J-A07038-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
RAHSAAN CARTER
Appellant No. 2031 WDA 2014
Appeal from the Judgment of Sentence November 18, 2014
in the Court of Common Pleas of Cambria County
Criminal Division at No(s): CP-11-CR-0000163-2014
BEFORE: BOWES, J., MUNDY, J., and JENKINS, J.
DISSENTING MEMORANDUM BY JENKINS, J.: FILED JULY 21, 2016
I agree that, upon learning Appellant was not properly licensed and
the vehicle did not belong to him, the police had reasonable suspicion to
conduct a traffic stop/investigatory detention of Appellant, which the police
commenced by asking Appellant to turn off, and alight from, the vehicle.
However, because I disagree with the learned majority that the police had
reasonable suspicion to conduct a pat down search of Appellant’s person, I
respectfully dissent.
Our Supreme Court has held that, once a police officer has reasonable
suspicion of criminal activity sufficient to conduct an investigative detention,
to conduct a pat down, he must possess a further “justified belief that the
individual, whose suspicious behavior he is investigating at close range, is
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armed and presently dangerous to the officer or to others.”
Commonwealth v. Zhahir, 751 A.2d 1153, 1158 (Pa.2000).
“In considering the evidence purported to support a Terry[1] frisk, we
are guided by common sense concerns, giving preference to the safety of
the officer during an encounter with a suspect where circumstances indicate
that the suspect may have, or may be reaching for, a weapon.”
Commonwealth v. Cooper, 994 A.2d 589, 592 (Pa.Super.2010) (internal
quotations and citation omitted).
This Court has stated Pennsylvania’s law on pat-down searches as
follows:
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. In order to
establish reasonable suspicion, the police officer must articulate
specific facts from which he could reasonably infer that the
individual was armed and dangerous. When assessing the
validity of a Terry stop, 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.
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1
Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, (1968) (holding search for
weapons in absence of probable cause to arrest must be strictly
circumscribed by exigencies which justify its initiation and must be limited to
that which is necessary for discovery of weapons which might be used to
harm officer or others nearby).
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Commonwealth v. Mack, 953 A.2d 587, 590 (Pa.Super.2008) (quoting
Commonwealth v. Wilson, 927, A.2d 279, 284 (Pa.Super.2007)) (internal
citations omitted); see also Terry, supra; In re N.L., 739 A.2d 564, 567
(Pa.Super.1999) (“[This Court] cannot evaluate the totality of the
circumstances through the grudging eyes of hindsight nor in terms of library
analysis, but as understood by those versed in the field of law
enforcement.”).
“The officer need not be absolutely certain that the individual is
armed; the issue is whether a reasonably prudent man in the circumstances
would be warranted in the belief that his safety or the safety of others was
in danger.” Commonwealth v. Taylor, 771 A.2d 1261, 1269 (Pa.2001)
(quoting Terry, 392 U.S. at 27). “[I]f a suspect engages in hand
movements that police know, based on their experience, are associated with
the secreting of a weapon, those movements will buttress the legitimacy of a
protective weapons search of the location where the hand movements
occurred.” Commonwealth v. Foglia, 979 A.2d 357, 361 (Pa.Super.2009).
In addition to suspecting an individual may be armed and dangerous,
“[i]t is . . . reasonable to subject a suspected intravenous drug user properly
detained at an investigatory stop to a limited pat down for needle possession
to promote the officer’s safety.” Commonwealth v. Kondash, 808 A.2d
943, 948 (Pa.Super.2002). Accordingly, police may preface a Terry frisk by
asking if the detainee possesses items that may harm the police. See id.
(intravenous needles).
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Here, the arresting officer explained his reasons for patting Appellant
down as follows:
A: . . . I needed him to get out of the vehicle because it wasn’t
matching up, his story.
Q: When he exited the vehicle, based on the totality of the
circumstances, what was your inclination as to the situation for
your safety?
A: I wanted to make sure that he didn’t possess anything that
would harm myself or the other officers.
