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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
v. :
:
EDWARD YOUNG, :
:
Appellee :
: No. 573 EDA 2016
Appeal from the Order January 14, 2016
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0010477-2015
BEFORE: BOWES, J., DUBOW, J., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY DUBOW, J.: FILED APRIL 11, 2017
The Commonwealth appeals from the January 14, 2016 Order entered
in the Philadelphia County Court of Common Pleas granting the Motion to
Suppress filed by Appellee, Edward Young. After careful review, we conclude
that the trial court erred as a matter of law when it concluded that police
officers lacked reasonable suspicion to conduct an investigatory detention of
Appellee because: (i) Appellee and three officers were engaged in a mere
encounter when Appellee volunteered that he had marijuana on his person
and began reaching for his pocket; and (ii) as soon as Appellee admitted to
being in possession of marijuana, officers had probable cause to arrest
Appellee and to search him incident to that arrest. Accordingly, we reverse
the trial court’s Order and remand for further proceedings consistent with
this Memorandum.
J. S15023/17
On October 2, 2015, Appellee was arrested and charged with Carrying
a Firearm Without a License, Possession of Marijuana, and Carrying a
Firearm on Public Streets in Philadelphia.1
Appellee filed a Motion to Suppress, arguing that he had been subject
to an illegal detention and arrest. On January 14, 2016, the trial court heard
testimony on the Motion to Suppress. In its Pa.R.A.P. 1925(a) Opinion, the
trial court detailed the often-repetitive testimony adduced at the hearing.
The portions relevant to our disposition are as follows:
Philadelphia Police Officer, Antonio Nieves, assigned to the 39th
District, testified that on October 2, 2015, at approximately 9:00
p.m., he performed his tour of duty at 1413 West Erie Avenue in
the city of Philadelphia. Officer Nieves stated that he, along with
his partners, Officers Bradley and Mertha, were patrolling this
location because 1413 Erie Avenue is a known location for
narcotics sales. He further noted that he receives constant
complaints for narcotics sales and has made numerous arrests at
the location. It was at this location that Officer Nieves, while
driving in a patrol car, first came into contact with [Appellee].
He observed [Appellee] standing in front of a Chinese store in
the rain at 1413 Erie Avenue from his vehicle and identified
[Appellee] in court. Officer Nieves testified that he was
patrolling the area and looking at the front of the store to see
who was there. After Officer Nieves drove by a few times, he
noticed [Appellee] was still standing in the rain.
Approximately an hour passed before Officer Nieves and his two
partners returned, got out of the unmarked patrol car, and
identified themselves as police officers to [Appellee] since they
were not wearing their uniforms. After Officer Nieves
approached [Appellee], he asked him what he was doing.
[Appellee] replied that he was waiting for a bus. Officer Nieves
stated to the court that he saw buses come and leave at this
1
18 Pa.C.S. § 6106(a)(1); 35 P.S. 780-113(a)(31); and 18 Pa.C.S. 6108,
respectively.
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location when he went by a few times. Officer Nieves then
asked [Appellee] if he had anything on his person that could
harm himself or his partners. [Appellee] responded by saying,
“No.... All I have is two bags of weed.”
***
Subsequent to asking [Appellee] what he was doing there,
Officer Nieves asked if he had anything on his person that could
hurt Officer Nieves or his partners. Officer Nieves explained that
he asked this question for officer safety. [Appellee] then
responded by saying that he had two bags of weed and then
started to reach for his pocket. Officer Nieves testified that he
then told [Appellee] not to reach towards his pocket and
proceeded to reach into [Appellee’s] pocket himself. When
Officer Nieves reached into [Appellee’s] right coat pocket to
retrieve the marijuana, he recovered a black Ruger .380
handgun, with a serial number 37332000. Officer Nieves stated
that the handgun was loaded with six live rounds in the
magazine and one round in the chamber and later placed on
Property Receipt No. 3222254. He noted that the handgun was
recovered from the pocket [Appellee] attempted to reach
towards.
Officer Nieves testified that after he recovered the handgun, he
observed Officer Mertha reach into the Defendant's pants pocket
in his presence and recover marijuana. The recovered marijuana
was later placed on Property Receipt No. 3222255. Officer
Nieves stated that he has made over ten (10) arrests in the
West Erie Avenue area including a firearms arrest around the
corner on Broad Street months apart from the instant matter.
