J

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

COMMONWEALTH OF PENNSYLVANIA

Appellee

v.

ELIJAH MALIK HALL DAY

Appellant : : : : : : : : : IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 1380 MDA 2021 Appeal from the Judgment of Sentence Entered September 28, 2021 In the Court of Common Pleas of Cumberland County Criminal Division at No(s): CP

- 21

- CR

- 0002515

- 2020

BEFORE: BOWES, J., KING, J., and STEVENS, P.J.E. *
MEMORANDUM BY KING, J.: FILED: OCTOBER 20, 2022
Appellant, Elijah Malik Hall Day , appeals from the judgment of sentence
entered in the Cumberland County Court of Common Pleas, following his bench

trial convictions for multiple counts o f driving under the influence of a

controlled substance (“DUI”) and one count each of disorderly conduct and

windshield obstructions

. 1 We affirm.
The trial court opinion set forth the relevant facts and procedural history
of this appeal as follows:

On May 15, 2020, Appellant was the driver and sole occupant of a 2002 Cadillac Deville within the borough of Mount Holly Springs, Cumberland County , whe n his vehicle was observed by Pennsylvania State Police Troopers David

_________________ __________ ______ ____ _______

* Former Justice specially assigned to the Superior Court.

1 75 Pa.C.S.A. § 3802(d)(1) , (2), 18 Pa.C.S.A. § 5503(a)(2), and 75 Pa.C.S.A. § 4524(e)(1), respectively.J

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- Highhouse and Christine Fow to have window tint which potentially exceeded the level permitted by law. The troopers initiated a traffic stop of Appellant, who pulled over into the park ing lot of a nearby Sheetz gas station, in order to further investigate the window tint. The interaction between Appellant and the troopers quickly became adversarial, with Appellant repeatedly rolling his window back up while Trooper Highhouse attempted to speak with him, Appellant refusing to follow instructions to shut off his vehicle and exit it, and a shouting match quickly developing between Appellant and Trooper Highhouse . During that time, Trooper Highhouse detected an aroma of marijuana emanating from Appellant’s vehicle, observed that Appellant had red and watery eyes, and Appellant conceded that he had marijuana inside his vehicle.
After Appell ant was removed from his vehicle, a protective search of his person was performed by Trooper Highhouse. The search led to another outburst from Appellant, which resulted in his being placed in the back of the troopers’ vehicle so that he could cool down b efore the continuation of the on

- scene investigation. While Appellant was in the rear of the troopers’ vehicle, a warrantless search of the vehicle was performed 7 and the vehicle’s window tint was measured, with the window tint level being in excess of th e amount permitted by law.

7 Prior to the suppression hearing, the Supreme Court’s decision in Commonwealth v. Alexander , 243 A.3d 177 (Pa. 2020) w as announced, establishing that a warrantless vehicle search required both probable cause and exigent circ umstances to be constitutionally valid. Due to the lack of exigent circumstances in this case, the Commonwealth withdrew the charge relating to the evidence resulting from the search of the vehicle.
After the search was conducted, Appellant was asked t o perform standard field sobriety tests (“SFST ”). Prior to the start of those tests, Appellant was read the Miranda [ 2 ] warnings; the results of the SFSTs suggested that Appellant

_________________ __________ ______ ____ _______

2 Miranda v. Arizona , 384 U.S. 436, 86 S.Ct. 1602, 16 L.E d. 2d 694 (1966).J

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- was impaired while driving. ... As a result, Appellant was placed under arr est on suspicion of driving under the influence, read the DL

- 26B form, and consented to a blood draw. As stipulated by counsel prior to the non

- jury trial, the results of the blood draw were that Appellant had THC and its metabolites in his bloodstream.
Based on the stipulations, [the trial c]ourt found Appellant guilty of the above

- listed charges, and on September 28, 2021, sentenced him to not less than 72 hours to not more than 6 months of incarceration. At the request of counsel, Appellant was perm itted to remain on bail pending appeal, and Appellant’s notice of appeal was filed on October 28, 2021. On that same date, Appellant was ordered to file his concise statement of matters complained of on appeal, which he timely did on November 16, 2021.
(Trial Court Opinion, filed 12/2/21 , at 2

- 4 ) (some footnotes omitted)

. Appellant now raises two issues on appeal:
Whether [Appellant] was subjected to a custodial detention without probable cause when he was forcibly removed from the vehicle and physi cally detained in handcuffs?
Whether [Appellant] was subjected to a custodial detention without probable cause when he was read his Miranda rights while handcuffed in the back of the police cruiser?
(Appellant’s Brief at 6 ).
Appellant’s issues are related, and we address them together. 3
Appellant contends that an arrest must “ be supported by probable cause and
not merely reasonable suspici on or an educated hunch

. ” ( Id. at 13).
Appellant posits that there were two occasions when he was effectively under

_________________ __________ ______ ____ _______

3 Appellant also acknowledges th at his issues are “interrelated,” and he addresses the issues together in the argument section of his brief. ( See Appellant’s Brief at 13).J

