, but carries no official compulsion to stop or to

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respond. The second, an “investigative detention[,]” must be

supported by a reasonable suspicion; it subjects a suspect to a

stop and a period of detention, but does not involve such

coercive conditions as to constitute the functional equivalent of

an arrest. Finally, an arrest or “custodial detention” must be

supported by probable cause.

Ranson, 103 A.3d at 76–77.

The Vehicle Stop

In his first issue, Appellant argues that the initial stop of his vehicle

was unlawful. Appellant asserts that Trooper Gerken lacked “probable cause

or reasonable suspicion” to initiate the traffic stop and assails Trooper

Gerken’s testimony. Appellant’s Brief at 15, 19-20. In doing so, Appellant

claims Trooper Gerken “testified in a conclusory manner about his

observations” and without “specific articulable facts.” Id. at 15.

Trooper Gerken had to have probable cause to initiate the traffic stop.

We have explained:

Mere reasonable suspicion will not justify a vehicle stop when the

driver’s detention cannot serve an investigatory purpose relevant

to the suspected violation. In such an instance, “it is encumbent

[sic] upon the officer to articulate specific facts possessed by

him, at the time of the questioned stop, which would provide

probable cause to believe that the vehicle or the driver was in

violation of some provision of the Code.” [Commonwealth v.]

Gleason, 785 A.2d [983,] 989 [Pa. 2001] (citation omitted).

See also [Commonwealth v.] Chase, 960 A.2d [108,] 116

[Pa. 2008] (reaffirming Gleason's probable cause standard for

non-investigative detentions of suspected Vehicle Code

violations).

Commonwealth v. Feczko, 10 A.3d 1285, 1291 (Pa. Super. 2010) (en

banc) (emphasis in original).

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Here, Trooper Gerken testified that he was on patrol on February 25,

2014, when he observed Appellant, who was driving a Chevrolet Malibu in

“moderate to heavy traffic,” violate the Motor Vehicle Code when he made

“several unsafe lane changes, [and] cut across the lanes of traffic.” N.T.,

1/12/15, at 9-10. Trooper Gerken continued, “[t]he vehicle began following

another vehicle entirely too close, due to the weather conditions. I believe it

began to follow a tractor-trailer at a distance too close as well, made a

change to pass the tractor-trailer, and then cut across the lanes to exit onto

380 northbound.” Id. at 12. Based on these observations, Trooper Gerken

effectuated the traffic stop. Id. at 13.

The suppression court credited Trooper Gerken’s testimony and

explained:

Trooper Gerken testified that he stopped [Appellant’s] vehicle for

following too closely and unsafe lane changes. 75 Pa.C.S. §

3310 states that the “driver of a motor vehicle shall not follow

another vehicle more closely than is reasonable and prudent,

having due regard for the speed of the vehicles and the traffic

upon and the condition of the highway.” Upon observing

[Appellant’s] vehicle follow the FedEx truck too closely, Trooper

Gerken also observed [Appellant’s] vehicle make several unsafe

lane changes. Based upon this testimony, we find that Trooper

Gerken articulated specific probable cause to stop [Appellant’s]

vehicle.

Trial Court Opinion, 4/2/15, at 3 (citations to notes of testimony omitted).

We have reviewed the notes of testimony, as well as the motor vehicle

recording (MVR) that was made from a video camera in Officer Gerken’s

vehicle and was entered into evidence by the Commonwealth as Exhibit 1.

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We note that Appellant claims that “on the MVR . . . it is impossible to have

observed the distance at which [Appellant’s] vehicle was following any other

vehicle.” Appellant’s Brief at 19.4 However, our review of the MVR confirms

Trooper Gerken’s testimony that Appellant made several unsafe lane

changes.5 In particular, the MVR shows Appellant driving close to a tractor

trailer to change lanes while passing a Vision tanker truck. This conduct was

sufficient to support a finding that Trooper Gerken had probable cause to

initiate the traffic stop. Commonwealth v. Cook, 865 A.2d 869 (Pa.

