Com. v. Baer, D. ( 2015 )

J-A08036-15
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
DARYL ANTHONY BAER, :
:
Appellant : No. 729 MDA 2014
Appeal from the Judgment of Sentence Entered March 13, 2014
in the Court of Common Pleas of York County,
Criminal Division, at No(s): CP-67-CR-0006201-2013
BEFORE: SHOGAN, WECHT, and STRASSBURGER,* JJ.
MEMORANDUM BY STRASSBURGER, J.: FILED JULY 10, 2015
Daryl Anthony Baer (Appellant) appeals from the March 13, 2014
judgment of sentence of one year of probation imposed following his
conviction for possession of drug paraphernalia.1 On appeal, Appellant
challenges the denial of his pre-trial suppression motion. We affirm.
The trial court offered the following factual and procedural history of
the case.
In the early morning hours of April 6, 2013, Officer David
Kahley was on routine patrol outside of a Turkey Hill gas station
in West York, Pennsylvania. While on patrol he observed a
vehicle enter the parking lot of a church, which he knew was
closed. He observed two people exit the car and head towards
the adjoining alley. At this point, Officer Kahley drove into the
alley to see which way the individuals were heading, and he
1
On March 12, 2014, Appellant also was sentenced to 75 days’ incarceration
at the above docket number for his conviction of the summary offense of
driving while operating privileges were suspended or revoked.
*Retired Senior Judge assigned to the Superior Court.
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observed them quickly walk into the parking lot of a business,
which, like the church, was also closed. Without activating his
emergency lights or shining his spotlight, Officer Kahley
approached the pair and asked where they were going. They
responded that they were heading to the female’s apartment,
which was located on the 1400 block of Market Street, the
opposite direction of the way the pair was walking.
Because of the time of night and the area, which Officer
Kahley knew to be high crime, plus the inconsistency between
the pair’s conduct and their statements, the officer asked them
for identification. He was able to identify both individuals; the
man was identified as Daryl Baer, the Appellant, and the other
individual, a female, was identified as Alexis Bohr. Officer
Kahley discovered that Ms. Bohr had a warrant out for her
arrest, so he placed her in custody. He also discovered that the
Appellant’s license was suspended for an earlier DUI. Sometime
after Officer Kahley began talking to the Appellant, but before
the Appellant was placed in custody, another officer arrived just
to assist Officer Kahley if he should need it.
After placing Ms. Bohr in custody, Officer Kahley testified
that he performed a pat-down of the Appellant. During the
suppression hearing, where the stop and subsequent evidence
were challenged, Officer Kahley stated that the Appellant kept
putting his hands in his pockets, even after Officer Kahley asked
him to stop. At this point, Officer Kahley felt it was a safety
concern, and this is what led to him patting down the Appellant.
While patting down the Appellant, Officer Kahley stated that he
felt two objects in the Appellant’s left breast pocket of his coat.
He testified that he immediately knew the objects were
hypodermic needles, and that he asked the Appellant if they
were needles, to which the Appellant responded “I don't know.”
Officer Kahley asked the Appellant if he could remove the objects
and the Appellant said yes. The objects were hypodermic
needles.
The Appellant was taken into custody for possession of
drug paraphernalia and Officer Kahley read the Appellant his
Miranda[2] rights. The Appellant appeared to understand his
2
Miranda v. Arizona, 384 U.S. 436 (1966).
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rights, and according to Officer Kahley, admitted that the
needles were his, they were used for shooting up heroin, and
that he had used heroin four days earlier. The Appellant also
told Officer Kahley that he was the one driving the vehicle that
he and Ms. Bohr were seen exiting. The Appellant was taken to
Central Booking and the Appellant’s vehicle was searched and
towed. During that search of the vehicle, a purse, which
contained a small black bag, was found on the passenger seat.
The black bag contained numerous hypodermic needles, 29 bags
of heroin, and a packet of Suboxone, which is commonly used in
treating heroin addicts.
