J-S23042-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA 

Appellant

v.

GARY J. COKE

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 183 MDA 2022

Appeal from the Order Entered January 6, 2022

In the Court of Common Pleas of Dauphin County 

Criminal Division at No(s): CP-22-CR-0002168-2021

BEFORE: STABILE, J., McLAUGHLIN, J., and COLINS, J.

MEMORANDUM BY COLINS, J.: FILED NOVEMBER 09, 2022

The Commonwealth appeals from the order that granted Gary J. Coke’s 

Omnibus Pretrial Motion to Suppress, which had the effect of suppressing “[a]ll 

evidence obtained from the unconstitutional Terry frisk of [Coke] and the 

illegal search of [his] vehicle[.]” Order, dated January 5, 2022. On appeal, the 

Commonwealth solely contends that the lower court erred in granting this 

motion because, in addition to Coke giving police officers consent to perform 

a search of his person and his automobile, those same officers acted with the 

requisite amount of probable cause and/or reasonable suspicion at all relevant 

points. We vacate the order granting suppression and remand for further 

proceedings.

Replicated in full from the suppression court:

____________________________________________

 Retired Senior Judge assigned to the Superior Court.
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On March 17, 2021, Officer Scott Gibson (hereinafter 

“Officer Gibson”) of the Swatara Township Police Department was 

in full uniform and parked in a fully marked K9 vehicle in the 

parking lot of Leeds Restaurant and Lounge on Eisenhower 

Boulevard when he received a call from Detective Day. Detective 

Day is a member of the Drug Task Force and stated that she was 

conducting surveillance in the parking lot of the Sleep In, which is 

caddy corner from Leeds Restaurant. She further informed Officer 

Gibson that she was watching an individual she knew as ‘Gary 

Coke’ (later identified as [d]efendant) who was driving a 2009 

Lincoln MKS with dark tint. Detective Day observed someone 

“come to the vehicle and then leave in a short time.”

A few minutes later, Officer Gibson saw [Coke’s] vehicle 

leave the Sleep Inn parking lot and travel north on Eisenhower 

Boulevard. Officer Gibson followed the vehicle for a short period 

and then conducted a traffic stop for a tint violation because he 

could not see the driver through the window. He approached the 

vehicle on the passenger side, asked the driver to roll down the 

window and informed [Coke] that the stop was for a tint violation. 

However, Officer Gibson did not issue [Coke] a citation for the 

illegal tint, nor did he measure the level of tint on the vehicle.

Officer Gibson testified that he immediately smelled an odor 

of marijuana from inside the vehicle, but did not “make a big deal 

about it at that point.” Based on the odor alone, Officer Gibson 

asked [Coke] to step out of the vehicle, and “hang out” with 

Detective Patrick Corkle (hereinafter “Detective Corkle”) while he 

ran [Coke’s] information. Officer Gibson testified that [Coke] was 

“not free to go, by any means” at that point.

In the thirty ... seconds to a minute that it took Officer 

Gibson to run [Coke’s] information, Detective Corkle had placed 

[Coke] in handcuffs. Officer Gibson testified that he was “kind of 

surprised [Coke] was in handcuffs already.” Detective Corkle is 

also a member of the Drug Task Force and testified that he was 

conducting surveillance in plain clothes in an unmarked police 

vehicle. He further testified that he was listening to the radio 

traffic of a team conducting surveillance on [Coke] at the Sleep 

Inn. The Swatara Township Police Department has responded to 

a large amount of drug calls at the Sleep Inn, but it is not as 

prevalent as other hotels in the area, such as the Rodeway Inn, 

which shares a parking lot with the Sleep Inn. Detective Corkle 

overheard on the radio that Officer Gibson had stopped [Coke’s] 
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vehicle and decided to head to the scene and assist. 

