J-S82003-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
ANDRE LAMONT BUTLER,
Appellant No. 1591 WDA 2016
Appeal from the Judgment of Sentence Entered September 20, 2016
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0002797-2016
BEFORE: BENDER, P.J.E., STEVENS, P.J.E.*, and STRASSBURGER, J.**
MEMORANDUM BY BENDER, P.J.E.: FILED FEBRUARY 26, 2018
Appellant, Andre Lamont Butler, appeals from the judgment of
sentence of three years’ probation, imposed following his conviction for
carrying a firearm without a license, 18 Pa.C.S. § 6106(a)(2). Appellant
challenges the trial court’s denial of his motion to suppress the seized
firearm. After careful review, we affirm.
The record in this matter is limited. Appellant’s trial consisted entirely
of his stipulation to the facts set forth in the affidavit of probable cause,
followed by the court’s verdict. N.T., 9/20/16, 2-3. The affidavit of probable
cause stated, verbatim, as follows:
____________________________________________
* Former Justice specially assigned to the Superior Court.
** Retired Senior Judge assigned to the Superior Court.
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Your affiant in this case is Officer Fred Hill. I have been a Police
Officer over 18 years and in that time, I have made countless
arrests and convictions for firearms and narcotics related
offenses. On Saturday, 2/20/16, at appx 1118 Hours, I was on
routine patrol near the Dollar General Store, Clonmel @ Hoffman
Blvd. I observed a white Buick sedan bearing PA# JVX-2074 with
black window tint covering the side windows. I ran the
registration and it was suspended due to insurance. I conducted
a traffic stop for the vehicle code violations. Upon approaching
the vehicle, I knew the driver to be DEFENDANT ANDRE BUTLER
and the passenger was identified as James Brooks. While
speaking with Butler, I observed him to be very nervous. I
asked Butler if he had a weapon on him. Butler stated that he
had a gun. I asked Butler if he had a permit, he stated no.
Upon arrival of Officer Ernst, we removed Butler from the vehicle
and he was detained. We removed Brooks from the vehicle and
he was detained. I recovered a Smith and Wesson 40 caliber
firearm with a laser from the unlocked glove compartment.
Serial # DTD0121. Butler stated the gun was his and he thought
he could carry it as long as it was not on his body. Butler is a
convicted Felon. The firearm was registered to a Ronald
Norman. Butler was checked and he does not have a gun
permit.
I BELIEVE PROBABLE CAUSE EXISTS FOR THE LISTED CHARGES.
Criminal Complaint, 2/2/16, at 6 (affidavit of probable cause).
Following Appellant’s arrest and the filing of the criminal complaint,
the Commonwealth filed a criminal information on April 25, 2016. Therein,
the Commonwealth charged Appellant with carrying a firearm without a
license (count 1), and three Motor Vehicle Code violations (counts 2-4).
Appellant filed a written suppression motion on September 20, 2016 – the
same day as his non-jury trial.
On the day of trial, the Commonwealth withdrew counts 2-4, the trial
court denied Appellant’s suppression motion (without hearing testimony or
argument), and the trial court entered a verdict of guilty following
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Appellant’s stipulation. N.T., 9/20/16, 2-3. The court then immediately
sentenced Appellant to three years’ probation. Id. at 3. Appellant filed a
timely notice of appeal, and a timely, court-ordered Pa.R.A.P. 1925(b)
statement. The trial court issued its Rule 1925(a) opinion on January 12,
2017.
Appellant now presents the following question for our review:
Did the trial court err in failing to suppress the gun found in the
vehicle because the questioning of [Appellant] was an
investigative detention without reasonable suspicion?
Appellant’s Brief at 4 (unnecessary capitalization omitted).
Before we reach the merits of Appellant’s claim, we must begin by
addressing the Commonwealth’s assertion that it is subject to waiver due to
his failure to articulate it with adequate specificity in the trial court. See
Pa.R.A.P. 302(a) (“Issues not raised in the lower court are waived and
cannot be raised for the first time on appeal.”); Commonwealth v. Strunk,
953 A.2d 577, 579 (Pa. Super. 2008) (“Even issues of constitutional
dimension cannot be raised for the first time on appeal.”).
