Com. v. Rascoe, A.

J-S04038-15

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
v. :
:
AARON DELMAR RASCOE, :
:
Appellee : No. 751 MDA 2014

Appeal from the Suppression Order Entered April 21, 2014,
in the Court of Common Pleas of York County,
Criminal Division, at No(s): CP-67-CR-0004515-2013

BEFORE: BOWES, ALLEN, and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.: FILED APRIL 06, 2015

The Commonwealth of Pennsylvania (Commonwealth) appeals from

the April 21, 2014 order which granted the motion to suppress filed by Aaron

Delmar Rascoe (Rascoe). We affirm.

The suppression court summarized the underlying facts of this case as

follows.

[On February 21, 2013, at about 2:30 a.m., Pennsylvania
State Troopers Bernam and Bennett] pulled over a Chevy
Suburban because it had a headlight out. This traffic stop
occurred near the 600 block of West Princess Street, and
[Trooper Bernam] explained from his experience as a state
trooper that this was a high crime area in York city. Both
officers approached the vehicle and identified [Rascoe] as the
passenger of the vehicle. The driver provided Trooper Bennett
with documentation confirming that the headlight was damaged
in an accident that occurred earlier that day.

While running a warrant check on both the driver and
[Rascoe], Trooper Bennett testified that he told Trooper Bernam

*Retired Senior Judge assigned to the Superior Court.
J-S04038-15

he detected an odor of marijuana in the vehicle. Trooper
Bennett started with the Pennsylvania State Police on January 2,
2013. Both officers re-approached the vehicle and the driver
was ordered to step outside. When Trooper Bernam opened the
passenger door, he testified that he too smelled the odor of
marijuana. The driver denied smoking marijuana and further
denied the presence of any marijuana in the car. Trooper
Bennett briefly patted down the driver and found no weapons or
contraband. The officers asked the driver if he would consent to
a search of the vehicle. The driver refused, explaining that he
was not the vehicle’s owner. He was then advised that the
vehicle would be impounded and towed. While this was taking
place, [Rascoe] remained in the front passenger seat of the
vehicle and stayed there as the driver made a phone call to tell
someone the car would be impounded.

Eventually, Trooper Bernam asked [Rascoe] to exit the
vehicle. Before exiting the vehicle, [Rascoe] reached over and
turned off the vehicle’s ignition and removed the keys. The
trooper immediately took the keys from [Rascoe]. Significantly,
Trooper Bernam did not pat down or search [Rascoe] for
weapons when he exited the vehicle’s passenger side door.
After the trooper took the keys from [Rascoe], he informed
[Rascoe] and the driver that they were both free to leave. They
also informed the driver that they were going to impound the car
and get a warrant to search it because they smelled marijuana
and because the driver would not consent to a vehicle search.

While [Rascoe] was still standing on the sidewalk, the
vehicle’s driver quickly grabbed the car keys out of Trooper
Bernam’s hands and ran from the scene. Trooper Bernam
testified that he was shocked. Since York City Police had arrived
on the scene, they pursued the fleeing driver. Trooper Bernam
stayed with [Rascoe], who had not moved since the keys were
taken from him. At this point, Trooper Bernam explained that he
wanted to detain [Rascoe] for safety reasons so he ordered
[Rascoe] to get on the ground. When [Rascoe] did not comply,
both Trooper Bernam and Trooper Bennett forced [Rascoe] to
the ground and placed him in handcuffs. While on the ground,
Trooper Bernam testified that he patted down [Rascoe] and felt
a bulge that he believed to be drug packaging inside [Rascoe’s]
coat pocket. When [Trooper Bernam] reached into [Rascoe’s]

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pocket, he found a glove and a container with crack cocaine.
Trooper Bernam eventually found marijuana and more cocaine
on [Rascoe] after a further search of his person.

Suppression Court Opinion, 4/21/2014, at 1-3.

Rascoe filed a motion to suppress. Following a hearing, the

suppression court granted the motion. In so doing, the suppression court

concluded that the above encounter amounted to an arrest of Rascoe which

was not supported by probable cause and, thus, the search of Rascoe was

illegal. The suppression court further reasoned that, even if it viewed the

incident as a less-intrusive Terry1-type stop and frisk, the troopers lacked

the requisite reasonable suspicion. The Commonwealth timely filed a notice

of appeal.2 Both the suppression court and the Commonwealth have

complied with Pa.R.A.P. 1925.3

The Commonwealth presents one issue for this Court’s review:

whether “the suppression court erred when it suppressed the fruits of a

search on the basis that the officers lacked reasonable suspicion to perform

a frisk of [Rascoe].” Commonwealth’s Brief at 4.

