J-S30010-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
DYREL STEELE
Appellee No. 1080 EDA 2014
Appeal from the Order Entered March 10, 2014
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0014122-2012
BEFORE: GANTMAN, P.J., FORD ELLIOTT, P.J.E., and JENKINS, J.
MEMORANDUM BY GANTMAN, P.J.: FILED JULY 14, 2015
Appellant, the Commonwealth of Pennsylvania, appeals from the order
entered in the Philadelphia County Court of Common Pleas, granting the
motion of Appellee, Dyrel Steele, to suppress evidence obtained following his
arrest for drug offenses.1 We affirm.
The relevant facts and procedural history of this appeal are as follows.
____________________________________________
1
Pursuant to Pa.R.A.P. 311(d), the Commonwealth certified in good faith in
its notice of appeal that the suppression order substantially handicapped or
terminated the prosecution. Accordingly, this appeal is properly before us
for review. See Commonwealth v. James, 620 Pa. 465, 69 A.3d 180
(2013) (reiterating Commonwealth has absolute right of appeal from
interlocutory suppression order, when Commonwealth certifies in good faith
that suppression order has terminated or substantially handicapped
prosecution); Commonwealth v. Cosnek, 575 Pa. 411, 836 A.2d 871
(2003) (stating Rule 311(d) applies to pretrial ruling that results in
suppression, preclusion or exclusion of Commonwealth’s evidence).
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The Commonwealth presented one witness, Scott
Schweizer, a police officer of sixteen (16) years’
experience with eight years on the Narcotics Strike Force,
now working in the 24th District. He had over 100
narcotics arrests and extensive narcotics training in the
care and packaging of drugs.
Officer Schweizer testified that on August 3, 2012, at 6:45
p.m., in the area of 700 East Clearfield Street, he and his
partner, Police Officer Pross, were in full uniform traveling
in an unmarked police vehicle. When the police vehicle
stopped at a red light, Officer Schweizer saw [Appellee] in
the front passenger seat of a parked car with a female
driver sitting behind the wheel. Through the windshield of
this parked vehicle, Officer Schweizer saw [Appellee]
maneuver an unknown object in his hands that “appeared
to be something the size of a tennis ball or racquetball.”
However, Officer Schweizer stated he could not actually
see what was in [Appellee’s] hand. The officer believed he
and [Appellee] made eye contact and [Appellee] then tried
to conceal himself and the contents of his hand.
At this point, the police officers pulled over and
approached [Appellee’s] vehicle. Police Officer Schweizer
made contact with [Appellee] and requested [Appellee]
lower his window. [Appellee] complied and inquired,
“What the fuck? What the fuck?” Officer Schweizer
described [Appellee’s] conduct as “fidgety” and “excited”
indicating he was looking around, leaning forward with his
hand, nervous, and sweaty. Officer Schweizer testified he
saw a bulge in [Appellee’s] right pocket that again looked
like [a] tennis or racquetball, which he believed to be
narcotics, as well as a black plastic bag on the floor of the
vehicle.
The police officer commanded [Appellee] out of the car. A
pat down was performed and Officer Schweizer felt what
he believed to be narcotics. Immediately thereafter,
Officer Schweizer recovered the black plastic bag from the
floorboard of the car which also contained narcotics.
Officer Schweizer further testified that at no point did he
believe [Appellee] had a weapon.
(Suppression Court Opinion, filed February 4, 2015, at 1-2) (internal
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citations to the record omitted).
On December 4, 2012, the Commonwealth filed a criminal information
charging Appellee with possession of a controlled substance and possession
of a controlled substance with intent to deliver. On January 24, 2013,
Appellee filed a suppression motion, asserting Officer Schweizer “stopped
[Appellee], while [Appellee] was lawfully sitting as a passenger in a parked
car.” (Suppression Motion, filed 1/24/13, at 1). Appellee argued Officer
Schweizer conducted an illegal seizure and search, “and the ultimate
recovery of the narcotics was done in violation of [Appellee’s] constitutional
rights.” (Id.) Appellee concluded the court should suppress all evidence
obtained as result of the result of the illegalities. The court conducted a
suppression hearing on March 10, 2014. Immediately following the hearing,
the court granted Appellee’s suppression motion.
The Commonwealth timely filed a notice of appeal on April 9, 2014.
That same day, the Commonwealth filed a concise statement of errors
complained of on appeal, pursuant to Pa.R.A.P. 1925(b).
