Opinion
1258 MDA 2022 J-S21042-23
07-05-2023
COMMONWEALTH OF PENNSYLVANIA v. TYLER ADAM BURGER Appellant
Joseph D. Seletyn, Esq.
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
Appeal from the Judgment of Sentence Entered August 22, 2022 In the Court of Common Pleas of York County Criminal Division at No(s): CP-67-CR-0004994-2020
Joseph D. Seletyn, Esq.
BEFORE: BOWES, J., NICHOLS, J., and PELLEGRINI, J. [*]
MEMORANDUM
PELLEGRINI, J.
Tyler Adam Burger (Burger) appeals from the judgment of sentence imposed by the Court of Common Pleas of York County (trial court) after his bench conviction of Possession of a Small Amount of Marijuana-Personal Use, three counts of Driving Under the Influence (DUI) and Failure to Signal.Burger argues that the trial court erred in not granting the suppression of evidence obtained as a result of a traffic stop because such stop was not supported by probable cause, as well as the extension of the traffic stop and post-stop investigatory detention were not supported by reasonable suspicion. We affirm.
35 P.S. § 780-113(a)(31)(i); 75 Pa.C.S. §§ 3802(d)(1)(i), (ii), (iii); and § 75 Pa.C.S. § 3334(a), respectively.
I.
On July 31, 2020, at approximately 4:45 P.M., Pennsylvania State Trooper Franklin Abreu stopped Burger's vehicle due to observed traffic violations. On September 9, 2020, a criminal complaint was filed charging Burger with the above offenses. On February 9, 2021, Burger fled an omnibus pre-trial motion to suppress evidence. The motion maintained that the initial stop of his vehicle was illegal since the trooper lacked the necessary reasonable suspicion or probable cause to effectuate the stop. Burger also averred that, assuming the initial stop was proper, "it was extended beyond the necessary time to address the citations and no separate reasonable suspicion existed to extend the traffic stop and turn it into an investigatory stop." (See Burger's Motion to Suppress, 2/09/21, at 6 ¶ 46).
In addition to the foregoing charges, Burger was charged with Possession of a Controlled Substance by a Person not Registered, 35 P.S. § 780-113(a)(16); Possession of Drug Paraphernalia, 35 P.S. § 780-113(a)(32); and DUI, 75 Pa.C.S. § 3802(d)(2). The Commonwealth withdrew the two possession counts and he was found not guilty of the DUI count.
On March 19, 2021, the court held a hearing on Burger's suppression motion. Trooper Abreu, who had been a state police trooper for five years at the time of the incident and had made thousands of traffic stops and been involved in hundreds of DUI investigations, testified on the Commonwealth's behalf. Burger did not testify or present any evidence.
Trooper Abreu testified that on July 31, 2020, he was patrolling in an unmarked police car when he observed a tan Chevrolet Malibu perpendicular to him at a four-way traffic stop. When attempting to stop at the stop sign, the vehicle went beyond the solid white line. After signaling the trooper to go ahead, the Malibu went first and made a wide left-hand turn past Trooper Abreu, who then made a U-turn to follow the vehicle. Upon locating the car moments later, Trooper Abreau began following it and observed the vehicle jerk to the right and then overcorrect back to the left onto the roadway. After Trooper Abreu observed the vehicle abruptly jerk to the right again, leave its lane of travel and pull over onto the side of the road without activating its turn signal, he testified that he activated the emergency lights on his unmarked police vehicle and initiated a traffic stop.
Trooper Abreu approached the vehicle and advised of the reason for the stop, which included "the failure to signal prior to coming off of the main roadway indicating that they were going to pull off onto the roadway and/or attempt to park, [and] the fact that they almost struck the curb[.]" (See N.T., 03/19/2021, at 5-7). He noted that he also had concerns as to whether the driver was lost, having "a medical episode" or was "an impaired driver." (Id. at 8). Because the vehicles were parked on an incline, Trooper Abreu directed Burger to drive to a more level area, which he did.