Officer Nieves described the area as one with "a lot of narcotics
sales going on. It is very violent in that area and there have
been numerous shootings and homicides in that general area."
Trial Court Opinion, filed 6/21/16, at 1-3 (references to the record omitted).
At the close of the hearing, the trial court granted Appellee’s Motion to
Suppress.
The Commonwealth filed a timely Notice of Appeal. Both the
Commonwealth and the trial court complied with Pa.R.A.P. 1925.
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The Commonwealth raises the following issue for our review:
Did the lower court err by suppressing defendant’s gun on the
ground that police had no reasonable suspicion of criminal
activity where – upon being approached and briefly questioned
at a drug sales location in a violent high crime area – [Appellee]
said he had “weed” and reached for his pocket?
Commonwealth’s Brief at 3.
Our standard of review applicable to suppression determinations is
well-settled.
When the Commonwealth appeals from a suppression order, we
follow a clearly defined standard of review and 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. The suppression court's
findings of fact bind an appellate court if the record supports
those findings. The suppression court's conclusions of law,
however, are not binding on an appellate court, whose duty it is
to determine if the suppression court properly applied the law to
the facts.
Commonwealth v. Nester, 709 A.2d 879, 880-81 (Pa. 1998).
The trial court’s findings of facts are not at issue in the instant appeal.
Rather, the Commonwealth argues that the trial court erred in its
conclusions of law because police officers had probable cause to arrest
Appellee for possession of a controlled substance or, at a minimum, had
reasonable suspicion to detain Appellee for investigation and conduct a frisk.
Commonwealth’s Brief at 11-12. After careful review, we agree.
The Fourth Amendment of the United States Constitution and Article 1,
Section 8 of our state Constitution protect citizens from unreasonable
searches and seizures. In re D.M., 781 A.2d 1161, 1163 (Pa. 2001). “To
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secure the right of citizens to be free from . . . [unreasonable searches and
seizures], courts in Pennsylvania require law enforcement officers to
demonstrate ascending levels of suspicion to justify their interactions with
citizens as those interactions become more intrusive.” Commonwealth v.
Beasley, 761 A.2d 621, 624 (Pa. Super. 2000). Our Supreme Court has
defined three levels of interaction between citizens and police officers: (1)
mere encounter, (2) investigative detention, and (3) custodial detention.
See Commonwealth v. Fuller, 940 A.2d 476, 478 (Pa. Super. 2007).
This Court has explained the three levels of interaction as follows:
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.
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. Since this interaction has
elements of official compulsion it requires reasonable suspicion
of unlawful activity. In further contrast, a custodial detention
occurs when the nature, duration and conditions of an
investigative detention become so coercive as to be,
practically speaking, the functional equivalent of an arrest.
Commonwealth v. Jones, 874 A.2d 108, 116 (Pa. Super. 2005) (citation
omitted).
In the instant case, the trial court found that the interaction between
officers and Appellee rose to the level of an investigative detention because
“they made a show of authority by having three officers stand in front of
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him, during questioning, commanded [Appellee] to stop reaching for his
pocket, and searched his pockets.” Trial Court Opinion at 8.
The trial court’s analysis ignores the intervening acts of Appellee.
Before officers ever “commanded [Appellee] to stop reaching for his pocket”
or “searched his pockets[,]” Appellee voluntarily told officers that he had
marijuana on his person. As soon as Appellee volunteered that information,
police had probable cause to arrest Appellee for possession of a controlled
substance. See Commonwealth v. Stokes, 389 A.2d 74, 78 (Pa. 1978)
(noting that “an admission per se is inherently reliable evidence” sufficient to
establish probable cause to arrest, but holding that “an admission
transmitted through an informant is only as reliable as its conduit is
trustworthy.”); Commonwealth v. Kondash, 808 A.2d 943, 949 (Pa.
Super. 2002) (defendant’s admission that he was in possession of
hypodermic needles “provided probable cause to believe that the pouch
contained illegal paraphernalia subject to immediate lawful seizure.”). The
officers were also authorized to search him incident to that arrest or
immediately prior to placing him under arrest. See Commonwealth v.