1
Terry v. Ohio, 392 U.S. 1 (1968).
2
The Commonwealth has certified that the suppression order substantially
handicaps the prosecution, making this an interlocutory appeal as of right
under Pa.R.A.P. 311(d).
3
The suppression court filed its Rule 1925(a) opinion on June 16, 2014,
incorporating its analysis of the issues set forth in its April 21, 2014 opinion
filed with its order granting Rascoe’s motion to suppress.

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J-S04038-15

We consider the Commonwealth’s issue mindful of the following.

When the Commonwealth appeals from a suppression order, this
Court follows a clearly defined scope and standard of review. We
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. This
Court must first determine whether the record supports the
factual findings of the suppression court and then determine the
reasonableness of the inferences and legal conclusions drawn
from those findings. In appeals where there is no meaningful
dispute of fact, as in the case sub judice, our duty is to
determine whether the suppression court properly applied the
law to the facts of the case.

Commonwealth v. Gorbea-Lespier, 66 A.3d 382, 385-86 (Pa. Super.

2013) (quotation marks and citations omitted) (quoting Commonwealth v.

Arthur, 62 A.3d 424, 427 (Pa. Super. 2013)).

Initially, we note that the Commonwealth dedicates its entire

argument to a discussion of why the troopers had reasonable suspicion to

stop and frisk Rascoe pursuant to the “automatic companion rule.” In so

doing, the Commonwealth fails to address the reasoning by the suppression

court that the troopers’ detention of Rascoe amounted to an arrest that was

not supported by probable cause and, thus, the subsequent search of

Rascoe was illegal. Suppression Court Opinion, 4/21/2014, at 5-8. Upon

review, we agree with the suppression court’s sound reasoning and

conclusion in this regard. Moreover, even assuming arguendo that the

troopers’ conduct merely amounted to a Terry-type stop and frisk, we also

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J-S04038-15

agree with the suppression court that the troopers lacked the requisite

reasonable suspicion to justify their actions.4 Id. at 8-9.

4
With respect to the automatic companion rule in particular, we provide the
following:

The “automatic companion” rule provides that “all companions of
[an] arrestee within the immediate vicinity, capable of
accomplishing a harmful assault on the officer, are
constitutionally subjected to the cursory ‘pat-down’ reasonably
necessary to give assurance that they are unarmed.” The
Supreme Court of Pennsylvania has not yet addressed the
constitutionality of this rule, although it has noted the existence
of the rule in several decisions.

This Court has ruled that a Terry frisk of an arrestee’s
companion is permissible and, recently, addressed the
constitutionality of the automatic companion rule. …

… [I]n Commonwealth v. Graham, 454 Pa. Super. 169, 685
A.2d 132 (Pa. Super. 1996), rev'd on other grounds, 554 Pa.
472, 721 A.2d 1075 (1998)[, this Court] rejected a per se rule
that a companion of an arrestee is subject to a “pat-down”
regardless of the justification for such search as contrary to the
Fourth Amendment of the United States Constitution and Article
I, Section 8 of the Pennsylvania Constitution. In Graham, we
reiterated the two separate standards that generally must be
met for a proper stop and frisk, i.e., the officer must have
reasonable suspicion, based on articulable facts, that criminal
activity may be afoot and that the suspect may be armed and
dangerous.

The Graham court held that the first prong of the “stop and
frisk” test is a nullity in cases involving companions of arrestees.
… Thus, in cases involving the frisk of an arrestee’s companion,
the sole question becomes whether the police officer had a
reasonable belief that the companion was armed and dangerous.

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J-S04038-15

Because we conclude that the Honorable Michael E. Bortner has

crafted a thorough decision disposing of the Commonwealth’s issue on

appeal, we adopt the suppression court’s opinion filed April 21, 2014, as our

own and affirm on the basis of that opinion. The parties shall attach a copy

of the suppression court opinion in the event of further proceedings.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 4/6/2015

Commonwealth v. Reed, 19 A.3d 1163, 1169 (Pa. Super. 2011) (citations
and footnote omitted) (quoting Commonwealth v. Jackson, 907 A.2d 540,
543-45 (Pa. Super. 2006)).