At the trial, Officer Kahley testified that standard
procedure regarding testing needles is, because of dangers
associated with them, to take pictures of the needles and then
destroy them. Further, all of the labs that Officer Kahley was
aware of do not even accept needles for testing unless some
kind of exigent circumstances exist. Officer Kahley did not
fingerprint the needles, as that is not standard procedure in
cases such as this. The parties stipulated to the fact that the
Pennsylvania State Police, Bureau of Forensic Services, received
the evidence, with the exception of the hypodermic needles,
found in the purse. The lab found that the residue contained in
the bags was heroin.
On cross-examination … Officer Kahley admitted that he
made some mistakes on the night of April 6, 2013. The officer’s
Affidavit of Probable Cause did not make mention of finding two
needles on the Appellant's person. The affidavit also did not
mention any statements that the Appellant made to the officer.
Lastly, Officer Kahley admitted that he took pictures of the
contraband found in the purse, but did not take pictures of the
needles found on the Appellant. However, on redirect Officer
Kahley clarified that he does not put every single detail in the
Affidavit of Probable Cause. Further, his supplemental incident
report, which was drafted just after the Appellant was taken to
Central Booking, did state that two needles were found on the
Appellant, and did mention the Appellant’s incriminating
statements.
Trial Court Opinion, 7/30/2014, at 2-4 (citations omitted).
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Prior to trial, Appellant filed an omnibus pre-trial motion in which he
sought to suppress the needles, the evidence of Appellant’s suspended
license, and Appellant’s incriminating statements. After a hearing, the trial
court denied the motion. Appellant proceeded to trial and was convicted and
sentenced as indicated above. Appellant timely filed a post-sentence motion
and a notice of appeal following that motion’s denial. Both Appellant and the
trial court complied with Pa.R.A.P. 1925.
Appellant presents five questions for this Court’s review:
1. Did the lower court err when it determined that the initial
encounter by the police officer was a mere encounter where the
police officer did not observe any evidence of criminal activity
and did not have reasonable suspicion to stop or detain the
Appellant by pulling his marked police cruiser up to the
Appellant, exiting his marked vehicle and talking to the Appellant
with a backup unit arriving in less than four (4) minutes after the
initial encounter thereby surrounding the Appellant in a show of
force?
2. Did the suppression/trial court err in finding that the officer
possessed reasonable suspicion to effectuate an investigatory
detention where the officer gave no articulable facts that the
Appellant was engaging in criminal activity when the officer
viewed Appellant walking in a parking lot and the Appellant told
the officer of his destination?
3. Did the suppression/trial court err in finding that the officer
possessed a reasonable belief that the Appellant was presently
armed and dangerous to justify a “Terry Frisk”[3] of the
Appellant which occurred after the officer ran Appellant’s license
and found no outstanding warrants?
3
Terry v. Ohio, 392 U.S. 1 (1968).
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4. Did the suppression/trial court err in refusing to suppress
the fruits of the investigatory detention where the seizing police
officer had no reasonable suspicion to detain, nor probable cause
to arrest Appellant at the instant when the seizing officer took
Appellant’s license and ran the license for a warrant check?
5. Did the suppression/trial court err in refusing to suppress
the fruits of the “Terry Frisk” where the frisking/seizing officer
exceeded the scope of the “Terry Frisk” when the contraband
was immediately apparent to the officer that the contraband was
not a weapon and the officer preceded [sic] to manipulate/pinch
the object until he believed it to be contraband?
Appellant’s Brief at 2-3 (suggested and trial court answers omitted).
We consider Appellant’s questions mindful of the following standard of
review.
Our standard of review in addressing 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. Because the Commonwealth prevailed before the
suppression court, 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. Where the suppression court’s factual findings are
supported by the record, we are bound by these findings and
may reverse only if the court’s legal conclusions are erroneous.
Where ... the appeal of the determination of the suppression
court turns on allegations of legal error, the suppression court’s
legal conclusions are not binding on an appellate court, whose
duty it is to determine if the suppression court properly applied
the law to the facts. Thus, the conclusions of law of the court[]
below are subject to our plenary review.
Commonwealth v. Perel, 107 A.3d 185, 188 (Pa. Super. 2014) (quoting
Commonwealth v. Jones, 988 A.2d 649, 654 (Pa. 2010)).
