Com. v. Lee, Q. ( 2017 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
QUONZELL LEE :
:
Appellant : No. 658 EDA 2016
Appeal from the Judgment of Sentence February 19, 2016
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0007635-2015
BEFORE: OTT, SOLANO, and JENKINS, JJ.
MEMORANDUM BY OTT, J.: FILED MAY 19, 2017
Quonzell Lee appeals from the judgment of sentence entered on
February 19, 2016, in the Philadelphia County Court of Common Pleas. On
December 16, 2015, the trial court, sitting without a jury, found Lee guilty of
possession with intent to deliver (“PWID”) and possession of a controlled
substance.1 The court sentenced Lee to a term of two to four years’
incarceration, followed by a term of four years’ probation. The sole issue on
appeal is Lee’s contention that the trial court erred in denying his
suppression motion. After a thorough review of the submissions by the
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1
35 P.S. §§ 780-113(a)(30) and (a)(16), respectively.
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parties, the certified record, and relevant law, we affirm the judgment of
sentence.
The trial court set forth the factual history as follow:
On the evening of July 11, 2015, at approximately 7:50
p.m., Police Officer Jeffrey Opalski #7122 was on duty in the
area of North 77th Street and Overbrook Avenue along with his
partner, Officer D’Alesio #1521. While driving in their marked
patrol vehicle, the two uniformed officers observed [Lee], who
was the sole occupant and operator of a red Ford Taurus,
disregard a stop sign. The officers pulled behind [Lee]’s vehicle
and, prior to the officer’s activating their overhead lights,
observed [Lee] proceed northbound on 77th Street at a high rate
of speed. [Lee] cut through a parking lot and exited at 7700
City Avenue. The officers activated their overhead lights and
attempted to catch up with [Lee]’s vehicle. [Lee] pulled over in
a bank parking lot at 77th and Overbrook.
Officer Opalski approached [Lee]’s vehicle on the
passenger’s side and observed that [Lee] had small black rubber
bands on his right ha[n]d and a wad of cash in his right shorts
pocket. Upon requesting [Lee]’s paperwork, Office[r] Opalski
observed [Lee] trembling, breathing heavily, and visibly shaking.
Officer Opalski testified that he recognized the rubber bands as
comparable to those used to bundle heroin. After reviewing the
paperwork, the officers learned that the car was a rental. The
officers asked [Lee] to step out of the car and Officer Opalski
performed a frisk for safety. [Officer] Opalski testified that,
based on [Lee]’s nervousness, the rubber bands, and money,
there was a “possibility of a weapon in the vehicle.”
Upon frisking [Lee]’s left short pocket, Officer Opalski
immediately recognized the item contained within as a bundle of
heroin. At that point, [Lee] admits that he has a small amount
of drugs on him. The Officer recovered a bundle of heroin and
placed [Lee] in custody.
Officer Opalski testified that the area where he initially
observed [Lee] is a “high narcotics area, specifically heroin.” He
further noted, that, as a result of the high drug volume, there
are nearby “shootings all the time, robberies, stuff involving
guns.”
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Trial Court Opinion, 5/13/2016, at unnumbered 1-2 (record citations
omitted).
Lee was arrested and charged with numerous offenses related to the
incident. On September 9, 2015, he filed a pre-trial motion to suppress
physical evidence as well as his statements to police. The trial court held a
hearing and denied the motion on October 22, 2015. The matter proceeded
to a one-day bench trial on February 16, 2016, at which time the court
convicted Lee of the above-stated crimes. On February 19, 2016, the court
sentenced Lee to a term of two to four years’ incarceration, followed by four
years’ of probation for the PWID conviction. The court did not impose a
further penalty with regard to the possession offense. Lee did not file post-
sentence motions but did file a timely notice of appeal.2
In his sole issue on appeal, Lee asserts the trial court erred in denying
his motion to suppress. See Lee’s Brief at 9. Specifically, he states:
Legally, the facts support neither the officer’s frisk of Mr. Lee for
weapons because the officer’s belief that Mr. Lee was armed and
dangerous was not reasonable, nor the search of the left pocket
of Mr. Lee’s shorts under the plain feel doctrine. Given the
officer’s illegal actions, the subsequent search of the car Mr. Lee
was driving, which resulted in the discovery of additional drugs,
was likewise unconstitutional.
