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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
SAMIR AKINES,
Appellee No. 2470 EDA 2013
Appeal from the Order entered July 29, 2013,
in the Court of Common Pleas of Philadelphia County,
Criminal Division, at No(s): CP-51-CR-0004612-2011
BEFORE: ALLEN, JENKINS, and MUSMANNO, JJ.
MEMORANDUM BY ALLEN, J.: FILED NOVEMBER 12, 2014
The Commonwealth appeals from the trial court’s order granting the
suppression motion of Appellee, Samir Akines, (“Akines”), on the basis that
the evidence at issue would have been inevitably discovered. We agree with
the Commonwealth and therefore reverse the trial court’s grant of
suppression.
The trial court recounted the testimony from the suppression hearing
as follows:
[] Officer Robert Wilson, a police officer for six and a half
years, testified that on February 5, 2012, his tour of duty took
him and his partner Officer Rivera to a unisex hair salon located
at 1419 West Girard Avenue in the city and county of
Philadelphia which the officer described as a high crime area.
The officers went to that location after they received information
over their radio for a person with a gun and a report of a
shooting. The description of the person with a gun was a black
male, wearing all black clothing. Officer Wilson testified that
when they arrived at the location, there were multiple police
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vehicles there and he observed the front door of the salon on the
ground from being shot out, with glass broken from the entry
door and there was also a plate glass broken out. The officer
testified that he then walked into the salon to see if anybody was
injured. There were casings inside the salon and there were
about ten people inside. The officers talked to the people inside
asking them what they saw and if anybody was injured. Officer
Wilson testified that many of the people said that they had heard
gunshots and they got down to the ground but no one saw or
could give a description of the shooter.
Officer Wilson testified that initially when he entered the
salon, none of the people inside matched the description they
had received over their radio. However, approximately five
minutes later, while the officers were getting information from
the people inside, [Akines] exited the bathroom [at] the rear of
the salon with his two-year-old son. He was wearing a black
hoodie, black cargo pants, and black boots which matched the
earlier description of a shooter. Officer Wilson testified that he
approached [Akines] and asked him for his ID. [Akines] told him
that he had one but it was not on him and he told him his name
was Jamir White date of birth 3/10/84. Then, while Officer
Wilson was trying to write the information down, he asked
[Akines] to repeat his name. [Akines] said that he would give
him his real name and date of birth. Officer Wilson testified that
his suspicions were raised because of [Akines] matching the
flash description and [Akines] lying about his actual name and
date of birth. Officer Wilson frisked [Akines] for weapons for his
own safety. While patting him down, he felt something hard in
his right hoodie pocket. The officer testified he felt something
that felt like Blistex and removed it to see what it was. What
Officer Wilson recovered from [Akines’] pocket was not Blistex
but a small clear plastic jar which contained a leafy substance
[that appeared to be] marijuana. At that point, Officer Wilson
placed [Akines] into custody and escorted him into the patrol
wagon. Also recovered from [Akines] was his ID with his correct
biographical information.
While [Akines] was in the patrol wagon, the two-year-old
child started to cry inside the salon, so Officer Wilson’s partner
asked [Akines] if he had any baby bags or supplies for the child.
Officer Wilson testified that his partner then came back inside
the salon and told him that [Akines] said that there was a red,
black, and gray supply bag in there for the baby. Officer Wilson
then began looking for the bag and found it at the bottom of the
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steps in the basement of the salon. Officer Wilson testified that
it looked like a small book bag which was zipped shut and it had
a strong smell of fresh marijuana coming from it. The officers
opened the bag and found twenty small clear plastic jars of a
green leafy substance that had the same consistency, size, and
shape, as the jar that was recovered from [Akines]. After the
officer removed the jars of marijuana, he immediately saw a
black handgun in the bag. It was a Glock 27, .40 caliber serial
number VYG-412 which was placed on a property receipt.
Trial Court Opinion, 2/20/14, at 2-4 (citations to notes of testimony
omitted).
