Com. v. Fant, R. ( 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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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
Appellant
v.
RAHIEM CARDEL FANT,
Appellee No. 1793 MDA 2014
Appeal from the Order Entered October 14, 2014
In the Court of Common Pleas of Clinton County
Criminal Division at No(s): CP-18-CR-0000273-2014
BEFORE: BOWES, JENKINS, AND PLATT,* JJ.
MEMORANDUM BY BOWES, J.: FILED OCTOBER 09, 2015
The Commonwealth appeals from the order entered October 14, 2014,
granting Rahiem Cardel Fant’s motion to suppress.1 After careful review, we
reverse.
Appellee was a rear passenger in an automobile stopped by
Pennsylvania State Troopers Kenneth Riggle and his partner Trooper Andrew
Mincer. The officers observed the vehicle, a green Mitsubishi, at
approximately 11:40 p.m. on May 4, 2014, traveling without operating tail
lights. After pulling over the vehicle, Trooper Mincer exited and approached
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1
We have jurisdiction to consider this appeal pursuant to Commonwealth
v. Dugger, 486 A.2d 382, 386 (Pa. 1985), and Pa.R.A.P. 311(d).
*
Retired Senior Judge assigned to the Superior Court.
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the passenger side of the Mitsubishi. As he walked toward the car, Trooper
Mincer saw Appellee make movements that looked like he placed several
items into his pockets and hid items in between the rear seats.
After Appellee failed to heed his commands to keep his hands out of
his pockets, Trooper Mincer directed the three occupants of the car to exit.
Trooper Mincer knew the front seat passenger, who had threatened to shoot
state police in one prior encounter. He conducted a frisk of the front seat
passenger and driver before turning his attention to Appellee. Trooper
Mincer also knew Appellee from prior contacts and was aware that Appellee
had carried a four-inch pocketknife on at least two other occasions.
Appellee was breathing heavily, sweating, and appeared nervous even
before Trooper Mincer asked him to exit the car. When Trooper Mincer
attempted to pat down Appellee, Appellee turned away and put his body
against the car to prevent the trooper from searching him. Trooper Mincer,
along with another officer, Brian Burger of the Lock Haven Police, restrained
Appellee and the trooper searched him. Trooper Mincer felt a bulge in
Appellee’s left front pocket and located $816 in cash. In addition, Trooper
Mincer felt a cylinder-like object in Appellee’s groin region and found a clear
bottle of PCP.
The Commonwealth charged Appellee with possession with intent to
deliver (“PWID”) and possession of a controlled substance. Appellee filed a
bill of particulars and, on August 25, 2014, a suppression motion. Appellee
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contended that the search violated his Fourth Amendment and Article I, § 8
rights against unreasonable searches. The suppression court conducted a
suppression hearing and took the matter under advisement. Thereafter, it
granted Appellee’s motion to suppress, finding that Trooper Mincer did not
have reasonable suspicion to conduct the Terry2 frisk. The Commonwealth
timely appealed and the suppression court directed it to file and serve a
Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal. The
Commonwealth complied, and the suppression court indicated that the
reasons for its decision could be found in its earlier opinion in support of its
suppression order. The matter is now ready for our review. The
Commonwealth presents two questions for this Court’s consideration.
I. Did the court err in finding that the trooper did not have
the authority to order the defendant to exit the vehicle?
II. Did the court err in finding that the trooper did not have
requisite cause necessary to conduct a “Terry” frisk of the
defendant?
Commonwealth’s brief at 4.
This Court evaluates the grant of a suppression motion under well-
established principles. We consider the evidence of the defendant, as the
prevailing party below, and any evidence of the prosecution that is
uncontradicted when examined in the context of the suppression record.
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2
Terry v. Ohio, 392 U.S. 1 (1968).
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Commonwealth v. Peterson, 17 A.3d 935, 937 (Pa.Super. 2012). This
Court is bound by the factual findings of the suppression court where the
record supports those findings and may only reverse when the legal
conclusions drawn from those facts are in error. Id. Importantly, we are
not bound by the legal conclusions of the suppression court. In re T.B., 11
A.3d 500, 505 (Pa.Super. 2010).
We begin by noting that to conduct a Terry frisk, police must have
reasonable suspicion that the individual is armed and dangerous.
Commonwealth v. Pakacki, 901 A.2d 983 (Pa. 2006). “[A] police officer
may frisk the individual to search for weapons if ‘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. Espada, 528 A.2d 968, 969
(Pa.Super. 1987) (quoting Terry, supra).It is well-settled that “even a combination of innocent facts, when
taken together, may warrant further investigation[.]” Commonwealth v.
Kemp, 961 A.2d 1247, 1255 (Pa.Super. 2008) (en banc); see also
Commonwealth v. Cook, 735 A.2d 673, 676 (Pa. 1999). As this Court
cogently stated in Commonwealth v. Riley, 715 A.2d 1131, 1135
(Pa.Super. 1998), “Merely because a suspect's activity may be consistent
with innocent behavior does not alone make detention and limited
investigation illegal. . . . Rather, we view the circumstances through the
eyes of a trained officer, not an ordinary citizen.”
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The Commonwealth contends that the suppression court erred in ruling
that “Trooper Mincer conducted an unreasonable search and seizure of
defendant when Trooper Mincer ordered defendant out of the vehicle and
conducted a frisk of defendant’s person under the justification of defendant’s
furtive movements, nervousness and previous possession of a pocketknife.”