Trooper Abreu again approached the vehicle, identified the operator of the vehicle as Burger and noticed that he appeared extremely sweaty and nervous. Burger was extremely talkative, disheveled and seemed as though he did not know where he was. Trooper Abreu testified that he noticed an odor of marijuana emanating from inside the vehicle and added that his report inaccurately stated that he asked Burger about the smell. Trooper Abreu asked Burger to step out of the vehicle, which he did, and they then engaged in a conversation, where Trooper Abreu noted that Burger's speech was slurred and he was talkative, nervous and confused.
When Trooper Abreu asked Burger if he had consumed any drugs or alcohol prior to driving, Burger advised that he smoked marijuana approximately ten hours prior to the traffic stop. Trooper Abreu continued to ask about his drug use and Burger stated that he was prescribed 80 milligrams of methadone per day and he had taken it that day. Trooper Abreu asked Burger how many different drugs he was taking, both prescribed and unprescribed, to which Burger advised that he takes marijuana, Xanax, gabapentin and methadone. (See id. at 12-13).
Trooper Abreu then asked Burger to perform Standardized Field Sobriety Testing (SFST), which Burger began while the trooper was still giving instructions and he was unable to maintain his balance. At this time, Trooper Abreu and Burger agreed that, for safety reasons, it was best to conclude the test. Trooper Abreu asked Burger to submit a blood draw, the results of which were received on September 4, 2020. Burger's blood tested positive for alprazolam, 11 hydroxy delta 9 THC, delta 9 carboxy THC, delta 9 THC, methadone EDDP, fentanyl and norfentanyl. (See id. at 13-14, 16).
At the conclusion of the hearing, the trial court:
… issued a ruling granting, in part, the Motion to Suppress as to the drugs in the car and any statements in response to whether there were drugs in the car based on the court's finding that [Burger] was in custody and the Trooper failed to recite Miranda warnings. On April 19, 2021, the Commonwealth filed an interlocutory appeal. On February 8, 2022, the Pennsylvania Superior Court issued a Decision reversing, in part, and affirming, in part. The Pennsylvania Superior Court held th[e] court erred by sua sponte raising the issue of a Miranda violation and suppressing the evidence on grounds not asserted by Burger. Commonwealth v. Burger, 273 A.3d 1033, at *27 (Pa. Super. filed Feb. 8, 2022) (unpublished memorandum).(Trial Court Opinion, 11/15/22, at 2-3) (some capitalization omitted; citation formatting provided).
Miranda v. Arizona, 384 U.S. 436 (1966).
The case proceeded to a non-jury trial, at the conclusion of which Burger was convicted of the aforementioned charges. Sentencing was deferred for Burger to complete a drug and alcohol evaluation, which he elected not to do. On August 22, 2022, the trial court sentenced him to an aggregate term of not less than three nor more than six months' incarceration, 30 days' probation, plus fines and costs. Burger timely appealed and filed a court ordered statement of errors on appeal. See Pa.R.A.P. 1925(b).
On appeal, Burger argues that the trial court erred in denying suppression because "the initial stop was not supported by probable cause where [he] was pulling over in response to the Trooper's driving" and "the extension of the traffic stop and post-stop investigatory detention were not supported by reasonable suspicion." (Burger's Brief, at 4).
Our standard of review of this matter is well-settled:
We are limited to determining whether the lower court's factual findings are supported by the record and whether the legal conclusions drawn therefrom are correct. We may consider the evidence of the witnesses offered by the Commonwealth, as verdict winner, and only so much of the evidence presented by [the] defense that is not contradicted when examined in the context of the record as a whole. We are bound by facts supported by the record and may reverse only if the legal conclusions reached by the court were erroneous.Commonwealth v. Feczko, 10 A.3d 1285, 1287 (Pa. Super. 2010) (en banc) (citation omitted). We grant great deference to the trial court's credibility findings. See Commonwealth v. Carmenates, 266 A.3d 1117, 1123 (Pa. Super. 2021).
II.
A.
