Com. v. Garcia, A. ( 2014 )

J-A09024-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
ALBERTO R. GARCIA
Appellee No. 3503 EDA 2012
Appeal from the Order November 26, 2012
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0014673-2011
BEFORE: BOWES, J., OTT, J., and JENKINS, J.
MEMORANDUM BY OTT, J.: FILED JULY 29, 2014
The Commonwealth of Pennsylvania appeals from the order entered on
November 26, 2012, in the Court of Common Pleas of Philadelphia County,
suppressing physical evidence, specifically one kilogram of cocaine, found in
searched Garcia, with his consent, after he picked up luggage following his
arrival at Philadelphia International Airport on a flight from Puerto Rico. The
Commonwealth claims the trial court erred in classifying the encounter
between law enforcement and Garcia as an investigative detention
unsupported by reasonable suspicion. Following a thorough review of the
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the certified record, and relevant law, we reverse
and remand for further proceedings.
Initially, we note,
[i]n a criminal case, ... the Commonwealth may take an 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
The pretrial suppression of evidence critical to the prosecution is
an appropriate basis for a [Pa.R.A.P.] Rule 311(d) appeal.
Commonwealth v. Brugger, 88 A.3d 1026, 1033 (Pa. Super.
2014)(citation omitted). The Commonwealth has properly certified the order
under appeal will substantially handicap the prosecution.
The applicable standard of review when the Commonwealth appeals
from a suppression order is as follows:
When the Commonwealth appeals from a suppression order, we
follow a clearly defined standard of review and consider only the
evidence from the defendant's witnesses together with the
evidence of the prosecution that, when read in the context of the
entire record, remains uncontradicted. The suppression court's
findings of fact bind an appellate court if the record supports
those findings. The suppression court's conclusions of law,
however, are not binding on an appellate court, whose duty is to
determine if the suppression court properly applied the law to
the facts.
Commonwealth v. Newman, 84 A.3d 1072, 1076 (Pa. Super.
2014)(citation omitted).
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We recite the factual history as related by the trial judge in her
Pa.R.A.P. 1925(a) opinion.
presented the testimony of arresting agent, DEA Interdiction
Unit Agent Alan Basewitz and Trooper Alfredo [sic] Moreno[2] of
the Mass Transportation Interdiction Task Force Group. Viewing
the evidence in the light most favorable to the defendant, as the
motion winner, the testimony of these witnesses established the
following. On October 31, 2011, Agent Basewitz arrived at the
Philadelphia International Airport after receiving information
from
traveling on one-way tickets possibly purchased with cash.
Agent Basewitz testified that the Interdiction Unit was provided
with a general description of the individuals, which included
information based on their clothing, physical makeup, and age.
While at Philadelphia International Airport, Agent Basewitz
received information from DEA Special Agent Eric Hill that he had
observed defendant deplane and that a female who was later
identified by the name of Vargas was following him. Defendant
was also observed walking ahead of Ms. Vargas while glancing
back and conversing. Once inside the terminal, Agent Basewitz,
based on information received by Special Agent Hill observed the
defendant and Vargas. After observing defendant take a piece of
luggage off of the carousel, the agent began to follow both
defendant and Ms. Vargas as they walked toward the direction of
the airport exit. At this point, Special Agent Brian Daurity then
approached Ms. Vargas while Agent Basewitz approached
defendant. The defendant and Ms. Vargas were approximately
15 or 20 feet apart at this time. Agent Basewitz testified that
upon approaching defendant, he displayed his paper credentials,
identified himself as a police officer, and asked defendant if he
could briefly speak with him. At the time that the conversation
took place defendant was not in handcuffs.
While Agent Basewitz stopped the defendant, Trooper Moreno
was acting as an interpreter for Special Agent Brain Daurity who
was engaged in an encounter with Ms. Vargas. While Agent
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Basewitz was speaking with defendant he observed officers
conduct a search of the bag that Ms. Vargas had claimed, which
revealed a kilo of cocaine that had been removed from a Lite
Brite toy. Trooper Moreno then came to where Agent Basewitz
had stopped defendant in order to aid the agent in conducting a
translation interview in Spanish. He identified himself as a law
enforcement officer and displayed his task force credentials for
defendant.
