Com. v. Jones, T. ( 2018 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
TADARRELL KENY JONES JR., : No. 1618 EDA 2017
:
Appellee :
Appeal from the Order April 28, 2017
In the Court of Common Pleas of Montgomery County Criminal Division at
No(s): CP-46-CR-0004300-2016
BEFORE: LAZARUS, J., OTT, J., and PLATT*, J.
MEMORANDUM BY LAZARUS, J.: FILED FEBRUARY 27, 2018
The Commonwealth of Pennsylvania appeals from the order, entered in
the Court of Common Pleas of Montgomery County, granting Tadarrell Keny
Jones Jr.’s (“Jones”) pretrial motion to suppress. After our review, we
conclude that Officer Andrew Licwinko did not possess reasonable suspicion,
based on specific and articulable facts, that Jones was potentially committing
a crime. Therefore, we affirm the suppression court’s order.
Jones was arrested on May 12, 2016, and charged with two counts of
possession with intent to distribute,1 two counts of conspiracy-possession with
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1 35 P.S. § 780-113(a)(30).
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* Retired Senior Judge assigned to the Superior Court.
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intent to distribute,2 one count of resisting arrest,3 four counts of possession,4
four counts of conspiracy-possession,5 one count of possession of a small
amount of marijuana,6 one count of conspiracy-possession of a small amount
of marijuana,7 three counts of drug paraphernalia,8 and three counts of
conspiracy-drug paraphernalia.9 These charges arose from the stop of a
vehicle in which Jones was a passenger, and the subsequent search of Jones
where Officer Licwinko uncovered marijuana and drug paraphernalia.
On April 28, 2017, a hearing was held on Jones’ omnibus pretrial motion.
The suppression court granted Jones’ motion to suppress, concluding there
were no articulable facts that would lead Officer Licwinko to believe a crime
was afoot. The Commonwealth filed a timely notice of appeal on May 22,
2017.
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2 18 Pa.C.S. § 903.
3 18 Pa.C.S. § 5104.
4 35 P.S. § 780-113(a)(16).
5 18 Pa.C.S. § 903.
6 35 P.S. § 780-113(a)(31).
7 18 Pa.C.S. § 903.
8 35 P.S. § 780-113(a)(32).
9 18 Pa.C.S. § 903.
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On appeal,10 the Commonwealth raises one issue for review:
Did the suppression court erroneously grant suppression when it
held that the officer lacked reasonable suspicion to stop a car in
which he reasonably believed that a drug deal was happening,
based on his years of drug-enforcement experience in that specific
area?
Commonwealth’s brief, at 4.
When reviewing an order granting a motion to suppress we are
required to determine whether the record supports the
suppression court’s factual findings and whether the legal
conclusions drawn by the suppression court from those findings
are accurate. In conducting our review, we may only examine the
evidence introduced by appellee along with any evidence
introduced by the Commonwealth which remains uncontradicted.
Our scope of review over the suppression courts factual findings
is limited in that if these findings are supported by the record we
are bound by them. Our scope of review over the suppression
court’s legal conclusions, however, is plenary.
Commonwealth v. Gutierrez, 36 A.3d 1104, 1107 (Pa. Super. 2012)
(quoting Commonwealth v. Henry, 943 A.2d 967, 969 (Pa. Super. 2008)).
Officer Licwinko, a police officer for Pottstown Police Department, was
patrolling in the area of Washington and Chestnut Streets on the evening of
May 12, 2016. At approximately 4:15 p.m., Officer Licwinko observed a dark
blue SUV in an intersection known as a high-crime, high-drug area. N.T.
Suppression Hearing 4/28/17, at 8. He witnessed Jones enter the passenger
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10 Pennsylvania Rule of Appellate Procedure 311(d) permits the
Commonwealth in a criminal case to appeal as of right from an order that does
not end the entire case where the Commonwealth certifies in the notice of
appeal that the order will terminate or substantially handicap the prosecution.
Commonwealth v. Whitlock, 69 A.sd 635, 636 n.2 (Pa. Super. 2013). Here,
the Commonwealth made that certification.
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seat of the SUV, and the vehicle driving in a circle around the block, through
one-way streets, going in the proper direction, and returning about a block
away from where the vehicle had started. Officer Licwinko stopped the
vehicle; however, he acknowledged that he witnessed no violations of the
Motor Vehicle Code. Id. at 14-15.
