Opinion
1431 EDA 2021 J-A17014-22
10-13-2022
COMMONWEALTH OF PENNSYLVANIA Appellant v. WAYNE CATLETT
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Order Entered June 22, 2021 In the Court of Common Pleas of Delaware County Criminal Division at No(s): CP-23-CR-0004629-2017
BEFORE: PANELLA, P.J., NICHOLS, J., and COLINS, J. [*]
MEMORANDUM
PANELLA, P.J.
The Commonwealth appeals from the Delaware County Court of Common Pleas' order granting Wayne Catlett's motion to suppress, inter alia, contraband obtained pursuant to a warrantless search of his vehicle following a traffic stop as well as statements made to police before and after that search. We affirm, based largely on the well-reasoned opinion of the trial court.
Catlett filed a suppression motion on January 13, 2021 after Officer Nicholas Tokonitz of the Yeadon Borough Police Department found drugs and a firearm in his vehicle and drugs on his person after initiating a traffic stop of Catlett's vehicle in Philadelphia County. In the motion, Catlett argued that Officer Tokonitz had illegally stopped and searched him and illegally searched his car without a warrant in violation of, inter alia, Article I, Section 8 of our state constitution. The trial court held a hearing on the motion on March 31, 2021.
This was the second suppression motion filed by Catlett. Catlett first filed a suppression motion on February 11, 2020, alleging, inter alia, that the traffic stop made in Philadelphia, and therefore outside of Officer Tokonitz's jurisdiction, violated the Municipal Police Jurisdiction Act, 42 Pa. C.S.A. §§ 8951-8955. See N.T., 2/21/20, at 37-41. The trial court denied this motion on March 30, 2020.
The Commonwealth called Officer Tokonitz to the stand. Officer Tokonitz testified that on the evening of May 15, 2017, he was on routine patrol by himself in Yeadon Borough, Delaware County, when he saw a black Audi go through a steady red light. See N.T., 3/31/21, at 14. Without activating his lights, Officer Tokonitz pursued the Audi, and was able to catch up to the Audi once it crossed over into Philadelphia County and stopped at a red light. Officer Tokonitz testified that he stopped behind the Audi at the red light, at which time he maintained that he smelled the odor of raw marijuana emanating from the Audi. See id. at 17, 19. Officer Tokonitz testified that raw, or fresh, marijuana has a different odor from burnt marijuana. See id. at 18.
Officer Tokonitz testified that it was not safe to stop the Audi at that intersection, and he therefore followed the Audi as it made a right turn at the intersection. Once the Audi approached a safe area, which was residential and lit by streetlights, Officer Tokonitz activated his lights and the Audi immediately pulled over. See id. at 20-21, 75. As Officer Tokonitz approached the Audi, he testified that he continued to smell raw marijuana. See id. at 23. The officer approached the driver of the vehicle, who was alone in the car and subsequently identified as Catlett. Officer Tokonitz asked Catlett for his paperwork, which Catlett produced. See id. at 23, 77.
Officer Tokonitz then told Catlett that he had seen him go through a red light and had smelled marijuana coming from the Audi. He asked Catlett if there was any marijuana in the car. See id. at 24, 25. According to Officer Tokonitz, Catlett told him there was marijuana in the car door on the driver's side. See id. at 24. At that point, the officer instructed Catlett to open the driver's door, and when he did so, Officer Tokonitz testified there was a small, knotted-up sandwich bag in plain view in the door pocket which contained approximately two grams of marijuana. See id. at 24, 27, 66.
