J-S25032-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellant

v.

HUSSEIN SALMAN CHOUMAN

Appellee No. 1408 WDA 2015

Appeal from the Order August 14, 2015

In the Court of Common Pleas of Mercer County

Criminal Division at No(s): CP-43-CR-0001721-2014

BEFORE: FORD ELLIOTT, P.J.E., MUNDY, J., and JENKINS, J. 

MEMORANDUM BY JENKINS, J.: FILED APRIL 12, 2016

The Commonwealth appeals from an order granting Hussein 

Chouman’s motion to suppress all evidence seized from his motor vehicle 

during a traffic stop following the issuance of a written traffic warning. We 

affirm.

On November 4, 2015, Chouman was charged with trademark 

counterfeiting under 18 Pa.C.S. § 4119(a)(2) and (7) following discovery of 

counterfeit North Face jackets in his car during a traffic stop on Interstate 

80. On May 6, 2015, the trial court held a suppression hearing in which 

State Trooper Gary Knott was the lone witness. The Commonwealth also 

submitted a videotape of the traffic stop into evidence. In an order docketed 

on August 14, 2015, the trial court granted Chouman’s motion to suppress. 
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The Commonwealth filed a timely notice of appeal, and both the 

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

The Commonwealth raises four issues in this appeal:

1. Whether the trooper lacked reasonable suspicion that criminal 

activity may have been afoot, such to initiate an investigative 

detention, based upon information elicited and observed by the 

trooper during the traffic stop?

2. Whether the defendant’s consent to the search of his vehicle 

was tainted by its request having occurred during what the 

suppression court deemed to be an unlawful investigative 

detention?

3. Whether the stop was unlawful due to the length of the 

investigative detention?

4. Whether the defendant was under arrest without the requisite 

probable cause?

Brief For Commonwealth, at 4. 

When the Commonwealth appeals from a suppression order,

we ... consider only the evidence from the defendant’s witnesses 

together with the evidence of the prosecution that, when read in 

the context of the entire record, remains uncontradicted. The 

suppression court’s findings of fact bind an appellate court if the 

record supports those findings. The suppression court’s 

conclusions of law, however, are not binding on an appellate 

court, whose duty is to determine if the suppression court 

properly applied the law to the facts.

Commonwealth v. Wright, 99 A.3d 565, 568 (Pa.Super.2014).

The trial court made the following findings of fact in its suppression 

order. On November 5, 2014, Trooper Gary Knott, an 18-year officer, was 

working in full uniform in a special criminal interdiction unit with three other 
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state police officers. Findings Of Fact (“FF”), ¶ 1. Trooper Knott has made 

thousands of traffic stops in his career and hundreds of arrests. FF, ¶ 2.

On the morning of November 5, 2014, Trooper Knott observed a 

Chevrolet Captiva traveling eastbound on Interstate 80, a two-lane highway 

in Mercer County, with a single occupant, later identified as Chouman. FF, 

¶¶ 1, 3-4. While driving behind this vehicle, Trooper Knott observed it 

driving in the left-hand lane for .7 miles without overtaking other traffic 

traveling in its direction or traveling with the flow of traffic. FF, ¶ 5. The 

trooper pulled alongside the vehicle and discovered that it was an Enterprise 

rental car by typing in its license plate on his computer database. FF, ¶ 9. 

He decided to stop the vehicle for violating 75 Pa.C.S. § 3313(d) due to its 

failure to stay in the right-hand lane on a limited access roadway. FF, ¶ 5. 

Prior to making this stop, Trooper Knott had information from various 

team meetings and information shared by police officers throughout the 

country that the current trend among smugglers was to use rental vehicles 

operated by a single person of no particular gender or race. FF, ¶ 8. 

Trooper Knott’s interdiction unit used Vehicle Code violations as a 

mechanism for attempting to interdict smugglers of contraband, including 

guns, drugs and counterfeit merchandise. FF, ¶ 8. 

When Trooper Knott activated his emergency lights, Chouman pulled 

over onto the right berm of the highway. FF, ¶ 7. The trooper admitted that
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Chouman was never free to leave the scene from the time that he activated 

his emergency lights. FF, ¶ 38. 