The Commonwealth charged Akines with carrying a firearm without a
license, carrying a firearm on the public streets of Philadelphia, and
possession of marijuana.1 On April 10, 2013, Akines filed a suppression
motion. The trial court convened suppression hearings on April 10, 2013,
June 20, 2013, and July 29, 2013, ultimately granting Akines’ suppression
motion on July 29, 2013. This timely appeal followed.2 Both the
Commonwealth and the trial court have complied with Pa.R.A.P. 1925.
The Commonwealth presents a single issue for our review:
Did the [trial] court err in suppressing [Akines’] handgun
and drugs based on a police officer’s exceeding the scope of a
protective frisk where, in the absence of the violation, the
evidence still would have been discovered?
Commonwealth Brief at 3.
____________________________________________
1
18 Pa.C.S.A. §§ 6106, 6108, and 35 P.S. 780-113(a), respectively.
2
The Commonwealth certified in its notice of appeal that the trial court’s
order would “terminate or substantially handicap the prosecution.” See
Pa.R.A.P. 311(d).
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Our standard of review when the Commonwealth appeals from a
suppression order is as follows:
When the Commonwealth appeals from a suppression order, we
follow a clearly defined standard of review and consider 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 fact bind an appellate court if the record supports
those 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. Baker, 946 A.2d 691, 693 (Pa. Super. 2008) quoting
Commonwealth v. Barber, 889 A.2d 587, 592 (Pa. Super. 2005). “It is
within the suppression court's sole province as factfinder to pass on the
credibility of witnesses and the weight to be given to their testimony. The
suppression court is free to believe all, some or none of the evidence
presented at the suppression hearing.” Commonwealth v. Elmobdy, 823
A.2d 180, 183 (Pa. Super. 2003) (citations omitted). However, the
suppression court's conclusions of law, which are not binding on an appellate
court, are subject to plenary review. Commonwealth v. Johnson, 969
A.2d 565, 567 (Pa. Super. 2009) (citations omitted).
Here, the trial court granted Akines’ suppression motion on the basis
that Officer Wilson exceeded the scope of a protective frisk when, during the
pat down of Appellant, he “escalated the frisk of [Appellant] into a search.”
Trial Court Opinion, 2/20/14, at 6. The trial court concluded that the
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warrantless search of the interior of Akines’ pocket was impermissible under
the “plain feel” doctrine and was unsupported by probable cause. 3 In
reaching its determination, the trial court relied on the testimony of Officer
Wilson, who testified about his interaction with Akines as follows:
Officer Wilson: While we were getting information from
people that were inside the salon,
[Akines] exited the bathroom with I
believe a two year-old little boy. I
believe it was his son.
***
He had ... a black hoodie, black cargo
pants, and I believe it was black boots.
***
____________________________________________
Under the plain feel doctrine, a police officer may seize non-
threatening contraband detected through the officer's sense of
touch during a Terry frisk if the officer is lawfully in a position to
detect the presence of contraband, the incriminating nature of
the contraband is immediately apparent from its tactile
impression and the officer has a lawful right of access to the
object. [T]he plain feel doctrine is only applicable where the
officer conducting the frisk feels an object whose mass or
contour makes its criminal character immediately apparent.
Immediately apparent means that the officer readily perceives,
without further exploration or searching, that what he is feeling
is contraband. If, after feeling the object, the officer lacks
probable cause to believe that the object is contraband without
conducting some further search, the immediately apparent
requirement has not been met and the plain feel doctrine cannot
justify the seizure of the object.
Commonwealth v. Pakacki , 901 A.2d 983, 989 (2006) (internal citations
and quotation marks omitted).
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I approached [Akines] and asked him ...
if he had state ID.
***
[H]e gave me a name of ... Jamir White
... date of birth 3/10/84.
***
I asked him to repeat it. He told me he
was going to give me his real name and
date of birth.