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We begin our examination of Appellant’s claims of error by reiterating
the applicable legal principles.
Interaction between citizens and police officers, under
search and seizure law, is varied and requires different levels of
justification depending upon the nature of the interaction and
whether or not the citizen is detained. The three levels of
interaction are mere encounter, investigative detention, and
custodial detention. 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. A mere
encounter does not carry any official compulsion to stop or
respond to police, and as a result, does not need to be supported
by any level of suspicion. In contrast, an investigative detention
carries an official compulsion to stop and respond. The
detention is temporary, but it must be supported by specific and
articulable facts creating a reasonable suspicion that the suspect
is engaged in criminal activity. The test for reasonable suspicion
is an objective one: … whether the officer’s action was justified
at its inception, and whether it was reasonably related in scope
to the circumstances which justified the interference in the first
place. Regarding the stop, a police officer may, short of an
arrest, conduct an investigative detention if he has a reasonable
suspicion, based upon specific and articulable facts, that
criminality is afoot. The assessment of reasonable suspicion, like
that applicable to the determination of probable cause, requires
an evaluation of the totality of the circumstances, with a lesser
showing needed to demonstrate reasonable suspicion in terms of
both quantity or content and reliability. Finally, an arrest or
custodial detention must be supported by probable cause.
To determine if an interaction rises to the level of an
investigative detention, i.e., a Terry stop, the court must
examine all the circumstances and determine whether police
action would have made a reasonable person believe he was not
free to go and was subject to the officer’s orders. To guide this
crucial analysis, the United States Supreme Court has devised an
objective test entailing whether, in view of all surrounding
circumstances, a reasonable person would believe he was free to
leave. In evaluating the circumstances, the focus is directed
toward whether, by means of physical force or show of authority,
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the citizen-subject’s movement has in some way been
restrained. No single factor should control this determination,
and courts must examine the totality of the circumstances when
reaching a conclusion as to whether a seizure occurred.
Commonwealth v. Guzman, 44 A.3d 688, 692-93 (Pa. Super. 2012)
(internal citations and quotation marks omitted).
Although Appellant’s brief poses five separate questions, he makes
only two arguments: (1) that Officer Kahley’s interaction with Appellant
constituted an investigative detention unsupported by reasonable suspicion,
and (2) that the Terry frisk was unjustified and exceeded the scope of an
acceptable frisk. Appellant’s Brief at 12, 24. We will address Appellant’s
arguments in a corresponding fashion.
Appellant first argues that his interaction with the police was, from the
start, an investigative detention:
in light of the totality of the circumstances, Officer Kahley’s
conduct of pulling behind [Appellant] and his companion in the
early morning hours, shining his headlights on them then exiting
his vehicle in full police uniform and calling in a person stop
thereby having a second officer pull up in his marked police
cruiser, is more than a mere encounter and shows that
[Appellant’s] liberty was restrained.
Appellant’s Brief at 18. Appellant further argues that Officer Kahley lacked
reasonable suspicion to detain Appellant, because he “never witnessed
[Appellant] engage in any activity that would be characterized as criminal.”
Id. at 22.
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The trial court4 determined that Officer Kahley’s questioning of
Appellant and request for his identification was a mere encounter, largely on
the basis of our Supreme Court’s opinion in Commonwealth v. Au, 42 A.3d
1002 (Pa. 2012). In that case, the police officer initiating the encounter did
not “activate the emergency lights on his vehicle; position his vehicle so as
to block the car that [Au] was seated in from exiting the parking lot;
brandish his weapon; make an intimidating movement or overwhelming
show of force; make a threat or a command; or speak in an authoritative
tone.” Id. at 1008. Although the officer in Au used his headlights and a
flashlight, “this was in furtherance of the officer’s safety, and we conclude it
was within the ambit of acceptable, non-escalatory factors.” Id. Under the
circumstances present, “a request for identification is not to be regarded as
escalatory in terms of the coercive aspects of a police-citizen encounter.”
