JUDGE’S OPINION

 

Commonwealth of Pennsylvania v. Christopher Bush

 

Criminal Action-Constitutional Law-Omnibus Pretrial Motion-Suppression of Evidence-Fourth Amendment-Vehicle Stop-Knowledge of Suspension of Operator Privileges by Law Enforcement-Reasonable Suspicion-Vehicle Code Violation-Fifth Amendment-Miranda Rights-Failure to Advise-Custodial Interrogation-Handcuffed Individual

 

Christopher Bush (“Defendant”) was charged with violations of the Controlled Substance, Drug, Device and Cosmetic Act, 35 P.S. § 780-101 et seq., and Driving While Operating Privilege is Suspended or Revoked as a result of a vehicle stop.  Prior to the vehicle stop, the police officer in a police vehicle traveling behind the vehicle operated by Defendant performed a compliance check with regard to the vehicle’s registration that returned a previous encounter of the vehicle operated by Defendant in 2019.  Further inquiry performed by the police officer relating to Defendant reflecting that his driver’s license currently was suspended.  After following the vehicle in order to confirm that the operator of the vehicle was Defendant, the police officer stopped the vehicle on the basis that the computer search had indicated that Defendant’s operator privileges were suspended.  Defendant stated that his driver’s license was suspended when the police officer asked for his identification.  When the officer returned to his vehicle, he requested confirmation of National Crime Information Center warrants for Defendant issued by Cumberland County.  After requesting that Defendant alight from his vehicle, the officer handcuffed Defendant, explaining that he had active warrants.  The officer removed a vape pen from Defendant’s person during the search incident to custody.  While Defendant declined to provide consent to search the vehicle, he gave the police officer consent to remove and to search a lunchbox located in the vehicle in which marijuana and paraphernalia were located.  Defendant filed an Omnibus Pretrial Motion to Suppress evidence on the basis that the police officer lacked reasonable suspicion of criminal activity justifying the traffic stop and any statements made while he was in custody were made in violation of his rights pursuant to Miranda v. Arizona, 384 US 436 (1966).

 

1. Pa.R.Crim.P. Rule 581 permits a defendant to make a motion to suppress evidence alleged to have been obtained in violation of the defendant’s rights under the Constitution of the United States or the Pennsylvania Constitution.

 

2. The Commonwealth bears the burden of establishing by a preponderance of the evidence that the challenged evidence was not obtained in violation of a defendant’s rights.

 

3. Title 75 Pa.C.S. § 6308(b) provides that when a police officer has reasonable suspicion that a violation of the Vehicle Code is occurring, the officer may stop a vehicle for the purpose of checking its registration, proof of financial responsibility, vehicle identification number, the driver’s license or any other information the officer believes is necessary to enforce the Vehicle Code.

 

4. Reasonable suspicion is an objective standard and depends on both the content and the reliability of the information possessed by the police under the totality of the circumstances.

 

5. Courts reasonably cannot demand scientific certainty where none exists and must permit officers to make commonsense judgments and inferences about human behavior.

 

6. The totality of the information available to the police officer provided reasonable suspicion that Defendant was violating the Vehicle Code where the officer had knowledge that the vehicle previously had been stopped when Defendant was operating it and Defendant’s operator privileges currently were suspended and the officer viewed Defendant to identify that he was the operator of the vehicle before stopping the vehicle.

 

7. In order to safeguard the constitutional privilege against self-incrimination, law enforcement must apprise a person of his or her rights to remain silent and to have an attorney present during questioning and that anything said may be used against the person before subjecting the person to custodial interrogation.

 

8. A detention by law enforcement becomes custodial when, under the totality of the circumstances, the conditions and duration of the detention become so coercive that it constitutes the functional equivalent of an arrest or when a person has been taken into custody or otherwise deprived of his or her freedom of action in any significant way.

 

9. Where a confession after advisement of necessary rights stems directly from an initial custodial interrogation conducted without Miranda warnings, it will be suppressed because it is tainted impermissibly by the violation.

 

10. Questions after the discovery of the vape pen on Defendant’s person while Defendant was handcuffed constitute interrogation because they were calculated to evoke an admission to driving under the influence and possession of a controlled substance and violated Defendant’s rights under Miranda when they occurred prior to the issuance of Miranda warnings, thereby warranting suppression of all statements and physical evidence recovered.

