Commonwealth v. Gonzalez

1

COMMONWEALTH OF PENNSYLVANIA v. JONATHAN GONZALEZ Appellant

No. 1357 MDA 2021

No. J-A27040-22

Superior Court of Pennsylvania

March 29, 2023

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

Appeal from the Judgment of Sentence Entered October 18, 2021 In the Court of Common Pleas of Berks County Criminal Division at No(s): CP-06-CR-0004947-2019

BEFORE: DUBOW, J., McLAUGHLIN, J., and COLINS, J. ^[*]

MEMORANDUM

COLINS, J.

Appellant Jonathan Gonzalez, appeals from the judgments of sentence that were imposed after a non-jury trial for possession of a controlled substance with intent to deliver (cocaine) knowing or intentional possession of a controlled substance (cocaine), possession of a small amount of marijuana, possession of drug paraphernalia, and failing to signal.^[1] He challenges the denial of a pre-trial suppression motion. Upon careful review, we vacate the judgments of sentence, reverse the trial court's suppression order, and remand for further proceedings.

At 9:09 p.m., on November 6, 2019, Police Officer Christopher Fortin stopped a car that Appellant was driving in the 1000 block of North 11^th Street in the city of Reading after the officer viewed Appellant commit a traffic violation three blocks earlier. N.T. 2/18/20, 4-5. Appellant was the sole occupant. Id. at 5. Officer Fortin approached the car on the driver's side while another officer named Baker approached on the passenger-side. Id. Upon speaking with Appellant, Officer Fortin observed that he appeared "to be very nervous." Id. at 6. He noticed that Appellant's chest "was moving rather fast" and that he was sweating. Id. Appellant became agitated from the officer's questions about the car and his identification. Id. Appellant stated that the car belonged to his friend, but he could not provide that individual's name. Id.

The area where the car stop took place was described by Officer Fortin as a "very high drug, high crime area," where the officer had made numerous prior drug arrests. N.T. 2/18/20, 6. During his interaction with Appellant, he saw that Appellant was wearing a fanny pack strapped across his chest. Id. During his five-to-six-years as a police officer, he had recovered drugs and weapons from fanny packs on other individuals. Id. at 7. When he went to conduct a warrant and license check on Appellant, Officer Baker asked Appellant, "What's in the bag," with respect to the fanny pack. Id. Upon his return to the driver's side of the car, Officer Fortin smelled the odor of marijuana when Appellant unzipped the fanny pack. Id. Officer Fortin also saw a large amount of money in the fanny pack before Appellant zipped the pack closed. Id. Appellant stated that he had "a little bit of weed in the bag" and had a "medicinal card or [a] medical card."^[2] Id. at 8.

Officer Fortin later testified that the opening and the closing of the fanny pack was an "indicator" that Appellant "was trying to conceal something such as a weapon or narcotic inside the bag. N.T. 2/18/20, 7-9. He had Appellant exit the car and place his hands on the top of the car for "a quick pat[-]down." Id. at 9. Officer Fortin unzipped the fanny pack, placed it on the car roof, and handcuffed Appellant. Id. Officer Baker waited with Appellant while Officer Fortin searched the car and found an iPhone. Id. Officer Fortin then returned to Appellant and searched the fanny pack. Id. Inside, he recovered the money had had seen before, which totaled $8,600, along with marijuana that was packaged in a material that was "gold reflective" on one side and clear on the other side. Id. at 8-10. Upon intending to arrest Appellant for the marijuana and search his person, Officer Fortin asked Appellant "if he had anything else illegal on him." Id. at 9-10 ("At that point he was under arrest and I was about to search him…"). Appellant admitted to having some cocaine on him. Id. at 10. The police recovered a "little over" sixty grams of cocaine from an "airtight bag" in the front right pocket of Appellant's jacket. Id.

In his suppression motion, Appellant claimed that the seizure of the evidence from his person was unlawful because: (1) he did not consent to the search; (2) the police did not have reasonable suspicion to detain him and search the vehicle upon noticing the odor of marijuana from his fanny pack; (3) the seizure of the evidence from his person was based on a search unrelated to officer safety and the location of a weapon; and (4) the search of his person was not based upon probable cause. Omnibus Pre-trial Motion, 12/31/19, ¶¶ 24-27. He thus claimed that the admission of the evidence recovered after the search of the car and the fanny pack violated his rights under the Fourth and Fourteenth Amendments of the United States Constitution and Article I, Section 8 of the Pennsylvania Constitution. Id. at ¶ 29.

