Com. v. Kauffman, A. ( 2016 )

J-S62044-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
AARON J. KAUFFMAN
Appellant No. 522 MDA 2016
Appeal from the Judgment of Sentence March 23, 2016
In the Court of Common Pleas of Lebanon County
Criminal Division at No(s): CP-38-CR-0001152-2015
BEFORE: GANTMAN, P.J., DUBOW, J., and JENKINS, J.
MEMORANDUM BY GANTMAN, P.J.: FILED NOVEMBER 23, 2016
Appellant, Aaron J. Kauffman, appeals from the judgment of sentence
entered in the Lebanon County Court of Common Pleas, following his bench
trial convictions for possession of a controlled substance and drug
paraphernalia.1 For the following reasons, we affirm in part and reverse in
part the suppression ruling in this case, vacate the judgment of sentence,
and remand for further proceedings.
The relevant facts and procedural history of this case are as follows.
At approximately 6:30 p.m. on February 13, 2015, Officer David Lear
received a dispatch reporting a robbery at a Domino’s Pizza shop. The
dispatcher provided Officer Lear with a description of the robbery suspect
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1
35 P.S. §§ 780-113(a)(16), (a)(32).
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and noted the suspect was wearing a green bandana at the time of the
robbery. When he received the dispatch, Officer Lear was located three
blocks from the pizza shop. While Officer Lear was driving toward the scene
of the robbery, he saw Appellant walking along the sidewalk. Officer Lear
noticed Appellant met the description of the robbery suspect conveyed over
the police dispatch. Appellant was not wearing a bandana at the time.
Officer Lear pulled over and stopped Appellant. During a pat-down search of
Appellant, Officer Lear felt a “hard object” in Appellant’s pants pocket, which
the officer believed was a weapon. (N.T. Suppression Hearing, 8/26/15, at
6.) After removing the object from Appellant’s pocket, Officer Lear
discovered it was a foil pipe. Officer Lear continued the pat-down and felt a
hard lump in Appellant’s other pocket. Officer Lear testified he believed the
hard lump “could have been a bandana rolled up in [Appellant’s] pocket.”
(Id.) He removed the item, which was a packet of synthetic marijuana.
On August 5, 2015, Appellant filed a motion to suppress the evidence
found in his pockets during Officer Lear’s pat-down search. The court held a
hearing on the motion on August 26, 2015. At the hearing, Officer Lear
testified he could not recall the specific description in the police dispatch
without the dispatch records, but he recalled that Appellant matched the
description and was in close proximity to the scene of the robbery. Officer
Lear also described the evening as dark and bitterly cold. He stated, “[At]
that time of day and that time of the year there’s not a lot of people walking
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around.” (Id. at 9.) Officer Lear testified he performed the pat-down
search because he routinely does a pat-down of suspects for his own safety.
Nevertheless, on cross-examination the officer admitted that, at the time, he
“didn’t believe [Appellant] was armed and dangerous.” (Id. at 10.)
On October 13, 2015, the court granted in part and denied in part
Appellant’s suppression motion. In its opinion, the court stated both the
stop and the frisk were supported by: Appellant’s proximity to the location of
the robbery; the cold and bitter temperature that night; Appellant meeting
the description of the robber; and Officer Lear’s lack of back-up officers.
The court then evaluated the items seized in the frisk under the “plain feel”
doctrine. The court rejected Officer Lear’s contention that the foil pipe
appeared to be a weapon. Instead, the court described the pipe as a two-
inch piece of flexible foil that could not reasonably be mistaken for any
weapon or immediately apparent via touch as contraband. Thus, the court
granted Appellant’s motion to suppress the foil pipe. The court, however,
denied Appellant’s motion to suppress the marijuana, stating:
Like the foil “pipe,” we are not aware of any way that the
[marijuana] could have been confused for a weapon.
While we understand how the marijuana could be
perceived as a “lump,” it was neither hard nor stiff as a
weapon might feel.
While Officer Lear could not have reasonably confused the
marijuana package for a weapon, that does not end our
inquiry. … In this case, Officer Lear was aware that the
person who robbed the Domino Pizza store was wearing a
bandana at the time of the robbery. When he felt the
“hard lump,” he perceived that it could have been the
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bandana that the robber was described to possess.