 

L.C.C.C.P. No. CP-38-CR-0001649-2020, Opinion by Charles T. Jones, Jr., Judge, August 25, 2021.

 

 

 

 

 

 

 

 

IN THE COURT OF COMMON PLEAS

OF LEBANON COUNTY, PENNSYLVANIA

 

CRIMINAL DIVISION

 

COMMONWEALTH OF                            :

PENNSYLVANIA                                      :

:

1. :                  CP-38-CR-1649-2020

:

CHRISTOPHER BUSH,                             :

Defendant                                                   :

 

ORDER OF COURT

AND NOW, this 25th day of August, 2021, after a pretrial hearing held on June 13, 2019, and upon careful consideration of the Briefs of the Parties and the record, Defendant’s Omnibus Pretrial Motion is hereby GRANTED.

Consistent with the Opinion accompanying this Order, Defendant’s statements obtained as a result of custodial interrogation without being read Miranda warnings are inadmissible against him. Defendant’s statements after he was read Miranda warnings and the physical evidence obtained from the vehicle are likewise inadmissible.

Defendant shall remain scheduled for the Call of the List on September 7, 2021, and for Jury Trial for the week of September 20, 2021.

BY THE COURT:

 

____________________________, J.

CHARLES T. JONES, JR.

 

 

 

CTJ/cbm

cc:        Dalia A. Aboraya, Esquire (Public Defender’s Office)
District Attorney’s Office
Court Administration
Caitlin Mininger, Esq./Law Clerk

IN THE COURT OF COMMON PLEAS

OF LEBANON COUNTY, PENNSYLVANIA

 

CRIMINAL DIVISION

 

COMMONWEALTH OF                            :

PENNSYLVANIA                                      :

:

1. :                  CP-38-CR-1649-2020

:

CHRISTOPHER BUSH,                             :

Defendant                                                   :

 

 

APPEARANCES:

 

Steven T. Gorman, Esquire                                             For Commonwealth

District Attorney’s Office

 

Dalia A. Aboraya, Esquire                                              For Defendant

Public Defender’s Office

 

OPINION BY JONES, J. (August 25, 2021):

Before the Court is Defendant Christopher Bush’s Omnibus Pretrial Motion to Suppress Evidence. Defendant requests that the Court suppress physical evidence and statements he claims were obtained in violation of his rights during a traffic stop on October 23, 2020.

Procedural History

On November 2, 2020, the Commonwealth charged Defendant under 35 Pa. C.S. §780-113(A)(32) Possession of Drug Paraphernalia (M), 35 Pa. C.S. §780-113(A)(31) Possession of a Small Amount of Marijuana (M), and 75 Pa. C.S. §1543(A) Driving While Operating Privilege is Suspended or Revoked (S). Defendant filed an Omnibus Pre-Trial Motion on February 19, 2021, challenging admissibility of both un-Mirandized statements and physical evidence recovered as a result of the traffic stop and statements made before police read the Miranda warnings. The Court held a hearing on the Motion on June 2, 2021. At the Pre-Trial Motion Hearing, the Commonwealth called State Police Trooper Thomas Kline to testify about his investigation surrounding the traffic stop. The parties stipulated to the accuracy of the Motor Vehicle Recording (MVR) of the stop from Trooper Kline’s patrol car, and the MVR was admitted at the hearing as Exhibit 1.

Following the Pretrial Suppression Hearing, the Court took the matter under advisement and directed the parties to file briefs. The Defense filed Memorandum of Law in Support of Defendant’s Omnibus Pre-Trial Motion to Suppress Evidence (Def.’s Supp. Memo.) on July 16, 2021. The Commonwealth filed Commonwealth’s Brief in Response to Defendant’s Motion to Suppress (Cmlth’s Opp. Brief) on July 23, 2021. In addition to the initial stop and Defendant’s statements, the briefs address the constitutionality of the search of Mr. Bush’s person. Under Pa. R. Crim. P. 575(A)(2) and 581(D), a motion to suppress evidence shall state the grounds for suppression specifically and with particularity. Under Rule 575(A)(3) the failure to state a ground for relief in any motion shall constitute a waiver of that ground. Because the Motion to Suppress Evidence does not raise the constitutionality of the search of Defendant’s person, this issue has been waived and the Court will not consider it here. This Opinion is therefore limited to the questions of 1) whether Trooper Kline possessed proper justification for initiating the traffic stop, and 2) whether Defendant’s statements resulted from custodial interrogation absent reading of the Miranda warnings.