Super. 2004) (whether a law enforcement officer possesses probable cause

to stop a vehicle for violating the statute governing driving on roadways

laned for traffic depends largely upon on whether a driver’s movement from

his lane is done safely).

Based on the foregoing, our review supports the trial court’s

determination that Trooper Gerken possessed probable cause to initiate the

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4

Appellant also claims that “Trooper Gerken’s testimony regarding weather

conditions and snowy roadways is in conflict with the condition of the roads

shown on the MVR.” Appellant’s Brief at 19. In fact, the MVR clearly shows

snow on the shoulder of the road, although not on the surface, and it shows

that a light snow was falling.

5

75 Pa.C.S. § 3309(1) provides that “[a] vehicle shall be driven as nearly as

practicable entirely within a single lane and shall not be moved from the lane

until the driver has first ascertained that the movement can be made with

safety.”

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vehicle stop based upon Appellant’s violation of the Motor Vehicle Code.

Accordingly, we find no merit to Appellant’s first issue.

The Investigatory Detention

In his next issue, Appellant argues that, “after the vehicle stop,” he

was subject to an unlawful search and seizure “when he and his vehicle were

held on the side of the Interstate for over an hour in the February cold.”

Appellant’s Brief at 15, 21; see id. at 22-27. In reviewing Appellant’s claim

that he was unlawfully detained, we scrutinize the record, mindful of the

Supreme Court’s directive when presented with a defendant who has been

seized by a police officer pursuant to a valid traffic stop:

A police officer may detain an individual in order to conduct an

investigation if that officer reasonably suspects that the

individual is engaging in criminal conduct. Commonwealth v.

Cook, 558 Pa. 50, 735 A.2d 673, 676 (1999). “This standard,

less stringent than probable cause, is commonly known as

reasonable suspicion.” Id. In order to determine whether the

police officer had reasonable suspicion, the totality of the

circumstances must be considered. In re D.M., 566 Pa. 445,

781 A.2d 1161, 1163 (2001). In making this determination, we

must give “due weight ... to the specific reasonable inferences

[the police officer] is entitled to draw from the facts in light of

his experience.” Cook, 735 A.2d at 676 (quoting Terry v. Ohio,

392 U.S. 1, 27, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)). Also,

the totality of the circumstances test does not limit our inquiry to

an examination of only those facts that clearly indicate criminal

conduct. Rather, “[e]ven a combination of innocent facts, when

taken together, may warrant further investigation by the police

officer.” Cook, 735 A.2d at 676.

Commonwealth v. Rogers, 849 A.2d 1185, 1189 (Pa. 2004).

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Trooper Gerken testified that when he initiated the traffic stop and first

approached Appellant, he “advised him to pull the vehicle further up the

road because of the location we had stopped wasn’t a safe location with the

snow-covered roads.” N.T., 1/12/15, at 13-14. Trooper Gerken also

advised Appellant “of the violation,” and Appellant responded that he “was

messing with his vehicle.” Id. at 14. Trooper Gerken testified that when he

approached Appellant again after Appellant moved his vehicle, Trooper

Gerken “smelled the overwhelming odor of air fresheners coming from the

vehicle.” Id. at 14-15. On direct examination, the Commonwealth asked

the trooper whether he smelled the air fresheners “on the first approach or

the second approach.” Id. at 15. Trooper Gerken stated “I smelled it on

both approaches to the vehicle.” Id.