(Trial Court Opinion, filed October 13, 2015, at 14).
Appellant proceeded to a bench trial on January 29, 2016, and the
court convicted him of possession of a controlled substance and drug
paraphernalia.2 On March 23, 2016, the court sentenced Appellant to sixty
(60) days to eighteen (18) months’ incarceration for the possession offense,
and a concurrent term of one (1) month to one (1) year of imprisonment for
the drug paraphernalia offense. Appellant timely filed a notice of appeal.
On March 24, 2016, the court ordered Appellant to file a concise statement
of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b); Appellant
complied on the same day.
Appellant raises two questions for our review:
DID THE TRIAL COURT ERR IN FAILING TO SUPPRESS
PHYSICAL EVIDENCE IN THAT THERE WAS NO
REASONABLE SUSPICION TO JUSTIFY AN INVESTIGATIVE
DETENTION?
DID THE TRIAL COURT ERR IN FAILING TO SUPPRESS
PHYSICAL EVIDENCE IN THAT THERE WAS NO BASIS FOR
A SEARCH WHEN THE POLICE DID NOT BELIEVE THAT
APPELLANT WAS ARMED AND DANGEROUS AND, IN FACT,
EXPRESSLY TESTIFIED THAT THEY DID NOT BELIEVE
APPELLANT TO BE ARMED AND DANGEROUS?
(Appellant’s Brief at 5).
We review the denial of a suppression motion subject to the following
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2
The paraphernalia conviction stemmed from the packaging of the
marijuana taken from Appellant’s pocket.
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principles:
Our standard of review in addressing a challenge to a trial
court’s denial of a suppression motion is limited to
determining whether the factual findings are supported by
the record and whether the legal conclusions drawn from
those facts are correct.
[W]e may consider only the evidence of the
prosecution 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 findings of the suppression court, we
are bound by those facts and may reverse only if the
court erred in reaching its legal conclusions based
upon the facts.
Commonwealth v. Williams, 941 A.2d 14, 26-27 (Pa.Super. 2008) (en
banc) (internal citations and quotation marks omitted).
In his first issue, Appellant argues the police dispatch description was
too limited to justify the kind of investigative detention Officer Lear
conducted. Appellant asserts the Commonwealth failed to show Officer Lear
had reasonable suspicion to stop Appellant for questioning, based on the
officer’s testimony that he was unable to recall whether the dispatch
description included the suspect’s race or sex. Appellant maintains he was
several blocks away from the robbery scene when Officer Lear stopped him.
Appellant challenges the court’s characterization of his walk as “consistent”
with that of a robbery suspect, because the record does not support that
finding. Appellant concedes the evening was cold and bitter, but he denies it
was unusual to be outside walking at 6:30 p.m. Appellant concludes Officer
Lear lacked reasonable suspicion to conduct an investigative detention of
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Appellant. We disagree.
Contacts between the police and citizenry fall within three general
classifications:
The first [level of interaction] 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. Goldsborough, 31 A.3d 299, 305 (Pa.Super. 2011),
appeal denied, 616 Pa. 651, 49 A.3d 442 (2012) (quoting Commonwealth
v. Bryant, 866 A.2d 1143, 1146 (Pa.Super. 2005), appeal denied, 583 Pa.
668, 876 A.2d 392 (2005)).
“A mere encounter can be any formal or informal interaction between
an officer and a citizen, but will normally be an inquiry by the officer of a
citizen. The hallmark of this interaction is that it carries no official
compulsion to stop or respond.” Commonwealth v. Jones, 874 A.2d 108,
116 (Pa.Super. 2005) (quoting Commonwealth v. DeHart, 745 A.2d 633,
636 (Pa.Super. 2000)).
In contrast, an investigative detention, by implication,
carries an official compulsion to stop and respond, but the
detention is temporary, unless it results in the formation of
probable cause for arrest, and does not possess the
coercive conditions consistent with a formal arrest.
* * *
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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 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 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.
Jones, supra at 116 (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, 625-26 (Pa.Super.
2000), appeal denied, 565 Pa. 662, 775 A.2d 801 (2001)).
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.
