J-S42021-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA 

Appellant

v.

JESSICA AMBER FROEHLICH

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 606 WDA 2022

Appeal from the Suppression Order Entered April 22, 2022

In the Court of Common Pleas of Erie County Criminal Division at No(s): 

CP-25-CR-0002135-2021

BEFORE: BOWES, J., OLSON, J., and COLINS, J.*

DISSENTING MEMORANDUM BY BOWES, J.: FILED: December 22, 2023

I agree with the learned majority that the patrolmen in this case were 

permitted to seize the firearm from Appellee. However, since I cannot agree 

that our case law requires law enforcement officers who are investigating 

illegal activity to return firearms without checking the owner’s licensure status

in a manner that does not prolong a valid traffic stop, I respectfully dissent.

I begin with an overview of the relevant precedent. In Rodriguez v. 

United States, 575 U.S. 348, 350 (2015), the Supreme Court of the United 

States was presented with “the question [of] whether the Fourth Amendment 

tolerates a dog sniff conducted after completion of a traffic stop.” In 

considering this question, the Court outlined the parameters of police 

authority during traffic stops:

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* Retired Senior Judge assigned to the Superior Court.
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A seizure for a traffic violation justifies a police investigation of 

that violation. A relatively brief encounter, a routine traffic stop 

is more analogous to a so-called Terry v. Ohio, 392 U.S. 1 

(1968), stop than to a formal arrest. Like a Terry stop, 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.

. . . . 

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 354-55 (cleaned up). 

The Rodriguez Court distinguished these mission-related purposes with 

the dog sniff at issue in that case, which it classified as “a measure aimed at 

detecting evidence of ordinary criminal wrongdoing” and therefore “not fairly 

characterized as part of the officer’s mission” during a traffic stop. Id. at 355-

56 (cleaned up). It also distinguished the dog sniff from the “[h]ighway and 

officer safety” concerns “stem[ming] from the mission of the stop itself” that

may require an officer “to take certain negligibly burdensome precautions in 

order to complete his mission safely.” Id. at 356-57 (cleaned up). Ultimately, 

the Court reasoned that the dog sniff could not be justified on the same basis 
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as an order to exit the car, even if the levels of intrusion were identical. Id. 

Rather, the Court determined that “[t]he critical question, then, is not whether 

the dog sniff occurs before or after the officer issues a ticket, . . . but whether 

conducting the sniff prolongs—i.e., adds time to—the stop.” Id. at 357 

(cleaned up). Thus, the Court held as follows:

[A] police stop exceeding the time needed to handle the matter 

for which the stop was made violates the Constitution’s shield 

against unreasonable seizures. A seizure justified only by a 

police-observed traffic violation, therefore, becomes unlawful if it 

is prolonged beyond the time reasonably required to complete the 

mission of issuing a ticket for the violation.

Id. at 350-51 (cleaned up).

Thereafter, in Commonwealth v. Hicks, 208 A.3d 916 (Pa. 2019), our

Supreme Court overturned a longstanding rule, first announced by this Court 

in Commonwealth v. Robinson, 600 A.2d 957, 959 (Pa.Super. 1991), that 

“‘possession of a concealed firearm by an individual in public is sufficient to 

create a reasonable suspicion that the individual may be dangerous, such that 

an officer can approach the individual and briefly detain him in order to 

investigate whether the person is properly licensed.’” Hicks, supra at 921 

(quoting Robinson, supra at 959). In that case, Hicks was not engaged in 

any illegal activity, but was merely viewed with a firearm.1 The High Court 

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1 Respectfully, I disagree with the majority’s conclusion that Appellee “stood 

in the same position” as Hicks “[i]n all material respects.” Majority at 22. The 

police engaged with Hicks solely on the basis that he was seen with a firearm

and there was a presumption, at that time, that possession was illegal until 

proven otherwise. Here, however, the police engaged with Appellee because 

she was a passenger in a vehicle that was properly stopped in a high crime

(Footnote Continued Next Page)
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noted that “an individual licensed to carry a firearm may do so in public, openly 