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arrest in this case: 1) when the trooper ordered him out of his vehicle and
placed him in handcuffs; and 2) when the trooper placed him in the back of
the cruiser and provided Miranda warnings. At either of these points,
Appellant insists that the trooper did not have probable cause to support an
arrest for DUI. Appellant admits that “the initial stop in t his case m ay have
been only an investigative detention ,” but he argues that once he “was forced
to exit his vehicle, handcuffed, placed in the back of the police car, and read

his Miranda rights, there was an arrest and probable cause was required.”
( Id. at 19). Moreover, regarding the trooper’s observation of the odor of
marijuana emanating from the vehicle, Appellant complains that “the odor
alone is insufficient [to establish] probable cause.” ( Id. at 20). Based upon
the foregoing, Appellant conclud es that this Court must reverse the order
denying his suppression motion . We disagree.
The following principles govern our review of an order denying a motion
to suppress:

An appellate court’s standard of review in addressing a challenge to the denial of a suppression motion 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 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 recor d, 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 allegationsJ

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- of legal error, the suppression court’s legal conc lusions 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. Ford , 175 A.3d 985 , 989 (Pa.Super. 2017), appeal

denied , 647 Pa. 522, 190 A.3d 580 (2018).
Contacts between the police and citizenry fall within three general

classifications:

The first [level of interaction] is a “mere encounter” (or request for information) which ne ed 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 d oes 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.
Commonwealth v. Bryant , 866 A.2d 1143, 1146 (Pa.Super. 2005), appeal

denied , 583 Pa. 668, 876 A.2d 392 (2005) (quoting Commonwealth v.

Phinn , 761 A.2d 176, 181 (Pa.Super. 2000)).

A n “ investigative detention ” is interchangeably labeled as a “ stop and

frisk ” or a “ Terry stop.” Commonwealth v. Brame , 239 A.3d 1119
(P a.Super. 2020), appeal denied , ___ Pa. ___, 251 A.3d 771 (2021)

.

An investigative detention, unlike a mere encounter, constitutes a seizure of a person and thus activates the protections of Article 1, Section 8 of the Pennsylvania Constitution. To institute an investigative detention, an officer must have at least a re asonable suspicion that criminal activity is afoot. Reasonable suspicion requires a finding that based on the available facts, a person of reasonable caution would believe the intrusion wasJ

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- appropriate.

* * *
Reasonable suspicion exists only w here the officer is able to articulate specific observations which, in conjunction with reasonable inferences derived from those observations, led him reasonably to conclude, in light of his experience, that criminal activity was afoot and that the person he stopped was involved in that activity.

Commonwealth v. Jones , 874 A.2d 108, 116 (Pa.Super. 2005) (internal
citations omitted).
“[W] hen an officer detains a vehicle for violation of a traffic law, it is
inherently reasonable that he or she be conce rned with safety and, as a result,
may order the occupants of the vehicle to alight from the car .”

Commonwealth v. Brown , 654 A.2d 1096, 1102 (Pa.Super. 1995), appeal

denied , 544 Pa. 642, 664 A.2d 972 (1995)

. During a traffic stop, the officer

“ may ask the detainee a moderate number of questions to determine his
identity and to try to obtain information confirming or dispelling the officer ’ s
suspicions .” Commonwealth v. Wright , 224 A.3d 1104, 1109 (Pa.Super.

2 019), appeal denied , ___ Pa. ___, 237 A.3d 393 (2020). “[F]or their safety,
police officers may handcuff individuals during an investigative detention.”

Id. (quoting Commonwealth v. Harris , 176 A.3d 1009, 1021 (Pa.Super.
2017)).
“The key difference bet ween an investigative and a custodial detention

is that the latter ‘involves such coercive conditions as to constitute the
functional equivalent of an arrest.’” Commonwealth v. Gonzalez , 979 A.2dJ

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879, 887 (Pa.Super. 2009) (quoting Commonwealth v. Pakacki , 587 Pa.
511, 519, 901 A.2d 983, 987 (2006)).

The court considers the totality of the circumstances to determine if an encounter is investigatory or custodial, but the following factors are specifically considered: the basis for the detention; the durati on; the location; whether the suspect was transported against his will, how far, and why; whether restraints were used; the show, threat or use of force; and the methods of investigation used to confirm or dispel suspicions.

An arrest or “custodial detention” must be supported by probable cause:

Probable cause is made out when the facts and circumstances which are within the knowledge of the officer at the time of the arrest, and of which he has reasonably trustworthy information, are su fficient to warrant a [person] of reasonable caution in the belief that the suspect has committed or is committing a crime. The question we ask is not whether the officer ’ s belief was correct or more likely true than false. Rather, we require only a prob ability, and not a prima facie showing, of criminal activity. In determining whether probable cause exists, we apply a totality of the circumstances test.
Commonwealth v. Goldsborough , 31 A.3d 299, 306 (Pa.Super. 2011) , appeal denied , 616 Pa. 651, 49 A .3d 442 (2012) (internal citations omitted).
Instantly, Appellant does not dispute th e propriety of the initial traffic
stop

