Commonwealth v. Butler , 194 A.3d 145 ( 2018 )

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2018 PA Super 219COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
LOUIS BUTLER, :
:
Appellant : No. 3509 EDA 2017
Appeal from the Judgment of Sentence Entered August 1, 2017
In the Court of Common Pleas of Bucks County Criminal Division at
No(s): CP-09-CR-0002288-2017
BEFORE: OTT, J., McLAUGHLIN, J., and STEVENS*, P.J.E.
OPINION BY McLAUGHLIN, J.: FILED AUGUST 01, 2018
Louis Butler appeals from the judgment of sentence entered on August
1, 2017, after the trial court found him guilty of conspiracy, possession with
intent to deliver (“PWID”), possession of a controlled substance, and
possession of drug paraphernalia.1 Butler contends that the trial court erred
in denying his motion to suppress because there was no reasonable suspicion
to conduct an investigative detention. We affirm.
On July 31, 2017, Butler filed a suppression motion with the trial court,
arguing that Officer Ronald Rosenberg lacked “a reasonable cause, probable
cause, reasonable suspicion, or necessary legal authority” to stop his vehicle.
N.T., Suppression Hearing, 7/31/17, at 4. The following testimony was
adduced at the Suppression Hearing.
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* Former Justice specially assigned to the Superior Court.
118 Pa.C.S.A. § 903, 35 P.S. §§ 780-113(a)(30), 780-113(a)(16), and 780-
113(a)(32), respectively.
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On July 18, 2016, Officer Rosenberg was on patrol with the Richland
Township Police Department. Id. at 7. At the time, Officer Rosenberg had
been with the department for 11 years and had been a narcotics officer for 6
years. Id. at 8. In order to obtain this position, he attended Bucks County
Narcotics School, where he learned about subjects such as drug investigation,
confidential informants, and undercover work. Id. at 7. Officer Rosenberg has
made approximately 50 arrests involving possession with intent to deliver. Id.
at 8.
Officer Rosenberg received a phone call on the day in question, July 18,
2016, from Gary Bulicki. Id. Officer Rosenberg did not know Bulicki personally
but generally knew that Bulicki was in the police department “system.” Id. at
15, 16, 20. Officer Rosenberg did not know whether Bulicki was known to the
system as a victim or a defendant. Id. at 20. Officer Rosenberg said he looked
into Bulicki’s status with the department “after it was done,” but did not state
the information (if any) that he found. Id.
Bulicki told Officer Rosenberg that he was going to drive his son, Vincent
Bulicki, to the area of the Walmart on Sunshine Drive in Quakertown, Bucks
County, to purchase heroin from two black males known as “Pops” and “Old
Head.” Id. at 9, 18. He stated that the males would be in a black Tahoe. Id.
at 9. Bulicki gave Officer Rosenberg a physical description of his son as well
as of what his son would be wearing. Id. at 10, 18, 19. Bulicki told Officer
Rosenberg that he had received the information about the individuals, the
vehicle, and the narcotics transaction from his son, Vincent. Id. at 17. He also
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said that he previously had driven his son to buy narcotics from the males but
he did not say how many times. Id.
Bulicki stayed in touch with Officer Rosenberg for two hours. Id. at 19.
At around 12 p.m. the same day, Bulicki dropped Vincent off near the
Walmart. Id. at 10. An undercover officer nearby relayed to Officer Rosenberg
that Vincent entered a black Tahoe. Id. at 23. Based on his observations, the
information he received, and his experience, Officer Rosenberg believed that
a narcotics transaction was occurring in the Tahoe. Id. at 11. Officer
Rosenberg went to the area of Sunshine Drive where he activated his vehicle’s
overhead lights, pulled up behind the Tahoe, and approached the driver’s side
of the Tahoe. Id. While approaching the vehicle, he observed Butler in the
front passenger seat bending down and reaching between his legs as though
he was either grabbing or hiding something. Id. at 11-12. Vincent was in the
back seat, behind Butler. Id. at 12. Officer Rosenberg directed his partner,
Officer Zachary Herb, to remove Butler from the vehicle. Id. Officer Rosenberg
then patted Butler down, recovering three Percocets in a little plastic bag in
the small pocket of his pants. Id. at 14-15, 25.
After hearing the testimony, the trial court denied the suppression
motion. On August 1, 2017, after a bench trial, the court found Butler guilty
of the above-referenced crimes and sentenced him to two and one half to five
years’ incarceration for PWID and no further penalty for the remaining
charges. Butler filed a post-sentence motion, which the trial court denied. This
timely appeal followed.