As demonstrated in the suppression court’s decision, Troopers Bernam
and Bennett did not reasonably believe that Rascoe was armed and
dangerous. Thus, the automatic companion rule does not warrant relief for
the Commonwealth.

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k. IN THE COURT OF COMMON PLEAS OF YORK COUNTY, PENNSYLVANIA
h •.
CRIMINAL DIVISION

COMMONWEALTH NO. CP-67-CR-4515-2013
..f::,
v.
<:::::
u: AARON DELMAR RASCOE,
e::: Defendant
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COUNSEL OF RECORD:

o: For the Commonwealth: For the Defendant:
v. Jennifer M. Smith, Esquire Heather A. Reiner, Esquire
f--'
k.

OPINION IN SUPPORT OF ORDER
The Defendant, through prior counsel, filed a Motion to Suppress on December 19, 2013. A

hearing was held on March 21, 2014, at which time this Court heard testimony and argument from both

parties. The Defendant's current counsel represented him during this hearing. At the conclusion of the

hearing, the Court took the matter under advisement. After consideration of all testimony, evidence, and

case law, we hereby GRANT the Defendant's Motion to Suppress and now issue this Opinion in support

of that Order.

I. Facts

During the hearing on the Defendant's suppression motion, the Commonwealth called two

Pennsylvania State Policemen-Trooper Bernam and Trooper Bennett-to testify about an incident that
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p~)urred around 2:30 a.m, on February 2 I, 2013. Trooper Bernam testified that he pulled over a Chevy
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'§vB!Jrban because it had a headlight out. This traffic stop occurred near the 600 block of West Princess
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~ and the officer explained from his experience as a state trooper that this was a high crime area in
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r·~. York city. Both officers approached the vehicle and identified the Defendant as the passenger of the
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vehicle. The driver provided Trooper Bennett with documentation confirming that the headlight was
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e::: damaged in an accident that occurred earlier that day.
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While running a warrant check on both the driver and the Defendant, Trooper Bennett testified
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--·: Pennsylvania courts have further elaborated:
v·
Jn order for a stop to be reasonable under Terry [ J, the police officer's reasonable
and articulable belief that criminal activity was afoot must be linked with his
observation of suspicious or irregular behavior on the part of the particular defendant
stopped. Mere presence near a high crime area ... or in the vicinity of a recently
reported crime ... does not justify a stop under Terry. Conversely, an officer's
observation of irregular behavior without a concurrent belief that crime is afoot also
renders a stop unreasonable.

Commonwealth v, Ayala, 191 A.2d 1202, 1209 (Pa. Super. 2002) (citations omitted). It is important to

note that Pennsylvania "caselaw is quite emphatic that an individual's mere presence in a high crime area

is manifestly insufficient to justify a Terry stop. Id. at 1210 (citing 111 re D.M, supra).

The Pennsylvania courts have adopted a test to determine whether an officer's Terry stop is

reasonable. In order for an officer's stop and frisk under Terry to be reasonable, "the police conduct must

meet two separate and distinct standards." Jackson, 907 A.2d at 543. First, "the police officer must have a

'reasonable and articulable suspicion' that criminal activity may be afoot." Id. (citing Commonwealth v.

Shelly, 103 A.2d 499, 503 (Pa. Super. 1997)). Second, the police must believe "that the suspect may be

armed and dangerous." Id The officer's level of suspicion can be less than a preponderance of the

evidence but must be more than just a hunch. Shelly, 703 A.2d at 503.
4

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t.,. Pennsylvania courts have also addressed the constitutionality of the automatic companion rule. In
t·- •.
Commonwealth v. Graham, the "court rejected aper se rule that a companion of an arrestee is subject to a

"pat-down" regardless of the justification for such search." Jackson, 901 A.2d at 544. The courts have

further held that "in cases involving the frisk of an arrestee's companion, the sole question becomes

whether the police officer had a reasonable belief that the companion was armed and dangerous." Id
c
o· (citing Commonwealth v. Graham, 685 A,2d 132, 137 (Pa. Super. 1996)).

0:
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k: A. Defendant's arrest and custodial detention was without probable cause.

When the defendant was forcibly taken to the ground, handcuffed and then searched by the police

officers, he was under arrest. Immediately prior to the arrest, the defendant had complied with a request to

exit the vehicle. Furthermore, the police officers advised him that he was free to leave the scene after

exiting the vehicle. When his companion grabbed the keys to the automobile from Trooper Bemam, the

Defendant continued to remain at the scene. He made no furtive or suspicious movements, and in fact, he

made no moves at all. At that time, the troopers ordered him to the ground, and when he failed to comply,

both officers physically forced him onto the ground, where he was restrained, handcuffed and searched.

