Com. v. Quarterbaum, B. ( 2015 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
BARRY QUARTERBAUM
Appellant No. 2948 EDA 2013
Appeal from the Judgment of Sentence July 24, 2013
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): MC-51-CR-0004852-2013
BEFORE: LAZARUS, J., MUNDY, J., and PLATT, J.*
MEMORANDUM BY MUNDY, J.: FILED JANUARY 23, 2015
Appellant, Barry Quarterbaum, appeals from the July 24, 2013
judgment of sentence of 12 months’ probation imposed following a
stipulated trial where he was found guilty of knowingly or intentionally
possessing a controlled substance.1 After careful review, we affirm.
The trial court set forth the relevant facts as follows.
On February 2, 2013, at approximately 7:45
P.M., Philadelphia Police Officers Steven Cowdery
and Christopher McGraw, both in plainclothes and in
an unmarked car, were parked in the middle of the
1200 block of Catherine Street in Philadelphia in
response to a shooting that occurred in the area
earlier that day. Officer Cowdery observed
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*
Retired Senior Judge assigned to the Superior Court.
1
35 P.S. § 780-113(a)(16).
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Appellant, who was lingering half a block away,
begin walking east-bound on Catherine Street and,
approximately 20 feet away from the officer’s
position, eventually come into contact with an
unknown black female. Although he could not hear
any conversation, Officer Cowdery observed a quick
hand-to-hand transaction whereby Appellant gave
the female United States currency in return for small
objects. At that time, the officer did not know the
number of small objects or what the small objects
were. Appellant placed the small objects in his
pocket and began walking from whence he came.
Officer Cowdery has been a police officer for
more than a decade. He testified that he has
observed numerous narcotics transactions and has
made two narcotics arrests in the area of 1200
Catherine Street. Suspecting that they just observed
a narcotics transaction, the officers pulled out of
their parking spot in the direction of Appellant. As
they approached the corner, Officer Cowdery exited
the vehicle, identified himself as a police officer, and
requested three times that Appellant remove his
hands from his pockets.
Appellant did not comply with the officer[‘]s
request to show his hands and was eventually placed
against a wall and patted-down by Officer Cowdery.
While patting Appellant’s pants pocket with an open
palm, the officer felt numerous small bags that his
experience told him was consistent with narcotics
packaging. Officer Cowdery asked Appellant if there
was anything in his pocket that he needed to be
aware of. Receiving no answer from Appellant,
Officer Cowdery stuck his hand in Appellant’s pocket
and recovered four small plastic bags, rolled and
taped, that contained a white chalky substance. The
substance tested positive for narcotics and the bags
were placed on a property receipt.
Trial Court Opinion, 1/7/14, at 3-4. Based on the foregoing, the
Commonwealth charged Appellant with knowingly or intentionally possessing
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a controlled substance. On July 24, 2013, Appellant litigated, in the
Philadelphia Municipal Court, a motion to suppress the four bags of
narcotics. Following an evidentiary hearing, the trial court denied
Appellant’s motion to suppress. The case proceeded to an open stipulated
trial, and the trial court found Appellant guilty of the aforementioned charge.
Immediately thereafter, the trial court sentenced defendant to 12 months’
probation. Appellant subsequently filed a petition for a writ of certiorari to
the court of common pleas challenging the denial of his motion to suppress.
On October 4, 2013, the court of common pleas denied Appellant’s petition.
Thereafter, on October 23, 2013, Appellant timely filed a notice of appeal. 2
On appeal, Appellant raises the following two issues for our review.
1. Was not [A]ppellant stopped without
reasonable suspicion where he was seen
exchanging an unknown item for money in an
area not known for drug activity, by an officer
with minimal experience with drug arrests, and
where [A]ppellant neither ran nor made furtive
movements upon seeing police approach him?
2. Where, during a frisk, an officer felt a plastic
baggie in [A]ppellant’s pocket, did he not lack
probable cause to then search the pocket and
seize its contents, since a baggie is not per se
contraband and its incriminating nature is not
immediately apparent?
Appellant’s Brief at 3.
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2
Appellant and the court of common pleas have complied with Pennsylvania
Rule of Appellate Procedure 1925.
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Both of Appellant’s issues challenge the denial of his motion to
suppress. Our standard of review is as follows.
