J-S43003-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
NASIR JOHNSON,
Appellee No. 2942 EDA 2013
Appeal from the Order Entered September 19, 2013
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0010690-2012
BEFORE: GANTMAN, P.J., PANELLA AND OLSON, JJ.
MEMORANDUM BY OLSON, J.: FILED OCTOBER 02, 2015
Appellant, the Commonwealth of Pennsylvania (Commonwealth),
appeals from an order entered on September 19, 2013 that granted a
motion to suppress filed by Appellee, Nasir Johnson (Johnson). 1 Upon
careful consideration, we vacate and remand for further proceedings.
Johnson was arrested on August 22, 2012 and charged with
possession with intent to deliver (35 P.S. § 780-113(a)(30)), simple
possession (35 P.S. § 780-113(a)(16)), and criminal conspiracy (18
Pa.C.S.A. § 903). Following a preliminary hearing on September 7, 2012, all
charges were held for court. After several continuances, Johnson filed a
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1
In its notice of appeal, the Commonwealth certified that the September
19, 2013 order will terminate or substantially handicap the prosecution of
this case. Hence, we have jurisdiction over this appeal pursuant to Pa.R.A.P.
311(d).
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motion to suppress on July 14, 2013. The trial court convened a hearing on
Johnson’s motion on September 10, 2013.
At Johnson’s suppression hearing, the Commonwealth called
Philadelphia Police Officer Padraic Feeney, who was the sole witness to offer
testimony at the proceeding. The trial court summarized Officer Feeney’s
testimony as follows.
At approximately 11:30 [p.m.] on August 22, 2012 [P]olice
[O]fficer Feeney and [his] partner Officer McGrorty were working
in an unmarked vehicle at or near the area of the 1500 block of
Longshore Avenue in the City of Philadelphia. The [o]fficers
observed [Johnson] operating a gold Chevy Malibu with a
Virginia [license] plate, traveling southbound from the 7000
block of Large Street into an intersection[. At that location,
Johnson came to a sudden] stop and permitted another
individual to enter the vehicle[. Officer Feeney described] that
individual as an Hispanic male.
Based upon [the abrupt stop of Johnson’s vehicle], the officers
radioed for backup and continued southbound activating their
lights and sirens to issue a car stop. The intention of [Officer
Feeney] was to issue a motor vehicle violation[, pursuant to 75
Pa.C.S.A. § 3710], obstructing an intersection.
The vehicle [operated by Johnson stopped] on command at 1500
Longshore Avenue. While [Officer Feeney] indicated that the
occupants of the vehicle did not comply immediately [with the
officer’s] commands to [show] their hands, eventually [the
occupants] did comply.
[Next, Officer Feeney requested] that the occupants exit the
vehicle. After the males [] removed themselves from the
vehicle, [Officer] Feeney indicated that he saw “a clear plastic
[Ziploc] baggie, not in its entirety, just basically the corner of it
sticking out of a panel of the center console.” Based upon that
observation, solely without any indication of drugs or
paraphernalia being seen, [O]fficer Feeney call[ed] his Sergeant
to the scene, who then radio[d] for a narcotics canine officer to
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come [] to conduct a search of the vehicle, along with a canine,
trained for that specific purpose.
Although it isn’t clear, the record appears that the time period
between the stop of the vehicle and the arrival of the canine
sniffing dog may have been somewhere between the twenty (20)
minutes to two (2) hours. The canine alert[ed] positive for
contraband[, which led to the] procurement of a search warrant,
delivered at 5:15 a.m. The car [was] searched, resulting in a
seizure of 595 packets containing a blue insert of off-white
powder, alleged[ly] heroin. [Johnson was] arrested and
[$700.00 was recovered from his person].
Trial Court Opinion, 1/16/15, at 2-3.
Based on the foregoing findings of fact, the trial court, by order
entered on September 19, 2013, suppressed all of the evidence recovered
from Appellee and his vehicle. Thereafter, the Commonwealth filed a timely
notice of appeal along with a concise statement of errors for which it sought
appellate review. The trial court issued a responsive opinion on January 16,
2015.
In its brief, the Commonwealth raises the following question for our
review:
Did the lower court err by suppressing hundreds of packets
of heroin where the police properly detained defendant,
following a lawful traffic stop, based upon a reasonable
suspicion of criminal activity?
Commonwealth’s Brief at 3.
The Commonwealth challenges an order that granted Johnson’s motion
to suppress. It maintains that Officer Feeney and his partner conducted a
lawful traffic stopped based upon probable cause that Johnson committed a
violation of the Motor Vehicle Code. The Commonwealth also asserts that
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Officer Feeney had lawful authority to order Johnson and the other
occupants out of the vehicle during the course of a lawful vehicle stop.
Lastly, the Commonwealth asserts that Officer Feeney possessed reasonable
suspicion to detain Johnson pending a canine sniff based upon his
observation of the corner of a Ziploc baggy protruding from a non-factory
compartment in the center console of the vehicle. Because Officer Feeney
possessed reasonable suspicion, the Commonwealth concludes that
Johnson’s detention was constitutionally justified and that the ensuing
searches and seizures were lawful.
Our standard of review over such claims is as follows.
In appeals from orders granting suppression, our scope of review
is limited to the evidence presented at the suppression hearing.
In the Interest of L.J., 79 A.3d 1073, 1088–1089 (Pa. 2013).
