J-S95026-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

ANTOINE POTEAT

Appellant No. 3305 EDA 2015

Appeal from the Judgment of Sentence October 20, 2015

In the Court of Common Pleas of Lehigh County

Criminal Division at No(s): CP-39-CR-0003752-2014

BEFORE: STABILE, J., MOULTON, J., and MUSMANNO, J.

MEMORANDUM BY MOULTON, J.: FILED MAY 23, 2017

Antoine Poteat appeals from the October 20, 2015 judgment of 

sentence entered in the Lehigh County Court of Common Pleas following his 

bench-trial conviction for two counts of possession with intent to deliver a 

controlled substance (“PWID”) and two counts of possession of a controlled 

substance.1 We affirm.

The trial court summarized the relevant facts as follows:

On February 20, 2013, at approximately 1:30 PM, while 

on patrol in full uniform and in an unmarked police vehicle, 

Trooper Gerald Lydon of the Pennsylvania State Police, 

Fogelsville Barracks, was traveling westbound on Route I78 in the area of West Rock Road, Salisbury Township, 

Lehigh County, Pennsylvania, when he observed a grey

Toyota Camry following a tractor trailer with approximately 

one (1) vehicle length separating it from the tractor trailer. 

____________________________________________

1 35 P.S. §§ 780-113(a)(30) and (16), respectively. 
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The vehicle was traveling at approximately 60 to 65 miles 

per hour in a posted 55 miles per hour zone. The distance 

between the vehicles was closer than reasonable and 

prudent for the existing conditions, based on the speed, 

the type of roadway, and the fact that the vehicle being 

followed was a tractor trailer. The recommended safe 

distance is approximately 6 to 7 seconds. Nevertheless, 

the grey Toyota Camry was following approximately onehalf (1/2) second behind the tractor trailer. In fact, the 

operator of the grey Toyota Camry, later identified as 

[Poteat], had to apply the brakes of his vehicle numerous 

times over the course of the mile to mile and [a] half that 

Trooper Lydon was following him.

Consequently, Trooper Lydon effectuated a traffic stop 

in the area of West Lehigh Street, Allentown, utilizing his 

vehicle’s emergency lights and siren. Trooper Lydon 

approached the passenger side of the vehicle and observed 

several unopened air fresheners on the passenger seat, as 

well as a couple of opened air fresheners hanging from the 

steering column. In addition, he saw fabric softener 

sheets and an opened bottle of cologne on the passenger 

seat. Trooper Lydon smelled fresh marijuana emanating 

from the vehicle. Furthermore, Trooper Lydon viewed (2) 

cell phones in the vehicle, one (1) of which was a prepaid 

phone that repeatedly rang over the course of the traffic 

stop. 

Trooper Lydon made verbal contact with the operator of 

the vehicle and advised him that he was being stopped 

because he was traveling too closely behind the tractor 

trailer, in contravention of the Pennsylvania Motor Vehicle 

Code, 75 P.S. § 3310(a).3 [Poteat] appeared extremely 

nervous. Trooper Lydon inquired of the Defendant from 

where he was coming. [Poteat] indicated that he was 

coming from Allentown. This response was inconsistent 

with the direction on which [Poteat] was heading on I-78, 

as he was traveling towards Allentown. In addition, 

Trooper Lydon noticed a NYC Parking Authority citation in 

the car dated the day before, February 19, 2013. [Poteat] 

denied being in New York the day before and advised the 

trooper that his cousin, Keith, had used the rental vehicle 

on that date.
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3 Specifically, § 3310(a) of the Motor Vehicle 

Code provides:

(a) General rule. – The driver of a motor 

vehicle shall not follow another vehicle more 

closely than is reasonable and prudent, having 

due regard for the speed of the vehicles and 

the traffic upon and the condition of the 

highway.

Trooper Lydon requested that [Poteat] produce his 

driver’s license and the registration to the vehicle. At that 

time, [Poteat] informed the trooper that the vehicle was a 

rental from Enterprise Rent-A-Car. However, he was 

unable to locate the rental agreement. Consequently, 

Trooper Lydon returned to his police vehicle to contact 

Enterprise Rent-A-Car in order to verify the rental of the 

subject vehicle. While waiting for Enterprise Rent-A-Car to 

return his telephone call, the trooper ran a background 

check on [Poteat] and learned that he had previous arrests 

for possession of marijuana and possession with intent to 

deliver marijuana. As a result of the marijuana odor that 

he detected in the vehicle, as well as the masking agents 

in the vehicle, Trooper Lydon called for assistance, 

including a K-9 Unit to perform a drug sniff.