These facts create a scenario far more intrusive than the limited attention envisioned by Terry and

amounts to a full-blown arrest, "An arrest is defined as 'any act that indicates an intention to take the

person into custody and subjects him to the actual control and will of the person making the arrest."

Commonwealth v. Woodson, 493 A.2d 78, 79 (Pa. Super. Ct. 1985). The test "is an objective one, i.e.,

viewed in the light of the reasonable impression conveyed to the person subjected to the seizure rather than

the strictly subjective view of the officers or the persons being seized." Commonwealth v. Douglass, 539

A.2d 412, 419 (Pa. Super. Ct. 1988) (quoting Commonwealth v. Haggerty, 435 A.2d 174, 175 (Pa. 1981)).
5

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,~. Several factors are generally considered in determining whether a detention is investigative or custodial,
1-.....
including: the basis for the detention ( crime suspected and grounds for suspicion); duration of detention;

location of detention (public or private); whether the suspect was transported against his will (how far and

why); the method of detention: whether there was a show, threat, or use of force; and the investigative
<:o:
<.f.: methods used to confirm or dispel suspicions. Id. at 421. As mentioned above, an arrest, or custodial

detention, must be supported by probable cause. See Clinton, supra.

First, we conclude that this encounter amounted to an arrest, or custodial detention, of the

Defendant. In reaching its conclusion, the Court must analyze the factors mentioned previously. See

Douglass, supra. In this case, the troopers took the Defendant to the ground solely because the driver stole

the car keys from Trooper Bemam and fled the scene. The driver's actions were the sole reason for the

detention of the Defendant according to Trooper Bertram's testimony. After this occurred, the Defendant

did nothing that made either trooper suspect that he was committing a crime. Because they had just

informed the Defendant that he was free to leave, the troopers obviously did not have any grounds for

suspicion at that time. The method of detention and the use of force were extreme as well. The troopers

did not ask, but rather commanded, the Defendant to get on the ground, and after he did not comply, both

troopers forced him to the ground. The officers then handcuffed him while he was still laying facedown

on the ground. Under these circumstances, any reasonable person would believe he was in custody and

under the actual control and will of the troopers. The Court concludes that these facts amount to an arrest.

See Woodson, supra.

Second, we conclude that the troopers lacked probable cause to arrest the Defendant and then to

search him incident to that arrest, Because the troopers informed the Defendant that he was free to leave

the area after exiting the vehicle, it is clear that the troopers lacked probable cause to arrest the Defendant
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t·-•. at that point. The Court must then examine whether probable cause arose after the Defendant was
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informed he was free to leave.

Generally, a police officer "may arrest a suspect without a warrant if the officer has probable

cause" to believe the suspect committed a felony or misdemeanor in his presence. /11 the Interest of R.P.,

918 A.2d 115, 120-21 (Pa. Super. 2007) (citing Commonwealth v. Clark, 735 A.2d 1248, 1251 (Pa.
~:
(J' 1999)). Probable cause is determined by the totality of the circumstances. Clark, 735 A.2d at 1252.

Probable cause is governed by an objective standard, and it "must be viewed from the vantage point of a
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;-, prudent, reasonable, cautious police officer on the scene at the time of'the arrest guided by his experience
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and training." Id. When probable cause exists and an arrest is made, the officer may conduct a full

custodial search of the suspect's person at that time. In the Interest of R.P., 9 I 8 A.2d at 120.

The troopers lacked the necessary probable cause in this case to arrest the Defendant, and as such,

Trooper Bern am conducted an ii legal search of the Defendant. After the troopers informed the Defendant

that he was free to leave the area, the Defendant's actions (or Jack thereof) did not warrant any reasonable,

prudent officer in believing that a crime was committed. The driver, not the Defendant, snatched the keys

from Trooper Bemam and fled the scene. The driver's actions cannot be used against the Defendant to

establish the requisite probable cause. Simply being in the presence of irregular behavior or the

commission of another's crime does not warrant an arrest.

The only remaining circumstance is that the incident occurred in a high crime area. Under

Pennsylvania law, this fact alone is not sufficient to establish probable cause or even reasonable suspicion.

