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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: Z.D.S.-J., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
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APPEAL OF: Z.D.S.-J., MINOR :
:
:
:
: No. 416 EDA 2022
Appeal from the Order Entered January 25, 2022
In the Court of Common Pleas of Northampton County Criminal Division
at No(s): CP-48-JV-000392-2021
BEFORE: BOWES, J., NICHOLS, J., and STEVENS, P.J.E.*
MEMORANDUM BY BOWES, J.: FILED NOVEMBER 8, 2022
Z.D.S.-J. appeals from the dispositional order entered on January 25,
2022, after the juvenile court denied his motion to suppress physical evidence
and adjudicated him delinquent of carrying a firearm without a license and
possession of a firearm by a minor. We affirm.
The juvenile court summarized the factual history as follows:
On December 19, 2021, Officer [Justin] Winters was
dispatched to 815 Ferry St., Apt. B, Easton, Pennsylvania to
respond to an attempted break-in. Once on scene, Officer Winters
made contact with the caller, Catherine Vasquez, who stated that
multiple individuals had tried to break into her apartment and that
they were currently positioned in front of her rear apartment door.
Officer Winters entered the complex through the back door and
made contact with four males, including [Z.D.S.-J.], standing in
front of Apartment B’s rear door. The officer, while waiting for
backup, directed all four individuals to keep their hands out of
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* Former Justice specially assigned to the Superior Court.
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their pockets. Officer Winters asked what they were doing there.
In response, the four individuals explained they had planned to
connect with a friend who lived in the complex, but were waiting
for a ride because that friend was not home.
After backup arrived, Officer Winters asked one of the
individuals to escort him to their friend’s apartment to confirm
whether the individuals were telling the truth. They made contact
with the friend’s mother who recognized the individual as a friend
of her son, but explained that her son was not home and that the
four individuals were not there that evening. On their way back
to the others, Officer Winters asked the individual who escorted
him whether he had anything on him, such as weapons or drugs.
He admitted to possessing a small amount of marijuana and
voluntarily handed it to Officer Winters. Both Officer Winters and
the individual made their way back to the first floor of the
apartment complex.
Subsequently, the officers began running background
checks on the four individuals. In the meantime, Officer Winters
spoke with the complainant and her daughter. They maintained
that the daughter was initially home alone when she heard
something banging or hitting the rear door. The daughter also
saw the door handle jiggling and heard multiple voices outside the
door. Ms. Vasquez returned home shortly thereafter and, upon
seeing the door handle jiggling, called 9-1-1.
The background checks revealed that one of the individuals
had an outstanding arrest warrant in Northampton County. That
individual was placed under arrest and a subsequent search of his
person revealed a prop gun.2 Officer Winters emphasized that he
had prior knowledge, from police intelligence, that all four
individuals, including [Z.D.S.-J.] were gang affiliated.
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2 The prop gun found was an imitation Glock BB gun.
Afterwards, the officers resumed their investigation of the
attempted break-in. When asked, all three, including [Z.D.S.-J.],
denied any involvement in an alleged break-in or even touching
the door handle. Based upon the seriousness of the call he
responded to, the knowledge that all individuals were gang
affiliated, and the fact that a prop gun was found on one of
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[Z.D.S.-J.’s] companions, Officer Winters conducted safety frisks
of [Z.D.S.-J.] and the other individuals. Officer Winters felt
something hard around the right ankle of [Z.D.S.-J.] that the
officer immediately recognized as a gun. When asked if it was
another prop gun, [Z.D.S.-J.] stated that it was a real gun and
officers confiscated a .22 caliber silver and brown Jennings Model
handgun.
Trial Court Opinion, 4/26/22, at 1-3.
Z.D.S.-J. was arrested and charged with carrying a firearm without a
license and possessing a firearm as a minor, since he was fifteen years old at
the time that the incident occurred. On January 4, 2022, Z.D.S.-J. filed a pre-
trial motion to suppress the firearm, contending that Officer Winters did not
have the necessary “reasonable suspicion” that Z.D.S.-J. was engaged in
criminal activity or that he was armed and dangerous, to allow him to stop
and frisk Z.D.S.-J. See “Defendant’s Motion to Suppress,” 1/4/22, at
unnumbered 2. The same day, the juvenile court held a suppression hearing
on Z.D.S.-J.’s motion. At the hearing, Officer Winters testified, explaining the
above-described circumstances surrounding his stop and frisk of Z.D.S.-J.
See Suppression Hearing, 1/4/22, at 4-25. At the conclusion of Officer’s
Winters testimony and after receiving arguments from both sides, the court
denied the motion, finding “that there was reasonable articulable suspicion
that criminal activity was afoot and that [Z.D.S.-J.] may be armed and
dangerous.” Id. at 31-32.