After approximately twenty (20) minutes, Enterprise 

Rent-A-Car made contact with Trooper Lydon and informed 

him that [Poteat] did have a valid contract with them. At 

this time, Trooper Lydon exited his police vehicle and 

approached [Poteat’s] vehicle once again. He requested 

that [Poteat] exit his vehicle. Then, Trooper Lydon issued 

[Poteat] a warning, citing him for a motor vehicle violation 

under the Pennsylvania Motor Vehicle Code, 75 P.S. § 

3310(a): Following too closely. [Poteat] was then told by 

Trooper Lydon that he was free to leave and the 

documents were returned to [Poteat]. However, Trooper 

Lydon reinitiated contact with [Poteat] by inquiring about 

his not being in New York the previous day. Trooper Lydon 

again advised [Poteat] that he was free to leave, but 

explained that his vehicle was not. [Poteat] refused to 

provide consent to search the rental vehicle.

Trooper Chad Labour of the Canine Division arrived on 

scene and deployed a drug detection canine to conduct an 
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exterior search of the vehicle. It appeared as if the dog 

displayed positive alert behavior. Based on the totality of 

the circumstances, a search warrant for [Poteat’s] rental 

vehicle was applied for by Trooper Lydon. After 

approximately forty (40) to forty-five (45) minutes from 

the inception of the vehicle stop, [Poteat] was voluntarily 

taken from the scene and transported to police 

headquarters by Trooper Nicholas Goldsmith so that 

[Poteat] could make arrangements for other 

transportation. An execution of the Search Warrant 

yielded 1,004 grams of cocaine and 90 grams of marijuana 

in the rental vehicle.

Memorandum Opinion, 12/1/15, at 2-5 (“1925(a) Op.”) (emphasis in 

original). 

On October 31, 2014, Poteat filed an omnibus pre-trial motion, which 

included an application to compel discovery and an application to suppress 

the evidence seized from Poteat’s vehicle. On February 12, 2015, the trial 

court held a hearing on Poteat’s motion. Trooper Lydon and Poteat testified 

at the hearing. On February 18, 2015, the trial court denied Poteat’s 

motion. On May 11, 2015, Poteat filed a motion for reconsideration of the 

trial court’s denial of his motion to suppress, which the trial court denied on 

May 19, 2015.

On September 21, 2015, following a bench trial, Poteat was convicted 

of two counts of PWID and two counts of possession of a controlled 

substance. On October 20, 2015, the trial court sentenced Poteat to an 

aggregate term of 5 to 10 years’ incarceration. On November 2, 2015, 

Poteat filed a timely notice of appeal. 

Poteat raises the following issue on appeal:
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Did the Trial Court err in denying Antoine Poteat’s Motion 

to Suppress the Evidence, filed after Pennsylvania State 

Police obtained evidence as a result of a search, which 

violated [Poteat’s] rights under the Fourth Amendment to 

the United States Constitution as well as Article I, Section 

VIII, of the Pennsylvania Constitution[?] See USCS Const. 

Amend. 4; Pa. Const. Art. I, § 8.

Poteat’s Br. at 4.

In reviewing the denial of a suppression motion, we must determine:

whether the suppression court’s factual findings are 

supported by the record and whether the legal conclusions 

drawn from those facts are correct. Because the 

Commonwealth prevailed before the suppression court, we 

may consider only the evidence of the Commonwealth and 

so much of the evidence for the defense as remains 

uncontradicted when read in the context of the record as a 

whole. Where the suppression court’s factual findings are 

supported by the record, we are bound by these findings 

and may reverse only if the court’s legal conclusions are 

erroneous. Where, as here, the appeal of the 

determination of the suppression court turns on allegations 

of legal error, the suppression court’s legal conclusions are 

not binding on an appellate court, whose duty it is to 

determine if the suppression court properly applied the law 

to the facts. Thus, the conclusions of law of the courts 

below are subject to our plenary review.

Commonwealth v. Jones, 988 A.2d 649, 654 (Pa. 2010) (internal 

quotations and citations omitted).

