Commonwealth v. Luczki ( 2019 )

J-S73005-18
2019 PA Super 179COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
BRIAN LUCZKI :
:
Appellant : No. 93 WDA 2018
Appeal from the Judgment of Sentence December 18, 2017
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0003552-2017
BEFORE: GANTMAN, P.J., BENDER, P.J.E., and OLSON, J.
OPINION BY GANTMAN, P.J.: FILED JUNE 7, 2019
Appellant, Brian Luczki, appeals from the amended judgment of
sentence entered in the Allegheny County Court of Common Pleas, following
his bench trial conviction for possession of a controlled substance.1 We affirm.
In its opinion, the trial court accurately set forth the relevant facts of
this case as follows:
In this case, the evidence presented at [the suppression
hearing/stipulated trial] established that on November 29,
2016, Officer William Luffey of the Allegheny County Port
Authority Police was working with other police officers as
part of the District Attorney task force targeting the sale of
illegal narcotics (“DANET”). Officers were in the area of
Federal and Henderson Streets on the North Side of
Pittsburgh due to complaints of drug sales. The Sandusky
Court housing project is adjacent to the area and the task
force had made in excess of thirty drug arrests in the area
that month.
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1 35 P.S. § 780-113(a)(16).
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Officer Luffey first observed [Appellant] walking away from
the officers and toward the Sandusky Court Housing Project.
[Appellant] was with an individual known to [Officer] Luffey
as he had arrested that individual on drug charges on five
prior occasions. [Appellant and the individual] walked
toward Sandusky Court and out of the view of the officers.
Approximately 14 minutes later, the two individuals were
observed coming back from the area of Sandusky Court
walking toward the officers. Officer Luffey testified that
based on his training and experience, and the observations
he made, he believed that the individuals had purchased
illegal narcotics. Officer Luffey and Sgt. Wagner who were
in plain clothes, but wearing their badges around their
necks, waited until the individuals were a few feet away and
announced themselves as police officers. Officer Luffey
stated, “I need to speak to you,” and both [Appellant]
and the other individual turned and started to walk away.
[Appellant pulled] his hand out of his front pocket and
Officer Luffey could clearly see a stamp bag in [Appellant’s]
hand. After asking [Appellant] to open his hand [Officer
Luffey] observed three stamp bags marked “no pain” in
[Appellant’s] hand. [Appellant] was then placed under
arrest for possession of a controlled substance.
(Trial Court Opinion, filed April 27, 2018, at 2-3) (internal citations to record
and footnote omitted) (emphasis added). The packets taken from Appellant
contained heroin, and the Commonwealth charged Appellant with possession
of a controlled substance.
Appellant filed a motion to suppress on August 25, 2017, in which he
argued the interaction between the police and Appellant constituted an
unlawful search and seizure, without reasonable suspicion or probable cause.
Specifically, Appellant claimed the police seized him without reasonable
suspicion or probable cause, and searched his person without a warrant,
probable cause, or any other valid exception to the warrant requirement.
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Appellant claimed the moment the officers approached him with displayed
badges and identified themselves as police officers, they had “seized” him,
and then conducted an illegal search when the officer ordered Appellant to
show what he had in his hand. (See Motion To Suppress Evidence, filed
8/25/17, at 4.)
The court conducted a suppression hearing on December 15, 2017. The
Commonwealth presented one witness, Officer Luffey, who testified he is a
twenty-two-year veteran police officer. He has been working with DANET for
nine years, has attended numerous narcotics investigation interdiction classes
during his entire career, and had made in excess of thirty arrests over a four-
week period in the area where he interacted with Appellant. Officer Luffey
stated he and his partner had been assigned to the area due to numerous
complaints of illegal drug deals. Officer Luffey said he actually knew
Appellant’s companion and had arrested Appellant’s companion for possession
of narcotics five times within the past year. Officer Luffey described how
Appellant’s and his companion’s actions roused the officers’ suspicion and
explained: “[F]rom my training and experience being in the area where I’ve
made numerous drug arrests over the past few weeks, the history of
[Appellant’s companion] and the short amount of time they were gone, I
believed that the two purchased illegal narcotics.” (N.T. Suppression Hearing,
12/15/17, at 3-7). Officer Luffey observed Appellant and his companion as
they walked back from the area of Sandusky Court toward the officers. Officer
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Luffey stated:
Commonwealth: Okay. …can you tell the Court what
happened after that[?]
Officer Luffey: Sergeant Wagner and myself, we
approached the two with our badges displayed and verbally
identified ourselves as police officers.
Commonwealth: Officer Luffey, were you in uniform this
day or were you in plainclothes?
Officer Luffey: I was in plainclothes as was Sergeant
Wagner.
Commonwealth: But you had a badge around your
neck?
Officer Luffey: Yes, a badge around my neck and a
radio in my hand and verbally announcing myself, which
[Appellant’s companion] knew me from narcotics
encounters with him.
Commonwealth: [Appellant’s companion] would have
recognized you in plainclothes regardless of your badge?
* * *
Commonwealth: Officer Luffey, did you approach
[Appellant] and [his companion]?