or concealed, within a vehicle or without, throughout every municipality in 

Pennsylvania.” Id. at 926. It also expressly rejected the Commonwealth’s 

position that police officers were “duty bound to seize and investigate the 

licensing status of every individual who carries a concealed firearm in 

Pennsylvania.” Id. at 932 (cleaned up). The Court explained that it was 

overruling Robinson because that “holding facially contravene[d] established 

law . . ., demand[ed] no suspicion of criminal activity—let alone individualized 

suspicion—and countenance[d] a sweeping and unjustified expansion of the 

authority of law enforcement to seize persons upon the basis of conduct that, 

standing alone, an officer cannot reasonably suspect to be criminal.” Hicks, 

supra at 947.

Subsequently, this Court decided Commonwealth v. Malloy, 257 A.3d 

142 (Pa.Super. 2021). In Malloy, an officer stopped a vehicle based upon 

the improper placement of a license plate. Malloy was a passenger in the 

vehicle. When asked for identification, Malloy produced a lanyard, which the 

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area in the middle of the night. Accordingly, I do not find the facts in 

Commonwealth v. Hicks, 208 A.3d 916 (Pa. 2019), analogous to this case.

The majority also likens the instant matter to Commonwealth v. Kemp, 961 

A.2d 1247 (Pa.Super. 2008). See Majority at 23. Our discussion in Kemp

involved whether “facts gathered during a valid traffic stop can. . . be utilized 

to justify an investigatory detention occurring after a police officer has 

indicated that a defendant is free to leave.” Kemp, supra at 1260 (cleaned 

up). Accordingly, I find Kemp distinguishable as the present case did not 

involve escalating phases of interaction. Instead, all of the police conduct at 

issue occurred during the initial, valid, traffic stop.
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officer associated with an individual working as an armed security guard, and 

therefore the officer asked whether he had a firearm. Malloy responded 

affirmatively that the firearm was located on his hip. For safety, the officer 

asked him to exit the vehicle so he could secure the firearm, and then asked 

him for his firearms credentials. During the ensuing fifteen to twenty minutes, 

the officer conducted various checks with local detectives and the 

Pennsylvania State Police to determine whether Malloy had a valid license to 

carry. He was arrested after they determined that he did not. Id. at 145-46. 

In denying suppression in Malloy, the trial court first concluded that, 

pursuant to Rodriguez, the checks run by the officer during the traffic stop 

were permissible. This Court rejected that conclusion:

[N]either the trial court nor the Commonwealth cite legal authority 

which equates an investigation of a passenger’s documented 

authority to carry a firearm to the incidental inquiries permitted 

during a lawful traffic stop under Rodriguez and which promote 

safe and financially responsible operation of motor vehicles. More 

tellingly, neither the trial court nor the Commonwealth offer any 

explanation as to how or why a passenger’s firearms licensure 

status relates to these incidental inquiries or, more broadly, to the 

safe and financially responsible operation of a motor vehicle in 

general. We are convinced that a passenger’s legal authority to 

own or possess a firearm is simply unrelated to a driver’s authority 

to operate a motor vehicle, the existence of outstanding warrants 

against the driver, and whether a lawfully detained vehicle is 

properly registered or insured. As such, we reject the trial court’s 

conclusion that [the officer’s] request for [Malloy’s] documented 

firearms authorization could be pursued as incidental to the traffic 

stop herein.

We also reject the suggestion that [the officer’s] request fell within 

the limited class of minimally intrusive and permitted demands 

police officers may make, out of concern for officer safety and 

without independent justification, during the course of a lawful 
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traffic stop. [Malloy] forwards no claim that [the officer] lacked 

authority to ask for identification, to inquire about the presence of 

weapons, to request that Appellant exit the vehicle, or to demand 

that [he] surrender his firearm for the duration of the stop. 

