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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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. : No. 606 WDA 2018
:
RYAN REX GRAY :
Appeal from the Order, March 23, 2018,
in the Court of Common Pleas of Beaver County
Criminal Division at No. CP-04-CR-0001064-2017
BEFORE: OLSON, J., MURRAY, J., AND FORD ELLIOTT, P.J.E.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED NOVEMBER 1, 2018
The Commonwealth appeals from the March 23, 2018 order entered in
the Court of Common Pleas of Beaver County that granted the omnibus
pretrial motion to suppress physical evidence filed by appellee,
Ryan Rex Gray. After careful review, we affirm.
The suppression court set forth the following:
By Criminal Information dated July 24, 2017[,
appellee] was charged with three counts of
DUI,[Footnote 1] two counts of possession of drug
paraphernalia (a silver grinder and a marijuana
pipe),[Footnote 2] and one count of Driving Under
Suspension.[Footnote 3] [Appellee] filed a Motion to
Suppress Evidence on January 2, 2018. A hearing
upon this motion was held on February 6, 2017 at
which time the Commonwealth presented testimony
from Trooper [Trask Alexander] of the Pennsylvania
State Police, Beaver County Barracks.
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[Footnote 1] Count 1 charged under
75 Pa.C.S.A. § 3802(d)(1); Count 2
charged under 75 Pa.C.S.A.
§ 3802(d)(1)(iii); Count 3 charged under
75 Pa.C.S.A. § 3802(d)(2). All counts
reflect that that [sic] this is his fourth
DUI offense in ten years.
[Footnote 2] Both counts (Counts 4 and
5 in the information) charged under
35 P.S. § 780-113(a)(32).
[Footnote 3] Count 6 in the information
charged under 75 Pa.C.S.A.
§ 1543(b)(1).
....
On February 25, 2017, at approximately 9:52 p.m.,
the State Police received a tip from a concerned
neighbor (hereinafter “neighbor”) of two unknown
trucks[Footnote 4] parked in the driveway of an
abandoned residence that the “neighbor” claimed
had been the subject of burglary attempts in the
past. The “neighbor” provided his identity to the
police and informed them that he saw people walking
around with flashlights.
[Footnote 4] No other identifying
information was provided regarding the
trucks, such as make, model, year, plate,
color, etc.
Trp. [Alexander] traveled towards the scene—a trip
which took approximately 20 minutes. As
Trp. [Alexander] was nearing the locality of
Hookstown Boro., a second call was received from
the same “neighbor” who relayed that the trucks
were leaving the property and heading east on
Georgetown Rd., towards Hookstown.
Trp. [Alexander] decided to park his cruiser by the
mini-mart near the intersection of Pine and Main St.
in Hookstown Boro., to wait for the trucks to appear.
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Trp. [Alexander] testified at the suppression hearing
that it was a low traffic area at that time, and “not
much was going on.”
Within minutes of parking his cruiser,
Trp. [Alexander] observed two trucks pass by his
location. Trp. [Alexander] began following the
trucks, both of which turned right onto Main St. and
proceeded towards Mill Creek Ballpark where
Trp. [Alexander] initiated a traffic stop of [appellee],
who was driving a Silver Ford F-150. At the
suppression hearing, Trp. [Alexander] testified that
he did not observe any traffic infractions while
following [appellee’s] vehicle and that his decision to
conduct a traffic stop was solely based on suspicion
that the occupants of the vehicles were involved in a
suspected burglary—a suspicion based solely on the
call from the “neighbor[.”]
Upon approaching [appellee’s] vehicle,
Trp. [Alexander] removed [appellee] from the
vehicle for officer safety purposes. During this time,
Trp. [Alexander] allegedly detected the odor of
marijuana emanating from the vehicle. Upon
questioning [appellee], [appellee] purportedly stated
that he possessed drug paraphernalia inside the
vehicle, and an ensuing search revealed the
presence of a silver metal grinder and a blue-tipped
pipe.
Suppression court opinion, 3/26/18 at 1-3 (footnote 5 omitted).
The record reflects that following entry of the order granting appellee’s
motion to suppress, the Commonwealth filed a timely notice of appeal to this
court. Within its notice of appeal, the Commonwealth certified that the
suppression court’s order would terminate or substantially handicap
appellee’s prosecution. See Pa.R.A.P. 311(d) (permitting Commonwealth
appeal from an interlocutory order if it certifies that the order will terminate
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or substantially handicap the prosecution). Thereafter, the suppression
court filed its Rule 1925(a) opinion wherein it stated that its reasons for
entering the order granting appellee’s motion to suppress are fully set forth
in its March 26, 2018 opinion.