Trenge, 451 A.2d 701, 710 n.8 (Pa. Super. 1982) (“[A] search conducted
immediately prior to an arrest is as valid as a search conducted subsequent
and incident to the arrest provided the officer had probable cause
to arrest prior to the search as long as the contraband discovered in the
search is not used as justification or probable cause for the arrest.”).
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The question is, therefore, whether the interaction that occurred
before Appellee admitted possession of marijuana constituted a mere
encounter or rose to the level of an investigative detention.
A mere encounter between a police officer and a citizen does not need
to be supported by any level of suspicion and “carr[ies] no official
compulsion on the part of the citizen to stop or to respond.” Fuller, supra
at 479 (citation omitted). There is no constitutional provision that prohibits
police officers from approaching a citizen in public to make inquiries of them.
See Beasley, supra at 624.
A mere encounter may escalate into an investigatory detention or
seizure if police action becomes too intrusive. Id. “In evaluating the level
of interaction, courts conduct an objective examination of the totality of the
surrounding circumstances. We are bound by the suppression court's factual
findings, if supported by the record; however, the question presented—
whether a seizure occurred—is a pure question of law subject to plenary
review.” Commonwealth v. Lyles, 97 A.3d 298, 302 (Pa. 2014) (citations
omitted).
When applying the totality of the circumstances test, our inquiry
focuses “on whether the suspect has in some way been restrained by
physical force or show of coercive authority.” Id. (citation omitted).
Although no single factor controls our analysis, “[b]oth the United States and
Pennsylvania Supreme Courts have held that the approach of a police officer
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followed by questioning does not constitute a seizure.” Commonwealth v.
Coleman, 19 A.3d 1111, 1116 (Pa. Super. 2011) (citations omitted). This is
true even if the officer asks the individual whether he is carrying a weapon.
Id. (holding that officer was engaged in a mere encounter when he
approached the defendant and asked him if he had a gun). This is also true
if multiple officers approach an individual to ask him questions. Lyles,
supra at 303-04 (finding a mere encounter where two uniformed police
officers arrived in an unmarked police car, approached the defendant, and
asked for identification). In Lyles, our Supreme Court emphasized the fact
that, although multiple officers approached the defendant, asked him what
he was doing there, and requested his identification, there were no
“circumstances of restraint of liberty, physical force, show of authority, or
some level of coercion beyond the officer’s mere employment, conveying a
demand for compliance or that there will be tangible consequences from a
refusal.” Id. at 304.
In the instant case, Officer Nieves and his two partners exited an
unmarked patrol car and approached Appellee on a public sidewalk. N.T.,
1/14/16, at 8. The three officers were not in uniform, so they identified
themselves to Appellee as police officers. Id. The three officers did not
surround Appellee, but instead all three stood in front of him. Id. at 18.
They then asked him two questions: first, Officer Nieves asked Appellee
“what he was doing.” Id. at 8. Next, concerned for his safety, Officer
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Nieves asked Appellee “if he had anything on his person that could harm
[Officer Nieves] or [his] coworkers[.]” Id. at 8, 10. At that point, Appellee
stated no, but that he was in possession of “two bags of weed.” Id. at 8.
It is clear to this Court that, based on the case law discussed supra,
Officer Nieves and his partners were free to approach Appellee on a public
street and ask him questions. The two brief questions that Officer Nieves
asked constituted a mere encounter, and neither the presence of other
officers nor his question about Appellee having anything “that could harm”
the officers turned this mere encounter into an investigatory detention. Nor
did the trial court find that any other circumstances prior to Appellee’s
admission constituted “[a] restraint of liberty, physical force, show of
authority, or some level of coercion beyond the officer’s mere employment,
conveying a demand for compliance or that there will be tangible
consequences from a refusal.” Lyles, supra at 304.
Moreover, it is clear from the record and the factual findings of the
trial court that, during the mere encounter, Appellee admitted that he was in
possession of two bags of marijuana. The subsequent seizure of Appellee
and search of his person were properly supported by probable cause.
Therefore, the trial court erred as a matter of law when it granted
Appellee’s Motion to Suppress. Accordingly, we reverse the trial court’s
Order and remand for further proceedings consistent with this Memorandum.
Order reversed. Case remanded. Jurisdiction relinquished.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/11/2017
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