J-S27022-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA 

Appellant

v.

ANGEL RIVERA

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 218 EDA 2022

Appeal from the Order Entered December 10, 2021

In the Court of Common Pleas of Delaware County Criminal Division at 

No(s): CP-23-CR-0001363-2021

BEFORE: STABILE, J., NICHOLS, J., and SULLIVAN, J.

MEMORANDUM BY NICHOLS, J.: FILED NOVEMBER 28, 2022

The Commonwealth appeals from the order granting Appellee Angel 

Rivera’s motion to suppress statements Appellee made and evidence seized 

following a traffic stop.1 The Commonwealth contends that the trial court 

abused its discretion or committed an error of law in granting Appellee’s 

suppression motion. After careful review, we reverse and remand for further 

proceedings.

The record reflects that on September 12, 2020, at 1:41 p.m., Trooper 

Henry Kim of the Pennsylvania State Police was on patrol on Interstate 95 in 

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1

In its notice of appeal, the Commonwealth certified that the trial court’s 

suppression order would terminate or substantially handicap the prosecution 

of its case. See Pa.R.A.P. 311(d) (stating that “in a criminal case, under the 

circumstances provided by law, the Commonwealth may take an appeal as of 

right from an order that does not end the entire case where the 

Commonwealth certifies in the notice of appeal that the order will terminate 

or substantially handicap the prosecution”). Notice of Appeal, 1/6/22; see 

also Commonwealth’s Brief at 1.
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Delaware County. N.T., 10/22/21, at 11. Trooper Kim testified that he 

observed a tan sedan travelling faster than surrounding vehicles and following 

too closely behind the vehicle ahead of it. The trooper followed the tan vehicle 

and witnessed it cross the center line of the highway. Trooper Kim activated 

his emergency lights and sirens and directed the driver of the tan vehicle to 

pull over. When the vehicle pulled to the side of the highway, Trooper Kim 

noted that the two occupants of the car were acting suspiciously and moving 

back and forth in their seats, and he saw the driver extended his arm toward 

the passenger. Id. at 11-15. The trooper exited his patrol car and approached 

the tan vehicle. Id. at 17-19. The trooper asked the driver for his license, 

insurance, and registration. Id. at 50. The driver indicated that the vehicle 

belonged to his wife. Id. at 23. When the trooper reached the vehicle he 

testified that the driver’s eyes looked “pinpoint,” and his experience led him 

to conclude that this was an indication of drug intoxication, possibly opioids. 

Id. at 19-20. The trooper testified that at this point, the motor vehicle stop 

shifted to a possible instance of driving under the influence. Id. at 20. 

Trooper Kim stated that the driver’s behavior appeared nervous, shaky, and 

erratic, and therefore, the trooper asked the driver to exit the vehicle. Id. at 

21-22. The trooper informed the driver that for his safety he was going to 

conduct a pat-down. Id. 28. The driver turned his pockets inside-out 

revealing that he had nothing in his pockets, and Trooper Kim testified that 

this alleviated his concern that the driver may have possessed a weapon or 

hypodermic needle. Id. at 28-29. The trooper asked the driver where he was
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coming from, and the driver said that he had driven to Philadelphia to drop off 

a job application, and he and the passenger, later identified as Appellee, were 

returning to Delaware. Id. at 22. The trooper asked the driver how long he 

had known Appellee, and the driver indicated that he had known Appellee for 

approximately one year. Id. at 23. Trooper Kim asked the driver for consent 

to search the vehicle, and the driver consented. Id. at 24. At this point, the 

trooper asked Appellee questions similar to those he asked the driver. The 

trooper asked where they were coming from, and how long Appellee had 

known the driver. Like the driver, Appellee responded that they had driven to 

Philadelphia to drop off a job application and were returning to Delaware. Id.

at 28-29. However, when asked how long he had known the driver, Appellee 

told the trooper three to four years or several years, and this conflicted with 

the driver’s answer of one year. Id. at 29. 

The trooper testified that the driver and Appellee’s movements and 

behavior, and their possible deceit, led him to become more suspicious that a 

crime was occurring. The trooper informed Appellee that the driver had given 

consent to search and told Appellee that he was not under arrest but asked 

him to exit the car. Id. at 32. The trooper reiterated to Appellee that he was 

not under arrest, but the trooper was going to conduct a pat down for the 

trooper’s safety. Id. at 35. Appellee raised his hands and said that he did 

not want a pat-down and reached toward his left pants pocket. Id. at 35-36. 