The Commonwealth raises the following issue for our review:1
Whether the suppression court erred in granting
appellee’s motion to suppress evidence stemming
from a traffic stop on July 24, 2017, where
Trooper Alexander of the Pennsylvania State Police
to [sic] stopped appellee’s vehicle because of
suspicion of a suspected burglary?
Commonwealth’s brief at 6 (full capitalization omitted).
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 is
to determine if the suppression court properly
applied the law to the facts.
Our standard of review is restricted to establishing
whether the record supports the suppression court’s
factual findings; however, we maintain de novo
review over the suppression court’s legal
conclusions.
1 We note that by correspondence dated August 20, 2018, appellee informed
this court that he would not file a brief in this case because the suppression
court’s March 26, 2018 opinion fully addressed his position.
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Commonwealth v. Korn, 139 A.3d 249, 252-253 (Pa.Super. 2016)
(internal citations and quotation marks omitted).
Fourth Amendment jurisprudence has led to the
development of three categories of interactions
between citizens and the police. The first of these is
a “mere encounter” (or request for information)
which need not be supported by any level of
suspicion, but carries no official compulsion to stop
or to respond. The second, an “investigative
detention” must be supported by a reasonable
suspicion; it subjects a suspect to a stop and a
period of detention, but does not involve such
coercive conditions as to constitute the functional
equivalent of an arrest. Finally, an arrest or
“custodial detention” must be supported by probable
cause.
Commonwealth v. Ellis, 662 A.2d 1043, 1047 (Pa. 1995) (citations
omitted).
Here, the Commonwealth contends that Trooper Alexander had
reasonable suspicion to stop appellee’s vehicle for purposes of an
investigative detention based on the information he received that was called
in to police by an identified caller concerning a potential burglary in
progress.
“The appellate courts have mandated that law enforcement officers,
prior to subjecting a citizen to an investigatory detention, must harbor at
least a reasonable suspicion that the person seized is then engaged in
unlawful activity.” Commonwealth v. Barber, 889 A.2d 587, 593
(Pa.Super. 2005) (citation omitted). “Reasonable suspicion is a less
demanding standard than probable cause because it can be established by
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information that is different in quantity and quality than that required for
probable cause; it can arise from information that is less reliable than that
required to show probable cause.” Commonwealth v. Emeigh, 905 A.2d
995, 998 (Pa.Super. 2006) (citation omitted).
To meet the standard of reasonable suspicion, “the
officer must point to specific and articulable facts
which, together with the rational inferences
therefrom, reasonably warrant the intrusion. In
ascertaining the existence of reasonable suspicion,
we must look to the totality of the circumstances to
determine whether the officer had reasonable
suspicion that criminal activity was afoot.” Barber,
supra at 593 (citations and quotations omitted).
Further, “police officers need not personally observe
the illegal or suspicious conduct, but may rely upon
the information of third parties, including ‘tips’ from
citizens.” Id.
Commonwealth v. Smith, 904 A.2d 30, 35-36 (Pa.Super. 2006).
When an identified third party provides information
to the police, we must examine the specificity and
reliability of the information provided. The
information supplied by the informant must be
specific enough to support reasonable suspicion that
criminal activity is occurring. To determine whether
the information provided is sufficient, we assess the
information under the totality of the circumstances.
The informer’s reliability, veracity, and basis of
knowledge are all relevant factors in this analysis.
Barber, 889 A.2d at 593-594 (citation omitted). “A tip that comes from an
informer known to the police may carry enough reliability to allow for an
investigative stop, even though the same tip from an anonymous source
would not.” Emeigh, 905 A.2d at 998 (citation omitted).
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Here, in granting appellee’s motion to suppress, the trial court
concluded that:
the information provided [to Trooper Alexander] was
based on a previously unknown “neighbor’s”
supposition. There was no description or
identification of the individual(s) who were the
subject of his concern, and only an extremely vague
description of vehicle(s) he claimed were in an area
near an abandoned house. While he expressed a
concern about past burglaries there was no
indication that the “individuals” or “trucks” involved
were not authorized to be on the property.
While [Trooper Alexander] was acting in good faith,
his action was in response to information that was
based on a vaguely described general hunch that did
not justify intrusion on [appellee’s] constitutionally
guaranteed rights.
Trial court opinion, 3/26/18 at 9.
Our review of the record demonstrates that the record supports the
suppression court’s findings of fact and that the suppression court properly
applied the law to the facts to conclude that the information supplied by the
caller was not specific enough to support reasonable suspicion of criminal
activity.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/1/2018
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