Moreover, our reading of the transcript reveals that [the officer] 

secured [the] firearm without incident before requesting that 

[Malloy] produce documentation that the firearm was lawfully in 

his possession. [The] seizure of the firearm essentially eliminated 

any immediate risk the weapon posed to law enforcement 

personnel, bystanders, and occupants of the vehicle for the 

duration of the stop and transformed the officer’s pursuit of 

[Malloy’s] firearms credentials into an inquiry exclusively aimed at 

collecting evidence of collateral wrongdoing. See Rodriguez, 

575 U.S. at 355. Put differently, once [the officer] secured the 

firearm, [Malloy’s] legal authority to own or possess a gun clearly 

bore no discernible relationship to individual safety or security 

within the context of the traffic stop. Under these circumstances, 

where seizure of a firearm has substantially diminished the risk to 

officers and others who may be present during a lawful vehicle 

detention, we see no reason why the Fourth Amendment, in the 

absence of independent justification, suspicion, or cause, should 

tolerate even a 10- to 15-minute extension of a routine traffic stop 

for the investigation of a secondary criminal matter. Hence, the 

request challenged in this case does not fall within the category of 

actions the police may undertake during a lawful traffic stop based 

solely on concerns for safety and security and without 

independent justification or cause.

Malloy, supra at 152-53 (cleaned up).

Finally, I find guidance from this Court’s recent decision in 

Commonwealth v. Ross, 297 A.3d 787, 792 (Pa.Super. 2023). Ross was 

pulled over for driving with an inoperable brake light. In running his license 

and registration, the officer learned that, while there were no problems with 

either of those, his license to carry a firearm had been revoked. Before 

returning his license, the officer asked Ross whether he had a firearm, to which 

he replied in the affirmative. The officers secured the firearm and arrested 
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Ross. The entire stop lasted approximately ten minutes. Id. at 790. The trial 

court ultimately granted Ross’s motion to suppress, concluding that the 

questioning exceeded the scope of the traffic stop and extended the 

reasonable time needed to issue a traffic citation. Id. at 794-95. 

Upon review, this Court disagreed with the trial court. We observed that 

“the constitutionality of mission-specific questions, including those related to 

the safety of the officer, during a traffic stop, and the determination of . . . 

when tasks tied to the traffic stop are completed or reasonably should have 

been completed, is fact specific.” Id. at 798. In Ross, that fact-specific 

analysis resulted in a conclusion that “the valid traffic stop was ongoing at the 

time [the officer] asked whether Ross possessed a firearm because he had not 

concluded the stop with a warning or citation or indicated that Ross could 

leave.” Id. at 795 (cleaned up). Additionally, we held that the officer “in no 

way unnecessarily prolonged the stop, as he completed his routine check of 

the various databases and asked the question after he walked back to Ross’s 

vehicle while holding Ross’s license.” Id. (cleaned up). Since the stop was 

still ongoing, the officer was permitted to inquire about the presence of 

firearms. Id.

As to the officer’s safety concerns, we observed that “the interest in the 

safety of law enforcement officers outweighs the de minimus intrusion to the 

individual who is asked to step outside a lawfully stopped motor vehicle[, and] 

the asking of an additional question or two about a firearm was less intrusive 
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than the order to exit the vehicle[.]” Id. at 796-97 (cleaned up). Indeed, 

this Court elaborated on officer safety concerns during traffic stops:

It bears emphasizing that balancing the constitutional rights of 

motorists, the public protection objectives, and police officer 

safety is difficult, especially in the context of rapidly evolving 

traffic stops. One particular concern for officers during a traffic 

stop is the proliferation of guns, including the substantial increase 

in the number of people possessing firearms, the rise in mass 

shootings, and the ability to carry a concealed weapon in vehicles 

in Pennsylvania. Clearly, neither the United States Constitution 

nor the Pennsylvania Constitution require officers to gamble with 

their personal safety during traffic stops. Therefore, in the context 

of traffic stops, police officers may take reasonable precautions 

when the circumstances give rise to legitimate safety concerns.