Trooper Knott approached the vehicle, leaned into the open passenger 

side window space and saw that the vehicle was full of items such as 

clothing, six Red Bull cans and other energy drinks. FF, ¶¶ 11, 15. Behind 

the passenger seat was a black duffle bag with black plastic garbage bags 

underneath. FF, ¶ 11. Trooper Knott testified that he believed criminal 

activity was afoot (but was unsure of what type of criminal activity) because 

(1) there was one individual in the car, (2) the black bags were similar to a 

recent counterfeiting stop he had made on the other side of Pennsylvania, 

(3) the trooper knew from his experience and training that counterfeit 

traffickers use energy drinks to drive longer distances, (4) Chouman 

appeared more nervous than most individuals that Trooper Knott has pulled 

over for traffic stops, and (5) Chouman stated he was returning to New 

Jersey after visiting his sister in Dearborn, Michigan, and the trooper knew 

from experience and training that counterfeit merchandise often is 

transported west on I-80 with proceeds therefrom traveling back east. FF, 

¶¶ 12, 14-18. 

Trooper Knott took Chouman’s license back to his cruiser and entered 

Chouman’s name into various databases. FF, ¶ 22. The trooper learned 

that Chouman had a prior federal offense from 1988 for counterfeiting 

clothing, but that there were no warrants for his arrest. FF, ¶ 28. 
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Trooper Knott went back to Chouman’s vehicle, returned Chouman’s 

license to him, gave him a written warning and asked him to sign it. FF, ¶¶ 

28, 52. At this point, eleven minutes had gone by since Chouman’s vehicle 

had stopped along the berm. Chouman complied with the directive to sign 

the warning, but he also asked about the nature of the alleged traffic 

violation. FF, ¶ 28. It appeared that he did not understand the law 

restricting travel in the left lane on a limited access roadway. Id. The 

trooper believed that Chouman continued to appear nervous. FF, ¶ 29. 

Without leaving Chouman’s car, the trooper asked if he could search 

Chouman’s vehicle. FF, ¶ 29. Chouman answered: “Yes.” Id. The trooper 

conceded that Chouman was never free to leave after his license was 

returned to him. FF, ¶ 52.

Trooper Knott asked if Chouman had any criminal record, and 

Chouman answered that he had a problem operating too close to something 

as a street vendor but did not divulge his federal conviction. FF, ¶ 29. The 

trooper asked if Chouman had any large amounts of cash in the car, and he 

said: “No.” FF, ¶ 31. The trooper again asked Chouman if he could search 

the car, and Chouman responded that he had no problem with him searching 

the car. FF, ¶ 32. The trooper did not ask Chouman if he could search any 

packages or containers in the car. FF, ¶ 33. Trooper Knott was the only 

trooper present at the time of Chouman’s consent, but three other state 
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troopers arrived at different times during the ensuing search. FF, ¶¶ 29, 33, 

37.

Trooper Knott retrieved the black duffle bag from behind the 

passenger seat, removed a container from within the bag, and found over 

$80,000.00 in cash inside the container. FF, ¶ 40. The trooper then found 

about 25 jackets behind the passenger’s seat bearing a North Face 

trademark, most of which were marked at $165.00, and one of which was 

marked at $409.00. FF, ¶ 41. 

At about 11:34 a.m., the troopers and Chouman drove their respective 

vehicles to the State Police barracks. FF, ¶ 48. At the barracks, Trooper 

Knott learned that the jackets were counterfeit and placed Chouman 

formally under arrest. FF, ¶ 42. 

The suppression court held that Trooper Knott did not have reasonable 

suspicion to believe that Chouman was smuggling anything illegal. Trooper 

Knott’s perception that smugglers tend to use rental vehicles and travel 

alone, the court wrote, were part of a generalized and long discredited drug 

courier and/or smuggler profile. Conclusions of Law (“CL”), at 3-4. The 

court rejected the trooper’s claim that Chouman was nervous, rattled, 

evasive or defensive. CL, at 6-7. To the contrary, the video recording of the 

stop showed that Chouman appeared calm and casual but merely was 

confused about the nature of his alleged Vehicle Code violation. Id. He did 

not understand why he could not drive in the left lane when he was not 
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passing anyone. Id. As for the trooper’s focus on the number of energy 

drinks, the court found that this “is just another non-individualized fact that 

is entitled to very little weight despite the trooper’s claim that illegal 

traffickers typically drink these during hard travel.” CL, at 7. Nor did the 

trooper have any reports of criminal activity involving this vehicle or 

occupant. CL, at 1. Finally, the court was unconvinced by the trooper’s 

testimony that smugglers transport counterfeit goods westbound on I-80 

and return eastbound with money. The court found this observation 

irrelevant because Chouman was traveling eastbound on I-80, and there was 

no money visible when the trooper first spoke with Chouman or issued the 

traffic warning. FF, ¶¶ 11-12, 14-18.

Based on our review of the evidence of record, including the videotape 

of the traffic stop, we conclude that the record supports the suppression 

court’s findings of fact. 