During the stop, Jones fled from the vehicle. Once Jones was in
custody, Officer Licwinko conducted a search and found marijuana and drug
paraphernalia on his person.
Officer Licwinko testified at the suppression hearing:
Q. Now officer, just so we’re clear, the mere fact that the
defendant got into the vehicle and [the car then] drove away, was
that anything that gave you alarm or made you think about it?
A. No, not at all.
Q. Okay. What, then, did you ultimately think about as you
describe how this vehicle drove in a circle?
A. As being on the Unit, we conduct undercover control buys,
and it’s very common for a drug dealer to get into the vehicle of
a drug user and circle the block to not be detected by police.
N.T. Suppression Hearing 4/28/17, at 12.
Officer Licwinko also testified that he had witnessed this type of behavior
approximately two dozen times in the past, and it led him to believe that
Jones’ entering the vehicle and circling the block was a drug deal. Id. at 13.
Officer Licwinko also stated that he did not observe a hand-to-hand
transaction or similar behavior before he made the stop. Id. at 16.
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The Commonwealth argues that the suppression court erred in
concluding that Officer Licwinko lacked reasonable suspicion to stop the
vehicle he believed was part of a drug deal based on his experience as an
officer. We disagree.
First, we note that the suppression court correctly determined that the
stop of the vehicle was an investigative detention and that to initiate a traffic
stop, the officer required reasonable suspicion of either criminal activity or a
violation of the Motor Vehicle Code. See 75 Pa.C.S. § 6308. To establish
whether Officer Licwinko had reasonable suspicion to stop the vehicle, Officer
Licwinko must be able “to point to specific and articulable facts and reasonable
inferences drawn from those facts in light of the officer’s experience” that
criminality was afoot. Commonwealth v. Cook, 735 A.2d 673, 677 (1999)
(citing Commonwealth v. Jackson, 698 A.2d 571, 537 (1997). See Terry
v. Ohio, 392 U.S. 1, 27 (1968). Furthermore,
[T]he totality of the circumstances – the whole picture – must be
taken into account. Based upon that whole picture the detaining
officers must have a particularized and objective basis for
suspecting the particular person stopped of criminal activity.
United States v. Cortez, 449 U.S. 411, 417-418 (1981).
Here, the issue before us is whether Officer Licwinko had reasonable
suspicion to stop the vehicle because of his belief, based on his prior
experience in drug enforcement, that a drug deal was occurring or had
occurred. Although Officer Licwinko had witnessed drug deals in the past that
would take place in a moving vehicle, here there was no other indication, such
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as a hand-to-hand transaction or other suspicious behavior, that a drug deal
had occurred. See Commonwealth v. Wilson, 655 A.2d 557, 560 (Pa
Super. 1995) (holding where defendant exited vehicle twice in neighborhood
of high drug activity and disappeared from sight both times and where police
did not witness exchange of objects or money, no reasonable suspicion to stop
vehicle; innocent behavior that vehicle exhibited in a high-crime area, before
stop, cannot establish reasonable suspicion).
Notably, Officer Licwinko testified that there was no other reason to pull
over the vehicle; he testified that he did not pull over the vehicle for the
reckless turn he witnessed or for any other violation of the Motor Vehicle Code.
Nor did he witness any other activity that would lead him to believe a drug
deal was occurring. Officer Licwinko pulled over the vehicle based on his
experience in drug enforcement and a hunch that criminal activity was
occurring. See Terry, 392 U.S. at 27 (stating that an “unparticularized
suspicion” or a “hunch” is not sufficient to establish that an officer acted
reasonably); Commonwealth v. Bennett, 827 A.2d 469, 478 (Pa. Super.
2003) (mere hunches on part of officer are insufficient to establish reasonable
grounds for suspicion). See also Commonwealth v. Greber, 385 A.2d
1313, 1316 (Pa. 1978) (where officer assumed criminal conduct was occurring
and conducted stop when he witnessed defendant riding in car, stopping at
bowling alley, and exchanging bag with another person, court held no
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reasonable suspicion; innocent activity in high crime area insufficient to
support reasonable suspicion).
Under the totality of the circumstances, we conclude that Officer
Licwinko failed to point to specific and articulable facts that would lead to a
reasonable suspicion that a drug deal was occurring. The suppression court,
therefore, properly granted Jones’ motion to suppress.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/27/18
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