Findings of Fact

On October 23, 2020 at around 1:30pm, Trooper Kline was driving behind a white Honda CR-V while traveling eastbound on Jonestown Road in Union Township, Lebanon County. (Notes of Testimony, June 2, 2021, at 6.) He ran a routine compliance check on the Honda’s registration in his patrol car’s computer system. (N.T. 6:25–7:15.) This query showed that State Police had previously encountered the SUV and the driver at that time was Christopher Bush, who was not its owner. (N.T. 7:2–9; 17:17–18:2.) Trooper Kline’s Affadavit of Probable Cause indicates that this previous vehicle stop occurred in 2019. The trooper’s further computer query into Christopher Bush indicated that his Pennsylvania driver’s license was currently suspended. (N.T. 7:4–5.) The Honda pulled into the parking lot of a dollar store, and Trooper Kline continued on Jonestown Road and then north on State Route 72, where he pulled onto the shoulder to wait in case the Honda drove that way. (N.T. 7:18–22.) When the Honda did drive past, Trooper Kline looked at the driver to see if he was Christopher Bush. (N.T. 7:22–24.) The trooper followed the Honda north on Route 72 and pulled alongside in the left lane, and at that point he positively identified Christopher Bush as the driver. (N.T. 7:25–8:9.) He initiated a traffic stop by slowing down to get behind the Honda again and turning on his emergency lights and sirens. (N.T. 8:10–11.) The video portion of the MVR begins about 47 seconds before the audio, and shows the patrol car travelling behind the Honda, pulling up alongside, driving alongside for about ten seconds and then pulling back behind it. (MVR 00:00:00–00:00:40.) The audio from the trooper’s radio turns on about seven seconds after the patrol car falls in behind the Honda, concurrent with the initiation of the lights and sirens. (MVR 00:00:47.) The driver of the Honda braked and began to pull over immediately. (MVR 00:00:47.)

Trooper Kline approached the driver side window and informed the driver that the reason for the stop was because his license was coming back suspended. (MVR 00:01:42–00:01:48.) He asked the driver for ID, and Mr. Bush replied that it was suspended. (MVR 00:01:47–00:01:52.) After asking the passenger of the car if he had a driver’s license and asking about the owner of the car, Trooper Kline returned to his patrol vehicle. (MVR 00:1:52–00:2:25.) About half a minute later, he requested a hit confirmation for a “couple” of NCIC warrants for Mr. Bush out of Cumberland County (MVR 00:03:00–00:03:46.) Trooper Kline waited a few minutes then requested back up to begin heading his way for a non-emergency. (MVR 00:06:24–00:06:52.) He returned to the driver side of the Honda and asked Mr. Bush for his current address, phone number, and place of work. (MVR 00:06:59–00:08:04.) He then asked Mr. Bush to step out of the car and if he had any weapons on him. (MVR 00:08:19–00:08:25.) Mr. Bush replied that he did not have any weapons and got out of the car with his hands held away from himself. (MVR 00:08:24–00:08:32.)

The trooper guided Mr. Bush to the front of the patrol car. (MVR 00:08:32–00:08:39.) When Mr. Bush spread his arms for a search, the trooper told him to put his hands behind his back. Trooper Kline began to handcuff Defendant and Mr. Bush asked if he was under arrest. (MVR 00:08:40–00:08:44.) At that point, the trooper told him he had warrants, and Mr. Bush asked from where. (MVR 00:08:44–00:08:48.) When the trooper told him Cumberland County, Mr. Bush said “it’s fines.” (MVR 00:08:48–00:08:54.) Speaking as he put the handcuffs on Mr. Bush, Trooper Kline explained that he was waiting for a confirmation on the warrant and that even if it was not confirmed, someone else was going to have to get the car because Mr. Bush could not drive it. (MVR 00:09:13–00:09:30.) Trooper Kline began the pat down for this search incident to an arrest on Mr. Bush’s right side and Mr. Bush said that he had a vape in his pocket, patting the front left pocket of his jeans with his cuffed hand. (MVR 00:09:30–00:09:35.)