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Commonwealth v. Young, 904 A.2d 947, 957 (Pa.Super. 2006), appeal
denied, 591 Pa. 664, 916 A.2d 633 (2006) (quoting Commonwealth v.
Conrad, 892 A.2d 826, 829 (Pa.Super. 2006), appeal denied, 588 Pa. 747,
902 A.2d 1239 (2006)) (internal citations and quotation marks omitted).
Instantly, Officer Lear received a police radio dispatch reporting a
robbery at a nearby Domino’s Pizza shop. While responding to the call,
Officer Lear noticed Appellant walking down a street near the scene of the
robbery. Officer Lear observed Appellant matched the dispatch description
of the robbery suspect and noted few people were out walking due to the
bitterly cold temperature that evening. Officer Lear then pulled his vehicle
over and stopped Appellant.
The Commonwealth concedes the stop was an investigative detention.
Given the circumstances, Appellant was not free to walk away from the
encounter. See Jones, supra. Nevertheless, the totality of the
circumstances indicates Officer Lear possessed sufficient information to stop
Appellant, because Appellant was walking in close proximity to the scene of
a robbery immediately after it had occurred and the night was cold and
bitter, with no one else on the street. Further, Officer Lear testified
Appellant fit the dispatch description of the suspect. See Young, supra.Given the court’s credibility decisions regarding the facts leading to the stop,
this evidence supports the investigative detention. See Williams, supra.Therefore, Appellant’s first issue merits no relief.
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In his second issue, Appellant asserts that, even if the circumstances
supported the initial investigative detention, Officer Lear’s frisk of Appellant
was unjustified. Appellant indicates Officer Lear admitted he did not think
Appellant was armed and dangerous. Appellant maintains Officer Lear
searched him primarily for evidence of a crime rather than weapons.
Appellant contends Officer Lear removed the small marijuana packet from
Appellant’s pocket knowing it was not a weapon. Because the search was
not for weapons and the bandana was not immediately apparent contraband,
Appellant avers the search and seizure was unwarranted, even if Officer Lear
believed the object in Appellant’s pocket might have been the bandana
reportedly worn by the robber. Appellant concludes Officer Lear lacked
justification to search him for evidence of the robbery and seize the
marijuana packet because he thought it was a bandana used in the robbery,
and the court should also have suppressed the marijuana. We agree.
“If, during the course of a valid investigatory stop, an officer observes
unusual and suspicious conduct on the part of the individual which leads [the
officer] to reasonably believe that the suspect may be armed and
dangerous, the officer may conduct a pat-down of the suspect’s outer
garments for weapons.” Commonwealth v. Preacher, 827 A.2d 1235,
1239 (Pa.Super. 2003).
In order to justify a frisk under [Terry v. Ohio, 392 U.S.
1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)] the officer
must be able to point to particular facts from which
he reasonably inferred that the individual was armed
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and dangerous. Such a frisk, permitted without a
warrant and on the basis of reasonable suspicion less than
probable cause, must always be strictly limited to that
which is necessary for the discovery of weapons which
might be used to harm the officer or others nearby.
Id. (quoting Commonwealth v. E.M., 558 Pa. 16, 25-26, 735 A.2d 654,
659 (1999)) (emphasis in original) (internal quotation marks omitted). “The
existence of reasonable suspicion to frisk an individual must be judged in
light of the totality of the circumstances confronting the police officer.”
Commonwealth v. Cooper, 994 A.2d 589, 592-93 (Pa.Super. 2010),
appeal denied, 608 Pa. 660, 13 A.3d 474 (2010) (quoting Commonwealth
v. Taylor, 565 Pa. 140, 153, 771 A.2d 1261, 1269 (2001)).
“Weapons found as a result of [a Terry] pat-down may be seized.
Nonthreatening contraband may be seized only if it is discovered in
compliance with the plain feel doctrine.” Commonwealth v. Thompson,
939 A.2d 371, 376 (Pa.Super. 2007), appeal denied, 598 Pa. 766, 956 A.2d
434 (2008).
[The United States Supreme Court in Minnesota v.