See Ayala, supra. For these reasons, we conclude that no particularized facts existed to establish probable

cause and to arrest the Defendant. Since the arrest lacked probable cause, we further conclude that the

ensuing search yielding the contraband was improper. As a result, the evidence seized by the troopers
7

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must be suppressed as fruit of the illegal search.

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B. Defendant's detention was not supported by reasonable suspicion .

As noted above, this court takes the position that the defendant was placed under arrest by the
(;.":
u:: police officers and that such arrest lacked probable cause.However, even if we view this incident as a less
c:
o· intrusive Teny-type stop and frisk, the evidence must still be suppressed.

The Commonwealth argues that the Defendant was the subject of an investigative detention at the

time Troopers Bernam and Bennett ordered him to the ground and searched him. The issue then becomes

whether or not the applicable standard, i.e. reasonable suspicion, was met to allow police to stop and then

frisk the Defendant. Going further, the narrower issues are: 1) whether the troopers had a reasonable and

articulable suspicion, particular to the Defendant, that criminal activity was afoot; and 2) whether the

police believed the Defendant was armed and dangerous. See Jackson, supra. To determine reasonable

suspicion and resolve the narrower issues, the Court must examine the totality of the circumstances

surrounding the particular Defendant.

The Court views this incident as two separate encounters with the Defendant. The first encounter

took place from the time the vehicle was pulled over until the troopers told the Defendant he was free to

leave the area. The second, and more important, encounter took place from the time the Defendant was

free to leave until the troopers forced him to the ground and searched him.

The Court does not deny that Troopers Bernam and Bennett had reasonable suspicion during the

first encounter with the Defendant and the vehicle's driver. The troopers executed a traffic stop because

the vehicle's headlight was out. When the troopers approached the vehicle, Trooper Bennett smelled the

odor of marijuana in the vehicle. Trooper Bernam also noticed this odor when he approached the
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<::::
-~,~~~~~-it~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
~~. passenger side of the vehicle a second time. In light of his experience, Trooper Bemam also knew that the
I·-»,
area of 600 West Princess Street is a high crime area in York city. Under the totality of these

circumstances, the troopers did have reasonable suspicion to order the Defendant from the vehicle.

However, the troopers chose not to detain the Defendant at that time. After asking the Defendant

to exit the passenger side of the vehicle, he did not "frisk" the Defendant for weapons. Jt is telling that by

not frisking the Defendant for weapons> Trooper Bemam demonstrated that he did not believe that the

Defendant was a threat to his or Trooper Bennett's safety. In fact, after having the Defendant exit the
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vehicle, Trooper Bernam advised him that he was free to leave the area. Once Trooper Bemam advised
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the Defendant of this, the Court finds that the first encounter ended. Since the first encounter ended, the

trooper's original reasonable suspicion to stop the Defendant ended as well.

We must now consider whether the troopers had reasonable suspicion to stop and frisk the

Defendant during the second encounter. As mentioned previously, the Defendant did nothing to create

suspicion after the troopers informed him that he was free to leave the area. The only remaining

circumstance is that the area happened to be a known, high crime area in York city. However, under

Pennsylvania law, this fact alone is not enough to establish the particularized, reasonable suspicion

required for an investigative detention or Terry-type stop and frisk. See Ayala, supra. The Court further

opines that Trooper Bernam's purported frisk of the Defendant was not warranted because he did not

believe that the Defendant was armed and dangerous. See Shelly and Jackson, supra. This conclusion is

clear because Trooper Bernam did not frisk the Defendant for weapons when he first exited the car and

before he was cleared to leave the area. The Defendant cannot automatically become a threat merely

because another person commits a crime nearby. For these reasons, we conclude that no reasonable

suspicion existed to warrant a stop and frisk of the Defendant under these circumstances.
9

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III. Conclusion

Under the totality of the circumstances, the Court finds that there is insufficient evidence to satisfy

the reasonable suspicion standard and to stop and frisk the Defendant under Terry. Furthermore, the Court

opines that once the troopers ordered and forced the Defendant to the ground he was in custody, which

requires probable cause-an even more stringent standard than reasonable suspicion. Because the troopers

Jacked any basis for either an investigative or custodial detention, the Court must suppress the evidence

found on the Defendant because it resulted from an illegal search and seizure.

For the reasons stated above> the Court hereby GRANTS the Defendant's Motion to

Suppress.

BY THE COURT,

DATED: April il, 2014

JO

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