***
It rose my suspicion about him being
that he met the flash and being that he
lied to me about his actual name and
date of birth. Then I frisked him for
weapons or any type of weapons on him
and I recovered from his pocket a small
clear jar, plastic jar containing a green
leafy substance, alleged marijuana. ...
Assistant District Attorney: This jar that you recovered when you
recover it do you just go right into his
pants and pull out a jar?
Officer Wilson: No. I just did a quick pat down of him to
make sure there was no wepaons on
him. Then I asked him what was that in
his pocket. It was in his right hoodie
pocket.
***
Assistant District Attorney: What does he say?
Officer Wilson: He was just looking like, he didn’t say
anything, just looked down so I removed
it.
***
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Assistant District Attorney: When you first touch it and you feel that
pocket what do you think it is?
Officer Wilson: It could have been Blistex. I removed it
to make sure what it was.
***
I [then] placed [Akines] in custody and I
escorted him to our patrol wagon.
***
The child that he had was beginning to
cry. So we asked him for any type of
contact information for the mother of the
child and if there was any baby bags that
he had ... any supplies for the baby. He
said that he did.
***
[H]e said that there was a supply bag in
there. He gave me a color of the bag.
He said that it was a red, black, and
gray supply bag.
***
I looked for the bag.4
***
It was at the bottom of the basement
steps.
***
____________________________________________
4
Officer Wilson testified that Akines did not tell him precisely where the bag
was located, and that he independently searched for it, eventually locating it
in the basement, the entrance to which was approximately ten feet from the
front door. N.T., 4/10/13, at 18-19, 34.
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We opened the bag. There were 20
small plastic clear plastic jars of a green
leafy substance [and] a black handgun.
N.T., 4/10/13, at 14-18.
After reviewing Officer Wilson’s testimony, the trial court concluded
that Officer Wilson exceeded the scope of a protective Terry frisk when he
conducted a pat down of Akines and reached into his pocket to extract the
vial of what the officer determined was marijuana. The trial court explained:
Officer Wilson had reasonable suspicion to frisk [Akines]
where he was investigating a report of a shooting. When Officer
Wilson arrived on the scene, he saw that the entire salon had
been blown out with the glass shattered from the front door and
casings inside the salon. The officer had reasonable suspicion to
frisk [Akines,] who was inside the salon and matched the
description he received over the radio for a person with a gun
and a report of a shooting when [Akines] came out of the
bathroom.
However, Officer Wilson’s seizure of the marijuana from
[Appellant] went beyond the scope of the frisk. Under the plain
feel exception, “a police officer may seize non-threatening
contraband detected through the officer’s sense of touch during
a Terry frisk if the officer is lawfully in a position to detect the
presence of contraband, the incriminating nature of the
contraband is immediately apparent from its tactile impression
and the officer has a lawful right of access to the object.”
Commonwealth v. Stevenson, 744 A.2d 1261, 1265 (Pa.
2000). Here, the object, a small clear plastic jar containing the
marijuana, seized from [Akines] did not immediately have an
incriminating nature of contraband [since] Officer Wilson
specifically testified that while patting [Akines] down he felt
something hard in his right hoodie pocket which felt like a Blistex
container and he had to remove it to see what it was. This does
not justify the officer escalating the frisk of [Akines] into a
search. ... Because Officer Wilson did not testify to a belief that
what he felt was contraband, this case does not fit within the
paradigm of the plain feel exception.
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Trial Court Opinion, 2/19/14, at 5-6.
The Commonwealth does not contest the trial court’s determination
that Officer Wilson exceeded the scope of a protective frisk when he
extracted the vial of marijuana from Akines’ pocket. Commonwealth Brief at
13. Rather, the Commonwealth’s argument is that the trial court’s grant of
suppression was erroneous because the police officers would have inevitably
discovered the contraband on the basement steps, notwithstanding the
improper frisk. Commonwealth’s Brief at 10-29. The trial court, however,
concluded that the Commonwealth failed to demonstrate that the
contraband found in the basement of the salon would have been inevitably
discovered. The trial court explained:
The Commonwealth presented no evidence that the bag
would have been found and [that it would have been] linked to
[Akines] without the illegal police conduct. The Commonwealth
presented no evidence as to the specifics of where and how the
basement could be accessed [or whether it] was separately
secured[.] [The Commonwealth] presented no evidence that
police ever executed a Search Warrant in the basement or in the
salon. ... The marijuana and gun found in the bag would not
have been recovered if not for [Akines’] statement made as a
result of his illegal arrest.