Our next task is to determine whether the suppression court properly 

applied the law to the facts. While the Commonwealth raises four issues in 

this appeal, we only find it necessary to address two legal issues – (1) 

whether Trooper Knott had probable cause to search Chouman’s vehicle, and 

(2) whether Chouman voluntarily consented to the search of his vehicle.1

____________________________________________

1 Based on our disposition of these issues, we need not address the third and 

fourth issues raised in the Commonwealth’s brief (whether the suppression 

(Footnote Continued Next Page)
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To begin with, the initial traffic stop was legal. Both the videotape and 

Trooper Knott’s testimony demonstrate that Interstate 80 is a “limited 

access highway”, i.e., “a highway in respect to which owners or occupants of 

abutting lands and other persons have no legal right of access except at 

points and in the manner determined by the authority having jurisdiction 

over the highway.” 75 P.S. § 102 (defining “limited access highway”); see 

also Commonwealth Exhibit 1 (videotape); N.T., 5/6/15, at 61 (Trooper 

Knott’s testimony that I-80 is limited access interstate). The Traffic Code 

provides that in a limited access highway having two lanes or more for traffic 

moving in the same direction,

all vehicles shall be driven in the right-hand lanes when available 

for traffic except when any of the following conditions exist:

(i) When overtaking and passing another vehicle proceeding in 

the same direction.

(ii) When traveling at a speed greater than the traffic flow.

(iii) When moving left to allow traffic to merge.

(iv) When preparing for a left turn at an intersection, exit or into 

a private road or driveway when such left turn is legally 

permitted.

75 P.S. § 3313(d). 

The suppression court credited Trooper Knott’s testimony that he 

observed Chouman’s vehicle driving in the left-hand lane for .7 miles without 

overtaking other traffic traveling in its direction or traveling with the flow of 

(Footnote Continued) _______________________

court properly held that the length of Chouman’s detention was excessive 

and whether Chouman was under arrest without probable cause).
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traffic. FF, ¶ 5; see also N.T., 5/6/15, at 63. Under these facts, Trooper 

Knott had probable cause to stop Chouman’s car for violating section 

3313(d).2

Although the initial traffic stop was legal, the ensuing search of 

Chouman’s vehicle was not. The prerequisite for warrantless searches of a 

motor vehicle under Article I, section 8 of the Pennsylvania Constitution is 

probable cause; no exigency beyond the inherent mobility of a motor vehicle 

is necessary. Commonwealth v. Gary, 91 A.3d 102, 104 (Pa.2014). 

Article I, Section 8 affords no greater protection than the Fourth Amendment 

to the United States Constitution. Id. The suppression court correctly held 

that Trooper Knott had no probable cause to believe that Chouman was 

engaging in any illegal conduct besides his minor infraction of the Vehicle 

Code. Other than Chouman’s stale conviction from 1988, almost three 

decades ago, Trooper Knott’s suspicions rested on wholly innocent behavior 

(a lone driver on an interstate highway in a rental car in possession of 

multiple energy drinks, black bags and other lawful items) and his 

discredited accusation that Chouman was behaving nervously. This plainly 

was insufficient to justify a search of Chouman’s car. Commonwealth v. 

Germann, 621 A.2d 589, 592 (Pa.Super.1993) (“evidence required to 

____________________________________________

2 Moreover, Chouman expressly “do[es] not contest” the legality of the initial 

stop under section 3313(d). Brief For Appellant, at 8.
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establish probable cause must be more than a mere suspicion or good faith 

on the part of the police officer”).

We further agree with the suppression court that Chouman’s consent 

to search his vehicle was involuntary. The Commonwealth bears the burden 

of proving that the defendant consented to a warrantless search. 

Commonwealth v. Acosta, 815 A.2d 1078, 1083 (Pa.Super.2003) (en 

banc). To establish a voluntary consensual search, the Commonwealth must 

prove “that a consent is the product of an essentially free and unconstrained 

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

overborne—under the totality of the circumstances.” Commonwealth v. 

Strickler, 757 A.2d 884, 901 (Pa.2000).

In Strickler, a police officer observed a car parked along a country 

road. Two men were standing near the car and appeared to be urinating. 