Q: What factors up to that point gave you pause for your
safety?
A: The stories weren’t matching up. They said they didn’t know
who Alicia was but they knew who Keisha was, and just that
they are in a high crime area, parked there sitting outside the
apartment. So I went around the front of the vehicle and I
asked [Appellant] if there was anything on him that I needed to
be aware of.
N.T. 5/15/2014, pp. 12-13. The officer later expressly stated that Appellant
was not making any furtive movements. Id. at 16.
Regarding the propriety of the pat down search, the trial court simply
stated, “Detective Arcurio learned [Appellant] was sitting in the driver’s seat
of a running vehicle registered to another person, without a valid
Pennsylvania driver’s license.” 1925(a) Opinion, p. 6. Based on these
factual findings, the trial court concluded “[t]hese facts gave Detective
Arcurio reasonable suspicion to ask [Appellant] to exit the vehicle, and to
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perform a pat down search for officer safety.”2 Id. The Commonwealth
argues that additional facts further supported the propriety of the pat down
search: (1) that this encounter occurred in a high-crime area, (2) outside
the house of the individual police intended to arrest, and (3) Appellant’s
proffered reason for his presence was not credible. See Commonwealth’s
Brief, p. 6.
As previously stated, based on his location, his responses to police
inquiries, and his demeanor, the police had reasonable suspicion to conduct
an investigative detention of Appellant. That investigative detention
effectively transformed into a vehicle stop once the police investigation
revealed Appellant was operating someone else’s vehicle without a license.
Once they learned Appellant was not licensed, the police had probable cause
to cite him for a violation of the Vehicle Code,3 despite the fact they had not
pulled Appellant over in the vehicle he was then controlling. Accordingly, it
was within the police’s prerogative to have Appellant alight from the vehicle
to continue what was now effectively a vehicle stop. See Commonwealth
v. Boyd, 17 A.3d 1274, 1277 (Pa.Super.2011) (“When a police officer
lawfully stops a motorist for a violation of the Pennsylvania Motor Vehicle
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2
The trial court also stated that the pat down was incident to arrest, a
conclusion discussed infra. See Trial Court 1925(a) Opinion, pp. 6-7.
3
75 Pa.C.S. § 1543, driving while operating privilege is suspended or
revoked.
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Code, the officer is permitted to ask the driver to step out of the vehicle ‘as
a matter of right.’”).
However, in my opinion, the police did not articulate during the
suppression hearing sufficient additional specific facts observed from which
they could have reasonably inferred that Appellant was armed and
dangerous prior to conducting the pat down search. They did not observe
furtive movements of hands or other parts of Appellant’s body during the
investigative detention. Appellant did not reach for his waistband, move to
secret anything inside the vehicle, or act in a threatening manner towards
the police. Further, although the stop occurred in a high crime area, it was
effectively a traffic stop, and the stop occurred at noon, not the middle of
the night. In short, the police did not have reasonable suspicion to conduct
a Terry pat down search.
Even viewing the totality of the circumstances – including Appellant’s
suspect story of why he was there and his presence outside of a house that
was in a high crime area and under surveillance – I do not believe police
observed adequate specific facts that could have justified a reasonable
suspicion and/or inference that Appellant was armed and dangerous.
Further, even if police observed such facts at the scene, they failed to
articulate those facts during the suppression hearing.
Finally, while I recognize the paramount concern for police officer
safety, under the instant circumstances, I do not feel the police had the
requisite reasonable suspicion to conduct a lawful Terry pat down search
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based on a concern for their safety. Here, the police did not pat down an
individual they observed secreting a weapon, or a drug user who may have
had dirty needles on his person. Instead, they patted down a person who,
during the course of what was effectively a traffic stop, had not engaged in
furtive movements of any sort, and was complying with police directives.
The police had no indication that Appellant was armed, dangerous, or
possessed objects that could injure the police. Accordingly, I feel that the
pat down search of Appellant after the police asked him to alight from the
vehicle was improper.
Accordingly, I am compelled to dissent.
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