In addressing a challenge to a trial court’s
denial of a suppression motion, we are limited to
determining whether the factual findings are
supported by the record and whether the legal
conclusions drawn from those facts are correct.
Since the Commonwealth prevailed in the
suppression court, we may consider only the
evidence of the Commonwealth and so much of the
evidence for the defense as it remains
uncontradicted when read in the context of the
record as a whole. Where the record supports the
factual findings of the trial court, we are bound by
those facts and may reverse only if the legal
conclusions drawn therefrom are in error.
Commonwealth v. Scarborough, 89 A.3d 679, 683 (Pa. Super. 2014)
(citation omitted), appeal denied, --- A.3d ---, (Pa. 2014).
First, Appellant challenges the legality of his stop by Officer Cowdery.
Resolution of this issue is dependent upon the nature of the interaction
between Appellant and the police.
The Fourth Amendment of the U.S.
Constitution and Article I, Section 8 of our state
Constitution protect citizens from unreasonable
searches and seizures. To safeguard this right,
courts require police to articulate the basis for their
interaction with citizens in increasingly intrusive
situations:
The first of these 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
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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. Downey, 39 A.3d 401, 405 (Pa.
Super. 2012) (citation omitted)[, appeal denied, 50
A.3d 124 (Pa. 2012)].
Commonwealth v. McAdoo, 46 A.3d 781, 784 (Pa. Super. 2012), appeal
denied, 65 A.3d 413 (Pa. 2013).
The parties and the court of common pleas agree that Officer Cowdery
effected an investigative detention when he confronted Appellant after
observing the hand-to-hand transaction. Appellant’s Brief at 8;
Commonwealth’s Brief at 10; Trial Court Opinion, 1/7/14, at 4. Accordingly,
for the stop to be valid, Officer Cowdery must have possessed a reasonable
suspicion that Appellant was engaged in criminal activity. See McAdoo,
supra. Our Supreme Court has explained reasonable suspicion as follows.
Reasonable suspicion is a less stringent
standard than probable cause necessary to
effectuate a warrantless arrest, and depends on the
information possessed by police and its degree of
reliability in the totality of the circumstances. In
order to justify the seizure, a police officer must be
able to point to specific and articulable facts leading
him to suspect criminal activity is afoot. In assessing
the totality of the circumstances, courts must also
afford due weight to the specific, reasonable
inferences drawn from the facts in light of the
officer’s experience and acknowledge that innocent
facts, when considered collectively, may permit the
investigative detention.
…
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The determination of whether an officer had
reasonable suspicion that criminality was afoot so as
to justify an investigatory detention is an objective
one, which must be considered in light of the totality
of the circumstances. It is the duty of the
suppression court to independently evaluate
whether, under the particular facts of a case, an
objectively reasonable police officer would have
reasonably suspected criminal activity was afoot.
Commonwealth v. Holmes, 14 A.3d 89, 95-96 (Pa. 2011) (internal
citations, quotation marks, and emphasis omitted).
According to Appellant, Officer Cowdery did not have reasonable
suspicion that Appellant had just engaged in a narcotics transaction.
Appellant’s Brief at 8. Appellant contends the officer had limited experience,
the officer had not previously made arrests on that block, the officer
witnessed merely one hand-to-hand exchange, and Appellant did not flee or
engage in furtive movements when the police approached him. Id. at 9-10.
Instantly, we conclude Appellant’s analysis is misguided. Appellant is
focusing on the evidence the Commonwealth did not present rather than the
evidence the Commonwealth actually presented. As we explained
previously, however, our standard of review requires us to “consider only the
evidence of the Commonwealth and so much of the evidence for the defense
as it remains uncontradicted when read in the context of the record as a
whole.” Scarborough, supra.
Here, the record supports the trial court’s conclusion that Officer
Cowdery had reasonable suspicion that Appellant had purchased narcotics,
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which justified Officer Cowdery’s investigative detention of Appellant. Officer
Cowdery testified that at 7:45 p.m. on February 2, 2013, he was conducting
surveillance on the 1200 block of Catherine Street in Philadelphia in
response to a shooting that occurred earlier in the day. N.T., 7/24/13, at 5-
6. Officer Cowdery has been a Philadelphia police officer for ten years and
has been involved in approximately 12 undercover narcotics transactions
with his own money. Id. at 7. He also testified that he had previously made
two narcotics arrests in the area of the 1200 block of Catherine Street. Id.