Trooper Gerken testified that he determined Appellant was driving a

rental car and asked Appellant where he was going, and Appellant, who “was

somewhat short and nervous in his responses,” said he was going to

Binghamton, New York. N.T., 1/12/15, at 15. Trooper Gerken then

returned to his patrol vehicle, ran a check on Appellant, and determined that

he had a valid license, although he also “had a 2005 arrest for a weapon out

of New York.” Id. at 16. Trooper Gerken obtained a copy of Appellant’s car

rental agreement and noted that it was “a one-day rental . . . February 25 it

was rented out of New Rochelle, and it was due back at the same location on

the 26th at 8 a.m.” Id. at 17-18. Trooper Gerken testified that when he

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returned to Appellant’s vehicle, he “spoke to [Appellant] about the purpose

of his trip.” Id. at 18. Appellant told Trooper Gerken that he was going to

visit his cousin in Binghamton. Id. Appellant also stated he was on vacation

and was returning that night. Id. at 19. Trooper Gerken testified that

Appellant “changed his statement saying that he – he originally stated that

he had to come back for work, and then that changed further on. . . . It

changed that he may stay over in Binghamton.” Id. at 19, 46.6

Based on the foregoing, Trooper Gerken explained that he “believed

that criminal activity was occurring at that point, so [he] requested [a

backup officer].” N.T., 1/12/15, at 20. The trooper stated that his belief

was “based on the totality of the circumstances,” and he asked for backup

“several minutes into the stop, after speaking with [Appellant].” Id.

Trooper Gerken explained his suspicion of Appellant’s criminal activity as

follows:

Typically, in my training and experience, the overwhelming

smell of air fresheners in a rental vehicle is consistent with trying

to mask the odor of controlled substances. . . . As a trooper, [I

have been involved in drug stops with air fresheners,] probably

100 or so. I would have – over the 12 years that I’ve been a

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6

In advancing his argument that he was improperly detained, Appellant

explains his account of whether he would spend the night in Binghamton as

speculative and prospective, claiming that he did intend to return home that

day but adding that he might change his mind and spend the night if he

decided to drink and it became unsafe for him to drive. N.T., 1/12/15, at

43; see also Appellant’s Brief at 12, citing the MVR. Neither Trooper

Gerken nor the trial court were required to credit this explanation, however.

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police officer, several hundred traffic stops involving controlled

substances.

[Other indicators were the] prior conviction for the

weapons offense out of 2005, out of New York; his nervous

behavior while I was speaking to him; he was coming from a

source area, New York is a source area for controlled

substances, as well as Binghamton being a destination area for

the delivery of controlled substances. . . . Based on my training

and experience, I know in prior arrests that I’ve had, as well as

other troopers, other police officers, that New York City is a hub

for controlled substances.

***

[Also, t]he short turn-around trip. The vehicle was due

back the next morning. The conflicting statements as to the

purpose of his trip, that he was staying, that he wasn’t. He

stated that he was on vacation. He stated that he had to work

the next day. . . . He was somewhat shaky when he was

presenting his documents to me. There’s a difference between

the normal police interaction where somebody is nervous

because they’re stopped by the police and they’re afraid to get a

ticket.

Id. at 22-24.

Trooper Gerken testified that he called a K9 Unit to respond to the

scene for a canine search of the car. N.T., 1/12/15, at 25. In referencing

his written incident report, Trooper Gerken noted that he initiated the stop of

Appellant at 11:26 a.m. and contacted the K9 Unit at 11:52 a.m., so that 26

minutes had elapsed from when Trooper Gerken first stopped Appellant for a

Vehicle Code violation to when he called for the K9 Unit. Id. at 26. Trooper

Gerken testified that by 11:52 a.m., he had “already issued [Appellant] a

written warning [for improper lane movement and careless driving] at that

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point.” Id. Trooper Gerken issued the written warning to Appellant before

calling for the K9 Unit. Id.

Trooper Gerken stated that after he issued the written warning to

Appellant, he “stated that [he] wanted to speak to him further. [Appellant]

attempted to walk away, at that point and return to the vehicle.” N.T.,

1/12/15, at 27. Trooper Gerken did not dispute that Appellant “was not free

to go at that point.” Id. at 38, 39. The trooper “asked him what he had

been arrested for before, he said DUI; he made no statement as to the

weapons offense out of 2005.” Id. Trooper Gerken testified:

He started becoming agitated. I asked him if he was

coming back or he was going to stay there. He changed again

and said he might stay overnight. And I advised him that I’d be

contacting, based on all the indicators present, and the

reasonable suspicion that existed, I advised him that I’d be

contacting a K9.