After seizing the marijuana, Officer Tokonitz told Catlett to step out of the car. See id. at 27-28, 76, 79. He then instructed Catlett to step to the rear of the Audi, which Catlett did. See id. at 27-28, 76. In preparation for what Officer Tokonitz described as a "pat-down for officer safety," he asked Catlett if he had any drugs or weapons on his person. Id. at 28-29, 81. According to the officer, Catlett indicated he had "Oxys" in his left pant pocket. See id. at 29. Officer Tokonitz did not do a full pat-down but rather, only patted down the exterior of Catlett's left pant pocket. See id. at 29, 30-31. The officer testified he felt a pill bottle, and retrieved the bottle from the pocket. See id. At 30-32. The bottle had 11 pills in it, only one of which matched the description of what was on the prescription bottle's label. See id. at 30
Officer Tokonitz placed Catlett in handcuffs, and recovered $4,900 in cash from Catlett's pants pocket. See id. at 31, 33. It was at this point that two other officers arrived at the scene. See id. at 34-35. Officer Tokonitz placed Catlett in the back of his patrol car. See id. at 35. According to the officer, he then called a tow truck for the Audi. See id. at 35. At that point, Officer Tokonitz testified he conducted a search of the Audi, and did so alone. See id. at 41. Officer Tokonitz stated that he found $6,700 in cash in the center console of the vehicle, one empty bottle of codeine syrup on the rear seat, one half-filled bottle with a torn-off label for codeine syrup, and a firearm wrapped inside a folded towel and knit cap in a side pocket of the vehicle's hatchback. See id. at 42-43. According to Officer Tokonitz, when he returned to his patrol car, Catlett asked the officer if he had found a gun in his car. See id. at 44-45, 59-60 .
Officer Tokonitz testified that another officer transported Catlett to the station while he followed the tow truck to the impound yard and arranged for a canine search to be conducted on the Audi. See id. at 44, 46, 48-49. The canine alerted positive to the exterior and interior of the Audi. See id. at 107. Officer Tokonitz then applied for, and obtained, a search warrant. See id. at 51. The officer testified that, while he was later processing Catlett, and after he told Catlett what the charges were, Catlett made statements about obtaining a firearm for his safety. See id. at 46-47. Officer Tokonitz also confirmed he had not read Catlett his Miranda rights up to that point and that to his knowledge, Catlett had never been given Miranda warnings. See id. at 54, 61, 63. The defense did not present any witnesses.
Miranda v. Arizona, 384 U.S. 436 (1966).
Following oral argument, the court granted Catlett's suppression motion in an order dated June 22, 2021. The Commonwealth filed a notice of appeal, certifying that the court's suppression order would substantially handicap the prosecution of its case pursuant to Pa.R.A.P. 311(d). The Commonwealth also complied with the trial court's directive to file a Pa.R.A.P. 1925(b) statement of errors complained of on appeal.
In response, the trial court filed a Pa.R.A.P. 1925(a) opinion. In its opinion, the court recounted Officer Tokonitz's testimony. The court then stated that it found the officer's testimony credible, but only in part. The court explained:
Officer Tokonitz's credibility is questionable regarding his testimony regarding the smell of fresh marijuana emanating from [Catlett's] vehicle, as well as his ability to smell such marijuana when it is sealed in a sandwich bag, [and when] the bag only contains approximately two grams of marijuana. Additionally, the Officer's credibility is highly questionable regarding [Catlett's] alleged response to the Officer's interrogation regarding the smell of marijuana.
Trial Court Opinion, 11/23/21, at 6.
The court then explained why it had granted Catlett's motion to suppress the drugs and the firearm. It found, as an initial matter, that Officer Tokonitz had probable cause to stop Catlett's Audi based on his red light violation. However, the court then held that the warrantless search of the Audi was illegal under the Court's recent decision in Commonwealth v. Alexander, 243 A.3d 177, 181 (Pa. 2020), which held that Article I, Section 8 of our state constitution requires police to have both probable cause as well as exigent circumstances before they conduct a non-consensual, warrantless search of a vehicle.
The trial court specifically noted that Alexander was applicable retroactively given that Catlett had properly raised and preserved the issue. See Trial Court Opinion, 11/23/21, at 9. The Commonwealth does not dispute the retroactivity of Alexander.
