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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
EDWARD ROMAN GARZA,
Appellant No. 661 MDA 2015
Appeal from the Judgment of Sentence March 11, 2015
In the Court of Common Pleas of Lancaster County
Criminal Division at No(s): CP-36-CR-0000460-2014
BEFORE: BOWES, PANELLA, AND PLATT,* JJ.
MEMORANDUM BY BOWES, J.: FILED JANUARY 19, 2016
Edward Roman Garza appeals from his March 11, 2015 judgment of
sentence of three to ten years imprisonment imposed after he was found
guilty of two counts of possession with intent to deliver (“PWID”) (heroin and
cocaine). He challenges the trial court’s denial of his motion to suppress
evidence obtained as a result of a Terry frisk. We affirm.
The facts, as gleaned from the record, are summarized as follows. 1 At
11:30 p.m. on November 12, 2013, a white Ford Explorer was proceeding
westbound on Route 30. It was the third of four vehicles traveling twenty
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1
The entire traffic stop was videotaped from a dashboard camera located on
Trooper Long’s cruiser that commenced recording when the vehicle’s lights
were activated. The trial court viewed the video prior to ruling on the
suppression motion.
*
Retired Senior Judge assigned to the Superior Court.
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miles in excess of the posted speed limit in front of a Pennsylvania State
Police cruiser occupied by Trooper Nicholas Long and Trooper Jared Fluck.
The Ford Explorer drew the troopers’ particular attention when, in addition to
speeding, it swerved several times over the fog line and center line and then
made a right turn from a non-turning lane onto Route 896, both of which
constitute violations of the Motor Vehicle Code. Having witnessed three
Motor Vehicle Code violations, Trooper Long decided to pull over the vehicle.
Trooper Long approached the driver’s side of the vehicle and Trooper
Fluck stationed himself at the passenger side. Trooper Long smelled the
scent of air fresheners as he neared the vehicle. The driver2 was unable to
provide a license, registration, or insurance card. However, he did comply
with Trooper Long’s request that he write down his identification. Trooper
Long questioned the driver about where they had been. Appellant, the front
seat passenger, responded that they were coming from the Tanger Outlets,
a response that aroused the troopers’ suspicion because the Outlets had
been closed for two hours and the vehicle was traveling toward the Outlets
rather than away from them.
Trooper Long was unable to locate information on the driver.
Eventually, the driver admitted that he had provided a false name because
his license was suspended. Appellant, together with his brother Michael
____________________________________________
2
The record does not contain the identity of the driver.
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Garza, the rear-seat passenger, produced identification upon the troopers’
request. After checking all three names, Trooper Long ascertained that the
driver had three active traffic warrants; Appellant’s brother had two. All
three had criminal histories. Appellant had prior drug paraphernalia and
theft charges and his brother had numerous charges, including PWID.
Based on the foregoing circumstances, Trooper Long asked the driver
to step outside of the car and he questioned him again about where they
had been. The driver advised that they were coming from Quarryville, which
the trooper did not believe, since the vehicle had been proceeding
westbound and Quarryville was located southwest of their location.
Trooper Jeffrey Swope arrived at the scene shortly after Trooper Long
requested a K-9 dog for a vehicle sniff. Trooper Long asked the driver for
permission to search the car and the driver consented. All three occupants
were directed to exit the vehicle. Trooper Long testified that he normally
would request permission to do a pat down for weapons and Trooper Swope
confirmed that a pat down would increase the safety of the K-9 trooper that
would have its back to the occupants during a sniff. When Appellant stood
next to the guardrail, Trooper Swope observed a rectangular bulge in his
pants near his groin that appeared to be the slide of a gun. Trooper Swope
grabbed the bulge and immediately knew it was not a firearm but a package
of many individual baggies, which contained drugs. He believed it was
heroin. When he confronted Appellant with “This is heroin,” Appellant
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denied it and responded that the trooper was touching a particular part of
his body. N.T. Suppression Hearing, 1/12/15, at 45. When the trooper
insisted, Appellant admitted that it was heroin and a black plastic bag fell
from his pants. It was later confirmed that the baggies contained heroin and
cocaine.
Appellant conceded that the traffic stop was lawful, but filed a motion
to suppress based on a lack of reasonable suspicion of a weapon to justify a
pat-down search. A hearing was held on January 12 and 13, 2015. The trial
court denied the motion and Appellant proceed to a non-jury trial that day.
The court found him guilty of the aforementioned charges and sentenced
him as aforesaid on March 11, 2015.
Appellant timely appealed and complied with the trial court’s order to
file a Pa.R.A.P. 1925(b) concise statement of issues complained of on
appeal. On May 29, 2015, the trial court penned its Rule 1925(a) opinion,
and this matter is ripe for disposition. Appellant’s sole contention on appeal
is that the trial court erred “in denying [his] motion to suppress when the
police performed a weapons frisk on a passenger of a vehicle at the scene of
a traffic stop pursuant to a standardized policy and not pursuant to
reasonable suspicion based on particularized facts.” Appellant’s brief at 4.
In reviewing the denial of a suppression motion, our standard of
review is limited to whether the record supports the trial court’s factual
findings and whether the legal conclusions are free from error.
