J. A10037/17
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
DANIEL McVEIGH, : No. 3367 EDA 2015
:
Appellant :
Appeal from the Judgment of Sentence, May 26, 2015,
in the Court of Common Pleas of Philadelphia County
Municipal Court - Traffic Division at No. MC-51-CR-0028625-2014
BEFORE: DUBOW, J., SOLANO, J., AND FORD ELLIOTT, P.J.E.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED JUNE 14, 2017
Daniel McVeigh appeals from the May 26, 2015 judgment of sentence
of nine months’ reporting probation imposed after he was found guilty of one
count of possession of a controlled substance.1 After careful review, we
affirm the judgment of sentence.
The trial court summarized the relevant facts of this case as follows:
On August 22, 2014, Officer Rahill was on
patrol in a high crime area near the intersection of
Somerset and Mascher streets. At approximately
10:30 AM, Rahill saw [a]ppellant failing to stop at a
stop sign at the corner. After turning on his lights
and sirens, the officer stopped [a]ppellant’s 2009
Honda and approached the driver’s side. Appellant
appeared very nervous and Officer Rahill saw him
“stuffing” something into his left pocket. He
subsequently asked [a]ppellant to step out of the
vehicle for a safety frisk and frisked [a]ppellant’s left
1
35 P.S. § 780-113(a)(16).
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pocket by patting the outside of the pants with an
open palm. As a result of the open palm pat-down,
Officer Rahill felt “a bumpy package” which he
immediately recognized as heroin; in fact, he had felt
this type of packaging dozens of times before. From
[a]ppellant’s pocket, Officer Rahill recovered fifteen
small Ziploc packets of heroin bundled together with
a rubber band.
Trial court opinion, 7/8/16 at 1-2 (citations to notes of testimony omitted).
Appellant was subsequently arrested and charged with one count of
possession of a controlled substance. On May 26, 2015, appellant made an
oral motion before the Municipal Court of Philadelphia to suppress the
physical evidence seized as a result of Officer Rahill’s stop, frisk, and search
of his person. (See notes of testimony, 5/26/15 at 4-5.) Following
testimony from both appellant and Officer Rahill, the trial court denied
appellant’s suppression motion, and this matter immediately proceeded to a
negotiated stipulated trial. (Id. at 53-55.) That same day, the trial court
found appellant guilty of possession of a controlled substance and sentenced
him to nine months’ reporting probation. (Id. at 56; see also negotiated
stipulated trial order, 5/26/15.) On October 23, 2015, appellant filed a
petition for writ of certiorari in the Philadelphia Court of Common Pleas,
which was ultimately denied. On November 6, 2015, appellant filed a timely
notice of appeal. On April 29, 2016, the trial court ordered appellant to file a
concise statement of errors complained of on appeal, in accordance with
Pa.R.A.P. 1925(b). Appellant filed a timely Rule 1925(b) statement on
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May 20, 2016, and the trial court filed its Rule 1925(a) opinion on July 8,
2016.
Appellant raises the following issues for our review:
1. Where appellant was stopped in broad daylight
for a minor traffic violation and the officer, as
he approached, merely saw appellant put
something in his pocket, was not the ensuing
frisk unlawful as there were no reasonable
grounds to believe appellant was armed and
dangerous?
2. Was not appellant searched without probable
cause and in violation of the plain feel
exception to the warrant requirement where,
during a frisk, the officer felt in appellant’s
pants pocket what he described as a
“bumpy package,” the incriminating nature of
which was not immediately apparent?
Appellant’s brief at 3.
Our standard of review when addressing a challenge to a trial court’s
denial of a suppression motion is well settled.
[An appellate court’s] standard of review in
addressing a challenge to the denial of a suppression
motion is limited to determining whether the
suppression court’s factual findings are supported by
the record and whether the legal conclusions drawn
from those facts are correct. Because the
Commonwealth prevailed before the suppression
court, we may consider only the evidence of the
Commonwealth and so much of the evidence for the
defense as remains uncontradicted when read in the
context of the record as a whole. Where the
suppression court’s factual findings are supported by
the record, [the appellate court is] bound by [those]
findings and may reverse only if the court’s legal
conclusions are erroneous.
