Commonwealth v. Torres

COMMONWEALTH OF PENNSYLVANIA Appellant v. MERCEDES MANJARREZ TORRES Appellee

J-A03028-15

No. 1255 MDA 2014

SUPERIOR COURT OF PENNSYLVANIA

JUNE 25, 2015

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

Appeal from the Order Entered June 25, 2014

In the Court of Common Pleas of York County

Criminal Division at No: CP-67-CR-0006844-2013

BEFORE: MUNDY, STABILE, and FITZGERALD,^* JJ.

MEMORANDUM BY STABILE, J.:

The Commonwealth appeals from the June 25, 2014 order entered in the Court of Common Pleas of York County, granting the pre-trial suppression motion filed by Appellee, Mercedes Manjarrez-Torres (Torres). For the reasons that follow, we reverse and remand.

Based on a criminal complaint dated July 30, 2013, Torres was arrested and charged with two counts of delivery of cocaine and one count of conspiracy to possess cocaine with intent to deliver.¹ Torres filed a motion to suppress evidence, contending an agent of the Attorney General'sNarcotics Division enlisted a police officer, Corporal David Ogle, to deceive Torres into providing personal identifying information. Torres asserted that the ruse employed by the officer escalated his exchanges with Torres to the level of an investigative detention in violation of Torres' constitutional right of privacy. He further claimed the officer's use of deceit to obtain his identity violated his rights against self-incrimination.

Following an April 29, 2104 hearing, the suppression court issued the following findings of fact:

This [c]ourt finds the testimony of the officers who testified to be credible. Pursuant to that determination, the court makes the following factual findings:

1. On March 29, 2013 at approximately 10:30 a.m., Narcotics Officer Mike Carlson, Agent Castaneda and Officer David Ogle met and a plan was developed to make contact with the registered owner of the white Ford F-150 pickup truck in order to reveal the actual driver [of] that vehicle who [had] accompanied Jose Solorzano on several occasions to deliver cocaine to Luis Ocampo. On one occasion, the person in question actually delivered an amount of cocaine to Mr. Ocampo who in turn delivered [it] to Agent Castaneda. On the same date at approximately 11:00 a.m., Agent Carlson and Officer Ogle attempted to make contact with a resident at 16 Carly Drive, New Oxford, Pennsylvania which produced negative results and the officers departed the area.

2. At approximately 12:30 p.m., Agent Castaneda testified that he received a phone call from Officer Ogle advising that the white pickup truck was parked at 16 Carly Drive. A "false" story was developed and a plan to approach the driver of the vehicle. Agent Castaneda wanted Officer Ogle to come up with a cover story because the matter was still before a grand jury and it was important for [Torres] not to know he was under investigation. Officer Ogle knocked on the house door and [Torres] answered and when asked who was the owner of the white pick-up truck, [Torres] indicated it was his vehicle.

[Torres] stepped outside and was told that someone in the same type of vehicle was involved in a drive off without paying for gas. Officer Ogle asked for [i]dentification which [Torres] provided and also if [Torres] would consent to having his picture taken, which he did.

3. Officer Ogle also asked [Torres] if he lived at the residence and [Torres] stated that he could also be found at 216 Penn Street, Hanover[,] Pennsylvania. [Torres] also provided the Officer with his phone number.

4. Agent Castaneda testified that he had been purchasing cocaine from . . . an individual driving an F-150 truck and the agents had been tracking Mr. Ocampo by a pen register on his phone. On September 21, 2012, Agent Castaneda arranged to buy more narcotics from Ocampo. Ocampo was followed to a Rutters [gas station] at Route 616 and Market Street and the witness observed a white [F-150] truck meeting with Ocampo at that location. [Torres] was at the scene. Based on these events, Agent Castaneda believed the driver of the [F-150] was supplying the cocaine to Ocampo. The agents ran the registration and [the registered owner] was not [Torres].

5. Agent Castaneda indicated that they did not want to do a traffic stop and arrest [Torres] because they did not want [Torres] to be aware of the ongoing investigation.

6. Following receipt of the information, the agents conducted a trash pull at the residence of 216 Penn Street. In searching the trash bag, mail was located in the name of [Torres.]

Suppression Court Order, Findings of Fact, 6/25/14, at 3-4.