Thus, we may consider only the evidence from [defense]
witnesses together with the Commonwealth's evidence that,
when read in context of the record at the suppression hearing,
remains uncontradicted. Id.; Commonwealth v. Whitlock, 69
A.3d 635, 637 (Pa. Super. 2013). As for the standard of review,
we apply no deference to the suppression court's legal
conclusions. Whitlock, 69 A.3d at 637. In contrast, we defer to
the suppression court's findings of fact, “because it is the fact-
finder's sole prerogative to pass on the credibility of the
witnesses and the weight to be given to their testimony.” Id.
Commonwealth v. Davis, 102 A.3d 996, 999 (Pa. Super. 2014) (parallel
citations omitted).
There is no dispute in this case that Officer Feeney and his partner
lawfully stopped Johnson’s vehicle and that they enjoyed the authority to
remove the occupants from the car. Instead, the central question in this
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case is whether the canine sniff impermissibly extended the traffic stop in
the absence of reasonable suspicion of criminal activity. See Rodriguez v.
United States, 2015 WL 1780927, *5 (U.S. 2015).
The following principles govern our assessment of whether an officer
possesses reasonable suspicion to extend a traffic stop in order to conduct a
canine sniff.
A police officer may detain an individual in order to conduct an
investigation if that officer reasonably suspects that the
individual is engaging in criminal conduct. Commonwealth v.
Cook, 735 A.2d 673, 676 (Pa. 1999). “This standard, less
stringent than probable cause, is commonly known as
reasonable suspicion.” Id. In order to determine whether the
police officer had reasonable suspicion, the totality of the
circumstances must be considered. In re D.M., 781 A.2d 1161,
1163 (Pa. 2001). In making this determination, we must give
“due weight ... to the specific reasonable inferences [the police
officer] is entitled to draw from the facts in light of his
experience.” Cook, 735 A.2d at 676 (quoting Terry v. Ohio,
392 U.S. 1 (1968)). 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, “[e]ven a
combination of innocent facts, when taken together, may
warrant further investigation by the police officer.” Cook, 735
A.2d at 676.
Commonwealth v. Rodgers, 849 A.2d 1185, 1189 (Pa. 2004) (parallel
citations omitted).
“[R]easonable suspicion does not require that the activity in question
must be unquestionably criminal before an officer may investigate further.”
Id. at 1190. “Rather, the test is what it purports to be — it requires a
suspicion of criminal conduct that is reasonable based upon the facts of the
matter.” Id.
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We hold the trial court erred as a matter of law in granting the
suppression motion. The trial court failed to consider the totality of the
circumstances and give Officer Feeney the benefit of the inferences he drew
from those circumstances. The record shows that Officer Feeney reasonably
suspected that criminal activity was afoot and that Johnson was in
possession of contraband at the time of the traffic stop.
In this case, Officer Feeney and his partner stopped Johnson’s car at
11:30 p.m. after watching him stop abruptly in an intersection and nearly
cause an accident. The officers ordered all of the occupants out of the car
because they engaged in furtive movements during which the officers lost
sight of the occupants’ hands. After the occupants exited the vehicle, Officer
Feeney observed the corner of a Ziploc baggy protruding from a non-factory
compartment2 near the passenger side floorboards of the vehicle’s center
console. Officer Feeney knew from his experience in investigating narcotics
offenses that unconventional vehicle compartments were used for
transporting drugs.3 The officer testified explicitly that the presence of a
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2
Officer Feeney’s characterization of the vehicle compartment as
unconventional was not contested at the suppression hearing.
3
A police officer may consider the “modes or patterns of operation of
certain kinds of lawbreakers” in drawing inferences and making deductions
about the presence of criminal activity. Commonwealth v. Epps, 608 A.2d
1095, 1096 (Pa. Super. 1992).
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clear plastic bag in the particular location where it was observed led him to
believe that Johnson was engaged in drug-related activity:
Over my experience as an officer, I’ve encountered narcotics
jobs where in vehicles there’s compartments that are
manipulated to hold narcotics.
And I believe in this vehicle with the clear plastic bag – Ziploc
baggy sticking out from where it was sticking, I believe it may
have been a package for narcotics at that time.
N.T., 9/10/13, at 11. Under our prevailing legal standard, which emphasizes
the totality of the circumstances, this testimony was sufficient to establish
the requisite reasonable suspicion.
The trial court, however, opined that Officer Feeney’s observation of
the “tip of a baggy, nothing more” failed to demonstrate reasonable
suspicion. This assessment is legally flawed. First, the trial court viewed the
officer’s observations in isolation, and not in the context of the totality of the
circumstances, which included the location where the baggy was observed
as well as the officer’s experience. Secondly, the trial court appears to
overlook that Officer Feeney’s testimony established a reasonable suspicion
of criminal activity based upon objective and observable facts; he did not
need to establish his suspicions to a level of certainty, or even a fair
probability. Lastly, we find the instant case easily distinguishable from
Commonwealth v. Lopez, 609 A.2d 177 (Pa. Super. 1992), on which the
trial court relied. In Lopez, the investigating trooper testified that he
prolonged the traffic stop based on his “policeman’s intuition.” Here, in
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contrast, Officer Feeney pointed to specific factors that supported his belief
that criminal activity was afoot. Thus, Lopez does not support the
conclusion that reasonable suspicion was absent in this case.
In sum, Officer Feeney articulated a particularized suspicion, based on
objective physical evidence and a trained officer's reasonable inferences,
that Johnson was engaged in drug-related activity. We therefore conclude
that Officer Feeney’s observations furnished reasonable suspicion to suspect
that criminal activity was afoot. Because the officer was justified in
detaining Johnson until a canine sniff could be conducted, suppression of the
seized evidence was improper.
Suppression order vacated. Case remanded for further proceedings.
Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/2/2015
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