The trooper asked why Appellee was worried, and Appellee said that he was 

going to a shooting range. Id. at 37. This led the trooper to conclude that 
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Appellee had a firearm, and Appellee then told the trooper the gun was in 

Appellee’s right pants cargo pocket. Id. at 38, 64. The trooper told Appellee 

to stop reaching for the gun, and the trooper seized the firearm. Id. at 39. 

Appellee had a magazine for the gun in his left pocket and volunteered that 

he had a pack of cigarettes in his pocket that contained narcotics. Id. at 39, 

64. When the trooper asked Appellee if he had a permit, Appellee responded 

that he did not. Id. 38-39. Trooper Kim testified that his partner, Trooper 

Solis, arrived to provide assistance. Id. at 40. Trooper Kim testified that the 

first time that he had physical contact with Appellee was when the trooper 

seized the firearm. Id. at 41.2 After securing the gun, the trooper searched 

the vehicle and found what appeared to him to be an empty packet of heroin, 

and he testified that he then administered field sobriety tests to the driver.3 

Id. at 49. The trooper testified that despite the warning, he never patted 

down either driver or Appellee. Id. at 47.4 

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2 The Commonwealth played the video, which was recorded by the camera in 

the police vehicle. This video showed the trooper’s pursuit of the vehicle and 

interaction with Appellee. N.T., 10/22/21, at 41-42. The video was marked 

as Commonwealth Exhibit CS-1 and admitted into evidence without objection. 

Id. at 41, 45.

3 The driver, David Rodriguez-Ramos, was charged with driving under the 

influence of a controlled substance and was accepted into ARD at trial court 

docket CP-23-CR-1364-2021.

4 “So, ironically, I actually never ended up patting down anybody.” N.T., 

10/22/21, at 47.
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The Commonwealth charged Appellee with possession of a controlled 

substance (PWID), possession of drug paraphernalia, firearms not to be 

carried without a license, and possession of a firearm by a prohibited person.5 

Appellee filed a motion to suppress claiming that Appellee was subjected to a 

rigorous pat down, numerous inquiries, and a prolonged search. Appellee 

alleged that although he told the trooper he did not want a pat-down, the 

trooper said it was for officer safety. Appellant averred the search went 

beyond what was necessary for the traffic stop, the police lacked reasonable 

suspicion to support the conclusion that Appellee was engaged in criminal 

activity or that he or that he was armed and dangerous. Suppression Mot., 

7/6/21, at 1-2.

On October 26, 2021, the trial court granted Appellee’s motion to 

suppress. The Commonwealth filed a motion for reconsideration, and the trial 

court held a hearing on the Commonwealth’s motion. 

The trial court concluded that the traffic stop was justified because the 

vehicle was traveling at a speed in excess of the posted limit. Am. Trial Ct. 

Op. 1/21/22, at 1. However, the court determined that the prolonged 

detention that followed the traffic stop was not justified under the 

circumstances because the trooper had uncovered all information necessary 

to determine whether to issue a warning or a citation to the driver. Id. The

trial court found that the trooper had completed the necessary investigation 

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5 35 P.S. § 780-113(a)(16) and (32), and 18 Pa.C.S. §§ 6106(a)(2) and 

6105(a)(1).
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prior to speaking to Appellee. Id. at 2-3. Therefore, the trial court reaffirmed 

its prior order granting Appellee’s motion to suppress. Id. at 3-6. 

The Commonwealth filed this timely appeal. Both the Commonwealth 

and the trial court complied with Pa.R.A.P. 1925.

On appeal, the Commonwealth raises the follow issues:

1. Did the trial court err by suppressing the statement made by 

Appellee where Appellee was not in custody, but merely 

detained as a result of a vehicle stop?

2. Did the trial court err by suppressing evidence of a loaded gun, 

ammunition, illegal drugs and drug paraphernalia recovered by 

the police from Appellee’s person after the State Trooper made 

a lawful car stop in which Appellee was the passenger, and the 

trooper had reasonable suspicion to frisk [Appellee] as a result 

of Appellee’s statement regarding possessing an unlicensed 

gun in his pocket?

Commonwealth’s Brief at 5 (formatting altered).6 Because the 

Commonwealth’s issues are interrelated, we address them together.