He witnessed Appellant engage in a hand-to-hand transaction that he
believed was a narcotics sale because Appellant quickly exchanged money
for small unknown objects on the street at night. Id. at 8. After the
transaction, Appellant “quickly” placed the objects in his pocket and
“quickly” walked toward a parked SUV, which had pulled up and parked just
before the transaction began. Id. The totality of the circumstances
surrounding the hand-to-hand exchange viewed in light of Officer Cowdery’s
experience with narcotics transactions, led Officer Cowdery to conclude that
Appellant was engaged in criminal activity. See Holmes, supra. Adhering
to our standard of review, we conclude the record supports the factual
findings of the trial court, and we discern no error in the trial court’s legal
conclusion that Officer Cowdery had reasonable suspicion to detain
Appellant. See Scarborough, supra.-7-
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In his second issue raised on appeal, Appellant contends that Officer
Cowdery’s tactile impression of the objects in Appellant’s pocket did not
provide probable cause to search Appellant’s pocket and seize the plastic
baggies because baggies are not per se contraband and their incriminating
nature was not immediately apparent. Appellant’s Brief at 11. Initially, we
note that Appellant does not dispute that Officer Cowdery had reasonable
suspicion that justified conducting a protective frisk.3 Instead, Appellant
contends that the “plain feel” doctrine did not justify the seizure of the
plastic baggies.
“[T]he plain feel doctrine provides a police officer may properly seize
non-threatening contraband ‘plainly felt’ during a Terry frisk for weapons; in
such instances, ‘seizure [is] justified by the same practical considerations
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3
We observe, even if Appellant challenged this issue, it is without merit.
Officer Cowdery had reasonable suspicion to conduct a protective frisk for
his safety. Officer Cowdery testified that Appellant had his hands in his
pockets when Officer Cowdery approached Appellant, and Appellant did not
respond to requests to remove his hands from his pockets. N.T., 7/24/13,
at 8-9. Officer Cowdery was conducting surveillance of the neighborhood in
response to a shooting earlier that day. Id. at 6. Therefore, Officer
Cowdery was justified in conducting a protective frisk for his safety. See
Commonwealth v. Hall, 713 A.2d 650, 653 (Pa. Super. 1998), reversed on
other grounds, 771 A.2d 1232 (Pa. 2001) (concluding “when [the defendant]
approached [police] with his hand thrust in his pocket and refused to remove
it, the encounter escalated into a situation where the totality of
circumstances involved a reasonable suspicion and justified a detention to
stop and frisk”); Commonwealth v. Garcia, 661 A.2d 1388, 1392 n.11
(Pa. Super. 1995), appeal denied, 672 A.2d 304 (Pa. 1996) (noting the
defendant’s refusal to remove his hands from his pockets justifies a pat-
down search).
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that inhere in the plain-view context.’” Commonwealth v. Pakacki, 901
A.2d 983, 985, n.1 (Pa. 2006), quoting Minnesota v. Dickerson, 508 U.S.
366, 375-376 (1993). Our Supreme Court has explained the plain feel
doctrine.
[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.
Dickerson, [supra] at 373–75[]. … [T]he 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.
Commonwealth v. Stevenson, 744 A.2d 1261, 1265 (Pa. 2000) (some
internal citations omitted). Notably, the immediately apparent
determination “is essentially coextensive with a probable cause inquiry,
‘taking into account the totality of the circumstances surrounding the frisk,
including, inter alia, the nature of the object, its location, the conduct of the
suspect, the officer’s experience, and the reason for the stop.’” In re C.C.,
780 A.2d 696, 699 (Pa. Super. 2001) (citation omitted), appeal denied, 792
A.2d 1251 (Pa. 2001)..
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Here, we conclude that the trial court did not err in finding that Officer
Cowdery properly seized the baggies pursuant to the plain feel doctrine. As
noted above, Officer Cowdery stopped Appellant under suspicion of being
involved in a narcotics transaction in an area where Officer Cowdery had
previously made narcotics arrests. N.T., 7/24/13, at 6. Following the
transaction, Officer Cowdery observed Appellant quickly transfer the small
objects he received in exchange for money to his pocket. Id. at 8. After
Officer Cowdery detained Appellant, Appellant would not remove his hands
from his pockets, despite Officer Cowdery asking him three times. Id. at 8-
9. During the protective frisk, Officer Cowdery stated that he “felt in
[Appellant’s] right front pants pocket what appeared to be narcotics
packaging.” Id. at 9. Officer Cowdery further described them as small
bags, and he explained in his experience he was familiar with small bags
being used to package narcotics. Id. He testified that he had previously
conducted pat-downs where he felt similar objects through clothing that
contained narcotics. Id. Therefore, the incriminating nature of the baggies
was immediately apparent to Officer Cowdery based on his observations of
Appellant’s actions prior to the investigative detention and frisk, his
experience, and his tactile impression of the size and shape of the objects.