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Commonwealth v. Jones, 121 A.3d 524, 526 (Pa.Super. 2015), appeal
denied, 135 A.3d 584 (Pa. 2016) (citation omitted; brackets in original).
“Both the Fourth Amendment of the United States Constitution and
Article 1, Section 8 of the Pennsylvania Constitution guarantee individuals
freedom from unreasonable searches and seizures.” Commonwealth v.
Bostick, 958 A.2d 543, 550 (Pa.Super. 2008), appeal denied, 987 A.2d
158 (Pa. 2009) (citation and internal quotation marks omitted). “To secure
the right of citizens to be free from such intrusions, courts in Pennsylvania
require law enforcement officers to demonstrate ascending levels of
suspicion to justify their interactions with citizens to the extent those
interactions compromise individual liberty.” Commonwealth v. Reppert,
814 A.2d 1196, 1201 (Pa.Super. 2002) (citation omitted). Courts in this
Commonwealth have recognized three types of interactions between
members of the public and the police: a mere encounter, an investigative
detention, and a custodial detention.
A mere encounter between police and a citizen need
not be supported by any level of suspicion, and
carr[ies] no official compulsion on the part of the
citizen to stop or to respond. An investigatory stop,
which subjects a suspect to a stop and a period of
detention . . . requires a reasonable suspicion that
criminal activity is afoot. A custodial search is an
arrest and must be supported by probable cause.
Commonwealth v. Kendall, 976 A.2d 503, 506 n.2 (Pa.Super. 2009)
(citations and internal quotation marks omitted).
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In the seminal case of Terry v. Ohio, 392 U.S. 1 (1968), the United
States Supreme Court indicated that police may stop and frisk a person
where they have a reasonable suspicion that criminal activity is afoot and
that the suspect may be armed and dangerous. Id. at 27. “Reasonable
suspicion is a less stringent standard than probable cause necessary to
effectuate a warrantless arrest, and depends on the information possessed
by police and its degree of reliability in the totality of the circumstances.”
Commonwealth v. Brown, 996 A.2d 473, 477 (Pa. 2010). An appellate
court must give weight “to the specific, reasonable inferences drawn from
the facts in light of the officer’s experience and acknowledge that innocent
facts, when considered collectively, may permit the investigative detention.”
Id. (citation omitted). We are mindful of the fact that,
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. Hughes, 908 A.2d 924, 927 (Pa.Super. 2006) (citations
and internal quotations omitted).
Appellant first argues that Officer Rahill’s frisk of his person was
unlawful because he lacked reasonable suspicion to believe that appellant
was armed and dangerous. (Appellant’s brief at 7.) For the following
reasons, we disagree.
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Upon review, we conclude that Officer Rahill was justified in
conducting a Terry frisk of appellant after observing conduct that led him to
reasonably conclude, in light of his experience as a police officer, that
appellant may have been armed and dangerous. The record establishes that
Officer Rahill was on patrol alone in a high drug and crime area the morning
of August 22, 2014, when he observed appellant commit a traffic violation.
(Notes of testimony, 5/26/15 at 7-8.) Officer Rahill testified that after
stopping and approaching appellant’s vehicle, he observed that appellant
was “visibly shaking and very nervous” and that he took evasive action by
“stuffing something into his left pocket.” (Id. at 8.) Officer Rahill indicated
that based upon his training and experience as a six-year veteran of the
Philadelphia Police Department, he requested that appellant step out of his
vehicle for a safety frisk. (Id. at 9-10.)
Courts in this Commonwealth have long recognized that although an
appellant’s presence in a high-crime area is insufficient, in and of itself, to
support a finding of reasonable suspicion, “nervous, evasive behavior” and
“the fact that the stop occurred in a high crime area” are pertinent factors in
determining reasonable suspicion. In re D.M., 781 A.2d 1161, 1163-1164
(Pa. 2001) (citation and internal quotation marks omitted); see also
Commonwealth v. Valdivia, 145 A.3d 1156, 1162 (Pa.Super. 2016),
appeal granted, 2017 WL 444717 (Pa. 2017) (stating, “nervous behavior
during a traffic stop, combined with other factors, may give rise to
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reasonable suspicion that criminal activity is afoot.” (citation omitted));
Commonwealth v. Buchert, 68 A.3d 911, 914-916 (Pa.Super. 2013),
appeal denied, 83 A.3d 413 (Pa. 2014) (holding that an officer had reason
to suspect that his safety was in danger sufficient to justify a warrantless
search of defendant’s vehicle where the defendant made furtive movements,
was extremely nervous, and the stop was conducted at night). Based on the
foregoing, we agree with the trial court that, under the totality of the
circumstances, Officer Rahill’s frisk of appellant was supported by reasonable
suspicion that appellant may be armed and dangerous.