Id. at 27.

Trooper Gerken clarified that he called for the K9 Unit because he had

asked Appellant for permission to search the vehicle, and Appellant denied

permission. N.T., 1/12/15, at 29. He stated that he calls for a K9 when

“there’s a stop similar to this where there’s refusal to search and reasonable

suspicion has been developed.” Id. at 30. Trooper Gerken stated that when

the K9 arrived and was “deployed,” the dog “alerted and/or indicated on the

vehicle.” Id. at 31. Trooper Gerken testified, “at that point, [Appellant] was

detained and an application was made for a search warrant. . . . [Appellant]

was transported to [police] barracks and [the vehicle] was towed [to the

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barracks] pending the application for the search warrant.” Id. at 31-32.

Trooper Gerken stated that “around an hour, hour and fifteen” elapsed from

the time he initiated the traffic stop of Appellant until he detained Appellant

in his patrol car and transported him to police barracks. Id. at 36-37. After

the search warrant was approved, Trooper Gerken searched Appellant’s

vehicle. Id. at 32. Based on the search, Appellant was charged with the

aforementioned drug offenses. Id. at 36.

State Trooper Paul Lindsay testified next for the Commonwealth.

Trooper Lindsay stated that he responded to Trooper Gerken’s request for

assistance. N.T., 1/12/15, at 57. Trooper Lindsay also noticed Appellant’s

rental vehicle because “it was the wintertime, and rental vehicles jump out

at you real quick, especially in the wintertime because rental vehicles are

very clean. They don’t send out dirty cars, where in the wintertime you see

a lot of people have a lot of dirt on them and whatnot. This particular

vehicle was very shiny. It was very clean.” Id. at 59-60. Trooper Lindsay

stated that he was there “after the K9 was deployed.” Id. at 60. He

admitted to telling Appellant: “that vehicle’s loaded with marijuana.” Id. at

61. Trooper Lindsay testified about the basis for his statement as follows:

It was mainly based on training and experience. I worked

Interstate 81 in the Gibson area, and I was very familiar with the

Upstate traffic headed to Binghamton, Elmira, Johnson City,

Syracuse, Rochester. Knowing rental vehicles are commonly

used by drug traffickers to transport illegal narcotics and the

amount of time in which the vehicle was rented and where it was

headed to and after a K9 alert, based on my training and

experience, I came right out and said, “I believe that vehicle is

loaded with marijuana.”

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Id.

Corporal Anthony Doblovasky testified to being the K9 handler who

responded to the call for a canine during the stop of Appellant. N.T.,

1/12/15, at 64. Corporal Doblovasky explained his role as a K9 handler:

That day for me to respond there I need to agree with [Trooper

Gerken] that he has reasonable suspicion or I’m not going to

respond.

If I’m on duty, I might come to the stop and talk to [the

trooper] at the stop and see what he has. I’ve had instances in

the past where I didn’t agree and I wouldn’t run the dog. This

case I did agree with the trooper and I did.

Id. at 68. Corporal Doblovasky repeated, “my own opinion was there was

reasonable suspicion present. . . .” Id. at 73.

The Commonwealth’s final witness, Corporal Nicholas Cortes, was

presented and qualified as an expert in drug identification, interdiction, and

trafficking. N.T., 1/12/15, at 84-87. Corporal Cortes testified that rental

vehicles are “really common within criminal interdiction and people who are

moving, drug traffickers” because they are not subject to forfeiture; rented

vehicles are “really reliable” and will not break down; and, because the

rental vehicles do not belong to the occupants, the occupants have the

excuse that “I didn’t know it was there. It’s not mine. It’s not my car.” Id.

at 88-89. Corporal Cortes also noted that erratic driving was often exhibited

by drug traffickers because “someone is either unfamiliar with the route

[they are driving] or they’re focused on the police officer that’s behind them.