. See 75 Pa. C.S.A. § 4524(e)(1) (stating vehicle cannot have window tint

that obstructs view into vehicle through windshield, side wing or side window)

. Regarding Appellant’s subsequent interaction with law enforcement, Trooper
Highhouse provided ample testimony about what occurred during the traffic
stop

. Specifically, the trooper testified that Appellant “pulled into a parkingJ

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stall,” and the trooper “approached the driver’s side of the vehicle

. ” (N.T.
Suppression Hearing, 2/17/21, at 9 ). As he approached, Trooper Highhouse
noticed the odor of marijuan a by the time he reached “ the rear quarter panel
of the vehicle[

. ] ” ( Id. at 12).
The trooper reached t he driver’s side window , which was up , and t he
trooper could not see into the vehicle. ( See id. at 10). Trooper Highhouse
requested that Appellant ro ll down the window , and Appellant complied. ( Id. )
Trooper Highhouse informed Appellant that he had stopped the vehicle due to
its window tint. ( Id. ) Appellant then rolled the window back up. ( Id. at 11).
Trooper Highhouse requested that Appellant lower the window again and
provide his driver’s license, registration, and proof of insurance. ( Id. ) When
Appellant lowered the window, Trooper Highhouse observed that “his eyes
were watery” and red. ( Id. at 13).
Significantly, Appellant was uncooperative throughout the interacti on with the trooper :

Upon initial contact, [Appellant] was argumentative. He wanted to argue the reason for the stop and as we progressed through the stop, he became more a nd more agitated. When I advised him of the odor of marijuana that I smelled inside the vehicle and the actions I was going to take, he became more agitated.
( Id. at 12

- 13 ).
Based upon the foregoing , Trooper Highhouse ordered Appellant to step

out of the vehicle. ( Id. at 15). Trooper Highhouse described what happened

next:J

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- Initially, he did not comply. I advised him several times to step

— turn off the vehicle. He failed to comply with that. I then manually opened the door myself so that he and I

— that I could see inside of the vehicle for my safety and I advised him to step out of the vehicle several times. I also advised him to unbuckle his seat belt several times, and it wasn’t until I began reaching in the vehicle myself to extract him that he began to comply.
( Id. at 16).
Trooper Highhouse frisked Appellant for weapons, handcuffed Appellant,
and placed him in the back of the patrol car. ( Id. at 16

- 17). Trooper
Highhouse explained his decision to place Appellant in the patrol car as

follows:
I was going to proceed by first searching the vehicle based

on the probable cause search. Also giving

— obviously my presence was agitating [Appellant], and I was try ing to create a distance between myself and him to allow him to calm down, to allow his emotions to calm down, and ultimately give him

— give him a chance to reevaluate the situation.
( Id. at 19

- 20). After searching Appellant’s vehicle, Trooper Highhouse
returned to Appellant in the patrol car. At that time, the trooper advised
Appellant of his Miranda right s and “attempted to explain to him the reason,
the actions I took and why I took them.” ( Id. a t 22).
Regarding Appellant’s argument that he was subjected to a custodial
detention at this point, t he suppression court considered the trooper’s
testimony and concluded that the investigative detention had not yet ended :

Here, Appellant was pulled ov er because the troopers observed that his vehicle’s window tint possibly exceeded the amount permitted by law, and they decided toJ

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- investigate the tint level by way of a traffic stop. After initiating the traffic stop, the odor of marijuana was readily ap parent to the troopers. Appellant, who was uncooperative and at times defiant toward the troopers during their interaction, was properly removed from his vehicle and placed in the back seat of the troopers’ vehicle, for a brief period of time, in order to both protect officer safety and allow Appellant to calm down before the troopers continued their investigation and asked him to perform standard field sobriety tests. Further, Appellant was read the Miranda warnings out of an abundance of caution prior to Appellant beginning the standard field sobriety tests, rather than because he was under arrest at that time.
(Trial Court Opinion at 6

- 7 ). Thus, the court concluded t hat the interaction

did not rise to the level of a custodial detention prior to the performance of
the field sobriety tests. ( See id. at 9).
Here, the suppression court’s factual findings are supported by the

record , and its legal conclusions drawn from those facts are correct. See

Ford , supra

. We emphasize that Trooper Highhouse ’s testimony revealed a

tense interaction between a citizen and law enforcement . Under such

circumstances , the relevant case law recognizes an officer’s safety concerns.
See Wright, supra ; Brown, supra

. Consequently, Trooper Highhouse
legally ordered Appellant to step out of the vehicle. See Brown, supra

. Likewise, the trooper was authorized to handcuff App ellant while the
investigative detention continued. See Wright, supra . To the extent
Appellant also complains that the Miranda warnings elevated the interaction
to the level of a custodial detention, this was just one factor under the totality

of the circumstances. See Goldsborough , supra

. See alsoJ

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Commonwealth v. Douglass , 539 A.2d 412, 423 n.9 (Pa.Super. 1988)
(stating recitation of Miranda warnings, by itself, does not render
investigative detenti on custodial). Accordingly, we affirm the judgment of

sentence.
Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 10 / 2 0 /2022