After questioning the men and verifying the documentation for the vehicle 

and the driver, the officer returned the documents to the driver. At that 

time, the officer informed Strickler that it was not appropriate to stop along 

the road and urinate on someone’s property. The officer began walking back 

to his cruiser when he turned and asked Strickler if there was anything 

illegal in the vehicle. When Strickler stated that there was not, the officer 

requested Strickler’s consent to search the vehicle. The officer told Strickler 

that he was free to withhold his consent. Strickler consented to the search, 

which disclosed a marijuana smoking pipe. 
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The trial court suppressed the marijuana pipe on the ground that 

Strickler’s consent was not voluntary. Our Supreme Court held, however, 

that Strickler’s consent was voluntary, even though the officer had never 

expressly told Strickler that he was free to leave following the initial lawful 

detention. Strickler, 757 A.2d at 900. The Court adopted a totality-of-thecircumstances approach delineating a nonexclusive list of factors to consider 

in making this assessment, including: (1) the presence or absence of police 

excesses; (2) whether physical contact occurred; (3) whether police directed 

the individual’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) whether and to what 

degree the transition between the traffic stop/investigative detention and the 

subsequent encounter can be viewed as seamless, thus suggesting to the 

individual that his movements may remain subject to police restraint; and 

(9) whether the police expressly told the individual that he was free to leave 

-- this latter factor being an objective and potent one. Id. at 898-901. 

With regard to the last two factors, Strickler observed:

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, is a pertinent 

factor ... ‘[F]ew motorists would feel free ... to leave the scene of 

a traffic stop without being told they might do so.’ While 

recognizing ... that the admonition to a motorist that he is free to 

leave is not a constitutional imperative, the presence or absence 
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of such a clear, identified endpoint to the lawful seizure remains 

a significant, salient factor in the totality assessment.

Id. at 898-99.

Strickler focused upon the fact that the officer’s actions suggested to 

Strickler and his companion that they were free to leave following the initial 

detention, and the officer did nothing to suggest that the subsequent 

request for the defendant’s consent to search the vehicle was to be viewed 

as a directive. Id. The Court opined: “[T]he officer did not touch Strickler 

or direct his movements; there is no evidence of any use of coercive 

language or tone by the officer. We also deem significant the arresting 

officer’s admonition to Strickler that he was not required to consent to the 

search.” Id. at 900. Thus, the officer’s admonition that Strickler could 

refuse consent outweighed the officer’s failure to expressly advise the 

defendant that he was free to leave following the initial detention. Id. at 

901-02.

The present case is distinguishable from Strickler. Although Trooper 

Knott handed Chouman’s license back to him, the trooper simultaneously 

requested Chouman’s consent to search the vehicle without telling Chouman 

that he was free to leave. Thus, a factor critical to the disposition in 

Strickler – an admonition that the driver could refuse consent – was not 

present here. We also find persuasive the suppression court’s reasoning on 

this issue:
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Trooper Knott candidly conceded that once he decided he was 

going to pull this vehicle over because it was a rental unit with a 

sole occupant, the person would not be free to leave until he 

completed his criminal interdiction investigation. Since that 

investigation was never in the view of the suppression court 

supported by reasonable suspicion to support that criminal 

activity was afoot, it was deemed to be illegal. Furthermore, 

while Trooper Knott issued a traffic warning in writing to 

[Chouman] while [he] was seated in the driver seat, there was 

no break between the alleged traffic stop investigation and the 

request to search the vehicle. Trooper Knott was leaning into 

[Chouman]’s vehicle when he returned his paperwork and gave 

him a written warning [but] did not tell [Chouman] that he was 

free to leave. Instead, [the trooper] just continued on without 

even leaving the interior of the police car[3] with his criminal 

interdiction investigation. His failure to have any break between 

the two investigations is evidence that Trooper Knott meant 

what he said when he testified that once the trooper determined 

[Chouman] was alone in a rental car, that [Chouman] would not 

be free to leave until he concluded his criminal interdiction 

investigation.

Pa.R.A.P. 1925(a) Opinion, at 4-5.4

____________________________________________

3

It appears from the evidence, particularly the videotape, that the 

suppression court intended to state that Trooper Knott continued his 

investigation without even leaving the interior of Chouman’s car.

4 Similarly, there is persuasive authority from other jurisdictions that the 

defendant’s consent is involuntary when the officer returns the defendant’s 

paperwork but continues to ask questions or request that the defendant 

answer additional questions. See, e.g., State v. Moore, 283 Kan. 344, 154 

P.3d 1, 8-9 (2007) (since videotape shows that officer, “a large, physically 

imposing individual,” “sometime after returning the license and registration 

and after telling Moore that is ‘all I have for you,’ remained with his face at 

the passenger-side window, apparently alternating between leaning on and 

nearly touching the frame,” during which time he asked defendant “if he 

would answer some questions,” “a reasonable person would not feel free to 

leave”).
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For these reasons, the suppression court properly granted Chouman’s 

motion to suppress all evidence seized during the search of his vehicle. 

Order affirmed.

President Judge Emeritus Ford Elliott joins in the memorandum.

Judge Mundy concurs in the result.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 4/12/2016