So a lot of times you’ll see them looking in their rearview mirror, and

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because they looked in their rearview mirror, they just drove off the road.”

Id. at 90. Corporal Cortes additionally addressed the use of air fresheners

as “masking agents” to cover the smell of drugs, observing that “it’s not

common that we find air fresheners within rental vehicles.” Id. at 91. In

addition, Corporal Cortes opined that New York to Binghamton is “a very

common route” where he “personally ha[s] had numerous seizures traveling

from New York to Binghamton, two alone in the top 10 seizures.” Id.

Corporal Cortes summarized:

My role in this investigation is very limited. I was not

on the stop. I did not assist in the investigation at all.

Outside of – I’m Trooper Gerken’s supervisor, so I do see

his reports come through the office that I have to take into

account as an administrator, so that would be my only role in

this investigation is whenever he has to update his report with

whatever – I mean, wherever the case is at, the status of the

case.

***

[But with regard to reasonable suspicion,] any indicator in

and of itself may not be anything. But you take the totality of

the circumstances. You put all these indicators together. It’s

like pieces of a puzzle. You take all the pieces of a puzzle. You

put it together. You draw a conclusion from the totality of the

circumstances. So you have all these indicators that are piled up

together, and that’s where you’re drawing your conclusion.

You’re not just basing it on one thing.

N.T., 1/12/15, at 94, 102.

The trial court credited the testimony of the Commonwealth’s

witnesses and distilled their testimony as follows:

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Instantly, Trooper Gerken observed several indicators of drug-

related activity during the course of the traffic stop. First, he

smelled the overwhelming odor of air freshener coming from

inside of the vehicle. After running a check on [Appellant’s]

license, Trooper Gerken discovered that [Appellant] had a

conviction[7] for [a] weapons offense in New York. [Appellant]

indicated that he was traveling from New York to Binghamton,

which in Trooper Gerken’s training and experience indicates a

source area and a destination for delivery of controlled

substances. The rental car agreement was for 24 hours. In

addition, [Appellant] was “somewhat shaky” in his demeanor.

Based upon these observations, we find that Trooper Gerken had

reasonable suspicion to suspect illegal activity to justify the

investigative detention and canine sniff. Moreover, the search

warrant was based upon the canine search of the exterior of the

vehicle where [the canine] indicat[ed] on the vehicle’s trunk.

Marijuana was later discovered in the vehicle’s trunk as a result

of the search warrant issued. As such, we find that the search

was lawful . . ..

Trial Court Opinion, 4/2/15, at 5 (citations to notes of testimony omitted).

After careful consideration, we agree with the trial court’s decision.

We recognize that, when viewed in isolation, many of the facts on

which the troopers relied appear innocuous. We would hesitate to hold that

a vehicle may be detained for more than an hour and subjected to a canine

search merely because it had been rented for a one-way trip from New York

to Binghamton, a purported drug destination, or because the driver, when

stopped, appeared agitated. But we are required to review the

circumstances in their totality, and, upon doing so, we conclude that the

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7

Appellant correctly points out that this statement in the trial court’s opinion

is erroneous. Appellant’s Brief at 26. Appellant’s criminal history indicated

an arrest for a firearms offense, not a conviction. See N.T., 1/12/15, at

16.

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evidence was sufficient to support the trial court’s determination that the

troopers’ detention of Appellant was supported by reasonable suspicion.

Pennsylvania case precedents addressing similar facts support our

conclusion.

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

banc), a state trooper monitoring traffic along the Pennsylvania Turnpike

observed a vehicle with tinted windows in violation of 75 Pa.C.S. §

4524(e)(1), which gave him probable cause to initiate a valid vehicle stop.