Id. at 1007. Accordingly, the Court held that “the arresting officer’s request
for identification did not transform his encounter with [Au] into an
unconstitutional investigatory detention.” Id. at 1009.
As in Au, Officer Kahley did not activate the emergency lights on his
vehicle when initially approaching Appellant; nor did he block Appellant’s
movements, brandish his weapon, or make any threats or commands.
Therefore, we conclude that Officer Kahley’s initial contact with Appellant
4
The Rule 1925(a) opinion before us was authored by the trial court, not by
the suppression court.
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was a mere encounter, and his request for Appellant’s identification did not
escalate it to an investigatory detention.
It was not until Officer Kahley retained possession of Appellant’s
identification card that the mere encounter became an investigative
detention. See Commonwealth v. Hudson, 995 A.2d 1253, 1259 (Pa.
Super. 2010) (“Officer Gonzalez effectuated an investigative detention of
Hudson at the time that Officer Gonzalez took and maintained possession of
Hudson's identification. In such a situation, no reasonable person would
have felt free to terminate the encounter and depart the scene.”). However,
we agree with the trial court that, by the time Officer Kahley requested
Appellant’s identification, he had the reasonable suspicion necessary to
conduct an investigative detention. See Trial Court Opinion, 7/30/2014, at
9 (“The inconsistency between Appellant’s statements and actions, along
with the time of night and the location, a high crime area, would have given
a reasonable officer reasonable suspicion that criminal activity was afoot.”).
Appellant claims that Officer Kahley described no criminal activity;
rather, he contends, the actions of Appellant and Ms. Bohr, “namely walking
away from a vehicle and answering questions, are perfectly consistent with
innocent behavior[.]” Appellant’s Brief at 23. Appellant’s argument ignores
the applicable standards:
In order to determine whether the police officer had reasonable
suspicion, the totality of the circumstances must be considered.
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… 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. Kemp, 961 A.2d 1247, 1255 (Pa. Super. 2008) (en
banc) (citations and quotation marks omitted).
Based upon the totality of the circumstances, Officer Kahley had
reasonable suspicion to investigate Appellant and his companion further.
See, e.g., Commonwealth v. Carter, 105 A.3d 765, 774 (Pa. Super.
2014) (en banc) (holding officers had reasonable suspicion when they
observed Carter, in a high-crime area, at night, attempt to conceal from the
officers a bulge in his coat pocket).
Having determined that Officer Kahley’s initial encounter and later
detention of Appellant were valid, we consider Appellant’s remaining
arguments concerning legitimacy of the subsequent Terry frisk. We begin
with an examination of the relevant legal principles.
If, during the course of a valid investigatory stop, an
officer observes unusual and suspicious conduct on the part of
the individual which leads him 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. In order
to justify a frisk under Terry, the officer must be able to point to
particular facts from which he reasonably inferred that the
individual was armed 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.
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Commonwealth v. E.M., 735 A.2d 654, 659 (Pa. 1999) (internal citations
and quotation marks omitted). Additionally,
In [Minnesota v. Dickerson, 508 U.S. 366, 375 (1993)],
the U.S. Supreme Court legitimized the seizure of contraband
discovered during the scope of a Terry frisk where the officer
feels an object whose contour or mass makes its criminal
character immediately apparent. However, noting that the
officer in Dickerson “determined that the lump was contraband
only after ‘squeezing, sliding and otherwise manipulating the
contents of the defendant's pocket’—a pocket which the officer
already knew contained no weapons,” the Court held that:
... the officer’s continued exploration of respondent’s
pocket after having concluded that it contained no
weapon was unrelated to “[t]he sole justification of
the search [under Terry: ] ... the protection of the
police officer and others nearby.” It therefore
amounted to the sort of evidentiary search that
Terry expressly refused to authorize ...
Commonwealth v. Griffin, --- A.3d ---, 2015 WL 2193891 at *4 (Pa.
Super. filed May 12, 2015) (quoting Commonwealth v. Graham, 721 A.2d
1075, 1081 (Pa. 1998)) (citations omitted).