Z.D.S.-J. proceeded directly to an adjudication hearing at which Officer
Winters also testified. Id. at 32. Ultimately, the juvenile court adjudicated
Z.D.S.-J. delinquent for committing acts that would constitute the above-
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referenced offenses if committed by an adult. Id. at 46. Appellant was
detained pending his disposition hearing. On January 25, 2022, the court held
the disposition hearing. At the conclusion, Z.D.S.-J. was committed to a
secure residential program for juvenile delinquents. This timely notice of
appeal followed. Z.D.S.-J. and the juvenile court both complied with the
mandates of Pa.R.A.P. 1925.
Z.D.S.-J. raises the following issue for our review:
Did the trial court err by denying [Z.D.S.-J.’s] pre-trial motion for
the suppression and exclusion of evidence, specifically a Jennings
Model J-22, .22 caliber silver handgun, because the search and
seizure violated the Fourth Amendment of the United States
Constitution and Article 1, Section 8 of the Pennsylvania
Constitution?
Z.D.S.-J.’s brief at 9. Although stated as a single question, Z.D.S.-J. actually
raises two different arguments challenging the legality of the stop and the
frisk, separately.
Preliminarily, we set forth our standard of review:
An appellate court’s standard of reviewing 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. Thus, our review of questions of law is de novo. Our
scope of review is to consider only the evidence for the defense
as remains uncontradicted when read in the context of the
suppression record as a whole.
Commonwealth v. Shaffer, 209 A.3d 957, 968-69 (Pa. 2019) (citations
omitted). Where the issue on appeal relates solely to a suppression ruling,
we examine “only the suppression hearing record” and exclude from
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consideration “evidence elicited at trial.” Commonwealth v. Yandamuri,
159 A.3d 503, 516 (Pa. 2017).
Both the United States and Pennsylvania Constitutions provide
coterminous protections against “unreasonable searches and seizures.” See
Interest of T.W., 261 A.3d 409, 418 (Pa. 2021). The law recognizes three
distinct levels of interaction between police officers and citizens: (1) a mere
encounter, (2) an investigative detention, and (3) a custodial detention. See
Commonwealth v. Mackey, 177 A.3d 221, 227 (Pa.Super. 2017). It is
undisputed that the stop-and-frisk at issue in this case constituted an
investigative detention in the nature of a protective weapons search. Such a
search is governed by Terry v. Ohio, 392 U.S. 1 (1968) pursuant to both the
Fourth Amendment to the United States Constitution and Article I, Section 8
of the Pennsylvania Constitution. See Appellant’s brief at 18; see also
Commonwealth v. Brown, 996 A.2d 473, 476 (Pa. 2010) (recognizing that
Terry “sets forth the reasonableness standard for Article I, [Section] 8 of the
Pennsylvania Constitution.”); see also Commonwealth v. Grahame, 7 A.3d
810, 816 (Pa. 2010) (“Pennsylvania courts have always followed Terry
regardless of whether the appellant’s claim was predicated on the Fourth
Amendment or Article I, Section 8 of the Pennsylvania Constitution.”).
For a Terry frisk to be constitutionally sound, the following two
conditions must be met:
First, the investigatory stop must be lawful. That requirement is
met in an on-the[-]street encounter . . . where the police officer
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reasonably suspects that the person apprehended is committing
or has committed a criminal offense. Second, to proceed from a
stop to a frisk, the police officer must reasonably suspect that the
person is armed and dangerous.
Interest of T.W., supra at 417 (quoting Arizona v. Johnson, 555 U.S. 323,
326-27 (2009). Reasonable suspicion in this context is defined as “a suspicion
that is less than a preponderance of the evidence but more than a hunch.”
Commonwealth v. Jackson, 907 A.2d 540, 543 (Pa.Super. 2006). In
determining whether police officers possess reasonable suspicion of criminal
activity, a suppression court must consider the totality of the circumstances
“through the eyes of a trained officer, not an ordinary citizen.” Id.
I. The Legality of the Terry Stop
First, Z.D.S.-J. asserts that the juvenile court erred in denying his
suppression motion because Officer Winters lacked reasonable suspicion that
Z.D.S.-J. was committing a crime, and thus, had no grounds to conduct a legal
stop. See Appellant’s brief at 20-22. Specifically, Z.D.S.-J. contends that the
officer needed to substantiate the caller’s claim that four males were trying to
break-in to her apartment before stopping Z.D.S.-J. See Z.D.S.-J.’s brief at
20-21.
In contrast, the suppression court opined that reasonable suspicion
supported Officer Winters investigative detention. See Juvenile Court
Opinion, 4/26/22, at 6. First, the court found that Officer Winters was legally
present, since he was responding to a 911 call reporting a possible burglary
involving four males. Id.; see also N.T. Suppression Motion Hearing, 1/4/22,
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at 4-5, 22. The court then concluded that the officer had reasonable suspicion
that criminal activity was afoot when Officer Winters encountered Z.D.S.-J.
and his three cohorts standing in the exact position that the complainant
reported within minutes of receiving the 911 call. Id.; see also N.T.
Suppression Motion Hearing, 1/4/22, at 6, 23. We agree.