Trial Court Opinion, 2/20/14, at 6-7.
Upon careful review, we agree with the trial court’s determination that
Officer Wilson’s search into Akines’ pocket exceeded the scope of a Terry
frisk. However, we are persuaded by the Commonwealth that it
demonstrated by a preponderance of the evidence that the police officers
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would have inevitably discovered the gun and marijuana in the course of
their investigation.
The inevitable discovery doctrine provides “[i]f the prosecution can
establish by a preponderance of the evidence that the illegally obtained
evidence ultimately or inevitably would have been discovered by lawful
means, the evidence is admissible. The purpose of the inevitable discovery
rule is to block setting aside convictions that would have been obtained
without police misconduct.” Commonwealth v. Bailey, 986 A.2d 860, 862
(Pa. Super. 2009) (citations omitted). “Suppressing evidence in such cases,
where it ultimately or inevitably would have lawfully been recovered, ‘would
reject logic, experience, and common sense.’” Commonwealth v.
Gonzalez, 979 A.2d 879, 890 (Pa. Super. 2009) quoting Nix v. Williams,
467 U.S. 431, 104 S.Ct. 2501, 81 L.Ed.2d 377 (1984); Commonwealth v.
Brown, 368 A.2d 626, 631 (Pa. 1977) (citations omitted) (“evidence
secured through the illegality should nevertheless have been admitted where
it was obvious that without the illegality the Commonwealth would have
obtained the information”).
“The ‘preponderance of the evidence’ is the lowest burden of proof in
the administration of justice, and it is defined as the ‘greater weight of the
evidence, i.e., to tip a scale slightly [in one's favor]’”). Commonwealth v.
A.R., 990 A.2d 1, 4, n.5 (Pa. Super. 2010); see also Carey v.
Pennsylvania Dept. of Corrections, 61 A.3d 367, 374 (Pa. Cmwlth. 2013)
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(“A preponderance of the evidence standard, the lowest evidentiary
standard, is tantamount to ‘a more likely than not’ inquiry.”). Here, our
review of the record reveals the Commonwealth demonstrated by a
preponderance of the evidence that the contraband would have been
inevitably discovered. Johnson, 969 A.2d at 567 (Pa. Super. 2009)
(citations omitted) (the suppression court's conclusions of law are not
binding on an appellate court, whose duty it is to determine if the
suppression court properly applied the law to the facts; such conclusions of
law are subject to plenary review).
The record reveals that Officer Wilson and his partner Officer Rivera
received a radio report of a shooting at a hair salon, and a description of the
shooter as a black male wearing all black clothing. N.T., 4/10/13, at 8.
When the officers arrived at the hair salon, they immediately confirmed that
it had been the scene of a shooting, observing that the glass on the front
door was shot out, and the front door itself was lying on the ground. N.T.,
4/10/13, at 9. The officers additionally saw numerous bullet casings on the
ground both inside and outside of the hair salon. Id. The police officers
observed approximately ten people inside the hair salon, none of whom
matched the description of the shooter. Id. at 13. The officers immediately
took steps to “contain the crime scene”, instructing the occupants of the hair
salon not to disturb any of the debris from the shooting. Id. at 11. The
officers then systematically asked for identification from all of the occupants
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of the salon. Officer Wilson testified, “we asked them for their ID’s ... since
they had to get interviewed by the detectives.” Id. at 10. Approximately
five minutes after the police officers’ arrival, Akines emerged from the
bathroom with a two-year-old child. Id. at 12-13. Officer Wilson
immediately recognized that Akines matched the description of the shooter.