As Trooper Kline patted down his left side, removed the vape pen from his pocket, and looked at it, Mr. Bush said, “It is not mine. It’s his,” gesturing with his head toward the Honda where the passenger was still sitting, “he has a medical card, whatever”; and he continued, saying he and the passenger worked together and Mr. Bush had picked the vape up because the passenger had left it. (MVR 00:09:35–00:09:45.) Trooper Kline answered that Mr. Bush was the one holding it so obviously he was using it, said there was no reason to lie to him right now, placed the vape pen on the hood of the patrol car, and then asked, “When was the last time you hit it?” (MVR 00:09:48–00:09:58.) Mr. Bush told him, “Not today.” (MVR 00:09:59–00:10:01.) The trooper noted Mr. Bush’s pupils were pinpricks and asked him what else he was using; Mr. Bush replied that he was not using anything. (MVR 00:10:05–00:10:10.) Trooper Kline put Mr. Bush in the back of the patrol car, called in one in custody, and then returned to the driver’s side window to ask the passenger about the vape pen and take his information. (MVR 00:10:13–00:12:39.)

We infer that a backup trooper arrived out of view of the patrol car camera sometime within about six minutes after Trooper Kline’s request because Trooper Kline next can be heard speaking about the stop and his investigation thus far to another person on the scene beginning at 00:12:51 of the MVR. We infer that Trooper Kline then learned that Cumberland County did not want to take custody of Mr. Bush because at 00:13:35 he says “go ahead,” there is something said over his radio, and at around 00:13:51 he says “Copy that, I’m going to have him for new charges too” and later on, at 00:15:24, he says he can’t take Mr. Bush to booking for possession and “they’re not going to take the warrant anyway,” and confirms when the other trooper asks that “they said he should call to settle up with them.” Trooper Kline and the other trooper then approached the passenger side of the Honda, where Trooper Kline returned the passenger’s documents and advised him to find someone to pick him up. (MVR 00:14:07–00:14:51) The troopers then conferred about what to do with the Honda and Mr. Bush. (MVR 00:14:57–00:16:40.) They asked Mr. Bush about contacting his girlfriend, the owner of the car, and Mr. Bush told them he needed to use the passenger’s phone because his did not have service. (MVR 00:16:50–00:17:59.)

After turning his audio off for about eleven seconds (00:18:08–00:18:19), Trooper Kline walked up to the passenger side of the Honda and actively looked through the back windows. (MVR 00:18:25–00:18:38.) He then returned to his patrol car and asked Mr. Bush, “You got anything else in the car you’re not supposed to have?” (MVR 00:18:25–00:19:01.) He asked Mr. Bush if there were other drugs in the car and if he had used anything besides marijuana, and Defendant told him there were not any drugs in the car and that he was sober and clean. (MVR 00:18:59–00:19:26.) Mr. Bush suggested that his girlfriend’s stepfather could pick up the Honda, and the troopers asked the passenger if he could contact that person. (MVR 00:19:26–00:19:54.) Trooper Kline turned his audio off again for about fifty three seconds. (MVR 00:20:01–00:20:54.) He then returned to the patrol car and read Mr. Bush the Miranda warnings. (MVR 21:02–21:50; N.T. 11:15–19.) While Trooper Kline read the Miranda warnings, the other trooper looked into the rear windows of the Honda with a flashlight. (MVR 00:21:29–00:21:50.) Mr. Bush confirmed that he understood his rights and said that he would answer questions. (MVR 00:21:50–00:21:56.) Trooper Kline asked Mr. Bush where he had gotten the vape pen, if he knew its percentage THC, and if there was anything else in the car. (MVR 00:22:01–00:24:00.) The trooper then asked Mr. Bush seven times if he would consent to a search of the car, to which Mr. Bush repeatedly responded that because it was his girlfriend’s car he did not feel comfortable giving permission to a search of the entire car. (MVR 00:24:03–00:26:15.) During this discussion, Mr. Bush said in response to questioning that the passenger of the Honda had “stuff,” that he didn’t know what that stuff was, but that the passenger had a lunchbox that contained “vapes, I guess…marijuana stuff.” (MVR 00:24:20–00:26:40.) Trooper Kline asked twice for consent to remove the lunchbox from the Honda, and Mr. Bush said he was fine with that. (MVR 00:26:56–00:27:02.)