Poteat argues that he was unlawfully seized for a second time after the 

conclusion of the traffic stop. Specifically, Poteat submits that “after issuing 

a ticket and informing [Poteat] that he was free to leave, the [t]rooper 

unlawfully extended the stop when he, again, seized [Poteat].” Poteat’s Br. 

at 10. Poteat argues that the trial court should have therefore suppressed 

evidence recovered following the allegedly unlawful seizure. Id. at 13. The 
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trial court denied Poteat’s motion to suppress, reasoning that Poteat’s 

detention was supported by reasonable suspicion and probable cause that a 

crime was being committed. 1925(a) Op. at 9.

The law recognizes three levels of interaction between police officers 

and citizens: (1) a mere encounter; (2) an investigative detention; and (3) a 

custodial detention. See Commonwealth v. Downey, 39 A.3d 401, 405 

(Pa.Super. 2012). This Court has previously discussed the requirements for 

police at each level:

The first of these [interactions] is a “mere 

encounter” (or request for information) which need 

not be supported by any level of suspicion, but 

carries no official compulsion to stop or to respond. 

The second, an “investigative detention” must be 

supported by a reasonable suspicion; it subjects a 

suspect to a stop and a period of detention, but 

does not involve such coercive conditions as to 

constitute the functional equivalent of an arrest. 

Finally, an arrest or “custodial detention” must be 

supported by probable cause.

Id. (quotation omitted). 

“The matter of when a traffic stop has concluded or otherwise given 

way to a new interaction does not lend itself to a ‘bright[-]line’ definition.” 

Commonwealth v. Reppert, 814 A.2d 1196, 1202 (Pa.Super. 2002). 

In Commonwealth v. Strickler, [] 757 A.2d 884 

([Pa.] 2000), our Supreme Court analyzed under what 

circumstances a police interdiction can devolve into a mere 

encounter following a traffic stop when police continue to 

question the person after the reason for the traffic stop 

has concluded. The Supreme Court in Strickler ruled that 

after police finish processing a traffic infraction, the 

determination of whether a continuing interdiction 
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constitutes a mere encounter or a constitutional seizure 

centers upon whether an individual would objectively 

believe that he was free to end the encounter and refuse a 

request to answer questions.

Our Supreme Court adopted a totality-of-thecircumstances approach. It delineated a non-exclusive list 

of factors to be used in making this assessment. Those 

factors include 1) the presence or absence of police 

excesses; 2) whether there was physical contact; 3) 

whether police directed the citizen’s movements; 4) police 

demeanor and manner of expression; 5) the location and 

time of the interdiction; 6) the content of the questions 

and statements; 7) the existence and character of the 

initial investigative detention, including its degree of 

coerciveness; 8) “the degree to which the transition 

between the traffic stop/investigative detention and the 

subsequent encounter can be viewed as seamless, . . . 

thus suggesting to a citizen that his movements may 

remain subject to police restraint,” id. at 898; and 9) 

whether there was an express admonition to the effect 

that the citizen-subject is free to depart, which “is a 

potent, objective factor.” Id. at 899. Our Supreme Court 

also observed that when an individual has been subjected 

to a valid detention but police continue to engage the 

person in conversation, the person is less likely to 

reasonably believe that he is actually free to leave the 

scene.

Commonwealth v. Kemp, 961 A.2d 1247, 1253 (Pa.Super. 2008) (ellipses 

in original).

Furthermore, our Supreme Court has held that reasonable suspicion is 

required prior to a canine sniff of the exterior of a vehicle. Commonwealth 

v. Rogers, 849 A.2d 1185, 1191 (Pa. 2004). “[T]he law is clear that once a 

canine sniff of a vehicle's exterior triggers a positive indication, reasonable 

suspicion of contraband in the vehicle ripens into probable cause.” 

Commonwealth v. Hernandez, 935 A.2d 1275, 1285 (Pa. 2007).
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Following the traffic stop, Trooper Lydon returned Poteat’s documents 

to him, issued him a warning, and told him that he was free to leave. Poteat 

turned around and began to walk to his car. N.T., 2/12/15, at 32. Trooper 

Lydon then re-engaged Poteat in conversation seamlessly by immediately 

“inquiring about his not being in New York the previous day.” 1925(a) Op. 

at 4. Because Trooper Lydon immediately continued to engage Poteat in 

conversation, a reasonable person in Poteat’s position would not reasonably 

believe that he was free to leave the scene.2 See Kemp, 961 A.2d at 1253. 