When questioned about Ms. Vargas and why he was in
Philadelphia, defendant replied that he had just met Ms. Vargas
that day at the baggage claim area and that he was in
Philadelphia to visit his aunt and uncle. [sic3] Defendant also
stated that he had packed his own luggage, that nobody had
solicited him to carry anything, and that the items in his bag
belonged to him. During the course of the translation interview
defendant was asked for permission to search his bag and his
Defendant was placed in handcuffs after the discovery of the
[4]
Trial Court Opinion, 7/03/2013, at 2-3 (citations to record omitted).
Based upon the preceding information, the trial court determined that
Garcia had been subject to an investigative detention that was unsupported
by a reasonable suspicion of any criminal activity and accordingly, the
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The notes of testimony contain no reference to an uncle.
4
Here, the trial court cites to pages 36 and 72 of the notes of testimony.
However, neither page supports this statement. Our review of the certified
record shows that page 36 contains no reference to handcuffs or Ms. Vargas.
Testimony by Trooper Moreno on page 72 indicates only that Garcia was not
in handcuffs as he was being questioned. Agent Basewitz testified he did not
handcuff Garcia until he found the cocaine on him. See N.T. Hearing,
11/26/2012, at 33. Because the cocaine was found on Garcia after it was
not
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evidence subsequently obtained was fruit of the poisoned tree. However,
the Commonwealth argues Garcia was subjected only to a mere encounter.
Our courts have long recognized three levels of interaction
that occur between the police and citizens that are
relevant to the analysis of whether a particular search or
seizure conforms to the requirements of U.S. CONST.
amend. IV and PA. CONST. art I, § 8.
information) which need not be supported by any level of
suspicion, but carries no official compulsion to stop or
supported by reasonable suspicion; it subjects a suspect to
a stop and period of detention, but does not involve such
coercive conditions as to constitute the functional
detention
Commonwealth v. Phinn, 761 A.2d 176, 181 (Pa. Super.
2000) (quoting Commonwealth v. Ellis, 541 Pa. 285, 662 A.2d
1043, 1047 (1995) (citations and footnotes omitted)).
[I]n assessing the lawfulness of citizen/police encounters,
a central, threshold issue is whether or not the citizen-
subject has been seized. Instances of police questioning
involving no seizure or detentive aspect (mere or
consensual encounters) need not be supported by any
level of suspicion in order to maintain validity. Valid
citizen/police interactions which constitute seizures
generally fall within two categories, distinguished
according to the degree of restraint upon a citizen's
liberty: the investigative detention or Terry [v. Ohio, 392
U.S. 1 (1968)] stop, which subjects an individual to a stop
and a period of detention but is not so coercive as to
constitute the functional equivalent of an arrest; and a
custodial detention or arrest, the more restrictive form of
permissible encounters. To maintain constitutional validity,
an investigative detention must be supported by a
reasonable and articulable suspicion that the person seized
is engaged in criminal activity and may continue only so
long as is necessary to confirm or dispel such suspicion;
whereas, a custodial detention is legal only if based on
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probable cause. To guide the crucial inquiry as to whether
or not a seizure has been effected, the United States
Supreme Court has devised an objective test entailing a
determination of whether, in view of all surrounding
circumstances, a reasonable person would have believed
that he was free to leave. In evaluating the circumstances,
the focus is directed toward whether, by means of physical
force or show of authority, the citizen-subject's movement
has in some way been restrained. In making this
determination, courts must apply the totality-of-the-
circumstances approach, with no single factor dictating the
ultimate conclusion as to whether a seizure has occurred.
Commonwealth v. Strickler, 563 Pa. 47, 757 A.2d 884,
889-90 (2000)(internal citations and footnotes omitted).
Commonwealth v. Lyles, 54 A.3d 76, 79-80 (Pa.Super. 2012)
Commonwealth v. Williams, 73 A.3d 609, 613-14 (Pa.Super. 2013),
appeal denied, 87 A.3d 320 (Pa. 2014).
analysis. In determining Garcia was subject to an investigative detention,
the trial court stated, in toto, in its Pa.R.A.P. 1925(a) opinion:
In the case at hand, there clearly was an investigative
detention. To determine whether or not a seizure has taken
place for the purposes of an investigative detention, the United
determination of whether, in view of all surrounding
circumstances, a reasonable person would have believed that he
Com. v. Strickler, 757 A.2d 884, 889 (Pa.