After asking the passenger about what he had in the car, the troopers retrieved the lunchbox from under the center console of the Honda. (MVR 00:27:39–00:29:17.) The lunchbox had the name “Jayden” on it. (N.T. 13:23; MVR 00:29:14–00:29:17.) Trooper Kline returned to the patrol car and asked Mr. Bush how many kids he had and the names of his stepchildren, and Jayden is one of the names Mr. Bush told him. (MVR 00:29:32–00:29:54.) The trooper asked Mr. Bush “this is yours, right,” to which Mr. Bush replied, “the lunch box,” and “when’s the last time you smoked this bowl,” to which Mr. Bush’s reply, if he made any, is inaudible on the MVR. (MVR 00:30:23–00:30:49.) The troopers then conducted field sobriety tests, where the MVR shows they removed him from handcuffs; Mr. Bush showed no sign of impairment, so they released him. (N.T. 20:18–23; MVR 00:33:05–00:47:49).

Legal Standard

The Rules of Criminal Procedure allow a defendant or the defendant’s attorney to make a motion to the court to suppress any evidence alleged to have been obtained in violation of the defendant’s rights under the Constitution of the United States or the Constitution of Pennsylvania. Pa. R. Crim. P. 581. On a motion to suppress, the Commonwealth bears the burden to establish by a preponderance of the evidence that the challenged evidence was not obtained in violation of the defendant’s rights, and is therefore admissible. Pa. R. Crim. P. 581(H); Commonwealth v. Ruey, 892 A.2d 802, 807 (Pa. Super. 2006). The suppression of evidence is only appropriate where a violation upon which the motion to suppress is based touches upon fundamental, constitutional concerns, was conducted in bad faith, or has substantially prejudiced the defendant. Commonwealth v. Gentile, 632 A.2d 573 (Pa. Super. 1993). Questions of credibility and the weight to be accorded to witness testimony are issues within the sound discretion of the trial court. In re R.P., 918 A.2d 115 (Pa. Super. 2007).

Discussion

Defendant’s Motion to Suppress asserts two distinct evidentiary challenges. First, Defendant argues that all physical evidence obtained as a result of the traffic stop should be suppressed because Trooper Kline lacked reasonable suspicion of a traffic violation or probable cause of criminal activity justifying the stop. (Mot. Suppress ¶37.) Second, Defendant asserts that any statements made while he was detained should be suppressed because his initial statements were made without being advised of his rights under Miranda and the statements after the Miranda warnings are tainted by that original violation. (Mot. Suppress ¶38–39.)

1. Whether the Traffic Stop Was an Illegal Seizure.

Defendant asserts that all evidence recovered as a result of the stop of the Honda should be suppressed because the stop violated the protection against warrantless seizure under the Fourth and Fourteenth Amendments to the United States Constitution and Article I, Section 8 of the Pennsylvania Constitution. Specifically, Defendant argues that Trooper Kline lacked reasonable suspicion of a traffic violation or probable cause to believe criminal activity was afoot that would justify stopping Defendant’s car. (Mot. Suppress ¶ 37.) Citing Commonwealth v. Andersen, 753 A.2d 1289 (Pa. Super. Ct. 2000), Defendant argues that the results of the NCIC query showing that the car had been previously stopped and that Mr. Bush had been operating it with a suspended license at that time does not rise to the level of reasonable suspicion that he was driving the Honda on this occasion. (Def.’s Supp. Brief, unpaginated, 5.) In Anderson, the Superior Court found unconstitutional a traffic stop where police assumed without directly observing that the owner of a car was the person driving it, and they knew from contact the day before that the owner had a suspended license. 753 A.2d at 1293–94. The Commonwealth argues that based on his investigation into 1) the registration of the Honda, 2) its prior contact with Pennsylvania State Police involving Christopher Bush, and 3) Mr. Bush’s license status on October 23, 2020, Trooper Kline had reasonable suspicion that the driver whose appearance matched Mr. Bush was driving with a suspended license. (Cmlth.’s Opp. Brief 5–6.) The Commonwealth argues that the stop was therefore legal for the investigatory purpose of confirming the identity of the driver as Mr. Bush. (Id. at 6.)