As Detective Corkle approached the vehicle, he heard Officer 

Gibson ask [Coke] to step out of the vehicle. Officer Gibson 

advised Detective Corkle that he was going to run [Coke’s] 

information and asked Detective Corkle to “watch” [Coke]. In the 

thirty ... seconds to a minute that it took Officer Gibson to run 

[Coke’s] information, Detective Corkle testified that he engaged 

[Coke] in a conversation, informed [Coke] that his activity at the 

Sleep Inn was suspicious and believed he was involved in drug 

activity ([Coke] denied any involvement); told [Coke] he was 

familiar with him and believed him to have narcotics on his person, 

that [Coke] denied it and said ‘check me’ so Detective Corkle 

patted down the outside of [Coke’s] clothes with an open hand 

and felt what he immediately believed to be marijuana, placed 

[Coke] under arrest, and finally removed the marijuana, as well 

as a pill bottle, from [Coke’s] pocket. Detective Corkle did not 

Mirandize [Coke] nor did he inform [Coke] that he was under 

arrest before he was handcuffed, or at any time thereafter.

Officer Gibson saw [Coke] in handcuffs when he returned to 

the vehicle and immediately Mirandized him. He testified that 

[Coke] was very cooperative and polite throughout the 

interaction. While handcuffed, Officer Gibson asked [Coke] for 

consent to search his vehicle, to which [Coke] granted. However, 

Detective Corkle testified that Officer Gibson first asked [Coke] if 

there were any other drugs in the vehicle, but could not recall 

whether Officer Gibson asked for consent to search or whether 

[Coke] said to “check his car.” A search of [Coke’s] vehicle 

revealed THC wax and money.

Suppression Court Opinion, dated 1/5/22, at 1-4 (footnotes and citations to 

the record omitted) (parentheticals in original).

After Coke’s arrest, he was charged with various drug-related offenses, 

namely possession with intent to deliver. See 35 P.S. § 780-113(a)(30). 

Eventually, Coke filed a motion to suppress the evidence recovered from this 

interaction with police officers, asserting primarily that Detective Corkle had 

no legal basis to perform a frisk of his person pursuant to Terry v. Ohio. See 
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392 U.S. 1 (1968). In addition, Coke averred that, to the extent he consented 

to a body or vehicular search, such agreement was not voluntary. The 

resultant suppression hearing led to the court’s conclusion that “the 

Commonwealth has failed to prove that the Terry frisk of [Coke] was lawful, 

and that [Coke] voluntarily consented to a search of his person and vehicle.” 

Suppression Court Opinion, dated 1/5/22, at 11. The Commonwealth timely 

appealed from this determination.1

On appeal, the Commonwealth questions:

1. Whether the trial court erred in granting [Coke’s] suppression 

motion where police possessed probable cause to initiate a 

traffic stop and secure the occupants of the vehicle, reasonable 

suspicion to continue to detain [Coke], valid consent to search 

[Coke’s] person, and valid consent and probable cause to 

search [Coke’s] vehicle?

Commonwealth’s Brief, at 4.

When reviewing a Commonwealth appeal from an order granting a 

suppression motion,

[this Court] follow[s] a clearly defined standard of review and 

consider[s] 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 facts bind an appellate court if the 

record supports these 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. Deck, 954 A.2d 603, 606 (Pa. Super. 2008) (citation 

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1 Although this appeal is interlocutory, the Commonwealth, in its notice of 

appeal, certified that the lower court’s decision will terminate or substantially 

handicap the prosecution. See Pa.R.A.P. 311(d).
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omitted).

The Commonwealth presents a tripartite argument, wherein it contends 

that there was: (1) probable cause to both initiate a traffic stop and secure 

Coke, as an occupant of the “seized” vehicle; (2) reasonable suspicion to 

continue to detain Coke; and (3) valid consent from Coke to search both his 

person and his vehicle, with there being probable cause, too, to search the 

vehicle. See Commonwealth’s Brief, at 9.

Preliminarily, we note that Coke does not contest whether the initial

traffic stop, related to the alleged dark window tint of his vehicle, see 75 

Pa.C.S.A. § 4524(e), was predicated on probable cause. See Appellee’s Brief, 

at 16 (“Officer Gibson had probable cause to initiate a stop and detain ... 