The Commonwealth contends that Trooper Kim had probable cause to 

stop the vehicle for violating the Motor Vehicle Code. Commonwealth’s Brief 

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6 We note that Appellee asserts that the Commonwealth waived its issues on 

appeal for failing to present them in its Rule 1925(b) statement. Appellee’s 

Brief at 10. We note that the Rule requires that the statement must “concisely 

identify each error that the appellant intends to assert with sufficient detail to 

identify the issue to be raised for the judge.” Pa.R.A.P. 1925(b)(4)(ii). We 

conclude that the Commonwealth’s Rule 1925(b) statement sufficiently 

identified errors concerning the validity of the traffic stop, the suppression of 

Appellees’ statements to police, and the legality of the subsequent search. 

Accordingly, we decline to find waiver. See, e.g., Commonwealth v. 

McKown, 79 A.3d 678, 685 n.5 (Pa. Super. 2013) (declining to find waiver 

where an issue on appeal is fairly included within an issue presented in the 

Rule 1925(b) statement). 
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at 19. Further, during this traffic stop, Trooper Kim was permitted to direct 

the occupants of the vehicle to exit the car. Id. at 20. Upon approaching the 

vehicle, Trooper Kim noticed that driver was nervous and possibly intoxicated. 

Id. at 20-21. The Commonwealth argues that the trial court failed to 

recognize that Trooper Kim’s inquiries into the suspected Motor Vehicle Code 

violations were not at an end after he spoke to the driver, because Trooper 

Kim suspected the driver was driving while under the influence which required 

additional investigation. Id. at 25. After the occupants were lawfully directed 

to exit the car, the Commonwealth notes that Trooper Kim was permitted to 

conduct a search of the occupants, even absent reasonable suspicion, for 

officer safety. Id. at 20-21. When Trooper Kim informed Appellee that he 

was going to search him for weapons for his own safety, Appellee volunteered 

that he possessed a firearm, and no Miranda7 warnings were required 

because Appellee was not subject to a custodial interrogation. Id. at 28. The 

evidence seized following the search was incident to a lawful arrest. Id. at 

29-30. 

When reviewing a challenge to a suppression ruling, our standard of 

review is

limited to determining 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 

[defense] prevailed before the suppression court, we may 

consider only the evidence of the [defense] and so much of the 

evidence for the [Commonwealth] as remains uncontradicted 

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7 Miranda v. Arizona, 384 U.S. 436 (U.S. 1966). 
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when read in the context of the record as a whole. Where the 

suppression court’s factual findings are supported by the record, 

the appellate court is bound by those findings and may reverse 

only if the court’s legal conclusions are erroneous. Where 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 plenary review.

Commonwealth v. Smith, 164 A.3d 1255, 1257 (Pa. Super. 2017) (citation 

omitted and formatting altered).

The Fourth Amendment to the United States Constitution and 

Article I, Section 8 of the Pennsylvania Constitution protect 

citizens from unreasonable searches and seizures. A search 

conducted without a warrant is deemed to be unreasonable and 

therefore constitutionally impermissible, unless an established 

exception applies.

Commonwealth v. Simonson, 148 A.3d 792, 797 (Pa. Super. 2016) 

(citations omitted and formatting altered).

In Commonwealth v. Malloy, 257 A.3d 142 (Pa. Super. 2021), this 

Court explained:

In light of the Pennsylvania Supreme Court’s interpretation of the 

current language of [75 Pa.C.S. §] 6308(b), we are compelled to 

conclude that the standards concerning the quantum of cause 

necessary for an officer to stop a vehicle in this Commonwealth 

are settled. Traffic stops based on a reasonable suspicion: either 

of criminal activity or a violation of the Motor Vehicle Code under 

the authority of Section 6308(b) must serve a stated investigatory 

purpose. See Commonwealth v. Chase, 960 A.2d 108, 116 (Pa. 

2008). In effect, the language of Section 6308(b)—“to secure 

such other information as the officer may reasonably believe to be 

necessary to enforce the provisions of this title”—is conceptually 

equivalent with the underlying purpose of a stop conducted 
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pursuant to Terry v. Ohio, 392 U.S. 1 (1968). See Chase, 960 

A.2d at 116 (quoting 75 Pa.C.S. § 6308(b)).

Mere reasonable suspicion will not justify a vehicle stop when the 

driver’s detention cannot serve an investigatory purpose relevant 

to the suspected violation. In such an instance, “it is incumbent 

upon the officer to articulate specific facts possessed by him, at 

the time of the questioned stop, which would provide probable 

cause to believe that the vehicle or the driver was in violation of 

some provision of the Motor Vehicle Code.” Commonwealth v. 