In addition, when Trooper Lydon re-initiated contact with Poteat, Poteat was 

still outside his vehicle. See id. at 1254 (“[W]hen a person is standing 

outside rather than inside his vehicle, he is less likely to believe that he can 

actually leave the area by entering the car and driving away.”). Moreover, 

because Trooper Lydon had seen indicia of drug-related activity, it would 

have been unlikely that he would have permitted Poteat to leave in his car. 

See id. (noting that “Trooper DeLuca had observed major indicia of drugrelated activity during the course of the traffic stop. It is unlikely that after 

returning the documents and telling Appellant to have a nice day, Trooper 

DeLuca would have permitted Appellant to enter the car and drive away.”). 

Trooper Lydon subsequently told Poteat that he was free to leave, but his 

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2 Although not dispositive, Poteat testified at the suppression hearing 

that he did not believe he was free to leave when Trooper Lydon re-engaged 

him in conversation after Poteat had turned around and started walking 

towards his vehicle. N.T., 2/12/15, at 44.
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vehicle was not. 1925(a) Op. at 4-5. In light of the totality of the 

circumstances, we conclude that Poteat was not free to leave despite 

Trooper Lydon’s statement to the contrary. Instead, Poteat was subjected to 

an investigatory detention.

We must now determine whether the investigative detention was 

constitutionally proper. 

The Supreme Court in [Commonwealth v. Freeman, 757 

A.2d 903 (Pa. 2000)] quite plainly stated that in order to 

justify a continued detention beyond the initial valid 

detention, which was the traffic stop, police needed 

reasonable suspicion that the defendant was engaged in 

criminal activity independent of that initial lawful 

detention. In other words, once police process the traffic 

violation, they cannot rely upon the traffic violation to 

prolong the detention; they need other information 

supporting reasonable suspicion.

Kemp, 961 A.2d at 1258. 

In Kemp, an en banc panel of this Court held that facts gathered 

during a valid traffic stop can be used to justify a subsequent investigatory 

detention occurring after a police officer informs a defendant that he is free 

to leave. Id. at 1260.

In Kemp, this Court concluded that the police officer in question had 

sufficient facts at his disposal to establish reasonable suspicion to suspect 

that the appellant and his passenger were in possession of a controlled 

substance. Id. at 1254-55. These facts included: 1) the presence of 

masking agents (including dryer sheets and different types of air 

fresheners); 2) third-party vehicle ownership; and 3) an odor of fresh 
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marijuana indicating that a significant amount of that substance was 

present. Id. at 1255. “Furthermore, [the passenger] displayed extreme 

nervousness, [the] [a]ppellant did not provide the correct name of the car’s 

owner, and they were traveling from a source city.” Id.

The facts of the instant matter are similar to those in Kemp. Trooper 

Lydon testified that when he approached the vehicle, he observed several 

open air fresheners hanging from the steering column, unopened air 

fresheners on either the driver’s or passenger’s seat, and a bottle of 

perfume/cologne and an open box of fabric softener sheets on the 

passenger’s seat. N.T., 2/12/15, at 14. Poteat’s vehicle was a rental. Id. 

at 16. Trooper Lydon testified that he could smell the odor of fresh 

marijuana coming from the vehicle and that Poteat appeared “overly 

nervous.” Id. at 15. Although Poteat was the only occupant of the car, 

Trooper Lydon noticed two cell phones, one of which appeared to be a 

prepaid cell phone. Id. Furthermore, Trooper Lydon observed a parking 

ticket from New York City in Poteat’s vehicle.3 Id. at 33. In light of these 

facts, we conclude that Trooper Lydon’s investigative detention of Poteat 

was supported by a reasonable suspicion that Poteat was engaged in 

criminal activity.

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3

In Kemp, the police officer testified that one indicia of drug courier 

activity was “whether the car is coming from a source city, such as New 

York, Allentown, Lancaster, Reading, Philadelphia, Pittsburgh, or Harrisburg.” 

961 A.2d at 1251.
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Finally, the police applied for and received a search warrant for 

Poteat’s vehicle. Because the canine unit dispatched to the scene displayed 

positive-alert behavior for the presence of drugs in the vehicle, 1925(a) Op. 

at 5, the search warrant was properly supported by probable cause.

Accordingly, the trial court did not err in denying Poteat’s motion to 

suppress.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 5/23/2017