Commonwealth v. Galloway

284 A.3d 870 (Table)

COMMONWEALTH of Pennsylvania, Respondent

v.David GALLOWAY, Petitioner

No. 62 MAL 2022

Supreme Court of Pennsylvania.

Filed September 6, 2022

Reconsideration Denied October 31, 2022

ORDER

PER CURIAM

AND NOW , this 6th day of September, 2022, the Petition for Allowance of Appeal is DENIED .

Justice Wecht files a dissenting statement in which Justice Donohue joins.

JUSTICE WECHT, dissenting

This case presents a number of important questions regarding the reasonableness of certain inferences drawn by a Pennsylvania State Trooper during the course of a traffic stop that likely are to recur in future cases. As explained below, the trooper in this case developed reasonable suspicion based upon broad, unsupportable assumptions that would apply to anyone in or around Philadelphia or to those driving along a major thoroughfare. The Superior Court's endorsement of these general assumptions, which this Court declines to review, will undermine constitutional protections against unreasonable searches and seizures, most notably the requirement that suspicion of criminal activity be individualized. By declining to grant allowance of appeal in this case, this Court permits the Superior Court's endorsement of the trooper's assumptions to become entrenched into Pennsylvania law, denying this Court the opportunity to assess whether such generalized assumptions comport with the requirement of individualized suspicion. The result of the Court's decision is that suspicion for purposes of constitutional interactions between individuals and law enforcement tallies automatically against anyone in or around Philadelphia or driving along roadways that connect to that city. And there is no reason to believe that police cannot make similar assumptions about other urban areas and highways. In short, the Superior Court's decision threatens the rights of all Pennsylvanians and is worthy of this Court's review. Because the Court passes on the opportunity, I respectfully dissent.

The traffic stop in this case occurred at 7:19 p.m. on Christmas Eve 2018 after Pennsylvania State Police Trooper Luke McIlvaine clocked a black Honda Civic driving nine miles per hour over the posted speed limit of 55 mph on the southbound portion of I-95 in Tinicum Township, Delaware County. Notes of Testimony ("N.T."), Suppression Hr'g, 9/11/2020, at 10. John Difebo, a resident of Wilmington, Delaware, was driving. Trooper McIlvaine later testified that the stop was part of a holiday enforcement unit, which was put together in an effort to reduce the likelihood of traffic accidents by maintaining a visible police presence on the highway during heavy travel periods as a signal to other drivers to slow down. Id. at 73, 75. As such, Trooper McIlvaine did not intend to write Difebo a ticket for speeding, which, in any event, would have been about $43 plus any applicable costs. Upon approaching the vehicle, Trooper McIlvaine knocked on the window, identified himself and the reason for the traffic stop, id. at 10, asked Difebo for his identification, and immediately informed Difebo that he was only going to give him a warning. Id. at 38-39. According to the officer, without prompting, Difebo "immediately blurted out that he was coming from South Street" in Philadelphia. Id. at 16.

For safety purposes, Trooper McIlvaine approached the passenger side of the vehicle, where he encountered the petitioner, David Galloway, sitting in the front seat. While waiting for Difebo to retrieve his license, registration, and insurance, Trooper McIlvaine observed that Galloway was "smoking a fresh cigarette" and "just letting the ash fall on himself." Id. at 15-16. Galloway's "eyes were wide, he was closed, away from [the officer] and put his head down." Id. at 16. "He was sweating profusely." Id. When the officer asked Galloway for his identification, Galloway explained that he did not have it with him, but he provided his name and date of birth. Id. at 40, 43; see also id. at 50-51 (acknowledging that Difebo also provided a Wilmington address for Galloway, which "check[ed] out"). From the time Trooper McIlvaine activated his lights and sirens, this initial stage of the stop lasted less than three minutes.

After acquiring their information, Trooper McIlvaine asked Difebo to accompany him back to his police vehicle for further questioning, where Difebo was patted down. The officer explained that it is safer for him to conduct highway traffic stops that way for a few reasons: (1) "there's no driver in the vehicle to flee"; (2) he "can hear better" over the highway noise from inside his police vehicle; and (3) he can "make sure [the person being questioned] doesn't have any weapons on him." Id. at 17, 45. Difebo "lean[ed] on" the passenger side window of Trooper McIlvaine's vehicle while the officer sat in the driver's seat and confirmed the validity of Difebo's information. Id. at 18. During their conversation, Difebo made an offhand remark that he "can't afford a ticket." Id. at 19. Difebo also told Trooper McIlvaine that he and Galloway had gone to Ishkabibble's, a South Street restaurant, to bond over cheesesteaks. Id. at 18, 47. When Trooper McIlvaine inquired about parking on South Street, Difebo acknowledged that he had to pay to park. Trooper McIlvaine then asked, "isn't that expensive," to which Difebo replied that he was there for less than half-an-hour. Id. at 22-23.

