J-A19026-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

Appellee

v.

ELIJAH MALIK HALL DAY 

Appellant

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 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 of 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, when his vehicle 

was observed by Pennsylvania State Police Troopers David 

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* 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. 
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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 parking 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 Appellant 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 before the continuation 

of the on-scene investigation. While Appellant was in the 

rear of the troopers’ vehicle, a warrantless search of the 

vehicle was performed7 and the vehicle’s window tint was 

measured, with the window tint level being in excess of the 

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) was announced, establishing 

that a warrantless vehicle search required both 

probable cause and exigent circumstances 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 to 

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 

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2 Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). 
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was impaired while driving. ... As a result, Appellant was 

placed under arrest 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 permitted 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 physically 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 suspicion or an educated hunch.” (Id. at 13). 

Appellant posits that there were two occasions when he was effectively under 

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3 Appellant also acknowledges that his issues are “interrelated,” and he

addresses the issues together in the argument section of his brief. (See

Appellant’s Brief at 13). 
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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 this case may 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 concludes 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 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 
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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. 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 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. 

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)). 

An “investigative detention” is interchangeably labeled as a “stop and 

frisk” or a “Terry stop.” Commonwealth v. Brame, 239 A.3d 1119 

(Pa.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 reasonable 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 was 
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appropriate. 

* * *

Reasonable suspicion exists only where 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 concerned 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. 

2019), 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 between 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.2d 
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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 duration; 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 sufficient 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 probability, 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 the 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 parking 
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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 marijuana by the time he reached “the rear quarter panel 

of the vehicle[.]” (Id. at 12). 

The trooper reached the driver’s side window, which was up, and the 

trooper could not see into the vehicle. (See id. at 10). Trooper Highhouse 

requested that Appellant roll 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 interaction

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 and 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: 
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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 trying 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 rights and “attempted to explain to him the reason, 

the actions I took and why I took them.” (Id. at 22). 

Regarding Appellant’s argument that he was subjected to a custodial 

detention at this point, the suppression court considered the trooper’s

testimony and concluded that the investigative detention had not yet ended: 

Here, Appellant was pulled over because the troopers 

observed that his vehicle’s window tint possibly exceeded 

the amount permitted by law, and they decided to 
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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 

apparent 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 that 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 Appellant 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 also 
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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 detention custodial). Accordingly, we affirm the judgment of 

sentence. 

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 10/20/2022