Here, Appellant essentially asserts that “once the purpose of the
traffic stop was achieved[,]” the police conducted what amounted to an
investigatory detention by asking Appellant if he had a gun. Appellant’s
Brief at 8. As the Commonwealth correctly notes, Appellant “presents an
argument based on the line of cases flowing from the decision in
Commonwealth v. Strickler, 757 A.2d 884 (Pa. 2000).” Commonwealth’s
Brief at 4.
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In Commonwealth v. Moyer, 954 A.2d 659 (Pa. Super. 2008), this
Court summarized the facts and legal impact of the Strickler decision, as
well as its companion case, Commonwealth v. Freeman, 757 A.2d 903
(Pa. 2000), as follows:
The following facts informed the Strickler decision. Late
one night, a police officer observed two men standing on the
side of a rural road next to their parked car. The officer stopped
to ascertain whether they needed assistance. As he passed the
vehicle, the officer noticed that it contained a cooler with
unopened beer cans. In response to the officer's questions, the
men stated that they were leaving a local racetrack and had
stopped to urinate. The officer asked for a driver's license,
which the two men supplied.
As the first officer was checking whether the individuals
had outstanding warrants, another officer arrived in a second car
and parked. The first officer returned the men's licenses and
admonished them against urinating on a stranger's property.
The officer started to walk toward his cruiser, turned around,
and without the existence of any suspicion of criminal activity,
asked Strickler if his car contained anything illegal. Strickler
responded negatively, and the officer asked if he could search
the car. After Strickler hesitated, the officer informed Strickler
that he did not have to give his consent to search. Strickler
nevertheless consented, and the officer discovered drug
paraphernalia.
As the Commonwealth had readily conceded that there
were no facts to support a reasonable suspicion that Strickler
was engaged in criminal activity, the sole question presented to
the Supreme Court was whether Strickler had been subjected to
a seizure within the meaning of the Constitution when, after
returning Strickler's documents, the police started to ask
questions. The Court observed:
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To guide the crucial inquiry as to whether or not a seizure
has been effected, the United States Supreme Court has
devised an objective test entailing a determination of
whether, in view of all surrounding circumstances, a
reasonable person would have believed that he was free to
leave. See [United States v.] Mendenhall, 446 U.S.
[544,] 554 … [(1980)]; [Florida v.] Royer, 460 U.S.
[491,] 502 … [(1983)]. In evaluating the circumstances,
the focus is directed toward whether, by means of physical
force or show of authority, the citizen-subject's movement
has in some way been restrained. See Mendenhall, 446
U.S. at 553…. In making this determination, courts must
apply the totality-of-the-circumstances approach, with no
single factor dictating the ultimate conclusion as to
whether a seizure has occurred.
[Strickler, 757 A.2d at] 890–91 (footnotes omitted)…. The
Strickler Court noted that by its nature, this test is imprecise
since it is “designed to assess the coercive effect of police
conduct, taken as a whole rather than focus on particular details
of that conduct in isolation.” Id. at … 890.
Strickler acknowledged that his initial detention was valid
but contended that once his license was returned, there was a
second detention that was not supported by reasonable
suspicion, rendering his consent to search his vehicle infirm.
The suppression court in Strickler had ruled that once a valid
detention had been concluded, it was improper for police to
continue an investigative interaction with a citizen. Thus, the
suppression court essentially ruled that a detention could never
devolve into a mere encounter. Our Supreme Court disagreed
and noted that such an approach failed to take into consideration
the fact that the officer had informed Strickler he did not have to
consent to the search and that there was an absence of any
show of authority on the part of the officer.
