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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

Appellee :

:

v. :

:

KASEIM WHITNEY, :

:

Appellant : No. 2941 EDA 2013

Appeal from the Judgment of Sentence entered on Nove mber 17, 2011

in the Court of Common Pleas of Chester County,

Criminal Division, No. CP- 15

- CR -0001355-2010

BEFORE: FORD ELLIOTT, P.J.E., MUNDY and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.: FILED SEPTEMBER 05, 2014

Kaseim Whitney (“Whitney”) appeals from the judgment of sentence

imposed after he was convicted of possession with intent t o deliver a

controlled substance (“PWID”), firearms not to be carried without a license,

possession of a firearm with an altered manufacturer’s n umber, 1 

### as well as

the summary offense of turning movements and required signals. 2 

### We

affirm.

The trial court extensively set forth the facts and proce dural history

1 

### See 35 P.S. § 780-113(a)(30); 18 Pa.C.S.A. §§ 6106(a)( 1), 6110.2.

2 

### See 75 Pa.C.S.A. § 3334(a).

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underlying this appeal in its Opinion, which we adop t herein by reference.

See Trial Court Opinion, 8/31/10, at 1- 24. 3



### Following a hearing, the suppression court entered an Order denying

Whitney’s Motion to Suppress. The matter then proceede d to a non -jury

trial, at the close of which the trial court found Whit ney guilty of the abovementioned charges.

Subsequently, on November 17, 2011, the trial court se ntenced

Whitney, on his PWID conviction, to a statutory term o f five years in prison,

and ordered him to pay the mandatory fine of $50,00 0. The court imposed

a consecutive sentence of nine months to three years in pr ison for the

conviction of possession of a firearm with an altered man ufacturer’s number,

and a concurrent sentence of eighteen months to three ye ars for the

firearms not to be carried without a license conviction. The court imposed

no further penalty for W hitney’s summary conviction of turning movements

and required signals. Whitney’s counsel did not timel y file a direct appeal.

Following a procedural history that is not relevant to this appeal, on

August 6, 2013, Whitney filed a pro se Petition under the Post Conviction

Relief Act (“PCRA”), 4 

### seeking reinstatement of his direct appeal rights, nunc

pro tunc . The PCRA court granted relief, permitting Whitney to file an

appeal nunc pro tunc , and appointing him counsel. Whitney timely filed a

3 

### We note that the quantity of marijuana that the pol ice found in Whitney’s

car was approximately 64 pounds.

4 

### See 42 Pa.C.S.A. §§ 9541-9546.

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Notice of Appeal. In response, the trial court ordered Whitney to file a

Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal, and

Whitney timely filed a Concise Statement.

On appeal, Whitney presents for our review the follow ing issues

challenging the denial of his Motion to Suppress:

I. Does [] Whitney, an unauthorized driver of a rental

vehicle, have standing to challenge the search of the re ntal

vehicle and his belongings contained therein?

II. Was the stop of [] Whitney’s vehicle pretextual and, if so,

did the trial court err in failing to suppress physical

evidence and [] Whitney’s statements?

III. Did the trial court err in failing to suppress physical

evidence and [] Whitney’s statements after [] Whitney w as

told he was free to leave?

IV. If this was an investigatory detention, did [the] tri al court

err in finding that there was reasonable and articulab le

suspicion to support such detention?

V. Was [] Whitney’s consent to search his belongings

voluntary or was it a product of an unjustified investi gatory

detention unsupported by reasonable suspicion that

criminal activity was afoot?

Brief for Appellant at 4.

In reviewing the suppression court’s denial of Whitney’s Motion to

Suppress, we are mindful that

our role is to determine whether the record supports th e

suppression court’s factual findings and the legitimacy of the

inferences and legal conclusions drawn from those finding s. In

making this determination, we may consider only the ev idence of

the pros ecution’s witnesses and so much of the defense as, fairly

read in the context of the record as a whole, remains

uncontradicted. When the evidence supports the factual findings

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of the suppression court, we may reverse only if there is an error

in the legal conclusions drawn from those factual findi ngs. As a

reviewing court, we are therefore not bound by the l egal

conclusions of the suppression court and must reverse that

court’s determination if the conclusions are in error or the law is

misapplied.