Id. at 797–98. 

The Ross Court distinguished Ross’s scenario from that in Malloy, 

focusing on the fact that the officer’s safety in Malloy was secured by the 

seizure of the firearm, and therefore the subsequent inquiry into Malloy’s 

licensure status was improper. Ross, supra at 797.

In light of the foregoing precedent, I find it appropriate to apply a factspecific test to determine whether the permit check ran afoul of Appellee’s 

constitutional rights. In this case, the traffic stop occurred at approximately

2:30 a.m. in a high crime area known for “shots fired.” See N.T. Hearing, 

12/14/21, at 6, 12-13, 31. In addition, the vehicle was known to the police 

for being involved in prior incidents. Id. at 36. On that night, the vehicle was 

stopped by two patrolmen because the vehicle’s license plate was expired. 

Id. at 5. There were three individuals in the vehicle, a female driver, a female 

front-seat passenger, and Appellee, seated in the rear. Id. at 6. As the 
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patrolmen spoke to the three occupants, one of them observed a firearm in 

the back pocket of the front passenger’s seat, directly in front of Appellee. Id. 

at 9. Upon inquiry, Appellee acknowledged that the firearm was hers. Id. at 

10. One patrolman seized the firearm and rendered it safe for the remainder 

of the traffic stop, while the other asked Appellee whether she had a firearm 

permit. Id. at 10, 26-27. Appellee stated that she did, but not with her. Id. 

at 27-28. Therefore, the patrolmen ran through dispatch the driver’s licenses 

of both the driver and Appellee and checked the status of the firearm. Id. at 

28-29. As a result, the patrolmen determined that Appellee’s conceal-carry 

permit had been revoked. Id. at 12. The entire traffic stop lasted less than 

eleven minutes. Id. at 13-14, 31.

Unlike in Malloy, the firearm at issue was immediately visible to the 

police officers and the traffic stop here was not prolonged by the ensuing 

permit check. Rather, as in Ross, my review of the certified record confirms 

that the traffic stop remained ongoing at the time the patrolmen checked the 

permit status. During the eleven-minute stop, the patrolmen ran multiple 

checks simultaneously to ascertain the status of: (1) the driver of the vehicle’s 

driver’s license; (2) Appellee’s concealed-carry permit; and (3) whether the

firearm was stolen. See N.T. Hearing, 12/14/21, at 28, 37. 

Our case law clearly permits police to check the status of a driver’s 

license and ask passengers for identification. See Rodriguez, supra at 355; 

Commonwealth v. Campbell, 862 A.2d 659, 665 (Pa.Super. 2004). 
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Moreover, our Court has discerned no violation where a police officer ran a 

passenger’s identification through the system to check for outstanding 

warrants. See Commonwealth v. Galloway, 265 A.3d 810, 816-17 

(Pa.Super. 2021) (observing, without concern, that the officer had taken the 

passenger’s identification information and ran it for warrants during the traffic 

stop, and the results of that check formed, in part, the basis for an extension 

of the stop to ask the passenger additional questions). Finally, we have held:

It would be incongruous to permit an officer to order the driver 

out of his vehicle pursuant to a lawful stop in order to diminish the 

likelihood that the officer will be attacked with a concealed 

weapon, but not permit the officer to order the passengers out of 

a lawfully stopped vehicle, when those passengers present the 

same risk of attack and have the same access to concealed 

weapons. 

Commonwealth v. Brown, 654 A.2d 1096, 1102-03 (Pa.Super. 1995) 

(cleaned up).

In all, Appellee was advised that her permit was invalid ten minutes and 

thirty seconds into the traffic stop, before the reason for the stop had expired. 

