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

COMMONWEALTH OF PENNSYLVANIA

Appellant

v.

JOSE M. DE LEON GONZALEZ :
:
:
:
:
:
:
:
: IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 932 WDA 2022 Appeal from the Suppression Order Entered June 30, 2022 In the Court of Common Pleas of Somerset County Criminal Division at No(s): CP

- 56

- CR

- 0000087

- 2021

BEFORE: PANELLA, P.J., BENDER, P.J.E., and PELLEGRINI, J. *
MEMORANDUM BY PANELLA, P.J.: FILED: AUGUST 7, 2023

The Commonwealth of Pennsylvania appeals from the Somerset County
Court of Common Pleas’ order granting Jose De Leon Gonzalez’s motion to

suppress evidence obtained pursuant to a warrantless search of the truck he

was driving following a traffic stop. After careful review, we affirm on the basis

of the well

- reasoned opinion of the trial court.

The Commonwealth filed a criminal complaint char ging Gonzalez with

intent to deliver and possession of a controlled substance after 770 bricks of

heroin/fentanyl were found in the vehicle he was driving during a traffic stop.

Gonzalez filed an omnibus pretrial motion seeking to suppress evidence

recover ed from the warrantless search.

_________________ __________ ______ ____ _______

* Retired Senior Judge assigned to the Superior Court.J

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On June 28, 2022, the trial court held a suppression hearing. The court

heard testimony from Pennsylvania State Trooper Glenn Adams who

conducted the traffic stop. Following the hearing, the court granted the

suppression mo tion. 1 The Commonwealth filed a notice of appeal, certifying

that the court’s suppression order would substantially handicap the

prosecution of its case pursuant to Pa.R.A.P. 311(d). The Commonwealth also

complied with the trial court’s directive to file a Pa.R.A.P. 1925(b) statement

of errors complained of on appeal.

In response, the trial court filed a Pa.R.A.P. 1925(a) opinion. In its
opinion, the trial court summarized the relevant facts leading to the court’s

decision to grant the suppression motion as follows:

On January 5, 2021, at approximately 8:00 p.m., Pennsylvania State Trooper Glenn Adams conducted a traffic stop of [Gonzalez] for traveling in the passing lane on I

- 76 west, in violation of the Pennsylvania Vehicle Code. Trooper Adams eventua lly conducted a search of Gonzalez's van which revealed 770 bricks of heroin/fentanyl. The majority of the interactions between Trooper Adams and Gonzalez during the stop were captured on a motor vehicle recording ("MVR") from either a dashboard or passeng er window camera viewpoint.

... Once Gonzalez pulled off to the shoulder of the interstate, Trooper Adams approached the van and asked Gonzalez for his identification, registration, and proof of insurance. Gonzalez handed an identification card from the Do minican Republic to Trooper Adams, while the insurance and registration was under a third person. Trooper Adams then asked [Gonzalez] to "[p]lease

_________________ __________ ______ ____ _______

1 The trial court entered the order on June 28, 2022. However, the order was not docketed as filed until June 30, 2022.J

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come on with me and bring your jacket. I'm going to get you a warning, OK? We will just conduct this stop [at ] my vehicle. It's safer for me, OK? I'll tell you why I stopped you. Come on back."

Gonzalez exited the van, Trooper Adams patted him down and told Gonzalez "You can stay by my passenger side window, OK?" Once Trooper Adams entered his patrol car, he be gan to ask Gonzalez questions. Gonzalez was standing outside of the patrol car, looking inside through the passenger window. Trooper Adams testified, "it was slightly raining. It was cold."

Trooper Adams asked a series of questions while he simultaneousl y investigated the validity of the identification and registration by using his computer. Trooper Adams asked "[i]s that [van] yours? ... What's his name? ... Where are you coming from?" Gonzalez answered these questions in English, but usually after stati ng "ah?" as to prompt Trooper Adams to repeat his question. It is not clear whether the noise of the interstate, a language barrier, or a combination of both, caused this response from Gonzalez. Trooper Adams then asked "Where are you going? ... A donde? . .. Where do you live? ... Donde vive?" The Spanish version of the questions appeared to assist Gonzalez's comprehension because he answered quicker. Gonzalez answered "I have the address right now... Me? ... Reading, [Pennsylvania]."

A few minutes later Tro oper Adams asked "How long are you going to be in, hmm, in Pittsburgh ... how long?" Gonzalez, with a confused look on his face, did not respond. Trooper Adams rephrased, “Cuanto tiempo en Pittsburgh?" Again, the Spanish version of the question got a quick response from Gonzalez, "Me? ... I'm going to pick [up] and come back."