See In re C.C., supra
Appellant contends that the incriminating nature of the bags could not
be immediately apparent to Officer Cowdery because plastic bags are
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innocuous. Appellant’s Brief at 12-15. Appellant’s argument is not
persuasive because he isolates the tactile impression from the surrounding
circumstances that led Officer Cowdery to believe that Appellant was
involved in a narcotics transaction. Id. at 15. He also attempts to isolate
the plastic material of the bags from the manner in which they were
packaged. Id. The cases Appellant relies on in his brief are distinguishable
because in those cases, the reasonable suspicion supporting the initial
detention was unrelated to an officer observing the appellant involved in a
suspected narcotics transaction.4 Moreover, in the cases Appellant cites,
either the objects felt were not immediately recognizable as contraband or
the search exceeded the scope of a Terry frisk.5 In the instant case, in
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4
See Stevenson, supra at 1263-1264 (noting, in consolidated appeal,
police initially stopped appellants for motor vehicle code violations);
Commonwealth v. E.M., 735 A.2d 654, 657-658 (Pa. 1999) (stating one
juvenile appellant was originally detained by school security guard after
going under bleachers, and the other appellant, in an unrelated case
consolidated for appellate disposition, was stopped for displaying a sandwich
bag in proximity of suspected drug transaction in which appellant did not
participate); Commonwealth v. Guillespie, 745 A.2d 654, 656 (Pa. Super.
2000) (explaining appellant was initially stopped because officer thought he
fit the description of a suspect in a recent robbery); Commonwealth v.
Mesa, 683 A.2d 643, 645 (Pa. Super. 1996) (specifying appellant was the
passenger in a vehicle stopped for erratic driving); Stackfield, 651 A.2d
558, 560 (Pa. Super. 1994) (stating appellant was present in house on which
police executed a search warrant and was handcuffed while officers were
securing the premises and frisked shortly afterwards).
5
See Commonwealth v. Stevenson, supra at 1265, 1267 (concluding
that incriminating nature of pill bottle, cigar, and cardboard packages was
not immediately apparent); Commonwealth v. E.M., supra at 658
(Footnote Continued Next Page)
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contrast, Officer Cowdery stopped Appellant under reasonable suspicion of
purchasing narcotics and conducted a lawful protective frisk, during which he
felt in Appellant’s pocket small items that he immediately recognized were
small plastic bags packaged in a way common in narcotics trafficking based
on his experience. The plain feel of the objects confirmed Officer Cowdery’s
suspicion that Appellant had engaged in a narcotics transaction. Therefore,
based on the totality of the above circumstances, we conclude that the
seizure of the small packages was proper under the plain feel doctrine
because their incriminating nature was immediately apparent to Officer
Cowdery. See Stevenson, supra at 1265; In re C.C., supra.
Based on the foregoing, we conclude that the trial court properly
denied Appellant’s motion to suppress. See Scarborough, supra.Accordingly, the trial court’s July 24, 2013 judgment of sentence is affirmed.
Judgment of sentence affirmed.
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(Footnote Continued)
(holding one officer exceeded scope of protective frisk as he admitted the
purpose of the search was to discover whether bag in appellant’s pocket
contained drugs and concluding the other officer, in consolidated case, did
not meet plain feel doctrine because he testified it was not immediately
apparent that bulge in appellant’s pocket was contraband); Commonwealth
v. Guillespie, supra at 659 (concluding the scope of a Terry frisk was
exceeded because the incriminating nature of the items in appellant’s pocket
was not immediately apparent); Commonwealth v. Mesa, supra at 648(holding the bulge in appellant’s pocket was not immediately recognized as
contraband); Commonwealth v. Stackfield, supra at 562 (concluding that
a zip-lock baggie was not immediately identifiable as contraband).
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/23/2015
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