Our review of the certified record supports the suppression court’s
findings. In addition to the facts relayed by the suppression court, the
evidence of record also established that when responding to the 911 call,
Officer Winters saw no other individuals in the area and immediately
recognized the young men as gang members. See N.T. Suppression Motion
Hearing, 1/4/22, at 23. Accordingly, based on the totality of the
circumstances, the officer reasonably believed that criminal activity was afoot
and that a stop of Appellant was necessary to investigate the incident further.1
II. The Legality of the Terry Frisk
We next consider Z.D.S.-J.’s contention that Officer Winters lacked
reasonable suspicion to believe that he was armed and dangerous since he
offered an innocent explanation for his presence, was not observed with any
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1 Furthermore, this Court has held that the requirement to find that criminal
activity is afoot is unnecessary in cases involving the companions of arrestees.
See Commonwealth v. Jackson, 907 A.2d 540, 544 (Pa.Super. 2006).
Herein, one of Z.D.S.-J.’s cohorts possessed illegal narcotics and another was
arrested based on an active arrest warrant. Since the officer possessed the
necessary reasonable suspicion to stop his companions, it follows that the
officer also had reasonable suspicion to briefly detain Appellant.
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weapons, and did not engage in any evasive behaviors indicating that he was
armed and dangerous. See Z.D.S.-J.’s brief at 24-29. In his view, no basis
independent of his companion’s possession of a prop gun existed to establish
that he was armed and dangerous. Id. Therefore, the frisk of Z.D.S.-J. was
invalid. Id. at 26-29.
Again, the juvenile court disagreed, finding that the officer’s timely
response to a potential break-in, prior knowledge of Z.D.S.-J.’s gang
affiliations, and the fact that one of Z.D.S.-J.’s companions possessed a prop
gun reasonably led Officer Winters to conclude that Z.D.S.-J. presented a
potential danger. See Juvenile Court Opinion, 4/26/22, at 7. Thus, the frisk
was justified. Id. We agree.
To conduct a valid pat-down, a “police officer must be able to articulate
specific facts from which he reasonably inferred that the individual was armed
and dangerous.” Commonwealth v. Gray, 896 A.2d 601, 606 (Pa.Super.
2006). Whether a prudent man in the circumstances would be warranted in
the belief that the suspect was armed or dangerous may arise in a variety of
circumstances:
Close spatial and temporal proximity to the scene of a crime can
heighten a police officer’s reasonable suspicion. A police officer
may reasonably believe himself or herself to be in danger when
the crime reported to have been committed is a violent crime,
when a perpetrator is reported to possess or have used a weapon,
or when the hour is late or the location is desolate. A frisk might
also be implemented to protect innocent bystanders within the
vicinity.
In re N.L., 739 A.2d 564, 568 (Pa.Super. 1999).
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Furthermore, while our appellate courts have rejected a per se
“automatic companion rule,” the behavior of a suspect’s companions can be a
relevant factor in the totality of the circumstances analysis if evidence of a
common enterprise is advanced. See Commonwealth v. Jackson, 907 A.2d
540, 544 (Pa.Super. 2006) (rejecting the “automatic companion rule” and
noting that our courts require individualized suspicion that a suspect may be
armed and dangerous before proceeding to a valid frisk); see, e.g., Grahame
supra at 817 (finding the officer lacked reasonable suspicion to conduct a frisk
of a defendant based solely on her presence inside the house where another
individual conducted a drug deal, since she was not present for the transaction
and the Commonwealth presented no evidence of a shared common enterprise
between the two suspects.)
Herein, Officer Winters quickly responded to the report of an active
burglary attempt, a violent felony, where he observed Z.D.S.-J. and his three
compatriots in the exact location described. The group denied attempting to
enter the apartment and claimed they were visiting a friend upstairs.
However, after speaking with their friend’s mother, Officer Winters was only
able to confirm that the males were friends, not that they had been to the
apartment that day. Thus, the record does not support Z.D.S.-J.’s contention
that the innocent explanation for his presence was proven. To the contrary,
Officer Winters’ brief investigation led him to conclude that Z.D.S.-J. and his
companions were being evasive about the reason for their presence at the
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caller’s door. Moreover, it is undisputed that Z.D.S.-J. had a close association
with the other males. Given Z.D.S.-J.’s close association, the fact that Officer
Winters discovered marijuana and an imitation Glock 9 mm BB gun on Z.D.S.-
J.’s cohorts before he frisked Z.D.S.-J. was properly considered by the juvenile
court as a relevant factor in its analysis. Id. Finally, Officer Winters testified
that he recognized Z.D.S.-J. as someone who was affiliated with a local gang
and the suppression court credited his testimony. Consequently, we discern
no error in the juvenile court’s finding that Officer Winters possessed
individualized reasonable suspicion that Z.D.S.-J. was armed and dangerous
and a frisk was needed to ensure officer safety. Thus, the juvenile court
correctly determined that the firearm was legally recovered, and we affirm the
juvenile court’s disposition.
Order affirmed.
P.J.E. Stevens joins this Memorandum.
Judge Nichols concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/8/2022
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