Trying to figure out the van owner's full name and as his questions got more intricate, Trooper Adams began to use his cell phone as an English to Spanish translator. Trooper Adams asked through his cell phone translator "How long have you known him?" The cell phone articulated Trooper Adams' questions in Spanish. As Gonzalez began to formulate his response in English, Trooper Adams asked him to speak "en Espanol" to the phone, so it would be translated back into English. Each time questions were translated into Spanish for Gonzalez, he answered without hesitation. Trooper Adams used his cell phone as a translation service for approximately three minutes before reverting back to English. When asked at the suppression hearing about theJ

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translation service, Tr ooper Adams explained that he "felt like we both understood what each other were saying more when we were speaking in English" and that the cell phone translation "muddied the waters a little bit."

After reminding Gonzalez that he was only giving him a w arning, Trooper Adams asked if there was anything illegal in the van, to which Gonzalez responded "I'm sorry?" Trooper Adams clarified by asking if there were any "drogas", Spanish for drugs, in the van. Gonzalez responded "No, nothing. You can check it." Acknowledging at the suppression hearing that there was a "small language barrier", Trooper Adams attempted to obtain written consent. Trooper Adams handed Gonzalez a Spanish consent to search form because "I wanted Mr. De Leon Gonzalez to know clearly wha t I was asking and what his options were" and Trooper Adams "presume[d] that [Spanish] is his first language [and] that he would be better able to understand." Trooper Adams did not identify what the form was when he handed the form over to Gonzalez. When asked at the suppression hearing why he did not identify the form to Gonzalez, Trooper Adams stated "I think I was a little bit thrown off when he said

-- when he started saying: ‘You can check it.’ And maybe I

-- it slipped my mind."

A translator named M r. Alejanro Pinzon read the Spanish consent form into the record at the suppression hearing. Part of the Spanish consent form translated into English stated "[a]rticles that will be looked for or confiscated, if found" to which Trooper Adams handwrote in t he words "All contents any contraband" in English. The form also stated "I understand I have the right to refuse or deny this petition ... police may not be able to do this search without authorization." While handing the Spanish consent form to Gonzalez, Trooper Adams stated "You review it and then sign it after your read it". After Trooper Adams watched Gonzalez's "eyes track across the paper", Gonzalez responded "OK", and handed it back. Gonzalez did not sign the Spanish consent form prior to handing it back. Trooper Adams replied "I'm going to have you sign it in a second, OK?"

Between the time of requesting Gonzalez's signature and receiving it, Trooper Adams was communicating with his back

- up through his computer, waiting for the back

- up to arrive to safely conduct the search, and finishing documents related to the traffic stop. When Trooper Adams handed the Spanish consent form back to Gonzalez, he testified that he stated "[w]ith everything on theJ

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form in mind, if you consent, can you sign the presc ribed lines?", however, the statement according to the MVR was "[w]ith all that in mind, can you sign top and print in bottom, please". After this statement, Gonzalez complied and signed the form.

It is not clear when, if at all, Gonzalez was given back h is identification, registration, and insurance documents. In addition, the MVR was played at the suppression hearing but only until Gonzalez signed the Spanish consent form and nothing further. Gonzalez completed his signature at approximately the 21:25 mi nute mark of the MVR.

Trial Court Opinion, 10/14/22, at 1

- 5 (citations omitted). The trial court
explained that it granted Gonzalez’s motion to suppress because it found the

Commonwealth was unable to meet its burden with respect to proving the

validity o f the roadside consent. See id . at 11; see also Suppression Order,

6/30/22. Further, the court put its reasons for suppression on the record as

follows:

Consent still remains a dangerous area. And when you have a big fish on the line or if you think you h ave a big fish on the line, you better know that you have your consent locked up.

Now, let's walk through the steps of what happened here.

The stop was good. The stop was good. I can see with my own eyes that the defendant was driving in the left lane for some period of time. Nothing drives me more crazy than being in a left lane on the Turnpike and then have somebody going 55 with the right lane open. The stop was good.

I think that the continued discussion with the defendant along the roadside d eveloping information that was supported by reasonable suspicion was good. It was fine.

But what the Trooper developed along the road that evening was the reasonable suspicion to have a dog called to the scene, who would have alerted for sure, and then probable cause would haveJ

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been secured by a search warrant or a search warrant would have been issued as a result of the issue of the probable cause.

The Commonwealth has the burden of establishing that the consent was knowing, voluntary, freely give n, and I don't believe in this instance, this instance, handing the document to the defendant and saying " Sign here" was good enough.