By this point the weather was "extremely cold," with the temperature hovering somewhere "between 20 and 30 degrees." Id. at 20. This prompted Difebo, a self-described "little guy" who was clad only in jeans and a sweatshirt, to repeatedly express "how [c]old he is," id. , and to ask if he could sit in the police vehicle to get warm, a request that Trooper McIlvaine ignored. Id. at 49-52. Difebo was "pacing," "jump[ed] up and down," and stuck his hands into the pockets of his sweatshirt. Id. at 49. Trooper McIlvaine processed Difebo's license, registration, and insurance, which revealed no issues. Id. at 20, 39. He also conducted a criminal history check on Difebo, which apparently came back clean as well. Id. at 21. After completing his investigation of Difebo, Trooper McIlvaine then performed a similar search of Galloway's history. The search did not produce a picture ID, but it did show that Galloway's license was suspended, that he had a few outstanding tickets, and that he "had a lengthy criminal history involving drug dealing" in Delaware, though he was not currently on probation or parole and had no open warrants. Id. at 21, 40, 52, 61.

Roughly thirteen minutes into this second phase of the stop, Trooper McIlvaine returned to the Honda to speak with Galloway. He did so for "[s]everal reasons": "[t]o tell [Galloway that] his license is suspended, to confirm that it is his via his social security number and [to] have a conversation with him, not to confirm or deny my suspicions." Id. at 23. The first thing Trooper McIlvaine asked Galloway—who was "still sweating in 20 degree weather," "still smoking cigarettes, [and] still ashing all over himself"—was why the pair were in Philadelphia. Id. Galloway did not initially make eye contact. Trooper McIlvaine said that Galloway seemed "extremely nervous," "completely out of the norm from what I see on [a] normal traffic stop." Id. at 24. Galloway replied that he went to South Street to do some "Christmas shopping." Id. At that moment, less than a minute after reapproaching and speaking with Galloway, Trooper McIlvaine believed "[t]hat there's probably some type of criminal activity going on" involving narcotics. Id. He promptly went back to his vehicle and called for backup. Id.

Less than a minute later, Trooper Beers¹ arrived and spoke with Trooper McIlvaine, who said that Difebo's and Galloway's stories conflicted and, for the first time, relayed that he had suspicions that there might have been a gun in the car. Id. at 25. Trooper McIlvaine then asked Difebo for permission to search the vehicle, which Difebo declined. Id. at 26. Nevertheless, Trooper McIlvaine returned to Difebo's vehicle "[t]o wait for either a [drug-sniffing] dog or to continue my investigation." Id. He then removed Galloway from the vehicle. Id. at 26-27. After removing Galloway, Trooper McIlvaine observed a glass "marijuana bowl" in plain view on the center console. Id. at 27. When he informed Difebo and Galloway of his discovery, Difebo admitted that the pipe was his. Id. at 28. Trooper McIlvaine then decided to search the vehicle. On the floor in front of the passenger seat where Galloway was seated, the officer discovered "1,575 bags of fentanyl inside of [sealed] cookie boxes." Id. at 29-30. Difebo and Galloway were arrested, and a syringe was discovered on Difebo's person incident to his arrest. Id. at 70. Both men were charged with narcotics-related offenses.

Galloway moved to suppress the physical evidence on the grounds that Trooper McIlvaine lacked reasonable suspicion of criminal activity sufficient to justify extending the traffic stop after declining to issue Difebo a ticket. Trooper McIlvaine testified to the foregoing facts, and then offered the following broad assumptions in an attempt to substantiate his suspicions. Based upon his "training and experience," he noted that "the Philadelphia area ... is a high drug, high crime area." Id. at 19. He also explained that the particular stretch of I-95 where he stopped Difebo is a known drug-trafficking corridor. He elaborated that "Philadelphia has the best fentanyl and heroin around. People come from out of state all the time, Delaware, Maryland, Cecil County, Wilmington. They purchase the narcotics in the Philadelphia area because it's cheaper and it's better. They take it back to where they're from ... and sell it for a profit because it's worth double, triple in that case." Id. at 30-31. To that end, he noted,

a lot of times you'll see somebody who has a valid license driving in a valid vehicle. In this case, [that] is

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