961 A.2d at 1250-1251. During the stop, the trooper suspected illegal drug

activity, based on his extensive training and experience in drug trafficking

interdictions, his observation of a large number of air fresheners in the

vehicle, the extreme nervousness of the appellant’s companion, the fact that

the appellant and the companion were operating a third-party vehicle

(“another marker of a drug courier”), the appellant’s failure to provide the

name of the vehicle’s real owner, and the odor of raw marijuana. Id. at

1254. The appellant challenged the trial court’s denial of his suppression

motion and claimed on appeal that, “even though the initial traffic stop in

this case may have been proper, the prolonged seizure after the Sergeant

had achieved the purpose of the vehicle stop required reasonable suspicion

to support the continuation of the stop and questioning of Appellant,” and

such a reasonable suspicion was lacking. Id. at 1252.

We concluded that “the facts adduced by [the state trooper] during the

course of the valid traffic stop clearly and unequivocally gave him reason to

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suspect that [a]ppellant and [his companion] were in possession of a

controlled substance, and thus, there were sufficient facts to justify the

investigatory detention.” Kemp, 961 A.2d at 1254. In doing so, we

emphasized:

“When discussing how reviewing courts should make reasonable-

suspicion determinations, we have said repeatedly that they

must look at the ‘totality of the circumstances’ of each case to

see whether the detaining officer has a ‘particularized and

objective basis’ for suspecting legal wrongdoing.” United

States v. Arvizu, 534 U.S. 266, 273, 122 S.Ct. 744, 151

L.Ed.2d 740 (2002); accord Rogers, supra; [Commonwealth

v.] Freeman, [757 A.2d 903, 908 (Pa. 2000)]. A totality-of-

the-circumstances approach allows the court to consider all facts

at the officer’s disposal and does not require the court to

disregard those adduced during a valid interdiction, which is, in

the present case, the traffic stop. Indeed, routine constitutional

analysis requires courts to utilize facts gathered during each

escalating phase of a police investigation in determining whether

police acted properly as the interaction between police and

citizen proceeded towards an arrest.

Id. at 1258-59.

In a later decision dealing with a vehicle stop, this Court extrapolated

from Rogers and Kemp as follows:

Based upon Rogers and Kemp, we conclude that Trooper Jones

adduced sufficient facts to establish reasonable suspicion that

criminal activity was afoot in this case. The car was owned by a

third party not present in the vehicle, [the driver] acted

nervously, the answers provided by [the driver] and [the

appellant] to basic questions regarding their destination were

inconsistent, and various masking agents, including air

fresheners, canisters of perfume, and a bottle of Fabreze, were

present in the vehicle. When considering the totality of the

circumstances, we need not limit our inquiry to only those facts

that clearly and unmistakably indicate criminal conduct.

[Kemp.] Instead, “even a combination of innocent facts, when

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taken together, may warrant further investigation by the police

officer.” Id. (quoting [Commonwealth v. Cook, 735 A.2d at

676]).

Commonwealth v. Caban, 60 A.3d 120, 129 (Pa. Super. 2012).

Most recently, we addressed facts very similar to those in this case in

Commonwealth v. Valdivia, --- A.3d ----, 2016 WL 4413224, (Pa. Super.,

Aug. 19, 2016). The state troopers in Valdivia were patrolling Interstate 80

when they observed a vehicle violate the Vehicle Code by quickly changing

lanes without using a turn signal. 2016 WL 4413224 at *2. They initiated a

traffic stop based on probable cause. Id. We related the ensuing encounter

as follows:

As Trooper Hoy approached the vehicle, he noticed two

large boxes wrapped in Christmas paper and a suitcase in

the cargo area of the vehicle. Trooper Hoy testified that

drug smugglers often wrap drugs in Christmas paper

around the holidays in an effort to blend in with innocent

motorists.

Trooper Hoy asked the driver (Valdivia) for his license,

registration, and proof of insurance. Valdivia gave Trooper

Hoy a license and rental agreement and stated that the

vehicle was a rental. As Valdivia produced the documents,

the trooper noticed that Valdivia’s hands were shaking,

and that he seemed nervous. Valdivia stated that he

needed to pull off and get gas. Trooper Hoy found this

strange because gas had been available at two exits that

Valdivia had just passed.