Coke[.]”). To that point, based on the conceded legality of that stop, it was

then permissible for Officer Gibson to order Coke out of his vehicle. See 

Commonwealth v. Pratt, 930 A.2d 561, 564 (Pa. Super. 2007) (“[F]ollowing 

a lawful traffic stop, an officer may order ... the driver ... of a vehicle to exit 

the vehicle until the traffic stop is completed, even absent a reasonable 

suspicion that criminal activity is afoot.”).

However, it is immediately beyond this juncture where the 

Commonwealth and Coke disagree. The Commonwealth avers that after 

Officer Gibson obtained Coke’s driver’s license and departed a short distance 

to run Coke’s information in his patrol vehicle, effectively leaving Detective 

Corkle and Coke alone together, Detective Corkle acted upon a specific 

suspicion when he proceeded to pat down Coke and resultantly discover 
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contraband. In particular, Detective Corkle’s testimony established that he 

suspected, based on some level of prior knowledge, that Coke was involved in 

drug activity and, too, that Coke was seen in an area of hotels that were rife 

with drug transactions. See Commonwealth’s Brief, at 12. 

Even going beyond this purported reasonable suspicion to perform a pat 

down, the Commonwealth argues that Coke consented to a search of his 

person. Specifically, the conversation between Detective Corkle and Coke, 

while Coke was not under arrest, was conversational. After Detective Corkle 

indicated that Coke was believed to be involved with drugs, Coke freely offered 

permission to Detective Corkle to perform some sort of body search.

Conversely, Coke argues that there was no legally sufficient basis for 

Detective Corkle to pat him down, notwithstanding the invitational language 

he used to the Detective, and that Coke’s agreeance to “check” him was the 

product of duress, given various aspects of the situation as it had unfolded,.

Pursuant to Terry v. Ohio, an identified police officer who “observes 

unusual conduct which leads him reasonably to conclude in light of his 

experience that criminal activity may be afoot and that the persons with whom 

he is dealing may be armed and presently dangerous,” 392 U.S. 1, 30 (1968), 

is permitted to, when nothing else dispels this safety-based fear, “conduct a 

carefully limited search of the outer clothing of such persons in an attempt to 

discover weapons which might be used to assault him.” Id. Such an action is 

known as a Terry frisk. Our Supreme Court has further clarified:
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[A] protective search cannot be justified under Terry unless the 

officer can articulate facts that establish an individualized, 

objective basis for perceiving a threat of armed violence. . . . [A]n 

individual’s location, standing alone, does not provide sufficient 

grounds for a Terry search. . . . Furthermore, ... courts cannot 

abandon the totality-of-the-circumstances test and rely 

exclusively upon the preconceived notion that certain types of 

criminals regularly carry weapons.

Commonwealth v. Grahame, 7 A.3d 810 (Pa. 2010) (internal citations and 

parenthetical omitted).

Based on his testimony, Detective Corkle knew that Coke’s name had 

come up “several times for cocaine investigations.” Suppression Hearing, 

11/17/21, at 25. While the Detective had been told, at an undefined point, 

that Coke had prior convictions for drug activity, he “wasn’t directly familiar” 

with Coke’s criminal record. Id. 

When Detective Corkle was present with Coke, he conveyed to Coke 

that his initial location, being at a particular hotel, and corresponding activity 

were both suspicious. See id., at 26. Accordingly, Detective Corkle made it 

known to Coke that he was suspected to be involved in drug activity. See id. 

Coke denied this allegation and stated to the Detective: “[y]ou can check me,” 

id., which then led to the search on the outside of his clothing. Even after the 

pat down had been performed, Detective Corkle remarked that Coke was “very 

cooperative” and his demeanor was “very calm” and “chatty.” Id., at 28-29. 

Later, Detective Corkle relayed that he had been concerned about

weapons possibly being on Coke. See id., at 33. Of note, Detective Corkle

stated that “anyone involved in drug activity, it’s a high probability that they 
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carry a weapon.” Id. 