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2
On February 29, 2016, the trial court ordered Lee to file a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
Lee filed a concise statement and supplemental concise statement on March
21, 2016, and April 15, 2016, respectively. The trial court issued an opinion
pursuant to Pa.R.A.P. 1925(a) on May 13, 2016.
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Id. at 10. In support of his contention that the facts do not support an
inference of reasonable suspicion, Lee points to the following:
In this case, police stopped Mr. Lee for traffic violations on
a summer evening. Two officers approached Mr. Lee, who was
the sole occupant in the car. Mr. Lee provided identification to
police. He visibly had money in the right pocket of his shorts
and he had rubber bands around his fingers. The officer testified
that he frisked Mr. Lee because of the rubber bands (which the
officer testified were used to package drugs), the money, Mr.
Lee appeared nervous, and the stop occurred in a high drug
area.
…
The [trial] court heard no testimony about the officer’s
experience, other than the officer’s reference that the rubber
bands he saw around Mr. Lee’s fingers were used to bundle
drugs. Rubber bands have legal uses, as does money. There
was only a reference by the officer that the area where Mr. Lee
was stopped was a high drug area. Yet, there was no specificity
about the area. There was no testimony how the officer knew
the area was a high drug area. No information came forth about
drug arrests in the area, or any drug surveillance that the
testifying officer observed, or any arrests that he made. Lastly,
Mr. Lee’s nervousness could be attributed to being pulled over
by police in an area known for drugs. The mere presence of
police in an area known for drugs can create the type of behavior
regarded as suspicious here. No fact in the record individually or
under the totality of the circumstances gave the officer
reasonable suspicion to frisk Mr. Lee. The frisk was improper.
Id. at 11-12 (footnote omitted). Furthermore, Lee argues that even if the
frisk was proper, it exceeded the lawful scope of Terry v. Ohio, 392 U.S. 1(1968), because it was not immediately apparent to the officer that the
object he felt in Lee’s pocket was contraband. See Lee’s Brief at 13. He
states the officer just made a general statement regarding what he felt
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during the frisk and “the only evidence of Officer Opalski’s experience about
narcotics was that the rubber bands he noticed around Mr. Lee’s fingers are
used to bundle drugs[,]” which Lee claims is insufficient. Id. Lee concludes,
“As the pat-down of Mr. Lee failed to establish probable cause to establish
that he was carrying identifiable contraband, all of the evidence that flowed
from the illegal search should have been suppressed as fruit of the
poisonous tree.” Id. at 14.
Our standard of review for a challenge to the denial of a motion to
suppress evidence is well settled:
In reviewing a ruling on a suppression motion, our standard of
review is whether the factual findings and the legal conclusions
drawn therefrom are supported by the evidence. We are bound
by the factual findings of the suppression court supported by the
record, but we are not bound by the suppression court’s legal
rulings, which we review de novo. Further, the reviewing court
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 entire record.
Commonwealth v. Irvin, 134 A.3d 67, 71 (Pa. Super. 2016) (citations
omitted). Moreover, our scope of review from a suppression ruling is limited
to the evidentiary record that was created at the suppression hearing. In re
L.J., 79 A.3d 1073, 1086 (Pa. 2013).
The Fourth Amendment of the United States Constitution guarantees,
“[t]he right of the people to be secure in their persons, houses, papers, and
effects, against unreasonable searches and seizures, shall not be violated[.]”
U.S. Const. amend. IV. Likewise, the Pennsylvania Constitution promises
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citizens of this Commonwealth “shall be secure in their persons, houses,
papers and possessions from unreasonable searches and seizures[.]” Pa.
Const. art. I, § 8. Furthermore, “[t]he reasonableness of a government
intrusion varies with the degree of privacy legitimately expected and the
nature of the governmental intrusion.” Commonwealth v. Fleet, 114 A.3d
840, 844 (Pa. Super. 2015) (citation omitted).
It is well-settled that a “forcible stop of a motor vehicle by the police
constitutes a second-level seizure, or ‘investigative detention,’ triggering the
constitutional protections of the Fourth Amendment.” Commonwealth v.
Clinton, 905 A.2d 1026, 1030 (Pa. Super. 2006) (quotation omitted),
appeal denied, 934 A.2d 71 (Pa. 2007). Moreover, during a routine traffic
stop, a police officer may order the driver out of the vehicle for the officer’s
safety. See Commonwealth v. Reppert, 814 A.2d 1196, 1202 (Pa. Super.