Burger maintains that "[t]he initial stop [was] based on an alleged turn signal violation [and] required probable cause, which Trooper Abreau did not possess" because there was no violation where he was just unfamiliar with the area and he pulled over in anticipation of the traffic stop. (Id. at 14) (see id. at 16) ("There was no traffic violation, so Trooper Abreu did not have probable cause to initiate the stop, and therefore the stop, and any evidence collected from it, is illegal.") (quoting Omnibus Pretrial Motion, at 45). The Commonwealth responds that Trooper Abreu only needed a reasonable suspicion where he observed Burger "[fail] to signal prior to coming off of the main roadway," and had concerns of "a medical episode," or "impaired driving." (N.T., at 7, 8).
The Commonwealth's argument was different at the suppression hearing. The prosecutor argued that "Trooper Abreu had probable cause to believe there was a violation for the turn signal [and] reasonable suspicion to believe that there could have been a DUI or impairment[.]" (N.T., at 33-34).
Section 3334 of the Vehicle Code requires, in pertinent part, that: "At speeds of less than 35 miles per hour, an appropriate signal of intention to turn right or left shall be given continuously during not less than the last 100 feet traveled by the vehicle before turning" and "prior to entry of the vehicle into the traffic stream from a parked position." 75 Pa.C.S. § 3334(b).
Pursuant to Section 6308 of the Pennsylvania Vehicle Code:
[w]henever a police officer … has reasonable suspicion that a violation of this title is occurring or has occurred, he may stop a vehicle, upon request or signal, for the purpose of checking the vehicle's registration, proof of financial responsibility, vehicle identification number or engine number or the driver's license, or to secure such other information as the officer may reasonably believe to be necessary to enforce the provisions of this title.75 Pa.C.S. § 6308(b). "However, a stop based on reasonable suspicion under § 6308(b) must serve an investigatory purpose relevant to the suspected violation." Commonwealth v. Ruffin, 282 A.3d 796, 800 (Pa. Super. 2022) (internal citations omitted).
In such an instance, it is [incumbent] 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 [Motor Vehicle] Code.Commonwealth v. Malloy, 257 A.3d 142, 148 (Pa. Super. 2021) (citations omitted).
On the other hand, if an officer possesses sufficient knowledge based upon behavior suggestive of DUI, the officer may stop the vehicle upon reasonable suspicion of a Vehicle Code violation, since a stop would provide the officer the needed opportunity to investigate further if the driver was operating under the influence of alcohol or a controlled substance.Commonwealth v. Salter, 121 A.3d 987, 993 (Pa. Super. 2015) (citing cases); but see Commonwealth v. Landis, 89 A.3d 694, 703 (Pa. Super. 2014) (noting that where trooper stopped motorist for failing to drive within a single lane-and not to investigate possible DUI-he needed probable cause to stop).
1.
First, we note that Trooper Abreu did not state that his purpose for the stop was suspected DUI. He testified he observed Burger commit motor vehicle violations and he was concerned that his assistance was required because the driver could be either lost, suffering a medical episode or impaired. (See N.T., at 8). Only after stopping Burger and interacting with him did he "transition[] over to driving under the influence of a prescribed or unprescribed substance." (Id. at 13). Therefore, where Trooper Abreu did not state that his purpose for the initial stop was due to suspected DUI, probable cause was the appropriate standard. See Landis, 89 A.3d at 703.
For sake of completeness, we observe that this argument is irrelevant because, as described more fully above, the trial court properly found that Trooper Abreu met the more stringent standard of probable cause to stop Burger for the observed motor vehicle violation. See Commonwealth v. Rogers, 849 A.2d 1185, 1189 (Pa. 2004).
2.
The trial court explains:
At the suppression hearing, Trooper Abreu testified that he observed [Burger] stop beyond a stop sign and past the solid white line. He also observed [Burger]'s car jerk to the right then overcorrect left and back onto the roadway; then he saw [Burger]'s vehicle abruptly jerk to the right and pull off the main road, without signaling, and almost strike the curb.
Trooper Abreu was the Commonwealth's only witness and he was found to be credible. He was able to articulate specific facts which amounted to probable cause to believe [Burger] was in violation of Section 3334 of the Vehicle Code. [Burger] did not present any evidence.(Trial Ct. Op., at 11-12) (emphasis added). Our independent review of the record supports the trial court's decision.