Officer Luffey: When we identified ourselves with our
badges displayed they both had looks of shock on their
face[s] and they started walking away. And when they were
doing that I observed [Appellant]. He was going into his
front pants pocket. And I could clearly see him removing
stamp bags of heroin.
Commonwealth: Now, you said that—your observation
of [Appellant] when he removed his hand from his pocket,
what did you see in his hand?
Officer Luffey: I could clearly see white stamp bags of
heroin. I didn’t know how many there were, but I knew it
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was heroin.
Commonwealth: And are you familiar with the
packaging that’s typically used to sell illegal narcotics?
Officer Luffey: Absolutely, from working DANET and
being a police officer for twenty-two years I’ve probably
made four to five hundred heroin arrests.
Commonwealth: Can you describe briefly what that
stamp bag might look like?
Officer Luffey: It’s the size of a stamp, you know, like,
it’s white, and each bag always has a mark on it, a label.
Commonwealth: Okay. And is that what you observed
in [Appellant’s] hand?
Officer Luffey: Yeah. But I couldn’t see the label. I
could see it was a stamp bag, but I could not see the
stamping on it.
Commonwealth: Okay. And after you observed the
stamp bags of heroin in [Appellant’s] hand what happened
after that?
Officer Luffey: I advised him to open up his hand and
he complied, and there were three stamp bags of heroin
stamped “No pain” on them.
Commonwealth: Now, at any time was [Appellant], prior
to this, was [Appellant] detained?
Officer Luffey: No. We just approached and identified
ourselves as police officers. And he walked away. He
reached into his pocket, and I [saw] the heroin.
Commonwealth: Was he handcuffed?
Officer Luffey: No.
Commonwealth: Prior to observing those stamp bags in
his hands did you pat him down?
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Officer Luffey: Nothing. No.
Commonwealth: Okay. And after you observed the
stamp bags in his hand what did you do after that?
Officer Luffey: That’s when I placed him under arrest
and detained him.
(Id. at 8-11). During cross-examination, Officer Luffey confirmed the
testimony he had given on direct examination about his training and
experience, and the fact that the officers were in plainclothes. The cross-
examination testimony added that the officers were on foot in public, and not
in police vehicles, when they interacted with Appellant and his companion.
Upon the officers’ approach, identification, and request, Appellant and his
companion separated and turned to walk away, which was when Officer Luffey
saw Appellant remove white bags from his right pocket, cupped in his right
hand, and in plain view. The incident occurred in the afternoon, about 4:35
P.M., on November 29, 2016. The product in the bags confiscated from
Appellant tested positive for heroin. (Id. at 11-21).
In closing argument, defense counsel said:
You heard Officer Luffey’s testimony that he approached,
identified himself, saw [Appellant] walk away from him
pulling something out of his pocket that the officer could tell
based on his training and experience was three stamp bags.
I think what you are hearing him testify to is a hunch and a
belief that these two individuals were there to purchase or
use heroin. He saw something white come out of my client’s
pocket. He assumed that that was a stamp bag based on
the fact that my client was with a known drug user. When
he ordered my client to open his hands that is where the
unlawful search lies. Ordering him to open his hands is the
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same as telling him to empty his pockets. He suspected
there was something illegal in his hand. He ordered him to
open it so that he could verify that that was, in fact,
something illegal. Once he did that he saw that my client
did, in fact, have heroin in his hand. I’m not denying the
fact that this officer has been doing this for a long time and
he had a good sense of what was going on. It does not give
him the right to search my client just because he was in a
high crime area with a known drug user. That does not give
him a right to conduct a search without something more.
He maybe had reasonable suspicion to conduct an
investigatory stop. He maybe could have asked some
questions. But he didn’t do that. He ordered him to open
his hands. He ordered my client to open his hands and show
him the contents of his hands.
I would submit that it was not possible to tell that the white
thing in my client’s hand was a stamp bag. Maybe there
was enough, as I said, to conduct an investigatory
detention, but not a search. There was not enough to
enable this officer to conduct a search of my client, which is
what it was when he ordered him to open his hands.
Because of that I would ask you to suppress this evidence.
And that’s all I have, Your Honor.
(Id. at 22-24). In response, the Commonwealth argued:
Your Honor, you heard testimony from Officer Luffey. He’s
a twenty-two year veteran of the—as a police officer. And
you heard his testimony today, that he was working as a
DANET—under the DANET team on the day the incident
occurred. The reason he was there was because of
complaints of open air drug sales. He has been working with
the DANET group for the better part of a decade. And he is
familiar with the co-defendant in this case and knows him
to be a known drug…
* * *
A known drug user. All of these things together would
certainly support a reasonable suspicion if not probable
cause for him to encounter [Appellant’s companion] and
[Appellant]. However, Your Honor, I will submit that
approaching them does not amount to a search. And
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[Appellant’s] surprise at being encountered by a police
officer and removing those items from his pocket certainly
would not amount to a search. And Officer Luffey observed
these items in plain view as he testified today.