Appellant claims that Officer Kahley failed to articulate specific facts to
establish that he reasonably inferred that Appellant was armed and
dangerous. Appellant’s Brief at 27-28. Even if the frisk was justified,
Appellant continues, Officer Kahley was not justified in seizing the
hypodermic needles because the incriminating nature of the items was not
immediately apparent. Id. at 28-29. Therefore, Appellant argues, the
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needles were obtained unlawfully, and the fruits of the search should have
been suppressed. Id. at 30.
At the suppression hearing, Officer Kahley testified that, after Ms. Bohr
was taken into custody and identified Appellant as the driver of the car, he
noticed that Appellant “was putting his hands in his pockets several times,
which I continued to tell him to remove his hands from his pockets. And it
started -- became a safety concern to me and we patted him down.” N.T.,
11/22/2013, at 10. See also id. at 18 (noting that he was not initially
concerned, but became increasingly fearful that Appellant had weapons
when Appellant continued to put his hands in his pockets after he told him to
stop doing so). We agree with the trial court that this testimony was
sufficient to justify a Terry frisk. See, e.g., Commonwealth v.
Scarborough, 89 A.3d 679, 684 (Pa. Super. 2014) (holding Terry frisk was
justified when Scarborough kept his hand in his pocket after police directed
him to remove it, as such conduct suggested that Scarborough may have
had a weapon on his person).
Next, Officer Kahley testified that, during the pat down, “I felt two
items in his left chest coat pocket, which I immediately recognized to be
hypodermic needles.” Id. at 10. On cross-examination, he offered greater
detail about the frisk:
Q: How could you tell the difference on the outside of a coat
between a needle and let’s say a pen?
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A: I could feel the object that was thin enough and had
bumps on the bottom part that’s not consistent with a pen.
Q: Did that require you to manipulate that object to feel and
tell what it is?
A: I think since I felt it, I sort of would have just grabbed it to
see that it was a thin object and that’s when I felt that it wasn’t
a pen.
Q: Well, so when you felt it all you could feel a thin object
and you dropped it from there. You didn’t touch the object to
determine what exactly it was?
A: I wasn’t running my hands along it and really wasn’t
manipulating. I just felt there was an object there and more so
tried to pinch it to see what kind of object it was. I didn’t
continue much more than that to determine whether or not it
could have been something more.
Q: But when you felt it at first you knew it wasn’t a weapon
correct?
A: I didn’t believe it was a weapon, such as a knife or firearm.
Q: All right. Then after that you pinched it anyhow knowing it
wasn’t a weapon?
A: I wasn’t sure at first.
Q: Wasn’t sure what?
A: If it could have been a knife or something more. Once I
felt it was thinner, then I believe[d] it wasn’t a knife and more
so of drug paraphernalia.
N.T., 11/22/2013, at 19-20.
Appellant claims that Officer Kahley exceeded the permissible scope of
a Terry frisk when he pinched Appellant’s coat, as his testimony evidences
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that it was not immediately apparent during the initial pat down that
Appellant possessed contraband. Appellant’s Brief at 28-29. We disagree.
“Once the initial pat-down dispels the officer’s suspicion that
the suspect is armed, any further poking, prodding, squeezing, or other
manipulation of any objects discovered during that pat-down is outside the
scope of the search authorized under Terry.” Graham, 721 A.2d at 1082
(emphasis added). Here, viewing the evidence in the light most favorable to
the Commonwealth, Officer Kahley’s pinching of Appellant’s outer garment
occurred before he had confirmed that Appellant was unarmed, and was
done for the specific purpose of ruling out the possibility that it was a
weapon. Therefore, Officer Kahley’s testimony was sufficient to establish a
proper seizure under the plain feel doctrine. See, e.g., Commonwealth v.
Pakacki, 901 A.2d 983, 989 (Pa. 2006) (holding plain feel doctrine
applicable when trooper, during a Terry frisk “felt an object which he knew
from his experience in law enforcement to be a marijuana pipe”).
Because Officer Kahley was justified in performing a Terry frisk, and
because his seizure of the contraband was permissible under the plain feel
doctrine, the suppression court properly denied Appellant’s motion to
suppress the hypodermic needles.
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Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/10/2015
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