2002). However, before an officer may frisk a driver, the Fourth
Amendment requires another level of protection:
It is well-established that a police officer may conduct a brief
investigatory stop of an individual if the officer observes unusual
conduct which leads him to reasonably conclude that criminal
activity may be afoot. Moreover, if the officer has a reasonable
suspicion, based on specific and articulable facts, that the
detained individual may be armed and dangerous, the officer
may then conduct a frisk of the individual’s outer garments for
weapons. Since the sole justification for a Terry search is the
protection of the officer or others nearby, such a protective
search must be strictly limited to that which is necessary for the
discovery of weapons which might be used to harm the officer or
others nearby. Thus, the purpose of this limited search is not to
discover evidence, but to allow the officer to pursue his
investigation without fear of violence.
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Commonwealth v. Scarborough, 89 A.3d 679, 683 (Pa. Super. 2014)
(citations omitted), appeal denied, 102 A.3d 985 (Pa. 2014). Furthermore,
[a]n overt threat by the suspect or clear showing of a weapon is
not required for a frisk. It is well-established that “[t]he officer
need not be absolutely certain that the individual is armed; the
issue is whether a reasonably prudent man in the circumstances
would be warranted in the belief that his safety or that of others
was in danger.”
Commonwealth v. Mack, 953 A.2d 587, 591 (Pa. Super. 2008) (citations
omitted).
Additionally, we note that “[w]eapons 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, 956
A.2d 434 (Pa. 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 nonthreatening
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, 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.
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Commonwealth v. Stevenson, 744 A.2d 1261, 1265 (Pa. 2000) (some
citations omitted).
Here, the trial court found Officer Opalski possessed the requisite
reasonable suspicion that Lee might be armed and dangerous. The court
opined:
Officer Opalski had reasonable suspicion to frisk [Lee] in
the present matter because: (1) [Lee] fled at [a] high rate of
speed in response to the officer’s presence; (2) the frisk
occurred in a high-crime area known for heroin trafficking and
gun violence; (3) [Lee] behaved suspiciously upon questioning
by the police; and (4) [Lee] had small black rubber bands on his
wrist and an observable wad of cash in his pocket.
…
Officer Opalski’s stop and frisk of [Lee] was proper as he
had reasonable suspicion that [Lee] was armed and dangerous.
Several factors would lead a person to reasonably believe [Lee]
was armed and that criminal activity was afoot. Officer Opalski
encountered [Lee] after he disregarded a stop sign in an area
the officer personally knew to be a high crime neighborhood,
specifically known for heroin trafficking and gun violence. As
soon as the police vehicle pulled behind [Lee]’s car, [Lee] sped
off at a high rate. Once [Lee] finally pulled over, Officer Opalski
observed [Lee] behaving suspiciously. He testified that [Lee]
was excessively nervous, as indicated by the fact that his voice
was trembling, he was breathing heavily and was visibly shaking
when he handed over his paperwork. Further, the officer also
observed small black rubber bands on [Lee]’s hand, which he
immediately recognized as those used to bundle heroin, and a
large wad of cash in his pocket.
In the instant case, it is clear from the totality of
circumstances that Officer Opalski reasonably believed his safety
was in danger. The court does not view the situation as an
ordinary citizen might, but focuses rather, on the circumstances
as seen through the eyes of the trained law enforcement officer.
The defendant’s irregular behavior alone would be insufficient to
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justify the frisk. However, the officer here had particularized
knowledge of the types of crime[s] committed in this area,
observed indications of drug activity afoot, and witnessed [Lee]
attempt to flee from the police. The officer understood the
nexus between drug activity and gun violence in this specific
neighborhood. There was an objective basis for suspecting both
that [Lee] was in the act of committing a drug crime and a
reasonable belief that he was armed and dangerous.
Trial Court Opinion, 5/13/2016, at unnumbered 3-5 (citations omitted).