Once he observed those stamp bags in [Appellant’s] hand,
asking him to open his hand, I don’t think under anybody’s
rationale would amount to a search as defense counsel is
trying to suggest, argue here. Even if it did, Your Honor,
it’s my belief that [Officer Luffey] had more than enough
reason to do that anyway.
Nothing further, Your Honor.
(Id. at 24-26).
The court considered the testimony as well as the arguments of counsel,
recognized that Appellant’s mere presence in the crime area or simply
associating with a known drug user would not itself be illegal, but concluded
the initial interaction between Appellant and the officers was a “mere
encounter.” The circumstances, however, changed as soon as Officer Luffey
saw the stamp bags in Appellant’s hand. The court reasoned:
Thank you. Well, this is one of those weird cases where the
irony is that what the result was−I don’t know how to
articulate it−I don’t think there was a sufficient basis to
search [Appellant]. But that’s not what happened.
This is one of those strange cases. I agree that in the
standard of, like, being in a drug area and maybe [whom]
you associate with would cause an officer within [his]
experience to look at things differently. But I also don’t
subscribe to the belief, and I think [defense counsel] said
it’s because−we’ve had other cases in this−which is, that if
you live in a certain area you’re pretty much going to get
searched. You know, that’s not the thing. And there are
plenty of people [who] would be in that area [who] aren’t
doing anything suspect, and they are just poor. Okay.
That’s one thing.
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See, I look at all those circumstances, that [Appellant] is
with a known drug user and that…maybe doesn’t add
anything. Just observing him walking on that street going
toward Sandusky Court, which I think everybody in the
entire county knows what goes on in Sandusky Court. And
the−as far as the drug trafficking and crime there, that still
doesn’t add [up].
But what this turns on for me is what the interaction is and
what was said. Now, had they said “stop” or “hold on” or
“give me everything in your pockets” or, I don't know, I
could describe it a number of different ways. In this case
the police officers are conducting the interdiction through
DANET. They are watching the area.
At this point, then, when they say to these two individuals,
one of whom is known to this officer, “Hey, police officers−"
wait, and I wrote it down. “Can we talk to you?” Let me
just make sure. I actually highlighted it. “Police officers.
Can we speak to you?” It’s an interaction. It wasn’t, “Stop.
Get over here.” There wasn’t any−so he just says, “Can we
speak to you?” And then the individuals turn around and
start to walk away.
And what it turns on for me is at that point if they had
grabbed them and started searching them, I would agree
with you. I can’t explain why people do stuff. But the
testimony was clear. The witness didn’t say, “I saw
something white and suspected it to be a stamp bag.” He
said, “I saw a stamp bag. I couldn’t see how many, but I
clearly saw a stamp bag.”
And to me at that point, then, that does change things. And
the reason I say there is irony to it is because if he hadn’t I
don’t think there would have been at that time probable
cause. There certainly wouldn’t have been probable cause
to search them. There might have been reasonable
suspicion to go on and do something else, but there
certainly wasn’t probable cause to search at that time. But
[Officer Luffey] didn’t need [probable cause] because [what
he saw] was in plain view. And that’s where it turned for
me. Again, I have to go with the uncontradicted evidence
that was presented here, not what your side is, I get that,
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but I’m just going on the standard. On the standard here
the officers are free to say to people all the time, they’re like
free to wander among us, and they’re free to watch things,
and they’re free to speak to us as long as they are not
seizing us or leading us to believe that we are not free to
interact or we are not free to leave and that we must interact
with them. And they said, “Hey, police officers, can we talk
to you?” And then the witness sees what he clearly sees as
a stamp bag. He said he didn’t know the number. I know
what you are saying. It’s just that it’s not consistent with
what he testified to repeatedly.
And even under cross-examination, depending on how the
testimony was−I didn’t hear anything that you crossed him
with that was inconsistent with what he said, which is that,
you know, again, I would have to go through the whole
transcript to see…, but nothing was inconsistent with what
he testified to today.
With respect to why would anyone do that, I don’t know why
anyone does anything. I really don’t. I couldn’t explain why
people do things in a panic or whatever it is. But I don’t
have any reason at this point, absent some other factors, to
take that as anything other than credible testimony that
given [Officer Luffey’s] training and experience he clearly
recognized at least one stamp and didn’t know how many
[bags], and that the command to open his hand determined
what the number was. So while I completely understand
the issues that you raise I just wouldn’t agree with respect
to what the facts show the interaction was.
So based on that I will respectfully deny your motion.
(Id. at 26-30).2
____________________________________________
2 In its Rule 1925(a) opinion, the trial court explained more clearly how it
found the initial interaction between the police officers and Appellant was a
mere encounter that required no reasonable suspicion or probable cause.
When Appellant turned to walk away from the officers and pulled stamp bags
from his pocket, Officer Luffey saw the bags in plain view, cupped in
Appellant’s hand. Officer Luffey instantly recognized the bags as “stamp bags”
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Immediately following the suppression hearing, the court conducted a
jury-waiver colloquy, proceeded with a stipulated bench trial, and convicted
Appellant of one count of possession of a controlled substance as charged.