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Commonwealth v. Ranson, 103 A.3d 73, 76 (Pa.Super. 2014). In making
that determination, we consider only the evidence of the party that prevailed
before the suppression court, herein the Commonwealth, and so much of the
evidence for the defense that remains uncontradicted when read in the
context of the suppression record as a whole. Id. Where the suppression
court’s factual findings are supported by the record, we are bound by them.
Id. If the alleged error involves a legal issue, the suppression court’s legal
conclusions are not binding on this Court, and we will determine whether the
court properly applied the law to the facts.
The issue herein is whether the pat-down search for weapons was
justified under the circumstances. “When an officer is justified in believing
that the individual whose suspicious behavior he is investigating at close
range is armed and presently dangerous to the officer or to others,” the
officer may conduct a pat down search "to determine whether the person is
in fact carrying a weapon." Terry v. Ohio, 392 U.S. 1, 30 (1968). "The
purpose of this limited search is not to discover evidence of crime, but to
allow the officer to pursue his investigation without fear of violence."
Commonwealth v. Simmons, 17 A.3d 399, 403 (Pa.Super. 2011) (quoting
Adams v. Williams, 407 U.S. 143, 146 (1972)). Such pat-downs, which
are permissible "without a warrant and on the basis of reasonable suspicion
less than probable cause, must always be strictly limited to that which is
necessary for the discovery of weapons" that might present a danger to the
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officer or those nearby. Commonwealth v. Parker, 957 A.2d 311, 315
(Pa.Super. 2008). When an appellate court is examining the validity of a
pat-down search, “we examine the totality of the circumstances . . . giving
due consideration to the reasonable inferences that the officer can draw
from the facts in light of his experience, while disregarding any
unparticularized suspicion or hunch.” Id. (quoting Commonwealth v.
Wilson, 927 A.2d 279, 284 (Pa.Super. 2007)).
Preliminarily, Appellant argues that it was during the course of the
unlawful frisk that Trooper Swope observed a rectangular bulge in
Appellant’s groin area and that the suppression court had no basis for its
factual finding that the Trooper observed the suspicious bulge prior to the
frisk. The record refutes that contention. Trooper Swope testified that, prior
to patting down Appellant, he looked Appellant up and down to see if he
noticed any bulges in his pockets. He observed a rectangular bulge that
looked like the slide of a gun toward the groin of his pant. The trooper
testified that he thought the bulge was a gun. He immediately grabbed it
and realized at once that it was not a gun, but individual baggies that he
believed to be heroin. When he confronted Appellant with his suspicions,
Appellant initially denied the accusation and insisted that it was a part of his
anatomy.
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The suppression court specifically credited Trooper Swope’s testimony
that he looked Appellant up and down prior to patting him down and noted
a rectangular bulge in his groin area beside his leg and extending to the
groin, which he believed to be the slide of a firearm. Thus, the record
supports the trial court’s factual findings, and we are bound by them.
Appellant’s primary contention is that the pat down for weapons
violated his Fourth Amendment rights because the state troopers had no
reasonable suspicion that he was armed and dangerous but conducted the
weapons search pursuant to a standard policy. In support of that position,
Appellant points to Trooper Swope’s testimony that he always pats down a
suspect when he removes him from the car prior to conducting a search.
Appellant maintains that since the trooper intended to pat him down before
he saw a suspicious bulge, the frisk was unjustified. We find no merit in this
position.
“Reasonable suspicion to conduct a pat down search is based upon an
objective standard, not subjective intent.” Commonwealth v. Foglia, 979
A.2d 357, 361 (Pa.Super. 2009). In Foglia, we relied upon the United
States Supreme Court’s reasoning in Scott v. United States, 436 U.S. 128,
138-39 n.13 (1978), that "[w]hether a Fourth Amendment violation has
occurred 'turns on an objective assessment of the officer's action in light of
the facts and circumstance confronting him at the time' and not the officer's
actual state of mind at the time the challenged action was taken.” The issue
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is whether a reasonably prudent man in the circumstances would be
warranted in the belief that his safety or that of others was in danger.
Commonwealth v. Mack, 953 A.2d 587 (Pa.Super. 2008).
This was a valid investigatory stop. In examining the totality of the
circumstances, we note the following. It was late at night. The driver
provided a false name to police and he and Appellant gave conflicting
information regarding their whereabouts. All three men had criminal
histories. Since the driver had consented to a search of the vehicle, either a
trooper or a K-9 officer would have his back to the occupants while
conducting the search. Most importantly, Trooper Swope observed what he
believed to be the slide of a firearm in Appellant’s groin area. See
Commonwealth v. Graham, 721 A.2d 1075 (Pa. 1998) (early morning
frisk for weapons justified where single police officer had to turn his back on
two individuals to arrest a third for an outstanding warrant and officer
observed a bulge in one of the individual’s pockets consistent with a
weapon); see also Commonwealth v. Davis, 102 A.3d 996 (Pa.Super.
2014) (holding reasonable a frisk of individual standing over unconscious
victim where it was 2:00 a.m. in a high crime area and individual had a
heavy object in his breast pocket). Since the trooper was able to articulate
specific facts from which he reasonably believed that Appellant was armed
and dangerous, the pat down for weapons to ensure officer safety was
justified. See Commonwealth v. E.M./Hall, 735 A.2d 654 (Pa. 1999);
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Commonwealth v. Wilson, 927 A.2d 279, 284 (Pa.Super. 2007). No relief
is due.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/19/2016
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