Commonwealth’s brief at 12 (quoting Suppression Court Opinion, 10/14/14,
at 12). It highlights that police are permitted to remove occupants of an
automobile without any suspicion that criminal activity is occurring. See
Commonwealth v. Brown, 654 A.2d 1096, 1102 (Pa.Super. 1995). Thus,
it maintains that the suppression court incorrectly ruled that Trooper Mincer
did not have reasonable suspicion to ask Appellee to step out of the vehicle.
Appellee does not defend the suppression court’s reasoning in this
regard. Instead, he argues that the suppression court’s reliance on
Commonwealth v. Reppert, 814 A.2d 1196 (Pa.Super. 2002) (en banc),
supports its conclusion that the Terry frisk was unlawful. We disagree.
Reppert was a back seat passenger in a vehicle stopped for a registration
sticker violation. While pursuing the vehicle, police saw Reppert engage in
movements that indicated that he was stuffing items into his pockets or
between the seat. The officer, however, did not remove Reppert from the
car or frisk him after stopping the car. Instead, he accepted the driver’s
explanation for the expired registration sticker and elected not to issue a
citation. However, after the conclusion of that portion of the stop, he asked
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Reppert to exit the car. He then saw bulges in Reppert’s pockets and
directed Reppert to empty his pockets. When Reppert did so, the officer
uncovered drugs, a small scale, and cash. We held that the original lawful
traffic stop had concluded and that Reppert’s furtive movements, without
more, did not justify the additional detention and search.
The Commonwealth contends that, under the totality of circumstances
presented herein, Trooper Mincer had reasonable suspicion to perform the
pat down search. We agree. Instantly, Trooper Mincer had prior
interactions with Appellee. Trooper Mincer knew Appellee carried a four-inch
folding knife on previous occasions. Appellee was nervous, sweating,
breathing heavily, and would not refrain from moving his hands before
Trooper Mincer asked him to alight from the vehicle. Additionally, Trooper
Mincer saw Appellee make movements that indicated that he was attempting
to hide objects in the rear seat. Thus, Trooper Mincer did point to specific
and articulable facts that Appellee was engaged in criminal activity.
To the extent the suppression court concluded that Trooper Mincer
could not reasonably believe Appellee was armed since he frisked the front
seat passenger and driver first, it ignored the fact that Trooper Mincer knew
that the front seat passenger had threatened to shoot police. Simply
choosing to frisk that individual and the driver before Appellee does not ipso
facto mean that he could not articulate specific facts indicating a reasonable
fear that Appellee was also armed.
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Moreover, the suppression court plainly erred in determining Trooper
Mincer’s removal of Appellee from the car to be a significant factor in
conducting its legal analysis. See Brown, supra. An officer may ask a
person to exit his car without suspicion of criminal wrongdoing without
running afoul of the Fourth Amendment or Article I, § 8. Further, while the
Reppert Court held that furtive movements did not provide sufficient
grounds for the second interaction with the defendant therein, this case is
distinguishable and presents additional factors not at issue in Reppert.
Specifically, Trooper Mincer knew Appellee carried a weapon in previous
interactions. The contention by Appellee and the suppression court that the
carrying of a knife is not illegal absent testimony that Appellee used the
knife illegally, see Suppression Court Opinion, supra at 11, ignores the long
settled law that a combination of innocent behaviors may justify an
investigative search.
This case is more akin to Commonwealth v. Buchert, 68 A.3d 911(Pa.Super. 2013), than Reppert. In Buchert, police also pulled over a
vehicle for a broken taillight. The stop occurred at night, as here. The
defendant made furtive movements inside the car by bending forward and
appearing to reach under his front passenger seat. The police directed the
occupants of the car to remain still and keep their hands visible. Unlike the
present case, where Appellee continued to move his hands, Buchert and his
companion complied. Buchert appeared nervous and was breathing heavily.
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After Buchert and the driver were removed from the car and searched, police
searched the immediate vicinity of where Buchert had been sitting. Police
recovered a gun. The court therein suppressed the evidence. We reversed,
distinguishing Reppert. Quoting Commonwealth v. Simmons, 17 A.3d
399, 405 (Pa.Super. 2011), we set forth:
When properly understood, Reppert stands for the proposition
that pre-stop furtive movements, by themselves, may not be
used to justify an investigative detention and search commenced
after the conclusion of a valid traffic stop where the totality of
circumstances has established that the furtive movements did
not raise immediate concern for the safety of the officer who
undertook the initial vehicle detention.
Buchert, supra at 914-915. Continuing, the Buchert Court held,
[t]he combination of Appellee's furtive movement of leaning
forward and appearing to conceal something under his seat,
along with his extreme nervousness and the night time stop, was
sufficient to warrant a reasonable police officer to believe that
his safety was in danger and that Appellee might gain immediate
control of a weapon.
Buchert, supra at 916-917; see also Simmons, supra.Buchert compels the same result in this case. The combination of
Trooper Mincer’s previous interactions with Appellee where Appellee carried
a weapon, Appellee’s furtive movements, and extreme nervousness during a
night-time stop rendered the Terry frisk lawful.
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Order reversed. Case remanded. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/9/2015
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