Trooper Abreu testified that Burger's Malibu caught his attention when it "appeared to try to stop at the intersection, went beyond the stop sign and over that white solid line." (N.T., at 5-6). The vehicle was "continuously in motion" at the intersection and made a wide left turn. (Id.). The trooper followed behind Burger in his unmarked police vehicle and he then "observed the vehicle make a right-hand quote/unquote jerking motion, and then overcorrect back into the left, back to the left, and into the-back on to the roadway where we had just been traveling on." (Id. at 6). As he continued to follow directly behind the vehicle, Trooper Abreu observed "[t]he vehicle again abruptly just pulled off of the main road, and essentially, like, the side of the roadway and almost striking the curb without signaling." (Id. at 7). Trooper Abreu explained that he initiated the traffic stop for "[Burger's] failure to signal prior to coming off of the main roadway indicating that they were going to pull off onto the roadway and/or attempt to park, [and] the fact that they almost struck the curb[.]" (Id.).
We note that while Burger argues that his erratic driving was because he was unfamiliar with the area and he pulled over because of the impending traffic stop (although the trooper was in an unmarked car and his emergency lights were not activated, so this argument is questionable), he misapprehends our standard of review, which requires us to accept all Commonwealth evidence as true and consider merely whether it supports the trial court's factual findings and the legal conclusions drawn therefrom. See Feczo, 810 A,3d at 1287. The only evidence of record was that provided by the Commonwealth and the court found Trooper Abreu credible, a finding to which we grant great deference. See Carmenates, 266 A.3d at 1123. Therefore, Burger's explanations for his actions, which basically asks us to view the Commonwealth's evidence in the light most favorable to him, are not persuasive.
Based on the foregoing, the trial court properly exercised its discretion to deny Burger's motion to suppress based on Trooper Abreu's alleged lack of probable cause to initiate the traffic stop. Trooper Abreu had probable cause where he specifically articulated facts to establish his belief that Burger was in violation of the Traffic Code. See Malloy, 257 A.3d at 148. This issue lacks merit.
B.
Burger also contends that the trial court erred in denying his motion to suppress because the subsequent investigation for DUI and possession of controlled substance was not supported by reasonable suspicion, which violated his rights under the Fourth Amendment and Article I, Section 8 of the Pennsylvania Constitution.
The Fourth Amendment of the United States Constitution establishes the "right of the people to be secure in their persons, houses, paper and effects, against unreasonable searches and seizures." Article I, Section 8 of the Pennsylvania Constitution provides: "The people shall be secure in their persons, houses, papers and possessions from unreasonable searches and seizures, and no warrant to search any place or to seize any person or things shall issue without describing them as nearly as may be, nor without probable cause, supported by oath or affirmation subscribed to by the affiant."
Any technical traffic violation (supported by probable cause) legitimizes a stop, even if it is merely a pretext for some other investigation. See Whren v. United States, 517 U.S. 806 (1996). "During a traffic stop, the officer may ask the detainee a moderate number of questions to determine his identity and to try to obtain information confirming or dispelling the officer's suspicions." Commonwealth v. Harris, 176 A.3d 1009, 1020 (Pa. Super. 2017) (citation and internal quotation marks omitted). "[I]f there is a legitimate stop for a traffic violation ... additional suspicion may arise before the initial stop's purpose has been fulfilled, then, detention may be permissible to investigate the new suspicions." Id. (citation omitted). This further detention must be supported by reasonable suspicion, and:
[T]he officer must articulate specific observations which, in conjunction with reasonable inferences derived from these observations, led him reasonably to conclude, in light of his experience, that criminal activity was afoot. ... In order to determine whether the police officer had reasonable suspicion, the totality of the circumstances must be considered. 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. 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, even a combination of innocent facts, when taken together, may warrant further investigation by the police officer.Commonwealth v. Smith, 917 A.2d 848, 852 (Pa. Super. 2007) (citations omitted).
1.