Applying Alexander, the court concluded that Officer Tokonitz had neither probable cause nor exigent circumstances to search Catlett's vehicle. To that end, the court noted that, even if Officer Tokonitz had smelled marijuana, the odor of marijuana alone is not sufficient to support a finding of probable cause to conduct a warrantless search of a vehicle under Commonwealth v. Barr, 266 A.3d 25, 44 (Pa. 2021). The court also found that, in any event, the Commonwealth had not established that Officer Tokonitz faced any exigent circumstances:
The facts of this case show that [Catlett] complied with all of Officer Tokonitz's commands, was cooperative throughout the
entire interaction, and made no furtive movements. Officer Tokonitz also waited to initiate the traffic stop at a safe location, where [Catlett's] vehicle was not obstructing the highway. In the area of the traffic stop occurred there were homes and streetlights and [Catlett] did not give any indication that he had any connection to the neighborhood. Furthermore, Officer Tokonitz admitted in this testimony that he was within the vicinity, approximately seven blocks, from a police station and could have called them to make sure the vehicle was secured while he got a search warrant, but he did not do so.
Trial Court Opinion, 11/23/21, at 9.
The court then rejected the Commonwealth's claim that the warrantless search of the vehicle had been a proper inventory search. The court noted that in order for an inventory search to be valid, the police must first have lawfully impounded the vehicle. See Trial Court Opinion, 11/23/21, at 10 (citing Commonwealth v. Peak, 230 A.3d 1220, 1226 (Pa. Super. 2020). The court observed that the authority to impound a vehicle stems from the police's reasonable community care-taking functions, functions which include removing a disabled vehicle from the highway, impounding vehicles violating parking ordinances, and the protection of the community's safety. See id. The court concluded the Commonwealth had not established that there were any legitimate reasons for towing Catlett's vehicle, as it was properly registered and insured and not in any way obstructing the roadway or impeding traffic.
Nonetheless, even assuming the vehicle had properly been impounded, the court noted that an inventory search will only be found to have been reasonable if the search is conducted pursuant to reasonable police procedures, in good faith and not for the sole purpose of investigation. See id. The suppression court then found that an inventory search of Catlett's vehicle was not reasonable because the court "could not overlook" that Officer Tokonitz's motive for the search was to uncover criminal evidence. Trial Court Opinion, 11/23/21, at 10.
The suppression court also rejected the Commonwealth's argument that the warrantless search was justified because Officer Tokonitz was simply following the Yeadon Borough Police Department's policy on vehicle towing and impoundment, which allows officers to impound and conduct an inventory search of a car following a custodial arrest. The court explained: "Such an argument is without merit because Alexander was clear that there is a heightened standard to vehicle searches, and the policy that was followed here did not meet that standard, since it does not require more than probable cause." Id. at 11.
Likewise, the court rejected the Commonwealth's argument that the drugs and weapon would have inevitably been discovered because of the canine search and subsequent procurement of a search warrant for the Audi. According to the court, such an argument failed because it was necessarily premised on, and not independent of, the illegal arrest and search of the Audi. The court therefore found that the warrantless search of Catlett's vehicle was unconstitutional, and that it had therefore properly ordered the suppression of the drugs and weapon uncovered pursuant to that illegal search.
The court then proceeded to analyze whether Officer Tokonitz had conducted a lawful pat-down search of Catlett. In finding he had not, the court concluded that the officer did not provide articulable facts to support a finding that Catlett was armed and dangerous and put his safety in danger. See id. at 11 (citing Commonwealth v. Zahir, 751 A.2d 1153, 1158 (Pa. 2000) (stating that an officer may conduct a pat-down for weapons only if he has a reasonable suspicion that the individual is armed and presently dangerous to the safety of the officer or others)). Accordingly, the court found that it had properly suppressed the oxycodone pills found in Catlett's pocket during the pat-down.
Lastly, the court found that it had properly suppressed any statements made by Catlett regarding his knowledge of the marijuana and the gun that were found during the illegal search because he had not been Mirandized. The court essentially concluded that Catlett reasonably believed he was in custody from the inception of the traffic stop and therefore needed to be Mirandized before being asked about the marijuana or the firearm. As such, the court found that it had, along with the drugs and firearm, properly suppressed Catlett's statements to police.