The Commonwealth raises one issue for our review:
WHERE AN EXPERIENCED OFFICER IN AN AREA KNOWN
FOR DRUG TRAFFICKING APPROACHED [APPELLEE], WHO
WAS IN THE PASSENGER SEAT OF A PARKED, RUNNING
CAR, LOOKING AT AN OBJECT IN HIS HAND THAT THE
OFFICER COULD NOT SEE; [APPELLEE] MADE EYE
CONTACT WITH THE OFFICER AND THEN SLUMPED DOWN
IN HIS SEAT AND TRIED TO CONCEAL THE OBJECT IN HIS
HAND; THE OFFICER SAW A TENNIS BALL SIZED BULGE
IN [APPELLEE’S] POCKET; [APPELLEE] WAS SWEATING,
NERVOUS, MOVING AROUND IN HIS SEAT, AND REACHED
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FORWARD SEVERAL TIMES TOWARDS A BLACK PLASTIC
BAG ON THE FLOOR; AND [APPELLEE] CURSED AT THE
OFFICER, DID THE [SUPPRESSION] COURT ERR IN
HOLDING THAT THE OFFICER LACKED REASONABLE
SUSPICION TO STOP AND FRISK [APPELLEE] FOR
WEAPONS?
(Commonwealth’s Brief at 4).
When the Commonwealth appeals from a suppression order, the
relevant scope and standard of review are:
[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. As long as there is some
evidence to support them, we are bound by the
suppression court’s findings of fact. Most importantly, we
are not at liberty to reject a finding of fact which is based
on credibility.
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. Goldsborough, 31 A.3d 299, 305 (Pa.Super. 2011),
appeal denied, 616 Pa. 651, 49 A.3d 442 (2012) (internal citations and
quotation marks omitted).
On appeal, the Commonwealth contends Officer Schweizer, an
experienced narcotics officer, observed Appellee inside a parked vehicle in a
high-crime area. The Commonwealth asserts Appellee slouched in his seat
and attempted to hide from the officer after the two made eye contact. The
Commonwealth claims Appellee appeared nervous, he fidgeted and cursed
while interacting with Officer Schweizer, and Appellee repeatedly reached
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toward the plastic bag on the floor in front of him. Under these
circumstances, the Commonwealth argues Officer Schweizer possessed
reasonable suspicion that Appellee was engaged in criminal activity.
Further, the Commonwealth submits Appellee’s suspicious behavior justified
the officer’s decision to conduct a pat-down search for weapons. The
Commonwealth concludes the court should have denied Appellee’s
suppression motion on these bases. We disagree.
Contacts between the police and citizenry fall within three general
classifications:
The first [level of interaction] is a “mere encounter” (or
request for information) which need not be supported by
any level of suspicion, but carries no official compulsion to
stop or to respond. The second, an “investigative
detention” must be supported by a reasonable suspicion; it
subjects a suspect to a stop and a period of detention, but
does not involve such coercive conditions as to constitute
the functional equivalent of an arrest. Finally an arrest or
“custodial detention” must be supported by probable
cause.
Goldsborough, supra at 305 (quoting Commonwealth v. Bryant, 866
A.2d 1143, 1146 (Pa.Super. 2005), appeal denied, 583 Pa. 668, 876 A.2d
392 (2005)).
“A mere encounter can be any formal or informal interaction between
an officer and a citizen, but will normally be an inquiry by the officer of a
citizen. The hallmark of this interaction is that it carries no official
compulsion to stop or respond.” Commonwealth v. Jones, 874 A.2d 108,
116 (Pa.Super. 2005) (quoting Commonwealth v. DeHart, 745 A.2d 633,
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636 (Pa.Super. 2000)).
In contrast, an investigative detention, by implication,
carries an official compulsion to stop and respond, but the
detention is temporary, unless it results in the formation of
probable cause for arrest, and does not possess the
coercive conditions consistent with a formal arrest.
* * *
An investigative detention, unlike a mere encounter,
constitutes a seizure of a person and thus activates the
protections of Article 1, Section 8 of the Pennsylvania
Constitution. To institute an investigative detention, an
officer must have at least a reasonable suspicion that
criminal activity is afoot.
* * *
Reasonable suspicion exists only where the officer is able
to articulate specific observations which, in conjunction
with reasonable inferences derived from those
observations, led him reasonably to conclude, in light of
his experience, that criminal activity was afoot and that
the person he stopped was involved in that activity.
Therefore, the fundamental inquiry of a reviewing court
must be an objective one, namely, whether the facts
available to the officer at the moment of intrusion warrant
a [person] of reasonable caution in the belief that the
action taken was appropriate.
Jones, supra at 116 (internal citations omitted).
Also, the totality of the circumstances test does not limit
our inquiry to an examination of only those facts that
clearly indicate criminal conduct. Rather, even a
combination of innocent facts, when taken together, may
warrant further investigation by the police officer.
Commonwealth v. Young, 904 A.2d 947, 957 (Pa.Super. 2006), appeal
denied, 591 Pa. 664, 916 A.2d 633 (2006) (quoting Commonwealth v.
Conrad, 892 A.2d 826, 829 (Pa.Super. 2006), appeal denied, 588 Pa. 747,
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902 A.2d 1239 (2006)) (internal citations and quotation marks omitted).