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Butler raises one issue for this Court to review: “Was there sufficient
evidence that the vehicle was involved in criminal activity to justify an
investigative detention?” Butler’s Br. at 4.2
Our standard of review for 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.” Commonwealth v. Jones, 988 A.2d 649,654
(Pa. 2010). Since the Commonwealth prevailed at the suppression motion
hearing “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.” Id. Because Butler’s challenge to the
denial of his suppression motion raises a question of law, our scope of review
is plenary. Id.The parties here agree that the vehicle stop constituted an investigative
detention, which requires reasonable suspicion that criminal activity is afoot.
Commonwealth v. Jones, 874 A.2d 108, 116 (Pa.Super. 2005). “Reasonable
suspicion is a less demanding standard than probable cause . . . in the sense
that reasonable suspicion can arise from information that is less reliable than
that required to show probable cause.” Commonwealth v. Moore, 805 A.2d
616, 620 (Pa.Super. 2002)(citation omitted). An investigative detention is
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2 Butler’s Pa.R.A.P. 1925(b) statement challenged the sufficiency of the
evidence; however, he did not include that sufficiency challenge in his brief to
this Court. He has thus abandoned that challenge on appeal.
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justified where “a police officer [is] able to point to ‘specific and articulable
facts’ leading him to suspect criminal activity is afoot.” Commonwealth v.
Brown, 996 A.2d 473, 477 (Pa. 2010) (citations omitted). In assessing
whether the officer had reasonable suspicion, we take into account the totality
of the circumstances and give due weight “to the specific, reasonable
inferences drawn from the facts in light of the officer’s experience.” Id.Where an informant “identifies [him-] or herself to police, there is a
degree of reliability attached to the tip, because the informant has placed
[him-] or herself at risk for prosecution for giving false information to the
police if the tip is untrue.” See Commonwealth v. Hayward, 756 A.2d 23,
34 (Pa.Super. 2000)(citation omitted). In contrast, the word of an anonymous
informer who has never previously cooperated with the police or “who does
not disclose his or her identity to the police” lacks such indicia of
reliability. Id. at 35 (emphasis added). Information from a known source that
police have corroborated can “g[iv]e rise to reasonable suspicion sufficient to
warrant an investigative detention.” Commonwealth v. Brown, 996 A.2d at
479.
Butler contends that while Bulicki identified himself to Officer
Rosenberg, there was reason to question his reliability. See Butler’s Br. at 14.
Butler argues that because Officer Rosenberg was unaware in what capacity
Bulicki was known to the police, Bulicki should be considered an unreliable
source.
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The trial court determined that Bulicki was a sufficiently reliable source
to support reasonable suspicion because he provided police not only his full
name but also the source of his information: his own son. See Trial Court
Opinion, filed 12/4/17, at 7. The court further pointed out that police did not
rely on Bulicki’s report alone to conduct an investigative detention. Rather,
the police followed up on Bulicki’s tip and performed their own investigation,
which corroborated the tip in all aspects.
We agree with the trial court’s analysis. Reasonable suspicion existed in
this case based on the information Bulicki, an identified informant, relayed to
police, which information police corroborated before conducting the vehicle
stop. Furthermore, Bulicki’s statements to police tended to implicate him in a
scheme to purchase heroin, itself a crime. A self-incriminating tip from a
known person is more reliable because of the risk inherent in making such a
statement. United States v. Greenburg, 410 F.3d 63, 67–68 (1st Cir. 2005)
(listing self-incriminating nature of known tipster’s statement among factors
in that case establishing probable cause). Bulicki’s tip had sufficient indicia of
reliability to justify the police to stop the Tahoe.
Butler’s further argument that there was “really no evidence”
corroborating Bulicki’s information is likewise meritless. Butler’s Br. at 17-18.
The evidence at the suppression hearing showed that before effectuating the
vehicle stop, police officers conducted surveillance and made observations
consistent with details that Bulicki had provided. They observed Bulicki drop
Vincent at 12 p.m. near the Walmart, and noted that Vincent’s appearance
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and clothing matched Bulicki’s report. They then saw Vincent get inside of a
black Tahoe containing two black males. The record belies the notion that
Officer Rosenberg relied on an uncorroborated tip to conduct the vehicle stop.
In sum, the information available to Officer Rosenberg, as he would have
understood it due to his extensive experience – 6 years in narcotics, 11 years
as a police officer overall, and approximately 50 narcotics arrests during his
career – gave him reasonable suspicion. Bulicki provided specific information
about the people involved in, and place and time of, the heroin purchase that
police independently corroborated; he identified himself to police when giving
the tip; and he nonetheless gave information that could subject him to
criminality. Officer Rosenberg had reason enough to believe that a heroin sale
was occurring in the Tahoe and therefore was entitled to stop the Tahoe. We
reject Butler’s challenge to the denial of his motion to suppress and affirm his
judgment of sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/1/18
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