In its appeal, the Commonwealth raises two issues:
A. Did the trial court err by suppressing evidence of a gun and illegal drugs recovered by the police from the vehicle after the police officer made a lawful car stop in which [Catlett] was the sole occupant; lawfully observed a bag of marijuana in plain view; properly searched [Catlett] incident to arrest and recovered additional illegally possessed drugs; found a loaded handgun
pursuant to a valid inventory search; and then after a canine sniff search, obtained a valid search warrant?
B. Did the trial court err by ruling that statements made by [Catlett] should be suppressed where [Catlett]t was not in custody when he made the first statement and subsequent statements were not prompted by any police questioning?
Commonwealth's Brief at 4 (trial court's and suggested answers omitted).
When this Court reviews a Commonwealth appeal from an order granting suppression, as we are tasked to do here, we may only consider the evidence produced at the suppression hearing and then, only that evidence which comes from the defendant's witnesses, along with the Commonwealth's evidence which remains uncontradicted. See Barr, 266 A.3d at 39. We must determine, in the first instance, whether the suppression court's factual findings are supported by the record and if they are, we are bound to those findings. See id. We must always keep in mind that the suppression court, as fact-finder, has the exclusive ability to pass on the credibility of witnesses. See Commonwealth v. Fudge, 213 A.3d 321, 326 (Pa. Super. 2019). Therefore, we will not disturb a suppression court's credibility determinations absent a clear and manifest error. See id. at 326-327.
We must also determine whether the legal conclusions the suppression court drew from its factual findings are correct. See Barr, 266 A.3d at 39. Unlike the deference we give to the suppression court's factual findings, we have de novo review over the suppression court's legal conclusions. See Commonwealth v. Brown, 996 A.2d 473, 476 (Pa. 2010).
Here, the Commonwealth begins its argument by asserting that Officer Tokonitz lawfully recovered the marijuana from the car door after directing Catlett to exit his vehicle as a matter of course during a lawful traffic stop, as the Commonwealth maintains it was Officer Tokonitz's prerogative to do so. See Commonwealth's Brief at 17. The problem with this argument is that the record shows this was not the way the events unfolded.
Instead, Officer Tokonitz testified that he smelled raw marijuana emanating from the car - testimony which was not credited by the suppression court - and specifically asked Catlett about the marijuana odor upon stopping him. According to Officer Tokonitz, Catlett confided that he had marijuana in the driver door of the car - again, testimony that the suppression court did not credit. It was at that point that Officer Tokonitz testified he directed Catlett to open the car door, obviously so that he could look for the marijuana, and saw the marijuana in the door in plain view. It was only after this search for, and seizure of, the marijuana that Officer Tokonitz directed Catlett to step out of the car. See N.T., 3/31/21, at 28, 76, 79, 81. Given Officer Tokonitz's testimony about the sequence of events, we see no merit in the Commonwealth's argument that the marijuana was properly seized because it was observed in plain view after Officer Tokonitz asked Catlett to step out of the car as a matter of course during the traffic stop.
The Commonwealth also maintains that the fact that Officer Tokonitz found marijuana in the car makes this case distinguishable from Alexander. It argues:
In Alexander, no controlled substance was found prior to the search of the vehicle. In Alexander, the police officer performed a motor vehicle stop, observed only the odor of marijuana, was told [by] the driver that [he] and [the] passenger had just smoked a blunt, took the driver into custody, and then conducted a search of the interior of the vehicle including any containers. Here, Officer [Tokonitz] smelled marijuana and [Catlett] told him that there was marijuana in the driver's side door pocket. Based on his training and experience, Officer Tokonitz observed in plain view a bag of suspected marijuana.
Commonwealth's Brief at 20.
This argument is not only premised on factors the suppression court found were not supported by credible testimony, i.e. that Officer Tokonitz smelled marijuana and Catlett confirmed the presence of that marijuana, but fails to explain how the fact that Officer Tokonitz found marijuana in these circumstances somehow means Officer Tokonitz did not have to comply with Alexander's clear holding that a warrantless search of a vehicle will only be constitutional under our state constitution if it is based on probable cause as well as exigent circumstances. Contrary to what the Commonwealth argues, we see no error in the suppression court's conclusions that Officer Tokonitz's warrantless search of Catlett's car was constitutionally required to comport with Alexander, and that the warrantless search failed to do so. We adopt the suppression court's reasoning in support of those conclusions. See Trial Court Opinion, 11/23/21, at 7-9.