75 Pa. C.S. §6308(b) provides the quantum of cause a police officer needs to conduct a traffic stop to investigate an apparent violation of the Vehicle Code. Our Supreme Court determined this statute to be consistent with the protection against unreasonable seizure of the Fourth Amendment to the United States Constitution because it codifies the Terry v. Ohio, 392 U.S. 1 (1968), exception to the warrant requirement allowing for brief investigative detentions. Commonwealth v. Chase, 960 A.2d 108, 116 (Pa. 2008). Likewise, the Chase court held this section to be consistent with the protection against unreasonable seizure under the Pennsylvania Constitution, finding “vehicle stops that are constitutional under Terry are constitutional under Article I, § 8.” Id. at 117. Under the statute, when a police officer has reasonable suspicion that a violation of the Vehicle Code is occurring or has occurred, the officer may stop a vehicle for the purpose of checking its registration, proof of financial responsibility, or VIN; checking the driver’s license; or securing any other information the officer believes necessary to enforce the Vehicle Code. 75 Pa. C.S. §6308(b). In other words, “if the officer has a legitimate expectation of investigatory results, the existence of reasonable suspicion will allow the stop—if the officer has no such expectations of learning additional relevant information concerning the suspected criminal activity, the stop cannot be constitutionally permitted on the basis of mere suspicion.” Chase, 960 A.2d at 115. Conversely, the stop of a vehicle based solely on non-investigable offenses cannot be justified by mere reasonable suspicion because then the investigative purpose of a Terry stop does not exist: probable cause to believe there is or has been a traffic violation or criminal activity is required for such a seizure. Id. at 116.

Reasonable suspicion is an objective standard and depends on both the content and the reliability of the information possessed by police under the totality of the circumstances. Commonwealth v. Wimbush, 750 A.2d 807, 811 (Pa. 2000); Commonwealth v. Farnan, 55 A.3d 113, 116 (Pa. Super. Ct. 2012). “If information has a low degree of reliability, then more information is required to establish reasonable suspicion.” Wimbush, 750 A.2d at 811. Courts afford due weight to the specific, reasonable inferences an officer made in light of their experience, and acknowledge that innocent facts considered collectively may permit the investigative detention. Farnan, 55 A.3d at 116. The United States Supreme Court recently held that an officer had reasonable suspicion under the Fourth Amendment to conduct a stop of a vehicle registered to a defendant whose license had been revoked based only on the “common sense inference” that the defendant was likely the driver of the vehicle he owned. Kansas v. Glover, 140 S.Ct. 1183. 206 (U.S. 2020). Even more recently, the Pennsylvania Superior Court recognized that the holding in Glover overturned its previous ruling in Commonwealth v. Andersen that such an assumption was unconstitutional because the Fourth Amendment and Article I, Section 8 are coterminous when it comes to investigative detentions. Commonwealth v. Jefferson, — A.3d. —- 2021 WL 2308521 (Pa. Super Ct. June 7, 2021).