Commonwealth v. Page

, 59 A.3d 1118, 1131 (Pa. Super. 2013) (brackets

and citation omitted).

The Fourth Amendment to the United States Constituti on and Article 1,

Section 8 of the Pennsylvania Constitution protect indi viduals from

unreasonable searches and seizures. U.S. Const. amend. IV ; Pa. Const. art.

1, § 8. Generally, law enforcement must obtain a war rant prior to

conducting a search; however, there are certain exceptio ns to the warrant

requirement. Commonwealth v. Lagenella , 83 A.3d 94, 102 (Pa. 2013).

One such exception, implicated in the instant case, is a consensual search.

Commonwealth v. Caban

, 60 A.3d 120, 127 (Pa. Super. 2012).

[T]he central inquiries in consensual search cases entail

assessment of the constitutional validity of the citizen/ police

encounter giving rise to the consent, and the voluntar iness of

the consent given. To establish a valid consensual search, the

Commonwealth must first prove that the individual con sented

during a legal police interaction. Where the underly ing

encounter is lawful, the voluntariness of the consent b ecomes

the exclusive focus.

Id. (citations omitted).

Regarding Whitney’s first issue, the Commonwealth concedes that he

has standing to challenge the legality of the traffic stop and search of the

rental v ehicle, and we agree with the Commonwealth’s assessment

.

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In his second issue, Whitney argues that the stop of his vehicle was

unlawful, and all of the evidence produced as a result of the stop must be

suppressed because the stop was pretextual in nature, as T rooper Justin

Hope (“Trooper Hope”) inappropriately followed and sto pped Whitney’s

vehicle in order to conduct a warrantless search of its cont ents. See Brief

for Appellant at 24-29. Whitney points out that Tr ooper Hope conceded at

the suppression hearing that (1) the sole reason he had decided to pursue

Whitney’s vehicle was because it was a rental vehicle; an d (2) Trooper Hope

followed Whitney for approximately thirteen miles to see if he would commit

a Motor Vehicle Code (“Vehicle Code”) violation, which would provide

Trooper Hope grounds to stop the vehicle and investigat e whether Whitney

was involved in criminal activity. See id. at 24-25 (citing N.T., 6/22/10, at

76 (wherein Trooper Hope testified that “I needed to observe a violation,

because t hat was my goal, to try to find a violation to stop that vehicle[.]”)).

The undisputed evidence establishes that Trooper Hope’s stop of

Whitney’s vehicle was clearly pretextual. However, a traffic stop that is

merely a pretext for some other investigation does not automatically require

the suppression of evidence found after the traffic stop. Whren v. U.S.

,

517 U.S. 806, 812-13 (1996). In Whren , the United States Supreme Court

established a bright-line rule that any technical viol ation of a traffic code

legitimizes a stop, even if the stop is merely a pretex t for an investigation of

some other crime. Id. ; see also Arkansas v. Sullivan , 532 U.S. 769, 772

(2001) (holding that a traffic violation arrest will not be rendered invalid by

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the fact that it was a mere pretext for a narcotics search ); U.S. v.

Robinson , 414 U.S. 218, 221 n.1 (1973). This is true even if , as in the

instant case, the Vehicle Code violation witnessed is a m inor offense.

Commonwealth v. Chase , 960 A.2d 108, 113 (Pa. 2008) (stating that

“[t]he Fourth Amendment does not prevent police from st opping and

questioning motorists when they witness or suspect a violat ion of traffic

laws, even if it is a minor offense.”). Moreover, the Whren Court explained

that the “[s]ubjective intentions [of the officer] play no role in ordinary,

probable- cause Fourth Amendment analysis.” Whren , 517 U.S. at 813; see

also Chase , 960 A.2d at 120 (stating that, “[i]f police can arti culate a

reasonable suspicion of a Vehicle Code violation, a con stitutional inquiry into

the officer’s motive for stopping the vehicle is unnecessa ry.”).