We also adopt the suppression court's reasoning in rejecting the Commonwealth's claim, which it recycles in its brief here, that Officer Tokonitz's search of the car after he placed Catlett in handcuffs was a valid inventory search. See id. at 10. We see no error in the court's determination that it was not, especially in light of the court's factual finding that Officer Tokonitz's clear motive for the warrantless search of the car was to uncover additional evidence. See id.
Lastly, we reject the Commonwealth's final argument under its first issue that the contraband found in Catlett's vehicle need not be suppressed because the canine search and eventual issuance of a search warrant meant the police would have inevitably discovered the drugs and firearm in the car. Once again, we turn to the suppression court's reasoning as to why this claim fails; namely, because it is premised on, and not independent of, Catlett's illegal arrest and the illegal search of the vehicle. See id. at 11; see also Commonwealth v. Fulton, 179 A.3d 475, 489-490 (Pa. 2018) (stating that under the inevitable discovery doctrine, illegally-obtained evidence need not be suppressed if the prosecution establishes that the evidence would have inevitably been discovered by legal means and without reference to the police error).
In its second issue, the Commonwealth argues the suppression court erred by suppressing the initial statement Catlett made to Officer Tokonitz about the marijuana in the driver's door of his car as well as the statements Catlett made about the firearm after he had been arrested but not Mirandized. In the first instance, we note that the suppression court discredited Officer Tokonitz's testimony that Catlett made the initial statement admitting he had marijuana in his car door, and we are bound by that credibility determination. See Fudge, 213 A.3d at 326. As such, the Commonwealth failed to persuade the suppression court that the ensuing events were instigated by a voluntary, inculpatory statement.
However, we agree with the Commonwealth that the suppression court erred in finding that the initial statement, had it been made, must be suppressed because Catlett reasonably believed he was in custody from the inception of the stop. Miranda warnings were necessary only when Catlett was "taken into custody or otherwise deprived of his freedom[.]" Miranda, 384 U.S. at 478. Catlett was taken into custody for purposes of a Miranda analysis when his freedom of action was significantly denied or a reasonable person would believe his freedom of action is restricted by the officer's conduct. See Commonwealth v. Cooley, 118 A.3d 370, 376 (Pa. 2015). Relevant factors to consider include, but are not limited to, the reason for the stop, the location at which it occurs, the length of the stop, whether Catlett was transported against his will, whether Catlett was restrained, whether Officer Tokonitz threatened or used force, and the investigative methods employed by Officer Tokonitz. See Commonwealth v. Whitmayer, 144 A.3d 939, 948 (Pa. Super. 2016).
The analysis is complicated here by the suppression court's explicit credibility findings when contrasted with the sparsity of the suppression court's other explicit findings. While it is clear the suppression court did not believe Officer Tokonitz's testimony that Catlett admitted to having marijuana in the car door, it is not clear what the suppression court found to have happened instead. We acknowledge it was the Commonwealth's burden to establish that the evidence and statements gained during the stop were not the result of a violation of Catlett's rights, but it still remains that there is no evidence of record to support a finding that Catlett was taken into custody while he remained seated in his vehicle.
This may mean that Catlett's alleged initial statement that he was in possession of marijuana may be admissible at trial. However, in light of our finding that the suppression court properly suppressed all of the contraband found on Catlett's person and in his vehicle, including the marijuana, we fail to see how the admissibility of this statement allegedly admitting to the presence of marijuana in the vehicle remains relevant. The same is true for the two statements Catlett made about the presence of the firearm in his vehicle, given our conclusion that the firearm was properly suppressed. Even if the admissibility of these two statements remains relevant in the wake of our disposition affirming the suppression of the firearm, the Commonwealth has failed to show that the two statements were not the fruit of what we agree with the trial court to be the illegal search of his vehicle.
Order affirmed.
(Image Omitted)
[*]Retired Senior Judge assigned to the Superior Court.