It is not clear from Trooper Kline’s testimony what information he used to check that the driver he saw was Christopher Bush. Based on the facts that the trooper queried Mr. Bush’s Pennsylvania driver’s license, stopped on the shoulder of Route 72 to look at the driver as the Honda passed and then pulled alongside the Honda to look at the driver again, the Court draws the inference that more likely than not the trooper had access to descriptive information from Mr. Bush’s driver’s license records. Courts “cannot reasonably demand scientific certainty . . . where none exists.” and “must permit officers to make ‘commonsense judgments and inferences about human behavior.” Kansas v. Glover, 140 S. Ct. 1183, 1188 (2020). The Glover Court found that the inference that the defendant was the driver based on three facts available to the officer “provided more than reasonable suspicion to initiate the stop” when 1) he observed an individual operating a 1995 Chevrolet 1500 pickup truck with Kansas plate 295ATJ, 2) he knew that the registered owner of the truck had a revoked license, and 3) he knew that the model of the truck matched the observed vehicle. Id. Here, Trooper Kline knew that this particular CR-V, although Mr. Bush was not its registered owner, had previously been pulled over by State Police when Mr. Bush was driving it. The trooper knew that Mr. Bush had a presently suspended driver’s license. And the trooper looked at the driver and positively identified him as Mr. Bush. Driving with a suspended license before the operating privilege has been restored is a violation of 75 Pa. C.S. §1543(a). The totality of these facts constitute reasonable suspicion that Defendant was violating the Vehicle Code.

Because Trooper Kline had reasonable suspicion that a violation of the Vehicle Code was occurring, he was permitted under 75 Pa. C.S. §6308(b) to initiate an investigative detention in order to confirm the driver was in fact Christopher Bush and confirm his operating privilege had not been restored. The traffic stop is therefore legal under the statute, and did not violate Defendant’s right to be free from unreasonable seizure under the Fourth Amendment and Article I, Section 8. We turn now to an analysis under the Fifth Amendment to the United States Constitution.

1. Whether Defendant’s Statements Were Illegally Obtained.

The Fifth Amendment to the United States Constitution provides that no person shall be compelled in any criminal case to be a witness against themselves. In order to safeguard the constitutional privilege not to be compelled to incriminate oneself, police must apprise a person of their rights to remain silent and have an attorney, whether appointed or retained, present during questioning, and that anything they say can be used against them, before subjecting a person to custodial interrogation. Miranda v. Arizona, 384 U.S. 436 (1966); Commonwealth v. O’Shea, 318 A.2d 713, 714–15 (Pa. 1974). “[T]he prosecution may not use statements, whether exculpatory or inculpatory, stemming from interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination.” Miranda, 384 U.S. at 444. Physical evidence recovered as a result of a violation of the right against self-incrimination is also inadmissible. Commonwealth v. Lukach, 195 A.3d 176, 193 (Pa. 2018).

Custodial interrogation is determined by an objective standard based on the totality of the circumstances, “with due consideration to the reasonable impression conveyed to the person interrogated.” Commonwealth v. Schwing, 964 A.2d 8, 11 (2008); accord O’Shea, 318 A.2d at 715 (“[T]he test . . . does not depend upon the subjective intent of the law enforcement officer-interrogator.”); Commonwealth v. Marabel, 283 A.2d 285, 288 (Pa. 1971). “[P]olice detentions become custodial when, under the totality of the circumstances, the conditions and duration of the detention become so coercive as to constitute the functional equivalent of arrest,” or when “a person has been taken into custody or otherwise deprived of [their] freedom of action in any significant way.” Schwing, 964 A.2d at 11. “Interrogation” is police conduct calculated to, expected to, or likely to evoke admission. Id. “The mere fact that [a defendant] may have answered some questions or volunteered some statements on his own does not deprive him of the right to refrain from answering any further inquiries until he has consulted with an attorney and thereafter consents to be questioned.” Miranda, 384 U.S. at 445. “When a person’s inculpatory statement is not made in response to custodial interrogation, the statement is classified as gratuitous, and is not subject to suppression for lack of warnings.” Schwing, 964 A.2d at 11. Finally, where a Mirandized confession stems directly from an initial custodial interrogation conducted without Miranda warnings, it will be suppressed because it is “impermissibly tainted” by the violation. O’Shea, 318 A.2d at 714–15; see also Marabel, 283 A.2d at 290–92 (finding admissible Mirandized confession where defendant confronted with other evidence rather than his own statements made during prior custodial interrogations days before).

At the point Mr. Bush was under arrest for an active warrant and in handcuffs, he was unquestionably in custody, having been physically deprived of his freedom in a significant way. He was not free to leave and would not have reasonably believed he was, no matter that the trooper told him he would be let go later if the hit confirmation on the warrant came back unconfirmed. Mr. Bush’s statement that he had a vape in his pocket and that it belonged to the passenger who had a medical marijuana card are therefore custodial, but they are not the result of interrogation. These statements arose spontaneously as Trooper Kline patted Mr. Bush down, rather than as a result of police conduct calculated or expected to evoke an admission. Thus, the first statements about the vape pen are not subject to suppression for lack of warnings because they are “gratuitous.” See Schwing, 964 A.2d at 11.