At a hearing on the motion, Appellant's counsel clarified that they were not contesting the validity of the traffic stop but were contesting the search and seizure of the drugs from Appellant's person. N.T. 2/18/20, 3. Officer Fortin testified to the above-summarized facts. Id. at 4-10.

The suppression court's findings of facts largely tracked Officer Fortin's direct examination testimony with the exception of its finding that Appellant provided a medical marijuana card to Officer Fortin in between Appellant's closing of the fanny pack and his admission to having some marijuana before Officer Fortin asked him to exit the car. Findings of Fact, 4/21/20, 2-3. On direct examination, the officer was unsure whether Appellant had provided him the card prior to the arrest. N.T. 2/18/20, 9 (Officer Fortin, in response to a question about placing Appellant in handcuffs, testified, "I don't recall if he had shown me his medicinal card at that point, but he did state that he had one."). On cross-examination, the officer agreed that Appellant showed him a medical marijuana card prior to the officer asking Appellant to exit the car. Id. at 12-13. Officer Fortin confirmed that a medical marijuana card, that had been issued to Appellant by the Pennsylvania Department of Health on July 9, 2019, and was marked and moved into evidence, was similar to the card that Appellant had showed him. Id. at 12, 27; Defense Exhibit 1 (Medical Marijuana Card). The suppression court resolved the timing of Appellant's display of the medical marijuana card consistent with Officer Fortin's cross-examination testimony. Findings of Fact, 4/21/20, 3. On cross-examination, Officer Fortin also confirmed that he asked Appellant to exit the car because he was "concerned for officer safety" that Appellant may have had a weapon in the fanny pack. N.T. 2/18/20, 13.

Appellant testified that Officer Fortin asked him to open the fanny pack and that, before doing so, he told the officer that he had a medical marijuana card and that the fanny pack contained "a little bit of U.S. currency and a little bit of [his] medical marijuana." N.T. 2/18/20, 20-21. He asserted that he then showed the officer his medical marijuana card and then opened the fanny pack, while he was still in the car, to let the officers look inside the bag. Id. at 21. He recalled that the officer conducted a pat-down search of him that did not yield any weapons, a search of the car, and then a search of the fanny pack that yielded the money and the marijuana. Id. at 21-22. He alleged that, while he was handcuffed, Officer Fortin searched his pockets resulting in the recovery of more money and the cocaine from his jacket pocket. Id. at 22-23. He denied that he admitted to the officer that he had been in possession of the cocaine. Id. at 23. The suppression court did not credit that denial. Findings of Fact, 4/21/20, 3.

After hearing the testimony and the arguments of counsel, the suppression court deferred issuing its ruling to another date so that it could issue an opinion setting forth its findings and conclusions. N.T. 2/18/20, 30. On April 21, 2020, the court denied the suppression motion. Order, 4/21/20, 1. The court concluded that there was reasonable suspicion to extend the traffic stop based on the "high crime and high drug area" in which the events were taking place, the testimony about Appellant appearing nervous, Appellant's inability provide a name for the car's owner, the officer's detection of the marijuana odor, and his observation of the money when Appellant opened the fanny pack. Conclusions of Law, 4/21/20, 4-6. The court also included that the factors supporting the reasonable suspicion to extend the traffic stop, in addition to the fact that the stopped car was owned by a third party that was not present in the car, supported probable cause permitting Officer Fortin's search of the fanny pack. Id. at 6-10.

The court issued the following findings of fact:

1. On November 6, 2019, Officer Fortin was employed by the Reading Police Department. He was on patrol in full uniform and displaying a badge of authority.

2. While on patrol, Officer Fortin observed a vehicle commit a traffic violation in the 700 block of 11^th Street, Reading, Berks County, Pennsylvania. This is a high drug and high crime area where Officer Fortin has made numerous drug arrests.

3. Officer Fortin initiated a traffic stop and came into contact with [Appellant], the operator of the vehicle. He was the sole occupant.

4. Officer Baker was also present on scene and he approached the passenger side of the vehicle.

5. Officer Fortin looked inside of the vehicle and observed that [Appellant] appeared nervous. [Appellant]'s chest was moving fast and he was sweating.

6. Officer Fortin asked [Appellant] for his identification and inquired about the vehicle. [Appellant] became agitated by the questioning.

7. [Appellant] stated that the vehicle belonged

...