Here, although Whitney strenuously challenges the pret extual nature

of the stop, he does not dispute that he violated sectio n 3334(a) of the

Vehicle Code by changing lanes of travel without using his vehicle’s turn

signal. See Brief for Appellant at 25, 31. Moreover, Whitney concedes that

the case that he relies upon in support of his argumen t, U.S. v. Hernandez

,

55 F.3d 443 (9th Cir. 1995), was effectively overrule d by Whren

, see Brief

for Appellant at 27. In any event, Hernandez is not binding precedent for

this Court. See Commonwealth v. Dunnavant

, 63 A.3d 1252, 1255 n.2

(Pa. Super. 2013) (emphasizing that “[w] hile decisions of the lower federal

courts have a persuasive authority, they are not bind ing on Pennsylvania

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courts[.]”). Moreover, we are unpersuaded by Whitney’s attempts to avoid

the applicability of the holding in Whren by pointing to factual distinctions.

Accordingly, although we withhold comment regarding o ur opinion as

to the pretextual nature of the stop and Trooper Hop e’s pursuit of Whitney’s

vehicle for thirteen miles to observe a Vehicle Code vi olation, we must

conclude that the stop was legal.

Next, we will simultan eously address Whitney’s related third, fourth,

and fifth issues. Whitney argues that even if the stop of his vehicle was

legal, the physical evidence and his statements that wer e elicited as a result

of his detention were inadmissible and should have been suppressed as

being the product of an unreasonable search and seizure. See Brief for

Appellant at 14, 29-50. According to Whitney, the po lice interaction that

occurred after Trooper Hope had informed him that he was free to leave was

an unjustified inv estigative detention (as opposed to a “mere encounter”)

that was not supported by reasonable suspicion that Whi tney was engaged

in criminal activity. Id. Whitney summarizes his allegations in support of

this challenge as follows:

Having stopped [] Whitne y, Trooper Hope requested his driver’s

license and determined that it was valid and there we re no

outstanding warrants for [] Whitney. Upon learning that []

Whitney was not an authorized driver of the car, the trooper

returned [Whitney’s] license and tol d him he was free to leave

but he could not drive the car or walk on the turnpik e. []

Whitney was given the choice of calling his girlfriend t o pick him

up there or allowing the trooper to drive him to th e closest

interchange[,] where she could meet him. Essentially, []

Whitney was not free to leave. Within seconds of infor ming him

that he could leave, Trooper Hope, having been joine d by two

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more armed state troopers, began asking [] Whitney whe ther he

had anything illegal in the car. Given all of these circumstances,

[] Whitney did not believe he was free to leave and was the

subject of an investigative detention without reasonabl e

suspicion that he was involved in criminal activity.

Id. at 14; see also id. at 37 (asserting that “Whitney [was] not told that he

[did] not have to respond to Trooper Hope’s probing q uestions regarding

illegal substances in the rental vehicle. ... The questi oning [was] pointed

and unrelenting[,] with [] Whitney responding to eac h question in the

negative.”). Finally, Whitne y contends that his consent to the search was

invalid, as it was not voluntarily given and flowed f rom the illegal

investigative detention. Id. at 51.

In its Opinion, the trial court set forth the applicab le law and

addressed Whitney’s claims, concluding that (1) the police interaction, which

occurred after Whitney was told he was free to leave, co nstituted a mere

encounter, not an investigative detention; (2) even i f the interaction did not

constitute a mere encounter (and a reasonable person in Whitney’ s position

would not have felt free to leave), Trooper Hope’s q uestioning of Whitney

constituted an investigative detention supported by rea sonable and

articulable suspicion of criminal activity; and (3) the search of the vehicle

was lawful and Whitney’s c onsent to the search was voluntarily given. See

Trial Court Opinion, 8/31/10, at 35-57. Our review reveals that the trial

court’s thorough analysis is supported by the record and the law, and we

therefore affirm on this basis with regard to Whitney ’s rem aining issues.

See id.

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Accordingly, we conclude that the stop and search of Whitn ey’s vehicle

was lawful, and, therefore, the suppression court proper ly denied Whitney’s

Motion to Suppress.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

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