Also on December 15, 2017, the court initially sentenced Appellant, but on
December 18, 2017, the court entered a corrected sentencing order and
imposed three (3) to six (6) months’ incarceration, plus sixteen (16) months’
probation. By order filed on January 3, 2018, the court also granted Appellant
early parole and set his release for within 48 hours of January 12, 2018.
Appellant filed a timely notice of appeal on January 12, 2018. The court
ordered Appellant on January 16, 2018, to file a concise statement of errors
complained of on appeal per Pa.R.A.P. 1925(b) by February 16, 2018.
Appellant timely complied on February 15, 2018. In his Rule 1925(b)
statement, Appellant essentially ignored defense counsel’s concessions on the
record at the suppression hearing, about reasonable suspicion for the initial
interaction between the officers and Appellant and his companion, as
reiterated in defense counsel’s closing argument, which focused solely on the
search conducted after Officer Luffey saw the “stamp bags.” (See N.T.
Suppression Hearing at 22-24). Instead, Appellant renewed his original
position as follows:
This Honorable Court erred when it denied [Appellant’s]
____________________________________________
used for heroin distribution, which gave Officer Luffey probable cause to order
Appellant to open his hand fully. (See Trial Court Opinion, filed April 27, 2018,
at 3.)
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Motion to Suppress Evidence. The seizure and subsequent
search of [Appellant’s] person were illegal and conducted in
violation of [his] rights under the Fourth and Fourteenth
Amendments to the United States Constitution, as well as
Article One, Section Eight of the Pennsylvania Constitution,
for the following reasons:
a. [Appellant] was subjected to a seizure where
two police officers who had identified
themselves as such approached him with their
badges displayed and one stated, “I need to
speak with you.” This seizure was not
supported by reasonable suspicion that
[Appellant] was engaged in criminal activity or
by probable cause to arrest him.
b. The police officer’s subsequent order to
[Appellant] “to open up his hand” was a search
of [Appellant’s] person. This search was
conducted without a warrant and in the absence
of any delineated exception to the warrant
requirement.
(Appellant’s Concise Statement of Errors Complained of on Appeal, filed
2/15/18, at 3) (unpaginated).
Appellant now presents the following issue on appeal:
DID THE TRIAL COURT ERR IN DETERMINING THAT
[APPELLANT]’S RIGHTS UNDER THE FOURTH AND
FOURTEENTH AMENDMENTS TO THE UNITED STATES
CONSTITUTION, AS WELL AS ARTICLE ONE, SECTION
EIGHT OF THE PENNSYLVANIA CONSTITUTION, WERE NOT
VIOLATED WHEN [APPELLANT] WAS SUBJECTED TO A
SEIZURE—AN ILLEGAL INVESTIGATORY DETENTION, NOT
A MERE ENCOUNTER—WHEN TWO POLICE OFFICERS WHO
HAD IDENTIFIED THEMSELVES AS SUCH APPROACHED HIM
WITH THEIR BADGES DISPLAYED AND ONE STATED, “I
NEED TO SPEAK WITH YOU”?
(Appellant’s Brief at 4).
Appellant argues the police violated his constitutional right to be free
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from unlawful seizures and searches. Specifically, Appellant complains Officer
Luffey “seized” Appellant in an investigatory detention, at the outset of their
interaction, because no reasonable person would not have felt free to walk
away from Officer Luffey under the circumstances. Appellant claims Officer
Luffey illegally detained Appellant, based on no more than a “hunch” that
Appellant had purchased drugs. Appellant submits the trial court erred when
it characterized the nature of his initial interaction with Officer Luffey as a
mere encounter, where the officers’ display and assertion of authority would
lead a reasonable person to believe he was not free to decline the officers’
requests to speak with them or otherwise terminate the contact. Appellant
emphasizes that, when Officer Luffey said to Appellant, “I need to speak with
you,” the statement was the functional equivalent of a command to stop,
which only an unreasonable and imprudent citizen in Appellant’s position
would have felt free to ignore. As a result, Appellant contends the search
following his unlawful detention was likewise illegal; and the trial court erred
in denying the suppression motion. Appellant concludes this Court should
reverse and remand for a new trial with instructions to suppress the evidence.
We disagree.
Appellate review of an order that denied a motion to suppress evidence
is as follows:
We may consider only the Commonwealth’s evidence 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 record supports the factual findings of
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the trial court, we are bound by those facts and may reverse
only if the legal conclusions drawn therefrom are in error.
An appellate court, of course, is not bound by the
suppression court's conclusions of law.
Commonwealth v Arter, 637 Pa. 541, 546-47, 151 A.3d 149, 153 (201)
(quoting Commonwealth v. Gary, 625 Pa. 183, 189-90, 91 A.3d 102, 106
(2014)). “It is within the suppression court’s sole province as factfinder to
pass on the credibility of witnesses and the weight to be given their
testimony.” Commonwealth v. Clemens, 66 A.3d 373, 378 (Pa.Super.
2013).