Gleason, 785 A.2d 983, 989 (Pa. 2001) (superseded by statute) 

(citation omitted); see also Chase, 960 A.2d at 116 (reaffirming 

Gleason’s probable cause standard for non-investigative 

detentions of suspected Vehicle Code violations.

Id. at 148 (quoting Commonwealth v. Feczko, 10 A.3d 1285, 1290-91 (Pa. 

Super. 2010) (en banc)) (formatting altered). 

Out of concern for officer safety, Pennsylvania search and seizure 

jurisprudence also permits certain limited intrusions upon the 

liberty of passengers in lawfully detained vehicles. Hence, officers 

may order passengers to remain in a car for the duration of a 

lawful stop. Law enforcement officials may also inquire about the 

presence of weapons. Lastly, police officials may compel 

passengers to exit a lawfully stopped vehicle. The authority to 

carry out these actions do not, in and of themselves, expand the 

grounds for detaining or investigating passengers who are merely 

present in a lawfully stopped vehicle. 

Id. at 150 (citations omitted and formatting altered).

The tolerable duration of police inquiries in the traffic-stop context 

is determined by the seizure’s mission—to address the traffic 

violation that warranted the stop, and attend to related safety 

concerns. Because addressing the infraction is the purpose of the 

stop, it may last no longer than is necessary to effectuate that 

purpose. Authority for the seizure thus ends when tasks tied to 

the traffic infraction are—or reasonably should have been—

completed.

A traffic stop can become unlawful if it is prolonged beyond the 

time reasonably required to complete the mission of issuing a 

warning ticket. . . . An officer, in other words, may conduct certain 
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unrelated checks during an otherwise lawful traffic stop. But . . . 

he may not do so in a way that prolongs the stop, absent the 

reasonable suspicion ordinarily demanded to justify detaining an 

individual.

Beyond determining whether to issue a traffic ticket, an officer’s 

mission includes ordinary inquiries incident to the traffic stop. 

Typically, such inquiries involve checking the driver’s license, 

determining whether there are outstanding warrants against the 

driver, and inspecting the automobile’s registration and proof of 

insurance. These checks serve the same objective as enforcement 

of the traffic code: ensuring that vehicles on the road are operated 

safely and responsibly.

Id. at 149-50 (quoting Rodriguez v. United States, 575 U.S. 348, 354 

(2015)) (citations omitted and some formatting altered). Accordingly, “within 

the context of a lawful traffic stop, Rodriguez permits ‘mission related’

inquiries addressed to the traffic violations which originally prompted the 

detention, as well as incidental inquiries aimed at ensuring the safe and 

responsible operation of vehicles on the highway.” Id. at 150. Additionally, 

we note that “furtive movements, when witnessed within the scope of a lawful 

traffic stop, [may] provide . . . a reasonable basis for a protective frisk.” 

Commonwealth v. Simmons, 17 A.3d 399, 403-04 (Pa. Super. 2011).

In its opinion, the trial court concluded that the traffic stop was justified 

because the vehicle was traveling at a speed in excess of the posted limit. 

Am. Trial Ct. Op. 1/21/22, at 1. However, the trial court concluded that 

Trooper Kim initiated the traffic stop only because the vehicle was exceeding 

the posted speed limit. Id. at 2. The court found that the prolonged detention 

that followed the traffic stop was not justified under the circumstances 

because the trooper had uncovered all information necessary to determine 
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whether to issue a warning or a citation to the driver. Id. The trial court 

concluded that Trooper Kim initiated a traffic stop and addressed the driver, 

and “the driver, once addressed, provided the requisite information to the 

police. This offered a reasonable opportunity for the police to issue a traffic 

citation and allow the vehicle occupants to continue on their way.” Id. The 

trial court found that the credible evidence including the police vehicle’s dashcam recording reflects that the troopers offered a pretext for an exploratory 

search: “[T]he Trooper’s testimony concerning what occurred after the initial 

purpose for the stop was accomplished seemed less certain and candid when 

compared with his demeanor when testifying concerning his interaction with 

the driver.” Id. at 3. The trial court concluded that “the insecurity” of the 

trooper’s testimony combined with the lack of credible facts “suggest nothing 

untoward to support the efforts of the police in continuing the investigation 

after the original purpose of the traffic stop was completed.” Id. The trial 

court acknowledged that although the police were permitted to ask the 

occupants to exit the vehicle, the police did not offer credible evidence of an 

independent cause to support the need for further investigation. Id. 