Burger maintains that Trooper Abreu's immediate removal of him from the car and questioning him about his license status, drug use history and the presence of drugs and paraphernalia was not supported by reasonable suspicion. He concedes that evidence of his "nervousness, sweatiness fidgeting and talkativeness" may be considered in determining reasonable suspicion; however, he maintains that there was not enough time for Trooper Abreu to observe that behavior before he began questioning him. (Burger's Brief, at 23). We disagree.
First, "it is well-established that when an officer detains a vehicle for violation of a traffic law, it is inherently reasonable that he or she be concerned with safety and, as a result, may order the occupants of the vehicle to alight from the car." Harris, 176 A.3d at 1020-21 (citations omitted); see also Commonwealth v. Pratt, 930 A.2d 561, 564 (Pa. Super. 2007) (observing that "following a lawful traffic stop, an officer may order [ ] the driver ... of a vehicle to exit the vehicle until the traffic stop is completed, even absent a reasonable suspicion that criminal activity is afoot."). Therefore, any claim that the trooper lacked reasonable suspicion to request that Burger exit the vehicle is not persuasive.
Further, the trial court found that Trooper Abreu articulated specific facts based on his training and experience as a police officer investigating a DUI to support his reasonable suspicion of criminal activity. (See Trial Ct. Op., at 13). We agree and note this is particularly true where the trooper already had a suspicion that Burger might be driving impaired, in addition to violating the Traffic Code.
The record reflects that Trooper Abreu, a five-year veteran who had participated in hundreds of DUI investigations, approached the driver's side of Burger's vehicle after initiating the traffic stop and observed that Burger was "extremely sweaty, nervous … shaking, extremely talkative, disheveled … and he just seemed like he didn't know where he was at." (N.T., at 9). After asking Burger to move his vehicle to a more level area, Trooper Abreu again approached his car and asked Burger to step outside the vehicle. They had a brief conversation during which the trooper observed that Burger "was extremely talkative, but almost rambling on most of the time[,] … couldn't stand still, … was extremely fidgety, and … again, didn't seem like he was familiar with where he was at, or what his purpose for being there was or anything of that nature." (Id. at 10). Although Burger was talkative, the trooper "couldn't make anything of it" because it was "very slurred to some degree." (Id.). Based on this, the trooper asked Burger about any drug or alcohol use, at which point Burger told him he had smoked marijuana ten hours earlier and was prescribed methadone. The MVR showed Burger stating he was taking marijuana, Xanax, gabapentin and methadone. (See id. at 12-13). At this point, the trooper transitioned over to a DUI investigation. (See id. at 13).
This credible testimony was sufficient to establish that Trooper Abreu had a reasonable suspicion of illegal activity to support the investigative detention.
Burger argues that Trooper Abreu's statement that he smelled marijuana emanating from the vehicle is not supported by the record. We do not find this argument dispositive. The trooper admitted that after reviewing the MVR, his report inaccurately stated that he asked Burger about the marijuana odor, but that he absolutely smelled it. (See N.T., at 15). However, the trial court did not rely on this statement in concluding that the trooper had a reasonable suspicion that Burger was DUI, and we agree that there was sufficient evidence based on Burger's demeanor to support Trooper Abreu's reasonable suspicion. (See Trial Ct. Op., at 13).
2.
Finally, Burger's reliance on Rodriguez v. United States, 575 U.S. 348 (2015), and Commonwealth v. Malloy, 257 A.3d 142 (Pa. Super. 2021), is misplaced. As this Court previously explained:
In Rodriguez, a K-9 police officer stopped a vehicle because the vehicle slowly moved onto the shoulder for one or two seconds and then jerked back onto the road. The K-9 officer approached the two men in the vehicle, asked for pertinent information and issued a warning to the driver. Even though he acknowledged the traffic stop was over, the K-9 officer instructed the driver not to move while he walked his dog around the vehicle, and the dog alerted the officer of the presence of drugs. Seven or eight minutes had elapsed from the time the written warning was issued until the dog indicated the presence of drugs. A search of the vehicle revealed a large bag of methamphetamine. A motion to suppress was brought because the traffic stop had ended and the police officer had unconstitutionally extended that stop to conduct another investigation to walk the dog around the vehicle.