The Fourth Amendment to the United States Constitution and Article I,
Section 8 of the Pennsylvania Constitution guarantee the right of the people
to be secure in their persons, houses, papers, and possessions from
unreasonable searches and seizures. Commonwealth v. Morrison, 166
A.3d 357, 363-64 (Pa.Super. 2017). “To secure the right of citizens to be free
from unreasonable search and seizure, 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. Hampton, 204 A.3d 452, 456
(Pa.Super. 2019). Because interactions between law enforcement and the
general citizenry are widely varied, search and seizure law looks at how the
interaction is classified and if a detention has occurred. Commonwealth v.
DeHart, 745 A.2d 633, 636 (Pa.Super. 2000).
Our Supreme Court in Commonwealth v. Adams, ___ Pa. ___, ___,
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205 A.3d 1195, 1199-1200 (2019) recently reiterated the general levels or
classifications of contacts between the police and the citizenry and reviewed
long-standing precedent on the topic as follows:
The first is a mere encounter, sometimes referred to as a
consensual encounter, which does not require the officer to
have any suspicion that the citizen is or has been engaged
in criminal activity. This interaction also does not compel
the citizen to stop or respond to the officer. A mere
encounter does not constitute a seizure, as the citizen is free
to choose whether to engage with the officer and comply
with any requests made or, conversely, to ignore the officer
and continue on his or her way. The second type of
interaction, an investigative detention, is a temporary
detention of a citizen. This interaction constitutes a seizure
of a person, and to be constitutionally valid police must have
a reasonable suspicion that criminal activity is afoot. The
third, a custodial detention, is the functional equivalent of
an arrest and must be supported by probable cause. A
custodial detention also constitutes a seizure.
No bright lines separate these types of [interactions], but
the United States Supreme Court has established an
objective test by which courts may ascertain whether a
seizure has occurred to elevate the interaction beyond a
mere encounter. The test, often referred to as the “free to
leave test,” requires the court to determine whether, taking
into account all of the circumstances surrounding the
encounter, the police conduct would have communicated to
a reasonable person that he was not at liberty to ignore the
police presence and go about his business. [W]henever a
police officer accosts an individual and restrains his freedom
to walk away, [the officer] has “seized” that person.
Id. at ___, 205 A.3d at 1199-1200 (most internal citations and quotation
marks omitted). Whether a seizure has occurred, under the circumstances
related in the undisputed testimony at a suppression hearing, is a question of
law involving a plenary scope of review. Commonwealth v. Au, 615 Pa.
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330, 337, 42 A.3d 1002, 1006 (2012). Our standard of review regarding
questions of law is de novo. Commonwealth v. McGarry, 172 A.3d 60, 65
(Pa.Super. 2017), appeal denied, ___ Pa. ___, 185 A.3d 966 (2018).
When initially evaluating the level of interaction between law
enforcement and a citizen to determine if a seizure occurred, “courts conduct
an objective examination of the totality of the surrounding circumstances.”
Commonwealth v. Lyles, 626 Pa.343, 350, 97 A.3d 297, 302 (2014).
The totality-of-the-circumstances test is ultimately centered
on whether the suspect has in some way been restrained by
physical force or show of coercive authority. Under this test,
no single factor controls the ultimate conclusion as to
whether a seizure occurred—to guide the inquiry, the United
States Supreme Court and this Court have employed an
objective test entailing a determination of whether a
reasonable person would have felt free to leave or otherwise
terminate the encounter. [W]hat constitutes a restraint on
liberty prompting a person to conclude that he is not free to
“leave” will vary, not only with the particular police conduct
at issue, but also with the setting in which the conduct
occurs.
This Court and the United States Supreme Court have
repeatedly held a seizure does not occur where officers
merely approach a person in public and question the
individual or request to see identification. Officers may
request identification or question an individual so long as
the officers do not convey a message that compliance with
their requests is required. Although police may request a
person’s identification, such individual still maintains the
right to ignore the police and go about his business.
Id. at 350-51, 97 A.3d at 302-03 (internal citations and quotation marks
omitted).
To decide whether a seizure has occurred, a court must
consider all the circumstances surrounding the encounter to
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determine whether the demeanor and conduct of the police
would have communicated to a reasonable person that
he…was not free to decline the officer’s request or otherwise
terminate the encounter. A variety of factors may influence
this determination, including the threatening presence of
several officers, the display of a weapon by an officer, some
physical touching of the person of the citizen, or the use of
language or tone of voice indicating that compliance with
the officer’s request might be compelled. As our High Court
has explained, subtle factors as the demeanor of the police
officer, the location of the confrontation, the manner of
expression used by the officer in addressing the citizen, and
the content of the interrogatories or statements must be
considered.
Hampton, supra at 457. In addition:
This Court has also set forth the following non-exclusive list
of factors:
the number of officers present during the interaction;
whether the officer informs the citizen they are
suspected of criminal activity; the officer's demeanor
and tone of voice; the location and timing of the
interaction; the visible presence of weapons on the
officer; and the questions asked. Otherwise
inoffensive contact between a member of the public
and the police cannot, as a matter of law, amount to
a seizure of that person.