Trooper Hoy asked Valdivia about his travel plans. Valdivia

responded that he was flying from Fort Lauderdale, Florida

to New Jersey, but his flight had been re-routed to Detroit,

Michigan, and he had to rent a vehicle because he had

missed his connecting flight to New Jersey. Trooper Hoy

found it strange that the packages in the cargo area were

unblemished, even though they presumably had been part

of Valdivia's belongings on his flight from Florida. Trooper

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Hoy noticed from the vehicle information that Valdivia

rented the car in Ann Arbor, Michigan, not Detroit,

Michigan as he had stated, and that the rental was for a

one-way trip. Trooper Hoy knew from his training and

experience that the route Valdivia was traveling, Michigan

to New Jersey, is a common drug trafficking route.

Trooper Hoy then went back to his patrol cruiser and ran a

records check, as is his custom, while completing the

warning paperwork for the illegal lane change. Trooper

Hoy also contacted a State Police K-9 Unit to respond to

the scene. The record check revealed that Valdivia had

been previously charged in Florida with possession with

intent to deliver.

Trooper Hoy returned to Valdivia’s vehicle, asked him to

exit the vehicle, explained the warning, and returned

Valdivia’s identification documents. Trooper Hoy then

inquired if he could ask some follow-up questions about

Valdivia’s travel plans. Valdivia changed his story when

answering these additional questions. He now stated that

he had flown to Detroit to visit a friend and had left early

the next morning. He also said that when he arrived at

the Detroit airport, all of the rental companies were closed,

which was why he rented the vehicle in Ann Arbor.

Trooper Hoy felt that Valdivia’s responses were unusual,

because one does not normally visit a friend for such a

short time, most of which would be spent sleeping.

Trooper Hoy also found it difficult to believe that all rental

companies would have been closed at a large airport such

as Detroit.

Id. at **2-3 (citations to notes of testimony and footnote omitted). After

considering the above facts in conjunction with applicable case law, we

stated that “Trooper Hoy observed a variety of suspicious details during the

traffic stop.” Id. at *4. We then concluded that this “combination of factors

provided reasonable suspicion to detain Valdivia and continue an

investigation into possible criminal wrongdoing.” Id. Valdivia illustrates

how individual facts that may not be suspicious when viewed alone, or by a

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layperson unfamiliar with drug trafficking, may coalesce to form reasonable

suspicion.

Guided by the above precedents, we conclude that the trial court did

not err in determining that all of the circumstances in this case — in their

totality — supported Trooper Gerken’s “suspicion of criminal conduct that is

reasonable based upon the facts of the matter.” Trial Court Opinion, 4/2/15,

at 5 (emphasis in original). While this may appear to be a close case, we

discern no basis to disturb the trial court’s denial of Appellant’s suppression

motion.

Finally, we are not persuaded by Appellant’s argument that the

duration of the detention and the weather during the detention should

change our conclusion. It is uncontroverted that Appellant was detained for

a significant period of time — more than one hour. See Appellant’s Brief at

28; N.T., 1/12/15, at 36-37. Trooper Gerken testified that the “length of the

entire traffic stop, from the point upon which [he] pulled [Appellant] over,

until the point upon which [he] detained him in the car to transport him to

the barracks” was “somewhere around an hour, hour and fifteen [minutes].”

Id. Trooper Gerken initiated the stop at 11:26 a.m., and he “contacted

Trooper Conrad, originally, to respond to the scene” at 11:52 a.m. Id. at

25-26. However, Trooper Conrad advised Trooper Gerken that he was

unavailable, and Trooper Doblovasky “would be the one responding.” Id. at

26. Trooper Gerken stated that “it was a little bit of time for [Trooper

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Doblovasky] to respond to that — the location.” Id. at 37. Trooper

Doblovasky testified that when he arrived at the scene, “once I got the dog

to the vehicle and we started our search, it was less than a minute and we

were done, seconds. It’s that quick.” Id. at 77.