Id. at 12. The officer asked Akines for his identification; Akines initially
provided a false name, but then admitted that he had given a false name,
and provided his real name to the officer, which further aroused the officer’s
suspicions.
Under the totality of the circumstances, we conclude that the
Commonwealth demonstrated by a preponderance of the evidence that the
officers would have recovered the contraband from the basement steps.
Specifically, Officer Wilson testified that he and Officer Rivera made efforts
to secure and contain the crime scene by preventing the occupants of the
hair salon from disturbing the debris, indicating the officers’ intent to
conduct a further inspection of the premises for evidence. Moreover, Officer
Wilson stated that he collected identification from all of the occupants of the
hair salon for the express purpose of preparing for a subsequent
investigation, indicating that further police inquiry and investigation into the
shooting would occur. Contrary to the trial court’s determination that “[t]he
Commonwealth presented no evidence as to the specifics of where and how
the basement could be accessed”, Officer Wilson testified that the entrance
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to the basement was merely ten feet from the front door of the hair salon,
and the record indicates that the officer was able to gain unimpeded entry
into the basement where the book bag containing the contraband was
discovered. Trial Court Opinion, 2/20/14, at 7; N.T., 4/10/13, at 19.
Given that the police officers were preparing to conduct an
investigation of the premises, that the basement door was in close proximity
to the entrance of the building that had sustained significant gunshot
damage, and that nothing in the record indicates that access to basement
was obstructed in any way, it is reasonable to conclude that the impending
police investigation “more likely than not” would have encompassed the
basement stairwell. See id. at 19.
Additionally, Officer Wilson testified that when he entered the
basement, he observed mainly boxes, and he saw at the bottom of the steps
a “small book bag” or “little kids backpack.” Id. at 19-20. Officer Wilson
testified that there were no other book bags in the basement area, and
because the basement mainly contained boxes, the book bag would have
been conspicuous. Id. at 20. Furthermore, the officer testified that as he
neared the book bag, he smelled a “strong” odor of “fresh” marijuana
emanating from it, increasing the likelihood that the officers would have
found the contraband in the bag because it smelled of marijuana. Id.; see
Commonwealth v. Stoner, 710 A.2d 55, 59 (Pa. Super. 1998) (explaining
that “plain smell” is a concept that is analogized to “plain view” to establish
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probable cause); Commonwealth v. Stoner, 344 A.2d 633, 635 (Pa.
Super. 1975) (“[I]t would have been a dereliction of duty for [the arresting
officer] to ignore the obvious aroma of an illegal drug which he was trained
to identify.”). Upon opening the book bag, Officer Wilson recovered twenty
vials of marijuana, a handgun, and “multiple prescribed medication bottles
[that] had [Akines’] name on the[m]”, thus connecting the contraband to
Akines, contrary to the trial court’s determination that the Commonwealth
presented no evidence that the bag could have been “linked” to Akines.
N.T., 4/10/13, at 22; Trial Court Opinion, 2/20/14, at 6-7. Further, it is
reasonable to conclude that upon discovering the contraband in the book
bag, the police officers would have placed Akines under arrest, and the
contraband in Akines’ pocket would have been recovered from a search
incident to arrest. See Commonwealth v. Walker, 501 A.2d 1143, 1148
(Pa. Super. 1985) (“Incident to a lawful arrest, a police officer may conduct
a warrantless search of the arrestee's person and of the area within the
immediate control of the arrestee[;] [t]he warrantless search acts to protect
the arresting officer from weapons the arrestee may have access to, and
prevents the destruction or concealment of evidence.”).
Given the foregoing, we conclude that the Commonwealth
demonstrated by a preponderance of the evidence that the police officers
would have conducted an investigation of the crime scene that would have
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led to the inevitable discovery of the contraband. We therefore reverse the
trial court’s order granting Akines’ suppression motion.
Order reversed. Case remanded. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/12/2014
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