Id. at 11, 31. Based on the foregoing authority, and finding that there was 

no unreasonable extension of the valid traffic stop in this case, I would 

conclude that the patrolmen’s actions did not run afoul of our case law and do 

not warrant suppression. See Ross, supra at 798 (“Because we conclude 

that the concerns for the safety of the officers justified the proportional 

intrusion on Ross, the motion to suppress should have been denied.”); 

Rodriguez, supra at 350-51 (“[A] police stop exceeding the time needed to 
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handle the matter for which the stop was made violates the Constitution’s 

shield against unreasonable seizures. A seizure justified only by a policeobserved traffic violation, therefore, becomes unlawful if it is prolonged 

beyond the time reasonably required to complete the mission of issuing a 

ticket for the violation.” (cleaned up)).

While I find this matter factually distinguishable from Malloy and would 

reverse on that basis, I must admit to being troubled by the holding in Malloy. 

While it concedes that the safety risks of a traffic stop are secured by the 

seizure of a firearm, it then demands that the firearm must, at some point, be 

returned by the officers before the safety concerns can be fully addressed.

Respectfully, I believe such a rule to be untenable. Practically speaking, to 

suggest that an officer cannot explore the legality of the possession of a 

firearm seized during a valid traffic stop for safety begs the question: are 

they just supposed to give it back to the individual when the stop is concluded 

without ascertaining whether the owner is entitled to possess it? Surely if 

officer safety permits the intrusive action of seizing the firearm, the same 

safety concerns must allow the unintrusive act of extending the valid stop for 

a minimal amount of time to ensure the officers are not re-arming someone 

barred from carrying a firearm while the officers remain vulnerable. 

Contrary to the Majority’s characterization, I am not “avoid[ing] 

suppression by raising claims of police policy.” Majority at 21. I believe it 

prudent to consider the practical applications of our holdings and, accordingly, 
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deem it our duty to consider what police officers can and cannot do in 

situations like the one presently before us. To that end, I observe that an 

inquiry into the legality of a firearm seized during a valid traffic stop can

readily be completed in a timely manner that does not prolong the stop. If it 

does prolong the stop unreasonably, then it runs afoul of Rodriguez and 

suppression may be warranted.2 Where it does not, however, Rodriguez

instructs that “negligibly burdensome precautions” must be permitted. 

Rodriguez, supra at 356. Otherwise, we are left with caselaw that permits 

officers to inquire about firearms during traffic stops and to seize any firearms 

temporarily for officer safety but prohibits them from determining whether the 

owner of the firearm may lawfully possess it before returning it at the 

conclusion of the stop.

Thus, pursuant to Malloy, an officer conducting a traffic stop where a 

firearm is present is faced with a no-win scenario. If she decides to run a 

firearm permit check during a valid traffic stop without prolonging the 

interaction, she nonetheless risks the possibility of suppression of any 

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2 To be clear, I do not agree with the Commonwealth’s position that police are 

duty-bound to investigate the licensure status of every individual encountered 

who happens to be in possession of a firearm. See Majority at 25 (ascribing

to me the “radical position” that the Commonwealth contended, requiring 

police “to seize and investigate the licensing status of every individual who 

carries a concealed firearm in Pennsylvania” (cleaned up)). As I already 

explained, our Supreme Court expressly rejected that position in Hicks, 

supra at 932, and I have taken that holding into consideration in applying the 

relevant precedent to the facts presently before this Court in this case. 
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contraband discovered thereafter. On the other hand, if the officer decides

not to run a check, she risks her safety by potentially returning a firearm to 

an individual who may have had their license to carry revoked for wrongdoing

and who has every incentive to avoid being arrested for the firearm violation. 

I find this non sequitur troubling as it is an overextension of the holdings in 

Rodriguez and Hicks, and incompatible with the fact-specific nature of these 

cases.

As I would reverse the order and remand for further proceedings for 

these reasons, I must respectfully lodge this dissent.