Based on the record, we agree with the lower court that “Detective 

Corkle lacked the requisite individualized reasonable suspicion to conduct a 

Terry frisk.” Suppression Court Opinion, dated 1/5/22, at 7. Of note, while 

Coke had been seen in a hotel area that had been the subject of other drugrelated interactions with police officers, Coke evidenced no behavior, either in 

words or in action, that could reasonably be seen as a threat to Detective 

Corkle. In fact, he was cooperative throughout the entire interaction.

Moreover, Detective Corkle did not state that he had seen any sort of 

suspicious bulge in Coke’s clothing prior to the pat down. 

Without anything discrete mentioned that would tie Coke to potentially 

having a weapon, Detective Corkle’s supposition that Coke was armed did not 

go further than the insufficient “generalization [absent anything more] that 

firearms are commonly found in close proximity to illegal drugs.” Grahame, 

7 A.3d at 401. In the absence of any particularized facts that could support 

an objectively reasonable belief that Coke possessed a weapon, Detective 

Corkle was not permitted to perform a Terry frisk on that basis. 

To the extent that the Commonwealth argues, in the alternative, that 

Detective Corkle obtained Coke’s consent prior to the pat down, therefore 

extinguishing any need to obtain reasonable suspicion, we find that further 

development is necessary. 

We agree with the lower court that voluntary consent can act as an 

exception to the United States Constitution’s Fourth Amendment’s warrant 
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requirement. See Suppression Court Opinion, dated 1/5/22, at 7; see also 

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

banc) (remarking that the Fourth Amendment and Article I, Section 8 of the 

Pennsylvania Constitution provide, in total, protections against unreasonable 

searches and seizures as well as a heightened level of personal privacy). 

However, consent must be unequivocal and specific. See Acosta, 815 A.2d 

at 1083 (citation omitted). Therefore, the Commonwealth must show that 

consent was given during a legal police interaction and, too, that it was the 

product of “an essentially free and unconstrained choice–not the result of 

duress or coercion, express or implied, or will overborne–under the totality of 

the circumstances.” Id. (citation omitted). Voluntariness is “a question of 

fact[.]” Commonwealth v. Hawkins, 257 A.3d 1, 11 (Pa. Super. 2020). 

The totality of the circumstances approach involves consideration of 

myriad factors. See, e.g., Commonwealth v. Cleckley, 738 A.2d 427, 433 

n.7 (Pa. 1999) (deeming the defendant’s custodial status, police officer’s use 

of duress or coercive tactics, the individual’s knowledge of his right to refuse 

consent, the individual’s education and intelligence to be instructive); 

Commonwealth v. Kemp, 961 A.2d 1247, 1261 (Pa. Super. 2008) (en banc) 

(outlining the Commonwealth v. Strickler, 757 A.2d 884 (Pa. 2000),

factors, which include, e.g., (1) the presence of police excesses; (2) whether 

there was physical contact; (3) location of the interdiction; (4) whether the 

individual has been told he is free to leave; (5) police demeanor/manner of 

expression; and (6) the existence/character of the initial investigative 
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detention, with an emphasis on its degree of coerciveness); Acosta, 815 A.2d 

at 1085, 1087 (providing even more considerations as to voluntariness). While 

there is no per se rule that police officers must indicate that a subject is free 

not to consent to a search, see Cleckley, 738 A.2d at 528, that nondisclosure

has been “deemed significant” in prior cases. Acosta, 815 A.2d at 1087 (citing 

to, inter alia, Strickler, supra).

As has been defined by this Court in a recent case and replicated in the 

suppression court’s opinion:

The Fourth Amendment analysis in consent cases entails a twoprong assessment: first, the constitutional validity of the

citizen/police encounter giving rise to the consent and, second, 

the voluntariness of said consent. ...

Where the purpose of an initial, valid traffic stop has ended and a 

reasonable person would have believed that he was free to leave, 

the law characterizes a subsequent round of questioning by the 

officer as a mere encounter. . . . Nevertheless, where the purpose 

of an initial traffic stop has ended and a reasonable person would 

not have believed that he is free to leave, the law characterizes a 

subsequent round of questioning by the police as an investigative 

detention or arrest. ... Where a consensual search has been 

preceded by an unlawful detention, the exclusionary rule requires

suppression of the evidence.