Now, I'm going to change the facts a little bit. Had Trooper Adams said: This is a consent form. If you sign it, it wil l give me the right to search your vehicle and all of its contents. You understand that you are not obligated to sign this.

Those extra words would have secured the consent, but there's too much left to doubt in terms of the Commonwealth's burden here for the Court to find that this consent meets the legal standard required of our constitution.

I say out loud that I have no objection to aggressive drug interdiction along our highways. If nothing else, an awful lot of drugs were taken off the street that n ight and they don't have to be returned. But if you want to go the next step and secure prosecutions and convictions, you have to be more careful.

N.T., 6/28/22, at 65

- 67.

On appeal, the Commonwealth argues the suppression court erred in

concluding Gonz alez’s consent was not knowing, intelligent and voluntary.

When this Court reviews a Commonwealth appeal from an order

granting suppression, as we are tasked to do here, we may only consider the

evidence produced at the suppression hearing and then, only that evidence
which comes from the defendant’s witnesses, along with the Commonwealth’s

evidence which remains uncontradicted. Commonwealth v. Barr , 266 A.3d

25, 29 (Pa. 2021) . We must determine, in the first instance, whether the

suppression court’s factu al findings are supported by the record and if theyJ

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are, we are bound to those findings. See id. We must always keep in mind

that the suppression court, as fact

- finder, has the exclusive ability to pass on

the credibility of witnesses. See Commonwealth v. Fudge , 213 A.3d 321,

326 (Pa. Super. 2019). Therefore, we will not disturb a suppression court’s

credibility determinations absent a clear and manifest error. See id. at 326

-

327.

We must also determine whether the legal conclusions the suppression

court drew from its factual findings are correct. See Barr, 266 A.3d at 39.
Unlike the deference we give to the suppression court’s factual findings, we

have de novo review over the suppression court’s legal conclusions. See

Commonwealth v. Brown , 996 A.2d 473, 476 (Pa. 2010).

It is well

- settled that a search conducted without a warrant is unreasonable and unconstitutional unless an established exception to the warrant requirement applies. One such exception is consent[.]

To establish a valid consensual search, the Commonwealth must first prove that the consent was given during a legal police interaction. Next, the Commonwealth must prove the consent was given voluntarily. To be considered valid, the consent must be the product of an essentiall y free and unrestrained choice

— not the result of duress or coercion, express or implied, or a will overbourne

— under the totality of the circumstances.

Commonwealth v. Carmenates , 266 A.3d 1117, 1124 (Pa. Super. 2021)

( en banc ) (citations and internal quotation marks omitted). Here, the legality

of the police interaction is not disputed. Accordingly, we direct our analysis to

the second part of the test only

- whether the consent was valid.J

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To determine whether a consent is valid when provided close in time to
a traffic stop, courts consider the following factors:

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 lo cation 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/investi gative detention and the subsequent encounter can be viewed as seamless, ... thus suggesting to a citizen that his movements may remain subject to police restraint,”; 9) the “presence of an express admonition to the effect that the citizen

subject is free to depart is a potent, objective factor;” and 10) whether the citizen has been informed that he is not required to consent to the search.

Id . (citation omitted).

After a thorough review of the record, the briefs of the parties, the

applicable law, and th e well

- reasoned opinion of the trial court we conclude

the Commonwealth is due no relief. Following our review of the totality of the

circumstances, we can find no error in the trial court’s analysis and conclusion

that Gonzalez’s consent was not knowing, intelligent, and voluntary. The trial

court opinion properly addresses the suppression claim, and we adopt it as

our own. See Trial Court Opinion, 10/14/22, at 6

- 7 (thoroughly addressing

the 10 factors for assessing consent, and finding that factors 2, 3, 7, 8, 9, and

10 weighed against a finding that Gonzalez consented to the search); see

also id . at 7

- 11 (thoroughly addressing the similarities between this case and

Carmenates , and highlighting that: neither Gonzalez nor Trooper Adams

used the word “search;” Trooper Adams did not ask Gonzalez if he could readJ

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or understand the Spanish language consent form; Trooper Adams did not

explain what the Spanish language consent form was when he handed it to

Gonzalez, and Trooper Adams did not offer a reason for this failure; Trooper

Adams never informed Gonzalez that he could refuse to sign the Spanish

language consent form, and in fact directed Gonzalez to sign it.). Accordingly,

the trial court properly suppressed the evidence seized pursuant to the search.

Order affirmed. Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 8/ 7 /2023