Commonwealth v. Newsome, 170 A.3d 1151, 1155 (Pa.Super. 2017)
(internal citations omitted). Our Supreme Court has also stated:
We recognize the conceptual difficulties inherent in the
administration of the reasonable-person standard. Although
the test is cast in objective terms, absent empirical proofs,
there remains substantial room for reasonable
disagreement concerning how such a hypothetical person
might feel in any given set of circumstances. Such
differences have been manifested, at both the federal and
state level, in many divided opinions on the subject.
Nevertheless, the High Court has settled on an approach
allocating very modest weight to the possibility for
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psychological coercion arising from a fairly wide range of
police conduct which may be regarded as being appropriate
to and inherent in the circumstances facilitating the
interaction. Cf. Wayne R. LaFave, Search and Seizure: A
Treatise on the Fourth Amendment § 9.4(a), at 425 (4th ed.
2004) (observing that “the confrontation is a seizure only if
the officer adds to those inherent pressures by engaging in
conduct significantly beyond that accepted in social
intercourse[,]” which include moral and instinctive
pressures to cooperate).
Au, supra at 338-39, 42 A.3d 1007-08 (most internal citations omitted).
Thus, all law enforcement communications with a citizen do not automatically
constitute detentions. Lyles, supra at 354, 97 A.3d at 304-05. With respect
to the show of authority needed for a detention, the circumstances must
present some level of coercion, beyond the officer’s mere employment, that
conveys a demand for compliance or threat of tangible consequences from
refusal. Commonwealth v. Young, 162 A.3d 524, 529 (Pa.Super. 2017)
(citing Lyles, supra at 353-54, 97 A.3d at 304).
An investigative detention, unlike a mere encounter,
constitutes a seizure of a person and thus activates the
protections of Article 1, Section 8 of the Pennsylvania
Constitution. To institute an investigative detention, an
officer must have at least a reasonable suspicion that
criminal activity is afoot. Reasonable suspicion requires a
finding that based on the available facts, a person of
reasonable caution would believe the intrusion was
appropriate.
* * *
Reasonable suspicion exists only where the officer is able to
articulate specific observations which, in conjunction with
reasonable inferences derived from those observations, led
him reasonably to conclude, in light of his experience, that
criminal activity was afoot and that the person he stopped
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was involved in that activity. Therefore, the fundamental
inquiry of a reviewing court must be an objective one,
namely, whether the facts available to the officer at the
moment of intrusion warrant a [person] of reasonable
caution in the belief that the action taken was appropriate.
Commonwealth v. Jones, 874 A.2d 108, 116 (Pa.Super. 2005) (internal
citations omitted). “[T]he question of whether reasonable suspicion existed
at the time of an investigatory detention must be answered by examining the
totality of the circumstances to determine whether there was a particularized
and objective basis for suspecting the individual stopped of criminal activity.”
Commonwealth v. Cottman, 764 A.2d 595, 598-99 (Pa.Super. 2000)
(quoting Commonwealth v. Beasley, 761 A.2d 621, 625 (Pa.Super. 2000),
appeal denied, 565 Pa. 662, 775 A.2d 801 (2001)).
In making this determination, we must give due weight…to
the specific reasonable inferences the police officer is
entitled to draw from the facts in light of his experience.
Also, 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. Young, 904 A.2d 947, 957 (Pa.Super. 2006), appeal
denied, 591 Pa. 664, 916 A.2d 633 (2006) (internal citations and quotation
marks omitted). “[W]hether the defendant was located in a high crime
area…supports the existence of reasonable suspicion.” Commonwealth v.
Foglia, 979 A.2d 357, 361 (Pa.Super. 2009) (en banc), appeal denied, 605
Pa. 694, 990 A.2d 727 (2010) (internal citations omitted). See, e.g.,
Commonwealth v. Valentin, 748 A.2d 711 (Pa.Super. 2000), appeal denied,
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564 Pa. 731, 766 A.2d 1247 (2000) (concluding reasonable suspicion for stop
existed where officer, who had made many narcotics arrests and was familiar
with drug trafficking that regularly took place in surveilled location, observed
exchange of cash for small objects; in light of officer’s experience, he
reasonably suspected that drug sale had occurred). See also In Interest of
S.J., 551 Pa. 637, 643, 713 A.2d 45, 47-48 (1998) (concluding reasonable
suspicion for stop existed, where officer had previously made six arrests
involving drug activity in same high crime area, detected odor of marijuana
and observed group of men smoking marijuana; when officer approached
group, defendant tried to hide among other members of group; officer’s actual
observance of illegal activity combined with defendant’s suspicious behavior,
was enough to justify investigatory stop of defendant, but not ensuing pat
down for weapons).
“Probable cause is made out when the facts and circumstances which
are within the knowledge of the officer at the time of the arrest, and of which
[the officer] has reasonably trustworthy information, are sufficient to warrant
[an officer] of reasonable caution in the belief that the suspect has committed
or is committing a crime.” Commonwealth v. Thompson, 604 Pa. 198, 203,
985 A.2d 928, 931 (2009) (internal quotation marks omitted).
The question we ask is not whether the officer’s belief was
correct or more likely true than false. Rather, we require
only a probability, and not a prima facie showing, of
criminal activity. In determining whether probable cause
exists, we apply a totality of the circumstances test.