Commonwealth v. Mattis, 252 A.3d 650, 654-55 (Pa. Super. 2021) (internal 

citations and quotation marks omitted).

The lower court found that Coke’s interactions with Detective Corkle 

prior to the pat down were beyond that of a “mere encounter,” and were the 

functional equivalent of an investigative detention. In reaching this conclusion, 

the court found that “in view of all surrounding circumstances, a reasonable 
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person would [not] have believed that he was free to leave.” Commonwealth 

v. Williams, 73 A.3d 609, 614 (Pa. Super. 2013) (imploring courts to apply 

“the totality-of-the-circumstances approach” to ascertain whether the 

subject’s movement has been in some way restrained) (citations omitted); 

see also Commonwealth v. Cost, 224 A.3d 641, 651 (Pa. 2020) (“[T]he 

retention by police of an identification card ... will generally be a material and 

substantial escalating factor within the totality assessment.”).

Inter alia, the court found that Officer Gibson retained Coke’s driver’s 

license and noted that, when Coke had been standing with Detective Corkle 

outside of his vehicle, “he was not free to go, by any means.” Suppression 

Hearing, 11/17/21, at 15-16, The court additionally emphasized that, 

although Officer Gibson’s vehicle was equipped with an operational dashboard 

camera, a video of the event, which could have provided further clarity, was 

not preserved. See id., at 5, 10-11 (remarking that “[w]ithout the benefit of 

the dashboard camera footage, [the lower c]ourt [was] left to speculate what 

occurred in the sequence of events leading up to [Coke’s] arrest[]”). 

Despite the suppression court’s opinion having a heading titled 

“Consent,” which is the legal question this case appears to hinge on, and 

containing a concluding sentence stating that the Commonwealth failed to 

prove voluntary consent, the suppression court has provided absolutely no 

analysis, relying on any of the factors identified, supra, into whether Coke 

freely consented to a search of his person. Even though Coke “was subjected 
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to an investigative detention when Officer Gibson asked [him] to ‘hang out’ 

with Detective Corkle,” Suppression Court Opinion, dated 1/5/22, at 9, that 

fact does not inherently vitiate one’s ability to consent to a search in that 

situation. Similarly, in tracking more of the suppression court’s opinion where 

it stated that a reasonable person in Coke’s position would not have felt free 

to leave, that determination, standing alone, does not completely eliminate

the ability to consent to a pat down. Freedom of movement and consenting to 

a search are separate considerations, albeit the former is generally considered

a factor in determining whether the latter was an unconstrained choice.

The court’s conclusion that Coke’s consent to search was unlawfully 

obtained because the Commonwealth “failed to prove that Officer Gibson and 

Detective Corkle possessed reasonable suspicion to believe that [Coke] was 

engaged in criminal activity,” id., at 10, seems wholly unrelated to a consent 

analysis, unless the court is implicitly stating that Coke was, at that point in

time, unlawfully detained. If, in fact, the court found there had been an 

unlawful detention, that finding should have been unequivocal and any 

evidence obtained correspondingly excluded. 

Conversely, assuming there to have been a lawful investigative 

detention while Detective Corkle was conversing with Coke and Officer Gibson 

possessed Coke’s driver’s license, we instruct the court to determine whether, 

under the totality of the circumstances, Coke’s utterance indicating that 

Detective Corkle could “check” him was consensual and therefore an exception 
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to the Fourth Amendment’s warrant requirement. Given that the voluntariness 

of consent is a question of fact, we remand for the court to make explicit 

findings as to whether Coke freely gave consent to Detective Corkle prior to 

the pat down. 

As the subsequent search of Coke’s vehicle was predicated, in large part, 

on the contraband recovered from the pat down, any ruling as to the validity 

of the vehicular search would be premature at this juncture. 

Order vacated. Case remanded with instructions. Jurisdiction 

relinquished. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 11/9/2022