Commonwealth v. Harris

176 A.3d 1009

COMMONWEALTH of Pennsylvania, Appellant

v.Tatiahna Africa HARRIS

No. 686 WDA 2017

Superior Court of Pennsylvania.

Submitted October 20, 2017

Filed December 20, 2017

James T. Lazar, Assistant District Attorney, Greensburg, for Commonwealth, appellant.

Brian D. Aston, Greensburg, for appellee.

BEFORE: BOWES, J., RANSOM, J., and STEVENS^* , P.J.E.

OPINION BY STEVENS, P.J.E.:

The Commonwealth appeals from the order entered in the Court of Common Pleas of Westmoreland County granting the pre-trial suppression motion filed by Appellee Tatiahna Africa Harris. After a careful review, we reverse and remand for further proceedings.

The relevant facts and procedural history are as follows: Appellee was arrested, and he was charged with receiving stolen property, criminal use of a communication facility, firearms not to be carried without a license, possession with the intent to deliver a controlled substance, and possession of drug paraphernalia.¹ On February 24, 2017, Appellee filed a counseled, pre-trial motion seeking to suppress the physical evidence seized by the police from his vehicle and person. Specifically, Appellee averred a police officer improperly stopped his vehicle based solely on unreliable allegations made to the officer from a confidential informant ("CI"). Further, Appellee averred that, prior to a K–9 sniff of his car, the police officer arrested Appellee without probable cause. Accordingly, Appellee contended that all physical evidence seized by the police should be suppressed as "fruit of the poisonous tree."

On April 24, 2017, the matter proceeded to a suppression hearing at which the sole testifying witness was Greensburg Police Officer Garret McNamara. Specifically, Officer McNamara testified that he has been a police officer with the Greensburg Police Department for three years and, throughout this time, a certain CI has provided information to the police department with regard to illegal drugs. N.T., 4/24/17, at 5. Officer McNamara indicated that he has personally received information from the CI in five other cases, four of which have led to convictions and one of which was pending. Id. at 5–6.

On November 5, 2016, during the afternoon, Officer McNamara received information from the CI indicating that, later in the day, a black male in a white sedan would be coming from a gym to sell crack cocaine at a residence on Euclid Avenue and then returning to Jeanette. Id. at 6–7. The officer knew the CI frequently stayed at the residence on Euclid Avenue, and the CI told him he was currently staying at the residence. Id. at 7. Officer McNamara also knew the CI, as well as other people who resided at the residence on Euclid Avenue, "to be user[s] of crack cocaine[.]" Id. at 8.

The CI indicated that he would be willing to provide additional information with regard to the sale of the crack cocaine; however, he was concerned someone in the house might overhear him on the telephone. Id. at 8–9. Accordingly, Officer McNamara and the CI agreed that when the male dealer "would be leaving the residence, [the CI] was going to call dispatch and hang-up and dispatch would know the phone number and they would inform [Officer McNamara] that meant that the male, [who] was selling the crack cocaine, was leaving the residence." Id.

Later that day, Officer McNamara, who was in the area of Euclid Avenue, received a dispatch informing him that the awaited for "hang-up phone call had come in[.]" Id. at 9. Officer McNamara testified that, less than 30 seconds later, he saw a white sedan matching the description provided to him by the CI leaving Euclid Avenue and travelling towards Jeannette. Id. at 9–10. In response, Officer McNamara provided the plate number to the police dispatch, who replied that the vehicle was registered to "Destiny Wise out of Herminie." Id. at 10, 17–18. Based on his training, Officer McNamara was aware that "it is common for individuals selling drugs to use other people's vehicles[.]" Id. at 18.

Officer McNamara indicated that, as he followed the vehicle, he "observed window tint on the vehicle and [he] initiated a traffic stop." Id. at 10. He testified the window tint, which covered all of the vehicle's side windows, was "extremely dark" and, as a result, he could not see inside of the vehicle through the passenger side of the vehicle. Id. He noted that, when looking through the passenger-side window, he could not determine whether a male or female was driving the vehicle. Id.

Officer McNamara effectuated a traffic stop of the vehicle "just outside of the city," and identified the sole occupant, Appellee, who was driving the vehicle. Id. at 10–11. Appellee informed him that "he was coming from the gym and he was going to go back home towards Jeannette." Id. at 12. Appellee denied "ever being on Euclid Avenue." Id. Officer McNamara, who had just followed Appellee's vehicle from Euclid Avenue, informed Appellee that he had just seen him on Euclid Avenue; however, Appellee continued to deny that he had been on Euclid Avenue. Id.