2000). When evaluating the circumstances, the primary focus is
on whether by means of physical force or show of authority, the
Id. The agent
in this case observed the defendant at the baggage claim area
and subsequently stopped him before he exited the airport.
While stopped, [the] defendant was subjected to a translation
interview with the help of a Spanish speaking trooper that was
composed of roughly 10 to 15 questions, as well as a search of
both his person and his baggage. Additionally, both the agent
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and the trooper were standing in front of the defendant at a
distance of ap
person would not have believed that he was free to leave.
Moreover, although [the] defendant was not physically
restrained at the time, there was undoubtedly a show of
authority by both officers who displayed their law enforcement
credentials when defendant was stopped. As a reasonable
person, defendant did not feel free to leave under the
circumstances, and the agents had in fact engaged him in an
investigative detention.
Trial Court Opinion, 7/03/2013, at 5-6. Based upon our review of the
certified record, we conclude the trial court erred as a matter of law in
classifying the encounter with Garcia as an investigative detention.
three factors. First, the police talked to Garcia. Second, they identified
themselves as police. Third, they stood in front of Garcia. These factors do
not lead to the conclusion that Garcia was involuntarily detained. Rather,
they are the definition of a mere encounter.
The police need no level of suspicion to initiate a mere encounter. See
Williams, supra. Therefore, Agent Basewitz was allowed to approach
Garcia and ask him if he would answer a few questions. Accordingly, talking
to Garcia does not lead to the conclusion Garcia was inappropriately
stopped.
The police identified themselves by showing their credentials. While
the trial court classifies this action as a show of authority that led Garcia to
lf as a law enforcement
officer, here by showing an ID card, would seem to be part and parcel of
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asking the person if he or she would answer a few questions. For the
conversation to be voluntary, the citizen in question should be aware he or
she is talking to law enforcement personnel.5 Therefore, the police must
identify themselves. The trial court puts forth no rationale, nor do we see
equates to an improper show of authority.
Finally, the police officers, Agent Basewitz and the translator, Trooper
Moreno, stood in front of Garcia. However, as the trial court found, Garcia
was not physically restrained and there is no indication that they barred
Garcia or that he could not have simply walked around the men, had he
been so inclined. Additionally, Agent Basewitz and Trooper Moreno were
talking to Garcia. The most logical place for them to be standing would be in
front of Garcia.
Viewing the evidence presented at the hearing in the light most
favorable to Garcia, as verdict winner, we nonetheless believe the instant
matter is very similar to the situation presented in Commonwealth v.
Dowds, 761, A.2d 1125 (Pa. 2000), in which our Supreme Court determined
the defendant was subjected to a mere encounter.
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The voluntary answering of questions is part of the mere encounter.
Commonwealth v. Jones, 874 A.2d 108, 116 (Pa. Super. 2005).
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The officers who approached Dowds were in plain clothes, did
not display weapons, identified themselves, explained their
duties at the airport, and merely requested ticket and
identification information, which Dowds agreed to provide.
Dowds was not confronted by a large number of police officers or
interrogated regarding narcotics possession, and as she testified,
Commonwealth v. Dowds, 761 A.2d 1125, 1130 (Pa. 2000).
Instantly, the trial court made no specific findings regarding many of the
factors cited in Dowds. We are not a fact-finding court, but our review of
the certified record shows uncontradicted testimony that no weapons were
displayed. The record infers Agent Basewitz and Trooper Moreno were in
plain clothes. Testimony of the two men indicates the conversation with
Garcia was civil in tone. Garcia was not surrounded by officers; the only
reason Trooper Moreno was present was to allow Garcia to converse in
Spanish. There is no testimony that Garcia was asked about drugs.
In light of the above, we conclude that the trial court committed an
error of law in classifying the contact between Garcia, Agent Basewitz and
Trooper Moreno as an investigative detention unsupported by a reasonable
suspicion of criminal activity.6 Accordingly, the trial court erred in granting
search.
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Although we have determined the contact with Garcia was a mere
encounter, it is apparent that, at the latest, the police had reasonable
possession.
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Order granting suppression of evidence is reversed. This matter is
remanded for further proceedings. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/29/2014
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