The Supreme Court ruled that after an initial valid
detention has concluded, the crucial determination of whether a
continuing interdiction constitutes a mere encounter or a
constitutional seizure centers upon whether an individual would
objectively believe that he was free to end the encounter and
refuse a request to answer questions or conduct a search. In
making this determination, we must examine the totality of the
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circumstances surrounding the interaction between the police
and the citizen. A non-exclusive list of factors to be used in
assessing whether police conducted a mere encounter after
completion of a traffic stop includes: 1) the presence or absence
of police excesses; 2) whether there was physical contact; 3)
whether police directed the citizen's movements; 4) police
demeanor and manner of expression; 5) the location of the
interdiction; 6) the content of the questions and statements; 7)
the existence and character of the initial investigative detention,
including its degree of coerciveness; 8) “the degree to which the
transition between the traffic stop/investigative detention and
the subsequent encounter can be viewed as seamless, ... thus
suggesting to a citizen that his movements may remain subject
to police restraint,” id.; 9) the “presence of an express
admonition to the effect that the citizen-subject is free to depart
is a potent, objective factor;” and 10) whether the citizen has
been informed that he is not required to consent to the search.
Id. at … 898–899.
The Court made a critical observation: when an individual
has been subjected to a valid detention and the police continue
to engage that person in conversation, the citizen, having been
in official detention, is less likely to understand that he has the
right to refuse to answer questions or a search. Furthermore,
while acknowledging the importance of the ninth factor, the
Court stressed that “conferral of the ‘free-to-go’ advice is, itself
not a reason to forego a totality assessment” and therefore does
not constitute a controlling factor in assessing whether a person
would actually credit a police indication that he was free to
leave. Id. at … 899 n. 24.
The Strickler Court held that the defendant therein had
not been subjected to a seizure after his documentation was
returned. The Court noted that the defendant had not been
seized initially by police since he voluntarily had stopped and
exited his car to urinate. Further, it opined that the police were
not coercive, did not display guns, and had told the defendant
that he was free to refuse a search of his vehicle. Police had not
directed the defendant to move, did not use coercive language
or tone, and there was a clear ending to the first interaction
when police returned the defendant's documents. Finally, the
Court observed that the isolated location and time of night
militated in favor of a finding that the defendant had been
seized, but it concluded that those two factors did not outweigh
those in favor of a finding that the interdiction was a mere
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encounter. It held that Strickler was not seized when he granted
his permission to search the car, and thus, his consent to search
was voluntary.
On the same day of the opinion in Strickler, the Supreme
Court issued its decision in Commonwealth v. Freeman, … 757
A.2d 903 (Pa. 2000). In that case, the state police noticed two
vehicles on an interstate highway traveling together. The two
automobiles closely followed one another and were switching
lanes simultaneously. A different police cruiser stopped each
vehicle. One officer asked Freeman, a driver who was traveling
with two passengers, if she was lost or having a problem with
the driver of the other car. Freeman responded that she had
switched lanes because she was in the wrong lane to continue
onto her proper destination and that she was not traveling with
the other car. The trooper asked for her driver's license and
vehicle registration, returned to his cruiser, and initiated a check
on the documents. At that time, he was radioed by the trooper
who had stopped the other vehicle and informed that the driver
said he was following Freeman's car because it was experiencing
difficulties.
The trooper re-approached Freeman's car, gave her a
warning for improperly changing lanes, returned her documents,
and stated that she was free to leave. The trooper walked away,
but Freeman's car remained stopped. The trooper then returned
to Freeman's vehicle and asked her again whether she was
traveling with the other car. After she repeated a negative
response, the trooper indicated that the occupants of the other
vehicle had contradicted that information. He ordered her from
her car and asked to search it. Freeman gave permission, and
contraband was discovered.
Our Supreme Court suppressed the fruits of that search,
concluding that police had initiated a seizure when they re-
approached Freeman's car and ordered her to exit it. The Court
reasoned that a seizure had occurred despite conferral of the
“free to go” language because the “trooper's subsequent actions
were inconsistent with his statement to Freeman that she was
free to leave.” Id. at … 907. Police conduct supporting a
determination that Freeman objectively and reasonably believed
she was, in fact, not free to go included: 1) the officer returned
to Freeman's vehicle and asked her about the second car; 2) he
pointed out the discrepancies between her statements and those
of the other driver; and 3) “most significantly,” the officer “asked
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her to step out of the vehicle prior to the request for consent [to
search].” Id. Since the consent to search was vitiated by a
detention that was not supported by reasonable suspicion, the
Court suppressed the fruits of that search.