Dickerson, 508 U.S. 366, 113 S.Ct. 2130, 124 L.Ed.2d
334 (1993)] held that a police officer may seize non-
threatening contraband detected through the officer’s
sense of touch during a Terry frisk if the officer is lawfully
in a position to detect the presence of contraband, the
incriminating nature of the contraband is immediately
apparent from its tactile impression and the officer has a
lawful right of access to the object. As Dickerson makes
clear, the plain feel doctrine is only applicable where the
officer conducting the frisk feels an object whose mass or
contour makes its criminal character immediately
apparent. Immediately apparent means that the officer
readily perceives, without further exploration or searching,
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that what he is feeling is contraband. If, after feeling the
object, the officer lacks probable cause to believe that the
object is contraband without conducting some further
search, the immediately apparent requirement has not
been met and the plain feel doctrine cannot justify the
seizure of the object.
Commonwealth v. Stevenson, 560 Pa. 345, 353, 744 A.2d 1261, 1265
(2000) (most citations omitted).
Instantly, Officer Lear testified on direct examination about the
marijuana he removed from Appellant’s pocket:
A. I continued my pat down and I felt like what could
have been a bandana rolled up in his pocket. Also with
that being part of the [police dispatch] description, I
reached in and pulled that out.
Q. And that was what turned out to be the
[marijuana] packet?
A. That’s correct.
(N.T. Suppression Hearing at 6.) Officer Lear testified on cross-examination
as follows:
Q. When you [patted Appellant] down you were
looking for weapons; is that right?
A. I was [patting] him down for my safety, that’s
correct.
Q. What was it that made you believe that
[Appellant] was armed and dangerous about him?
A. I didn’t believe he was armed and
dangerous. When I have a—when I have a confrontation
with someone and I stop someone especially after a
robbery type thing like that, I will [pat] them down for my
safety when I am going to be sitting there talking to them.
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(Id. at 10) (emphasis added). Officer Lear gave additional testimony about
the search:
Q. You were looking for a bandana or green cloth?
A. That was part of the description that was given
out.
Q. That was part of the description and you were
looking for that, correct?
A. At that point, yes.
Q. I think in your direct testimony you testified that
that’s the reason you pulled out that object out of
[Appellant’s] pocket because you thought it might be the
bandana?
A. That’s correct.
Q. Not because you thought it might be a weapon
because you thought it might be the bandana?
A. That’s correct.
(Id. at 12.) Based on this testimony, the court found Officer Lear’s frisk of
Appellant was justified, and it suppressed the foil pipe but denied Appellant’s
motion to suppress the marijuana and permitted the prosecution to
introduce the marijuana under the “plain feel” doctrine. In its opinion, the
court stated Officer Lear may have believed the marijuana packet in
Appellant’s pocket was the bandana worn by the robber.
Here, during the prosecution’s evidence, Officer Lear failed to
articulate specific facts regarding why he believed Appellant was armed and
dangerous. On the contrary, Officer Lear testified he did not think Appellant
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was armed. Officer Lear repeatedly admitted during the suppression hearing
that he removed the marijuana from Appellant’s pocket because he thought
it could have been the bandana associated with the robbery, not because he
thought it was a weapon. Officer Lear’s own testimony shows his Terry frisk
was unsupported by any particularized belief that Appellant was armed and
dangerous. See Preacher, supra.Moreover, Officer Lear did not immediately recognize the marijuana
packet in Appellant’s pocket as contraband. Rather, the officer stated it “felt
like what could have been a bandana rolled up.” (N.T. Suppression Hearing
at 6.) By his own admission, Officer Lear’s seizure of the marijuana from
Appellant’s pocket was unjustified under the “plain feel” doctrine. See
Stevenson, supra. Absent evidence that Officer Lear thought Appellant
was armed and dangerous or that the marijuana packet felt like contraband,
Officer Lear’s search and seizure of the marijuana exceeded the proper
scope of a Terry pat-down. Based upon the foregoing, we conclude the
court should have suppressed the marijuana packet as well, because it was
the product of Officer Lear’s unlawful search. Accordingly, we affirm in part
and reverse in part the suppression ruling in this case, vacate the judgment
of sentence, and remand for further proceedings.
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Judgment of sentence vacated; case remanded for further
proceedings. Jurisdiction is relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/23/2016
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