Based on the totality of the circumstances, we find no error in the trial
court’s analysis. Initially, we note Lee concedes Officer Opalski observed
Lee’s vehicle failing to stop at a stop sign on July 11, 2015, and therefore,
the stop pursuant to a Motor Vehicle Code violation was proper.3 Moreover,
Lee’s argument conveniently fails to include the fact that he led the police on
a high speed chase after police attempted to stop him for the traffic
violation. Furthermore, as the officer testified: (1) the incident took place
in a high crime area; (2) Lee had small black rubber bands on his right hand
and a wad of cash in his right shorts pocket; and (3) Lee was trembling,
breathing heavily, and visibly shaking. We reiterate the purpose of a Terry
frisk is to protect the police officer conducting the investigation. See
Scarborough, 89 A.3d at 683. One can easily conclude that based on the
combination of the above-stated facts, Officer Opalski possessed reasonable
suspicion to believe Lee was armed and dangerous. See In Re D.M., 781
A.2d 1161, 1164 (Pa. 2001) (“unprovoked flight in a high crime area is
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3
See Lee’s Brief at 11 n.2.
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sufficient to create a reasonable suspicion to justify a Terry stop”);4
Commonwealth v. Gray, 896 A.2d 601, 606 n.7 (Pa. Super. 2006) (“while
nervous behavior is a relevant factor, nervousness alone is not dispositive
and must be viewed in the totality of the circumstances”); Commonwealth
v. Washington, 51 A.3d 895, 898 (Pa. Super. 2012) (“nervous, evasive
behavior and headlong flight all provoke suspicion of criminal behavior in the
context of response to police presence”).
To the extent, Lee argues there was no testimony about Officer
Opalski’s experience, other than the officer’s reference that the rubber bands
he saw around Lee’s fingers were used to bundle drugs, we note this Court is
“guided by common sense concerns, giving preference to the safety of the
officer during an encounter with a suspect where circumstances indicate that
the suspect may have … a weapon.” Commonwealth v. Mack, 953 A.2d at
590. Furthermore, with respect to Lee’s claim that there was no testimony
regarding how the officer knew the area was a high drug area, including the
number of drug arrests in the area, any drug surveillance the officer had
observed, or any arrests that he made,5 it merits mention that Lee cites no
law for the suggestion that an officer must make a certain number of arrests
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4
An earlier version of the Pennsylvania Supreme Court’s decision was
vacated by the United States Supreme Court. See Commonwealth v.
D.M., 743 A.2d 422 (Pa. 1999) (“D.M. I”), vacated, Pennsylvania v. D.M.,
529 U.S. 1126 (2001).
5
See Lee’s Brief at 11-12.
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before one may conclude a perpetrator is present in a high crime area.
Likewise, our own review has failed to reveal any such case law.
Accordingly, we discern no abuse on the trial court’s part of finding Officer
Opalski’s testimony credible.6
Lastly, with regard to Lee’s argument that even if the frisk was proper,
it exceeded the proper scope of Terry, supra, because it was not
immediately apparent to the officer that the object he felt in Lee’s pocket
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6
Nevertheless, we do note Officer Opalski’s familiarity and experience with
the area, testifying to the following:
Q. When you initially observed [Lee] on 77th Street and
Overbrook Avenue, were you familiar with that area?
A. Yes.
Q. What is that area like? How would you characterize it?
A. High narcotics area, specifically heroin. Just being in close
proximity to the counties, these sales are made mostly by either
buyers coming in and meeting up on side streets with someone
in a vehicle or someone in a house, or the reverse, where the
bundles are taken outside the city and sold right in the counties
right on the outskirts of Philadelphia.
Q. Because of the high drug volume, as you just mentioned, are
there any other crimes or anything else in that area that you’re
aware of?
A. Yeah, up on 75th Avenue, Hartford, shootings all the time,
robberies, stuff involving guns.
N.T., 10/22/2015, at 10.
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was contraband,7 we disagree. Officer Opalski specifically testified: “He
stepped out of the vehicle and I immediately frisked that left short pocket of
his, the mesh pocket. Just from feeling it, right away I recognized there was
a bundle of heroin.” N.T., 10/22/2015, at 9. As such, in accordance with
Stevenson, supra, Officer Opalski’s search and seizure of Lee’s person was
justified and not outside the scope of Terry, supra. The officer explicitly
testified that it was immediately apparent to him that the object in Lee’s
pocket was contraband. Accordingly, Lee is not entitled to relief on his
suppression claim.
Judgment of sentence affirmed.
Judge Jenkins did not participate in the consideration or decision of
this case.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/19/2017
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7
See Lee’s Brief at 13.
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