Accordingly, the court found that the trooper had completed the necessary 

investigation prior to initiating an interaction with Appellee. Id. at 2-3. The 

trial court asserts that although the Trooper was permitted to legally ask the 

occupants of the car to exit, the Trooper did not provide credible evidence of 

an independent reason for further investigation “particularly related to the 
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presence of [Appellant’s] legal (or even any) possession of a firearm.” Id. at 

2-3. The trial court cites Malloy as support for its conclusion. Id. at 3.

After review, we are constrained to disagree with the trial court’s 

findings and conclusions as they are not supported by the record. See Smith, 

164 A.3d at 1257. In Malloy, police initiated a traffic stop because the vehicle

in question did not have a license plate properly displayed, which constituted 

a violation of the Motor Vehicle Code. Malloy, 257 A.3d at 145 (citing 75 

Pa.C.S. § 1332 (display of registration plate)). However, when the officer

approached the driver, he saw “a license tag” in the rear windshield. The 

officer also observed several occupants inside the car, including the appellant, 

who was seated in the rear behind the driver. The officer told the driver that 

that the car did not have a license plate on the back, and the driver informed 

the officer that he had recently obtained the car and needed to get screws to 

secure the license plate. The officer then continued his investigation and 

asked the appellant to roll down his window. The officer asked the appellant 

for identification, and the appellant removed a lanyard from inside his hooded 

sweatshirt. The officer believed that some individuals who work as armed 

security guards at local bars wear lanyards holding their identification, and the 

officer asked if Appellant was carrying a firearm. The appellant responded 

that he did have a firearm, and the officer asked where this firearm was 

located. The appellant responded that the firearm was on his right hip. It 

was at this point that the officer asked the appellant to exit the vehicle so that 
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he could secure the firearm before continuing his investigation. See id. at 

145.

Once outside the vehicle, the officer secured the firearm and asked the 

appellant for his identification and documentation permitting him to possess 

the firearm. See id. at 146. The appellant handed the officer this information, 

and the officer observed that the appellant’s “Act 235” card, which authorized 

the appellant to carry the firearm, had expired. The appellant told the officer 

that he had another Act 235 card at home, and the officer proceeded to spend 

the next fifteen to twenty minutes contacting local detectives and the 

Pennsylvania State Police to determine whether the appellant was authorized 

to carry the firearm. The officer learned that the appellant’s Act 235 

certification had expired, and the officer arrested the appellant on charges 

related to the unlawful possession of a firearm. However, because the driver 

provided documentation supporting his statement that he had recently 

purchased the car, the officer did not issue a citation to the driver. See id. at 

146.

The appellant filed a motion to suppress, and the trial court held a 

hearing. At the conclusion of the hearing, the trial court denied the appellant’s 

suppression motion, and the matter proceeded to a bench trial on stipulated 

facts. The trial court found the appellant guilty of possessing a firearm without 

a license and carrying a firearm in public in Philadelphia. See id. (citing 18 

Pa.C.S. §§ 6106 and 6108). 
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However, on appeal, this Court reversed holding that although the traffic 

stop was justified due to the suspected violation of the Motor Vehicle Code 

violation, the police officer was not permitted to initiate a separate 

investigation into the appellant and whether he possessed documentation 

permitting his to carry a firearm. The Malloy Court explained that once the 

police stopped the vehicle due to the missing license plate, no further 

investigation was required to support that finding. The officer’s additional 

questions of the appellant, who was a backseat passenger were not “mission 

related,” and because the officer lacked reasonable suspicion to detain the 

appellant and investigate his legal authority to carry a firearm, the appellant’s 

detention violated his Fourth Amendment rights. Malloy, 257 A.3d at 156.

We conclude that Malloy is distinguishable. In the instant case, the 

record reflects that Trooper Kim suspected not only a violation of the Motor 

Vehicle Code for speeding, but when he spoke to the driver he also suspected 

DUI. Unlike a missing license plate or exceeding the speed limit, suspicion of 

DUI requires further investigation, and the traffic stop serves a further 

investigatory purpose. See Commonwealth v. Walls, 206 A.3d 537, 541 

(Pa. Super. 2019); see also Chase, 960 A.2d at 116. As noted, authority for 

the seizure ends when the tasks tied to the traffic infraction are, or reasonably 

should have been, completed. Malloy, 257 A.3d at 149. However, new 

information obtained during the natural course of the stop may provide a 

lawful basis upon which to extend the stop to investigate the new suspicions. 