Officer McNamara requested assistance from the K–9 unit and twice requested Appellee to exit the vehicle. Id. at 13, 21. Appellee refused, resulting in Officer McNamara opening the driver's side door, grabbing Appellee's arm, and removing him from the vehicle. Id. at 21. After Appellee was out of the vehicle, he was handcuffed and the K–9 sniffed the exterior of the vehicle, alerting the police to the front driver's seat and the front headlight. Id. at 13.

As a result, Officer McNamara conducted a search of the vehicle, discovering a handgun under a pile of clothes on the rear driver's seat, $265.00 in U.S. currency, two cell phones, and an Altoids container, which the officer believed contained drug residue. Id. at 14–15. The officer provided the serial number of the gun to police dispatch, who responded that the handgun had been reported stolen, and Officer McNamara determined that Appellee did not have a valid license to carry a firearm in a vehicle. Id. at 15–17.

At this point, the officer placed Appellee in the back of the police cruiser, indicating he was under arrest, and subsequently conducted an inventory search of Appellee at the police station. Id. at 17. During this search, the officer discovered Appellee had crack cocaine inside of his boxer briefs, as well as additional currency on his person. Id. Subsequent testing revealed the Altoids container did not contain drug residue.

On cross-examination, Officer McNamara confirmed that he did not observe the white sedan arrive at the Euclid Avenue address, but "30 seconds later [he saw] the vehicle, that [he] believe[d] was described by the [CI], leave the residence in that area[.]" Id. at 24. Officer McNamara indicated he followed the sedan for roughly one mile before effectuating a traffic stop. Id. Officer McNamara confirmed the sedan had dark window tint and the license plate information indicated the sedan belonged to Destiny Wise. Id.

Officer McNamara clarified that, prior to stopping the sedan, he was aware that a black male, and not a female, was driving the sedan. Id. at 25. Specifically, he testified:

Q : But you don't know if Destiny Wise is driving the car at this point?

A : Well, it was a black male driving that vehicle, sir.

Q : Well, how do you know that? You didn't see a black male driving the vehicle, did you?

A : Yes, I did.

Q : And when was that?

A : Whenever he was coming up Euclid, coming passed [sic ].

Q : You were able to see through the window tint and identify a black male?

A : His driver window was down. The passenger window was the window that was up.

Q : So his driver window was down, and at that point you're able to see a black male?

A : Yes, sir, at that time.

Q : And that confirms the information you had received previously, correct?

A : Yes.

Id. at 24–25.

Further, on cross-examination, as to the reason he stopped the vehicle, Officer McNamara testified as follows:

Q : So at some point you do initiate a motor vehicle stop, but this would be for the window tint that you have observed, correct?

A : Yes, sir.

Q : Okay. Then, you follow up by approaching the vehicle, right?

A : Yes, sir.

Q : At that point you observed a black male driving the car?

* * *

Did you inform him why he was being pulled over at that point?

A : I told him window tint.

Id. at 26–27.

Officer McNamara confirmed that he determined Appellee had a valid driver's license but asked him to step out of the vehicle. Id. at 28. Officer McNamara noted Appellee twice refused, so he assisted him out of the sedan and handcuffed him as he waited for the K–9 unit. Id. at 29–32. Although Appellee was handcuffed, Officer McNamara indicated that Appellee was permitted to stand behind the white sedan and he was not placed in the police cruiser at this time. Id. at 32. The K–9 sniff occurred approximately fifteen minutes later. Id. at 29–32.

As to whether Officer McNamara had evidence that the search of the sedan would yield contraband, the relevant exchange occurred:

Q : At this point [when you remove Appellee from the vehicle and handcuff him,] you have no evidence that [Appellee] has any drugs on his person, do you?

A : Besides my reliable informant, no, sir.

Q : And you don't see any kind of drugs in the vehicle?

A : Not in—no, not in plain view.

Q : And you don't see a firearm sitting in the rear, do you?

A : I can't see through that tint, sir.

Q : So at this point [before the K–9 sniff] there's really nothing more than the [CI's] word and the fact that [Appellee's car] windows are tinted, correct?

A : Correct.

Q : Okay. So the dog does eventually arrive on scene, right?

A : Yes, sir.

Q : And it gives some indication that there [is] some form of narcotics in the vehicle, right?

A : Yes, sir.

* * *

Q : So, after the dog makes the hits, you actually open up the vehicle, right, to perform a search?

A : Yes, sir. We searched the vehicle.

Q : And at that point you find the firearm, correct?

A : Yes, sir, the handgun.

Id. at 34–35. Officer McNamara indicated that Appellee was then...