Moyer, 954 A.2d at 664–66.
In this context, it is clear that a Strickler/Freeman claim is an
argument that is entirely dependent on a nuanced set of factual
preconditions. To be successful, such a claim must establish that, following
the termination of an otherwise valid but temporary seizure, police reinitiate
contact in circumstances that constitute a distinct detention, one requiring
its own showing of reasonable suspicion not wholly reliant on the facts that
predicated the initial detention. Needless to say, Strickler/Freeman
claims are not implicated in every instance of police stopping a motor
vehicle.
Instantly, the Commonwealth argues:
Appellant agreed that his suppression motion should be decided
on the affidavit of probable cause and did not offer any
testimony to support his current assertion that he did not feel
free to leave; thus there is no factual basis for that assertion.
He also did not assert that the stop had ended before Officer Hill
questioned him about the gun; and the affidavit contains nothing
to support that inference. The Commonwealth certainly
understands its obligation to prove that evidence was seized in a
constitutional manner. Commonwealth v. Wallace, 42 A.3d
1040 (Pa. 2012). But a litigant has to articulate a theory of
suppression so that the Commonwealth knows what aspect of a
seizure and search is being challenged. No lawyer, whether
defense counsel or prosecutor, is a seer. Appellant, who was
represented by the Office of Public Defender, which currently
represents him, did not put anyone on notice that he was
asserting that Officer Hill had completed the traffic stop and then
asked questions about the gun.
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Commonwealth’s Brief at 6-7.
We agree with the Commonwealth. Nothing in Appellant’s suppression
motion could reasonably be perceived as having raised a
Strickler/Freeman claim. Beyond Appellant’s boilerplate citation of the
United States and Pennsylvania Constitutions’ search and seizure clauses, no
further clarifying citations were set forth in his suppression motion. There
was no mention of Strickler, Freeman, or any other relevant or related
case law. The motion appears solely to challenge the initial stop of
Appellant’s vehicle. Suppression Motion, 9/20/16, at 10 (“Officers observed
no violations of the motor vehicle code prior to initiating the traffic stop on
the vehicle in question.”). With that predicate in mind, the motion goes on
to argue the inapplicability of various exceptions to the warrant requirement,
such as the plain view exception, independent source, inventory search, and
protective sweep. Id. at 11c, d, e, and g. Despite specifically referencing
these search-and-seizure legal doctrines with some specificity, no mention
was made of Strickler and/or Freeman, nor was any vague reference to
the factual prerequisites of such a claim offered.
In Commonwealth v. Freeman, 128 A.3d 1231 (Pa. Super. 2015),
this Court warned:
Although the burden in suppression matters is on the
Commonwealth to establish “that the challenged evidence was
not obtained in violation of the defendant's rights,” Pa.R.Crim.P.
581(D), that burden is triggered only when the defendant
“state[s] specifically and with particularity the evidence sought
to be suppressed, the grounds for suppression, and the facts and
events in support thereof.” Commonwealth v. McDonald, 881
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A.2d 858, 860 (Pa. Super. 2005). Thus, when a defendant's
motion to suppress does not assert specifically the
grounds for suppression, he or she cannot later complain
that the Commonwealth failed to address a particular
theory never expressed in that motion. McDonald, 881
A.2d at 860; Commonwealth v. Quaid, 871 A.2d 246, 249 (Pa.
Super. 2005) (“[W]hen a motion to suppress is not specific in
asserting the evidence believed to have been unlawfully obtained
and/or the basis for the unlawfulness, the defendant cannot
complain if the Commonwealth fails to address the legality of the
evidence the defendant wishes to contest.”).
Id. at 1241–42 (emphasis added). On this basis, we conclude that
Appellant waived his Strickler/Freeman claim, as he failed to present such
a claim in his suppression motion.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/26/2018
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