However, the trooper’s questions after the discovery of the vape pen—“When was the last time you hit it?” and “You pupils are pinpricks, what else are you using?”—constitute interrogation because in the context of this traffic stop they are police conduct calculated to evoke an admission to driving under the influence. While these questions may be routine during a traffic stop initiated under suspicion of DUI, once the object of these questions is in custody, Miranda warnings are required. Likewise, the question “You got anything else in the car you’re not supposed to have?” followed by a statement that the trooper would give him one chance to be honest, posed to Defendant while he is handcuffed in the back of the patrol car, is custodial interrogation intended to evoke an admission to possession of a controlled substance. While Defendant denied using drugs that day or having anything else in the CR-V, the trooper apparently did not believe his responses to the custodial interrogation and conducted further investigation by asking the passenger of the Honda about the vape pen and Mr. Bush’s use of other drugs before reading Mr. Bush the Miranda warnings. As a consequence, Defendant’s statements after being read Miranda are tainted by the initial violation because Trooper Kline would not have known to investigate for evidence of drugs and the percentage of THC in the vape pen without Defendant’s responses during the first two instances of custodial interrogation. Defendant’s statements in response to custodial interrogation before and after the Miranda warnings are inadmissible against him.

Additionally, the physical evidence recovered from the lunchbox inside the Honda is the fruit of the initial Fifth Amendment violation because the trooper’s investigation into these items stems from the pre-Miranda statements. The Commonwealth argues that Defendant consented to the retrieval of the lunch box and that Defendant had a low expectation of privacy in a vehicle that was not registered to him. (Cmlth.’s Opp. Brief 8.) The reasonable expectation of privacy and consent to a search are relevant to an inquiry of the constitutionality of a search under the Fourth Amendment. We note that under the circumstances of custodial interrogation without Miranda warnings, and Mr. Bush being handcuffed in the back of a patrol car and not free to leave at the time of the alleged consent, we do not believe that this consent was voluntary. However, the question of whether physical evidence should be suppressed under the Fifth Amendment is a separate inquiry from the constitutionality of a search under the Fourth Amendment. Our Supreme Court has made it clear that to allow police to ignore the requirements of Miranda in order to secure physical evidence would “render meaningless the rights the Fifth Amendment is meant to protect.” Lukach, 195 A.3d at 193. Thus, physical evidence derived from a Miranda violation is as inadmissible as the statements that lead to the discovery of the physical evidence. Id. Here, Trooper Kline’s knowledge of the lunchbox and its contents arose from statements obtained in violation of Defendant’s rights under Miranda. The contents of the lunchbox recovered from the Honda are inadmissible against Defendant.

Defendant was subjected to custodial interrogation prior to being read the Miranda warnings in violation of the Fifth Amendment’s protection against self-incrimination. His pre-Miranda statements are inadmissible because they were obtained in violation of his constitutional rights. Defendant’s post-Miranda statements and the physical evidence in the lunch box recovered from the Honda are inadmissible as fruits of the poisonous tree. Defendant’s Motion to Suppress is granted.

Conclusion

We find the traffic stop to be legal under the relevant statute. Defendant’s Pre-Trial Motion to Suppress is granted because he was subjected to custodial interrogation without being advised of his right to remain silent. All statements Mr. Bush made in response to police questioning, before and after Trooper Kline read him the Miranda warnings, are suppressed. The physical evidence recovered from the lunchbox in the Honda as a result of the responses to custodial interrogation is likewise suppressed. Mr. Bush’s initial statements about the vape pen in his pocket are admissible because these were spontaneous rather than the result of questioning in violation of his constitutional rights. The vape pen itself is admissible because it was recovered during the search incident to Mr. Bush’s arrest, and the Motion to Suppress does not challenge the constitutionality of the search. An order granting Defendant’s Motion to Suppress will be entered consistent with the foregoing conclusions.