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Id. (emphasis in original) (internal citations and quotation marks omitted).
The officer’s training and experience are a factor in determining probable
cause but relevant to the issue only if there is a nexus between those skills
and the search and seizure of the person and/or evidence. Id. at 210, 985
A.2d at 935.
“Although cases involving similar or comparable seizure determinations
may serve as guideposts, a suppression court must independently employ the
totality-of-the-circumstances test in determining whether a seizure occurred.”
Lyles, supra at 354, 97 A.3d at 305. See, e.g., id. (holding that no single
factor controls in seizure-of-person analysis; police officer’s request for
identification alone does not raise escalatory inference of detention; courts
must make independent examination of totality of circumstances surrounding
interaction to determine if seizure occurred; concluding no “seizure” occurred
in absence of credible evidence of physical restraint, weapons used, blockade
or obstruction of citizen’s ability to walk away; tenor of interaction was not
inherently coercive); Au, supra (holding unrebutted testimony of officer
established only mere encounter with Appellee had occurred, when officer
interacted with Appellee in public, did not activate emergency lights, did not
block Appellee’s car, did not brandish weapon, make intimidating movement
or overwhelming show of force, threat, or command, or speak in authoritative
tone; use of officer’s headlights and flashlight was in furtherance of officer’s
safety and within ambit of acceptable, non-escalatory factors); Newsome,
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supra (holding defendant was not “seized” during his initial interaction with
officer, where officer responded to radio call in marked cruiser and saw
Appellee walk away from group of males; officer exited his vehicle and told
Appellee to “come here,” but Appellee refused and continued to walk away;
officer then observed Appellee remove object and place it in nearby flowerpot;
object later recovered was firearm); Young, supra (holding initial interaction
with Appellee was mere encounter, when three officers in plainclothes exited
an unmarked vehicle, approached Appellee on public street and asked
Appellee what he was doing and whether he had anything on his person that
could harm officers; two brief questions constituted mere encounter, as there
was no restraint of Appellee’s liberty, no physical force, and no show of
authority or level of coercion, beyond officer’s mere employment, to convey
demand for compliance or threat of tangible consequences from refusal).
Compare Adams, supra (holding interaction between police officer and
defendant was investigative detention, where officer would not allow
defendant to leave his vehicle; officer did not simply request that defendant
stay in his car; instead, officer physically closed car door and barred
defendant’s exit; officer’s action of physically closing door as defendant
opened it communicated demand to remain in car at that location; officer’s
acts constituted type of escalatory factor that signals “seizure” by restraint of
freedom); Commonwealth v. Livingston, 644 Pa. 27, 174 A.3d 609 (2017)
(plurality) (holding interaction between police officer and defendant was
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investigative detention, where defendant’s car was already parked on side of
interstate highway, and officer pulled his patrol car alongside defendant’s car,
with his emergency lights activated, ostensibly under community caretaking
function, but officer was unable to articulate specific and objective facts to
suggest defendant needed assistance); Hampton, supra (holding interaction
between police officer and defendant was investigative detention, where
defendant drove his vehicle from roadway into church field, and officer pulled
her marked vehicle into field behind defendant’s car, effectively blocking his
exit, as defendant’s vehicle was facing building so he could not travel forward).
Importantly, “The issue of whether an individual has been seized is distinct
from the issue of whether that seizure was reasonable.” Hampton, supra at
458.
A warrantless search or seizure of evidence is likewise “presumptively
unreasonable under the Fourth Amendment and Article I, § 8, subject to a few
specifically established, well-delineated exceptions.” Commonwealth v.
McCree, 592 Pa. 238, 247, 924 A.2d 621, 627 (2007). “The ‘plain view’
doctrine is often considered an exception to the general rule that warrantless
searches are presumptively unreasonable….” Id. (quoting Horton v.
California, 496 U.S. 128, 133, 110 S.Ct. 2301, 2306, 110 L.Ed.2d 112, ___
(1990)). “The plain view doctrine provides that evidence in plain view of the
police can be seized without a warrant….” Commonwealth v. Anderson, 40
A.3d 1245, 1248 (2012), appeal denied, 616 Pa. 666, 51 A.3d 837 (2012).
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This doctrine permits a valid warrantless seizure of an item
where: (1) the police have not violated the Fourth
Amendment in arriving at the location from which the item
could be viewed; (2) the item is in plain view; (3) the
incriminating character of the item is immediately apparent;
and (4) the police have a lawful right of access to the item
itself.
Commonwealth v. Jones, 605 Pa. 188, 201, 988 A.2d 649, 656 (2010),
cert. denied, 562 U.S. 832, 131 S.Ct. 110, 178 L.Ed.2d 32 (2010). Courts
have alternatively described the plain view doctrine in terms of a three-prong
test. See Commonwealth v. Miller, 56 A.3d 424, 429 (Pa.Super. 2012)
(stating: plain view doctrine permits “the warrantless seizure of an object
when: (1) an officer views the object from a lawful vantage point; (2) it is
immediately apparent to him that the object is incriminating; and (3) the
officer has a lawful right of access to the object”).