Appellant further contends that Officer Rahill exceeded the permissible
scope of the plain feel doctrine to the warrant requirement “where, during a
frisk, the officer felt in appellant’s pants pocket what he described as a
‘bumpy package,’ the incriminating nature of which was not immediately
apparent[.]” (Appellant’s brief at 13.) We disagree.
This court has recognized that “[i]f, during the course of a valid
investigatory stop, an officer observes unusual and suspicious conduct on
the part of the individual which leads [the officer] 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.3d 1235, 1239 (Pa.Super. 2003).
In order to justify a frisk under Terry[,] the officer
must be able to point to particular facts from which
he reasonably inferred that the individual was armed
and dangerous. Such a frisk, permitted without a
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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 which might be used to harm the officer or
others nearby.
Id. (internal quotation marks and citation omitted). “Weapons found as a
result of [a Terry] pat-down may be seized. Nonthreatening contraband
may be seized only if it is discovered in compliance with the plain
feel doctrine.” Commonwealth v. Thompson, 939 A.2d 371, 376
(Pa.Super. 2007), appeal denied, 956 A.2d 434 (Pa. 2008) (emphasis
added).
In explaining the plain feel doctrine, the Pennsylvania Supreme Court
has stated:
[In Minnesota v. Dickerson, 508 U.S. 366, 375
(1993), the United States Supreme Court] adopted
the so-called plain feel doctrine and held that a
police officer may seize non-threatening contraband
detected through the officer’s sense of touch during
a Terry frisk if the officer is lawfully in a position to
detect the presence of contraband, the incriminating
nature of the contraband is immediately apparent
from its tactile impression and the officer has a
lawful right of access to the object. . . .
Immediately apparent means that the officer readily
perceives, without further exploration or searching,
that what he is feeling is contraband. If, after
feeling the object, the officer lacks probable cause to
believe that the object is contraband without
conducting some further search, the immediately
apparent requirement has not been met and the
plain feel doctrine cannot justify the seizure of the
object.
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Commonwealth v. Stevenson, 744 A.2d 1261, 1265 (Pa. 2000) (some
citations omitted).
Instantly, Officer Rahill testified that during the course of the safety
frisk of appellant, he felt a “bumpy package” in appellant’s front left pocket
that he immediately recognized as narcotics packaging based on his
experience as a six-year veteran of the Philadelphia Police Department with
over 50 narcotics arrests. (Notes of testimony, 5/26/15 at 9-11.) On
cross-examination, Officer Rahill further testified as follows:
Q. Fair to say you didn’t see any kind of bulge in
his pocket when [appellant] stepped out of the
car?
A. Initially, when he stepped out of the car, I did
not see a bulge, but when I did the safety
frisk, when I patted his jeans, the left pocket
there -- I could -- at that time, I saw there was
a bulge and I could feel the narcotics through
the pocket.
....
Q. And when you say you recognized it as
narcotics packaging, you recognized it was
little Ziploc packets?
A. The way it was packaged was [sic] bundled
together with a rubber band around it.
Q. And -- and it’s your testimony that you could
feel that after a quick frisk?
A. Yes.
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Id. at 23-25. The record also indicates that Officer Rahill’s pat-down of
appellant was conducted with an “open palm,” and he did not manipulate or
squeeze the packaging he felt in appellant’s left pocket. (Id. at 24.)
Based on this testimony, we agree with the trial court’s conclusion that
Officer Rahill’s seizure of the narcotic packets from appellant’s pocket was
justified under the “plain feel” doctrine and did not exceed the proper scope
of a Terry pat-down. See Stevenson, 744 A.2d at 1264-1265.
Accordingly, appellant’s claim that the trial court erred in failing to suppress
the physical evidence seized as a result of Officer Rahill’s stop, frisk, and
search of appellant’s person must fail.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/14/2017
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