The United States Supreme Court has explained:

In assessing whether a detention is too long in duration to be

justified as an investigative stop, we consider it appropriate to

examine whether the police diligently pursued a means of

investigation that was likely to confirm or dispel their suspicions

quickly, during which time it was necessary to detain the

defendant. See Michigan v. Summers, [452 U.S. 692, 701

n.14 (1981)] (quoting 3 W. LaFave, Search and Seizure § 9.2, p.

40 (1978)); see also [U.S. v. Place, 462 U.S. 696, 709

(1983)]; [Florida v. Royer, 460 U.S. 491, 500 (1983)]. A court

making this assessment should take care to consider whether

the police are acting in a swiftly developing situation, and in such

cases the court should not indulge in unrealistic second-

guessing. . . . . A creative judge engaged in post hoc evaluation

of police conduct can almost always imagine some alternative

means by which the objectives of the police might have been

accomplished. But “[t]he fact that the protection of the public

might, in the abstract, have been accomplished by ‘less

intrusive’ means does not, itself, render the search

unreasonable.” Cady v. Dombrowski, 413 U.S. 433, 447, 93

S.Ct. 2523, 2531, 37 L.Ed.2d 706 (1973); see also United

States v. Martinez-Fuerte, 428 U.S. 543, 557, n. 12, 96 S.Ct.

3074, 3082, n. 12, 49 L.Ed.2d 1116 (1976). The question is not

simply whether some other alternative was available, but

whether the police acted unreasonably in failing to recognize or

to pursue it.

United States v. Sharpe, 470 U.S. 675, 686-687 (1985).

The Pennsylvania Supreme Court, relying on Sharpe, held that an

officer’s detention of an appellant was “no more than an investigative

detention supported by reasonable suspicion [where the a]ppellant was

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detained for approximately ten to fifteen minutes in order to allow [another

officer] to view the crime scene and transport the witness[.]” The Court

stated, “These actions were reasonable attempts to confirm or dispel the

officer’s suspicions and were diligently pursued.” Commonwealth v. Ellis,

662 A.2d 1043, 1049 (Pa. 1995).

The detention at issue here certainly was much longer than that before

the Court in Ellis. Nevertheless, the record before us shows that, under the

circumstances, the troopers acted reasonably and diligently in pursuing their

suspicions during the one-hour-plus time frame. The vehicle was stopped in

a rural area of the Commonwealth. In the first half hour after the stop,

Trooper Gerken had Appellant move his car to a safer location and then

questioned Appellant and notified him of the traffic violation. Trooper

Gerken then called for backup and a canine unit. Once the dog arrived, the

search was conducted quickly. There is no evidence that the detention was

delayed for any improper reason. It stands to reason that dispatching a

canine unit to a rural location will likely take longer than doing so in an

urban area. We therefore hold that the duration of the detention was not

unreasonable.

With regard to the weather, we note that Appellant repeatedly

references the winter cold and that he waited outside “without a jacket.”

Appellant’s Brief at 15, 21, 28, 30, 32. He asserts that his “seizure . . . on

the side of the Interstate in the February cold without a jacket for over an

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hour was unreasonable . . . and should be considered a de facto arrest;

therefore probable cause should have been required.” Id. at 28. Trooper

Gerken testified, however, that he did not “believe it was below freezing”

when he detained Appellant, and he offered uncontroverted testimony that

repeated offers were made to provide Appellant with his jacket and to permit

him to sit in the back of the heated patrol vehicle — offers that Appellant

declined. N.T., 1/12/15, at 40. Trooper Gerken also testified that he

honored Appellant’s request to retrieve his scarf for him from the vehicle.

Id. at 45-46. Our review of the MVR confirms this testimony. Accordingly,

we do not believe the cold weather is germane to our analysis of the

propriety of Appellant’s detention.

In sum, given our extensive review of the record, we conclude that the

trial court did not err in determining that the initial vehicle stop was justified

by probable cause and was followed by an investigative detention that was

supported by reasonable suspicion. Accordingly, we affirm the judgment of

sentence.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 10/31/2016

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