There can be no reasonable expectation of privacy in an
object that is in plain view. To judge whether the
incriminating nature of an object was immediately apparent
to the police officer, reviewing courts must consider the
totality of the circumstances.
Commonwealth v. Colon, 777 A.2d 1097, 1103 (Pa.Super. 2001) (quoting
Commonwealth v. Petroll, 558 Pa. 565, 738 A.2d 993 (1999)). “In viewing
the totality of the circumstances, the officer’s training and experience should
be considered.” Miller, supra at 430 (citing Commonwealth v. Liddie, 21
A.3d 229 (Pa.Super. 2011) (en banc)). “[T]here is no reason [a police officer]
should be precluded from observing as an officer what would be entirely visible
to him as a private citizen.” Colon, supra at 1103. The plain view doctrine
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is concerned with the “seizure of evidence rather than a search without a
warrant.” Id. See, e.g., Commonwealth v. Kendrick, 490 A.2d 923, 927
(Pa.Super. 1985) (explaining seizure of property in plain view involves no
invasion of privacy and is presumptively reasonable, assuming there is
probable cause to associate property with criminal activity; experienced officer
trained in narcotics can seize object, when he observes it from lawful vantage
point, and holder of object tries to conceal object; given incriminating
character of object, officer could open object and examine contents).
In the present case, the uncontradicted testimony at the suppression
hearing revealed that Officer Luffey and another officer were patrolling a
section of Pittsburgh identified and confirmed as an area of high drug sales.
Officer Luffey observed Appellant and his companion walking toward a known,
high-drug-trafficking area, where Officer Luffey’s task force had made over 30
drug arrests during the month of the incident. Officer Luffey recognized
Appellant’s cohort as an individual Officer Luffey had arrested for possession
of narcotics five times in the past year. Appellant and his companion
disappeared for approximately fourteen minutes, and returned, walking
toward the officers’ general location. Both officers were in plainclothes, on
foot, and on a public street. The interaction took place at 4:35 P.M., on
November 29, 2016, in daylight. When Appellant and his companion came
within several feet of the officers, Officer Luffey audibly identified the officers
as police and said, “I need to speak with you.” That was the sum and
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substance of their initial interaction. In response, Appellant and his
companion separated and turned to walk away from the officers.
The focus of Appellant’s challenge to the initial interaction with police
rests on the badges around the officers’ necks and Officer Luffey’s comment
to Appellant. This initial interaction between the officers and Appellant and
his companion, however, was limited, informal, and carried all the hallmarks
of a mere encounter. In detail, the interaction occurred in daylight, on a public
street, with police officers dressed in plainclothes, and on foot. The interaction
involved no lights, guns, marked vehicles, intimidating movement or potent
show of force, obstruction, or physical restraint. The officers’ displayed
badges, which merely identified their employment, conveyed no demand for
compliance or threat of tangible consequences from refusal. See Young,
supra.Furthermore, there was no evidence of a commanding tone in Officer
Luffey’s comment to Appellant: “I need to speak with you.” Although Officer
Luffey’s comment was a statement, rather than a question, we decline to
characterize his initial interaction with Appellant based solely on punctuation.
To the contrary, the officers’ primary behavior was so temperate that, in
response, Appellant and his companion simply separated and turned to walk
away. Thus, we conclude the officers’ limited contact fell within the ambit of
non-escalatory conduct; and their initial interaction with Appellant and his
companion was a mere encounter. See Au, supra; Newsome, supra;
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Young, supra.As Appellant pivoted to walk away, however, Officer Luffey observed
Appellant remove his hand from his front pocket, loosely cupped around what
Officer Luffey immediately identified as “stamp bags.” Officer Luffey instantly
recognized the bags as common packaging for narcotics, although he could
not tell how many bags Appellant had in his hand. Officer Luffey could see
the bags were stamped, but he could not see the specific mark involved. When
Officer Luffey asked Appellant to open his hand, Officer Luffey saw that
Appellant was holding three bags stamped “no pain.” Officer Luffey placed
Appellant under arrest for possession of a controlled substance and
confiscated the bags. The product in the bags tested positive for heroin.
Moreover, under the plain view doctrine, Officer Luffey was standing on
a public street when he saw Appellant remove the “stamp bags” from his
pocket. Therefore, Officer Luffey observed the “stamp bags” from a lawful
vantage point. The incriminating nature of the “stamp bags” was immediately
apparent to Officer Luffey, given the totality of the circumstances including his
relevant training and experience, which we have already reviewed. Once he
recognized the “stamp bags” as narcotics’ packaging, Officer Luffey had
reasonable suspicion that Appellant was in possession of contraband, which
justified further investigation by asking Appellant to open his hand. When
Officer Luffey saw three stamp bags marked “no pain,” he had a lawful right
to access and seize the drugs and probable cause to arrest Appellant for
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possession of a controlled substance. See Jones, supra; Miller, supra;Colon, supra. Based upon our independent review of the totality of the
circumstances coupled with the trial court’s credibility decisions, we conclude
the record supports the court’s decision to deny Appellant’s suppression
motion. See Arter, supra; Clemens, supra. Accordingly, we affirm.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/7/2019
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