“In these matters, our initial inquiry focuses on whether the individual
in question has been legally seized.” Commonwealth v. Coleman, 19 A.3d
1111, 1116 (Pa.Super. 2011).
To guide the crucial inquiry as to whether…a seizure has
been effected, the United States Supreme Court has
devised an objective test entailing a determination of
whether, in view of all surrounding circumstances, a
reasonable person would have believed that he was free to
leave. In evaluating the circumstances, the focus is
directed toward whether, by means of physical force or
show of authority, the citizen-subject’s movement has in
some way been restrained. In making this determination,
courts must apply the totality-of-the-circumstances
approach, with no single factor dictating the ultimate
conclusion as to whether a seizure has occurred.
Commonwealth v. Downey, 39 A.3d 401, 405 (Pa.Super. 2012), appeal
denied, 616 Pa. 657, 50 A.3d 124 (2012) (quoting Coleman, supra at
1116). “If, during the course of a valid investigatory stop, an officer
observes unusual and suspicious conduct on the part of the individual which
leads him to reasonably believe that the suspect may be armed and
dangerous, the officer may conduct a pat-down of the suspect’s outer
garments for weapons.” Commonwealth v. Preacher, 827 A.2d 1235,
1239 (Pa.Super. 2003).
Instantly, on August 3, 2012, Officer Schweizer and his partner were
on patrol near 700 East Clearfield Street. The officers were in full uniform,
riding in an unmarked car. Officer Schweizer characterized the area as a
“residential neighborhood” with “three, four, known drug corners….” (See
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N.T. Suppression Hearing, 3/10/14, at 7-8.) Officer Schweizer estimated he
had made one hundred arrests for narcotics offenses in the area over a
sixteen-year period.
At approximately 6:45 p.m., Officer Schweizer first observed Appellee,
who was in the passenger’s seat of a parked vehicle. An unidentified female
was in the driver’s seat. Officer Schweizer described Appellee’s behavior as
follows:
I was making my observations through my side window,
which isn’t tinted. Looking into the vehicle that [Appellee]
was in through the front windshield, I observed [that
Appellee] appear[ed] to be examining something in his
hand, looking at it. I could see him maneuver his body to
[place] that item into his pocket. Again, we were still in
traffic.
At this point, I made eye contact with [Appellee], meaning
we were looking at each other. At that point, [Appellee]
started to, in my opinion, conceal himself. He started to
slouch down and maneuver in the passenger’s seat to a
point where at one time I completely couldn’t see his body
whatsoever.
(Id. at 9-10). Officer Schweizer elaborated on the object in Appellee’s hand,
explaining, “I couldn’t see fully what was in his hand, but the way his hand
was opened, it appeared…to be something of the size of a tennis ball….”
(Id. at 10).
Officer Schweizer stated Appellee’s “mannerisms after we made eye
contact” raised his suspicions. (Id. at 16). Specifically, Appellee’s attempt
to conceal himself troubled the officer:
[Appellee] first leaned…like slouching down. Like you
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would go down a sliding board. And then he came back up
and then fully concealing himself, leaning toward the
driver’s side where I couldn’t see him anymore.
(Id.) Consequently, Officer Schweizer and his partner exited their patrol car
and approached Appellee’s vehicle. Officer Schweizer went to the
passenger’s side and his partner stayed on the driver’s side. Officer
Schweizer asked Appellee to roll down the passenger’s side window. (Id. at
18).
Officer Schweizer emphasized that Appellee’s act of slouching in his
seat aroused the officer’s suspicion, which prompted his further
investigation. Appellee was effectively seized when the officers stood
directly outside his vehicle and asked him to roll down the window. Under
these circumstances, a reasonable person would not think he was free to
leave the scene. See Downey, supra. Therefore, Officer Schweizer’s
interaction with Appellee constituted a “seizure” that required reasonable
suspicion. Id.
Here, the suppression court correctly determined:
There is no evidence of a traffic violation, or vehicle stop,
only Officer Schweizer’s observations of [Appellee’s]
behavior. Based on Officer Schweizer’s observations, at
6:45 p.m. in the summer, [Appellee] maneuvered
something in his hands that looked like a [ball], and then
upon making eye contact with [the officer], slouched down
in his seat. This combination of actions [does] not give
rise to reasonable suspicion that there was criminal activity
afoot. Officer Schweizer had no reason to stop
[Appellee]…and…anything [discovered] after should be
suppressed as fruit of the poisonous tree.
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(See Suppression Court Opinion at 4.) We agree and emphasize Officer
Schweizer’s testimony lacked any specific observations to link the object in
Appellee’s hand, or his slouching in his seat, to any type of criminal activity.
Officer Schweizer could not identify the object or even see its color. (See
N.T. Suppression Hearing at 17.) The record supports the court’s decision
that the officer lacked reasonable suspicion under these circumstances. See
Jones, supra. Accordingly, we affirm the order granting the suppression
motion.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/14/2015
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Com. v. Steele, D.
Combined Opinion