See Chase, 960 A.2d at 115, n.5. Here, that additional information was that 
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the driver’s eyes were “pinpoint,” coupled with the fact that the vehicle was 

weaving. See N.T., 10/22/21, at 13, 19. 

During this lawful stop, while Trooper Kim was investigating the driver 

for possible DUI, the trooper was permitted to ask Appellee to exit the car and 

inquire about weapons for officer safety. Malloy, 257 A.3d at 150. Moreover, 

under the circumstances presented here, we do not conclude that Appellee 

was yet under arrest or subject to the functional equivalent of an arrest, and 

Trooper Kim was not required to provide Miranda warnings before asking 

Appellee questions related to the trooper’s safety. See Berkemer v. 

McCarty, 468 U.S. 420, 439-40 (U.S. 1984) (explaining that “the usual traffic 

stop is more analogous to a so-called ‘Terry stop’ . . . than to a formal arrest,” 

and the questions posed are investigative rather than custodial, which does 

not trigger Miranda protections); Malloy, 257 A.3d at 150; Chase, 960 A.2d 

at 117. After being asked about weapons and informed that he would be 

subject to a pat down for officer safety, Appellee told the trooper that he 

possessed a firearm and did not have a permit to carry it. 

As stated above, the record reveals that Trooper Kim pursued the 

vehicle because he initially suspected the driver was violating the Motor 

Vehicle Code by speeding and following another vehicle too closely. Once the 

trooper began to follow the subject vehicle, he noticed it was weaving within 

its lane of travel, and Trooper Kim testified that upon speaking to the driver, 

he thought the driver may be under the influence. See N.T., 10/22/21, at 13, 

19, 20. This permitted Trooper Kim to lawfully conduct a traffic stop and 
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further investigate the driver for DUI. See Malloy, 257 A.3d at 148; see 

also Chase, 960 A.2d at 115, n.5. The circumstances presented here are 

distinct from the situation in Malloy where the officer was investigating the 

display of a license plate and after speaking to the driver, no further “mission 

related” questions were required and no further investigation warranted. See 

Malloy, 257 A.3d at 150. 

Additionally, in the instant case, because the trooper saw the occupants 

moving about the vehicle, for safety purposes, the trooper was permitted to 

have the occupants exit the car and ask about the possession of weapons. 

See id. During a lawful traffic stop, where the officer observes the suspect 

make furtive movements and reasonably concludes that the suspect may be 

armed and dangerous, the officer may frisk the suspect for weapons. See

Simmons, 17 A.3d at 403-04. However, the record does not support the trial 

court’s conclusion that there was a “Terry” frisk. Rather, Trooper Kim asked 

Appellee to exit the car and informed him that he was going to pat him down. 

Appellee said he did not want a pat down, and he told the trooper that he 

possessed a firearm and did not have a permit. 

It was at this point that Trooper Kim had probable cause to conclude 

that Appellant, by possessing a concealed firearm without a permit, was 

committing a crime. This probable cause led to the seizure of the gun and 

Appellee’s lawful arrest, which in turn permitted a search incident to that 

arrest. The search incident to the arrest led to the discovery of the loaded 

ammunition magazine and cigarette pack containing narcotics, and the search 
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of the vehicle revealed drug paraphernalia. The record supports the 

conclusion that Trooper Kim’s questions were mission related. Moreover, the 

record does not reveal a prolonged detention or coerciveness, and contrary to 

the trial court’s conclusion, the record does not support the finding that pat

down or Terry frisk occurred. 

After review, we are constrained to conclude that the trial court erred in 

granting Appellee’s motion to suppress. Appellee was a passenger in a vehicle 

that was lawfully stopped by Trooper Kim. During Trooper Kim’s investigation 

of the driver for possible DUI, he asked the occupants to exit the vehicle. Prior 

to any custodial detention, Appellee voluntarily informed the trooper that he 

possessed a gun. After the lawful arrest resulting from Appellee’s illegal 

possession of a firearm, the search incident to arrest by Trooper Kim 

recovered the ammunition magazine, a controlled substance, and

paraphernalia. For these reasons, we reverse the trial court’s order granting 

Appellee’s suppression motion, and we remand for further proceedings.

Order reversed. Case remanded for further proceedings. Jurisdiction 

relinquished. 

Judge Stabile joins the memorandum.

Judge Sullivan concurs in the result.
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 11/28/2022