The suppression court rejected the Commonwealth's assertion that the interactions between Corporal Ogle and Torres constituted mere encounters, finding instead that the conduct of the officer amounted to "a seizure of the person[,]" noting:

Corporal Ogle arrived at a specific private residence, knocked on the door and while in full uniform with his sidearm visible[²], requested to speak to the operator of the [w]hite Ford [F-150]. He stated that he was investigating a theft of gasoline that had occurred by use of a similar vehicle. After [Torres] advised it was not his truck used in the offense, [Torres], upon request, provided his identification and later, upon request, allowed his photograph to be taken.

Suppression Court Order, Legal Findings, 6/25/14, at 5.

The suppression court next considered whether reasonable suspicion existed to support an investigative detention and concluded it did not, in light of the lack of any testimony indicating there was criminal activity afoot. Therefore, the court concluded, the investigative detention violated Torres' rights under the Fourth Amendment of the United States Constitution and Article I, Section 8 of the Pennsylvania Constitution. Id. at 4-6. The court further determined Torres' rights against self-incrimination under the Fifth Amendment of the United States Constitution and Article I, Section 9 of the Pennsylvania Constitution were violated because Torres was "compelled to provide his identity in order to comply with a police investigation of a non-existent crime." Id. at 6. Because the "consent to search given under falsepretenses [was] not truly voluntary," id. at 6-7, the court granted Torres' motion to suppress. Id. at 7.

The Commonwealth filed a timely appeal from the June 25, 2014 order, certifying in its notice of appeal that the suppression order would terminate or substantially handicap its prosecution. See Pa.R.A.P. 311(d). The Commonwealth presents four issues for this Court's consideration:

A. Does a casual conversation outside a residence constitute a mere encounter?

B. Did Torres lawfully consent to have his photograph taken?

C. Does a reasonable expectation of privacy exist in one's trash abandoned outside their property?

D. Does a person have a reasonable expectation of privacy in his identity, address or his photograph taken in public?

Commonwealth Brief at 4.³

As this Court has recognized, when reviewing the grant of a suppression motion, we apply the following scope and standard of review:

In reviewing the ruling of a suppression court, our task is to determine whether the factual findings are supported by the record. If so, we are bound by those findings. Where, as here, it is the Commonwealth who is appealing the decision of thesuppression court, we must consider only the evidence of the defendant's witnesses and so much of the evidence for the prosecution as read in the context of the record as a whole remains uncontradicted.

Moreover, if the evidence supports the factual findings of the suppression court, this Court will reverse only if there is an error in the legal conclusions drawn from those findings.

Commonwealth v. Burgos, 64 A.3d 641, 647 (Pa. Super. 2013) (quoting Commonwealth v. Powell, 994 A.2d 1096, 1101 (Pa. Super. 2010)).

Again, this Court is bound by the findings of the suppression court that are supported by the record. Because this is an appeal by the Commonwealth, we must consider only the evidence of Torres' witnesses and the evidence of the Commonwealth that remains uncontradicted in the context of the record. Id.

Here, Torres did not present any witnesses at the suppression hearing. The only witnesses who testified were Corporal Ogle and Agent Castaneda, both of whom testified for the Commonwealth. Absent any witnesses for Torres, this Court must determine whether the suppression court's factual findings are supported by the evidence of the Commonwealth that remains uncontradicted in the context of the record.

As the trial court recognized in its Rule 1925(a) opinion, the Commonwealth complained of a factual misstatement by the suppression court with respect to Torres answering the door when Corporal Ogle knocked on the door at the Carly Drive residence. Rule 1925(a) Opinion, 9/22/14, at 3-4. "[A]ccording to Corporal Ogle's testimony during the suppressionhearing, another individual initially answered the door and [Torres] came to the door shortly after. Id. at 3 (citing N.T. Suppression Hearing, 4/29/14, at 7-8). The trial court determined that "this factual error is immaterial and has no bearing on the accuracy of the thorough legal analysis done by the suppression court. Therefore, the [c]ourt finds that the [Commonwealth's] first argument [concerning a factual finding not supported by the record] is without merit." Id. at 4.

With the exception of the suppression court's misstatement concerning who initially answered the door when Corporal Ogle knocked, we find the suppression court's factual findings are supported by the record. Therefore, we are bound by them and will reverse the suppression court's order only if there is error in the legal conclusions drawn from its findings. Burgos, 64 A.3d at 647.

In its first issue, the Commonwealth asserts the suppression court erred in its legal conclusion that the interaction between Corporal Ogle and Torres constituted an investigative detention rather than a mere encounter and, as a result, erred in suppressing statements...