In suppressing the search that resulted in the drug charges, the United States Supreme Court held that "while an officer may conduct certain unrelated checks during an otherwise lawful traffic stop ... he may not do so in a way that prolongs the stop, absent the reasonable suspicion ordinarily demanded to justify detaining an individual." Id. at 575 U.S. at 355, 135 S.Ct. at 1615. It then held that "A seizure justified only by a police-observed traffic violation, therefore, 'become[s] unlawful if it is prolonged beyond the time reasonably required to complete th[e] mission' of issuing a ticket for the violation." Id. at 575 U.S. at 350-51, 135 S.Ct. at 1612 (alterations in original) (quoting Illinois v. Caballes, 543 U.S. 405, 407, 125 S.Ct. 834, (2005)).Commonwealth v. Anderson, 2023 WL 3198196, unpublished memorandum, at *3 (Pa. Super. filed May 2, 2023).
Rodriguez is inapposite to this case. In Rodriguez, the drug charges flowed from a prolonged stop after the traffic violation issue was resolved by the issuance of a traffic citation. Here, the evidence directly flowed from the legal traffic stop where the trooper observed Burger's suspicious behavior as soon as he pulled him over to request identifying information and asked him to alight from the car, asking more questions to dispel any suspicions. See Harris, 176 A.3d at 1020-21.
Similarly, Malloy is not persuasive. As explained by a panel of this Court:
[In Malloy], the police detained the occupants of a vehicle following a lawful traffic stop. A police officer instructed Malloy, who was seated behind the driver, to roll down the passenger window. Id. at 145. The officer then asked Malloy for identification. Id. In response, Appellant pulled out a lanyard from his hooded sweatshirt. Id. Upon observing the lanyard, the officer immediately asked Malloy whether he had a firearm. Id. The officer explained that, "in his experience, it was common for people who worked in armed security positions at local bars to keep their identification badges in lanyards." Id. Malloy answered that he did have a firearm and worked as a security guard at Bananas-a bar-where he and the other occupants of the vehicle had just finished working for the day. Id. The officer eventually secured the firearm for his safety and the safety of the other occupants of the vehicle. Id. The officer, thereafter, questioned Malloy regarding his firearm licensure status and, over the next 15 to 20 minutes, ran checks on Malloy to determine whether had a valid license to carry. Id. at 146. The officer determined that Malloy did not have a valid license. Id. The officer then arrested Malloy on charges related to the unlawful possession of a firearm. Id.
On appeal, a panel of this Court concluded that the trial court erred in failing to grant Malloy's suppression motion. We explained:
[O]nce [the officer] secured the firearm, [Malloy's] legal authority to own or possess a gun clearly bore no discernable relationship to individual safety or security within the context of the traffic stop. Under these circumstances, where seizure
of a firearm has substantially diminished the risk to officers and others who may be present during a lawful vehicle detention, we see no reason why the Fourth Amendment, in the absence of independent justification, suspicion, or cause, should tolerate even a 10- to 15-minute extension of a routine traffic stop for the investigation of a secondary criminal matter.Id. at 153. Interest of S.E., 290 A.3d 670, at *5 (Pa. Super. filed Dec. 9, 2022) (unpublished memorandum).
By contrast, in this case, Burger was the driver of the vehicle that Trooper Abreu had probable cause to stop for committing a violation of the Vehicle Code and concerns about the driver's need of assistance due to being lost, in medical distress or impaired. Upon approaching the vehicle and engaging with Burger, Trooper Abreu immediately noticed that he exhibited multiple signs of intoxication. These facts are inapposite to the situation in Malloy where the officer questioned a passenger and engaged in a prolonged investigation of an unrelated criminal matter.
For all these reasons, Burger is due no relief on his claim that the trial court abused its discretion in denying his motion to suppress. The court's factual findings are supported by the record and its legal conclusions drawn therefrom were not in error. See Feczko, 10 A.3d at 1287.
Judgment of sentence affirmed.
Judgment Entered.
[*] Retired Senior Judge assigned to the Superior Court.