Com. v. Dempsis, A. ( 2016 )

J-A33018-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
ALVAREZ DEMPSIS
Appellee No. 3452 EDA 2014
Appeal from the Order entered November 10, 2014
In the Court of Common Pleas of Philadelphia County
Criminal Division at No: CP-51-CR-0003785-2010
BEFORE: FORD ELLIOTT, P.J.E., STABILE, and STRASSBURGER,* JJ.
MEMORANDUM BY STABILE, J.: FILED April 27, 2016
Appellant, the Commonwealth, appeals from the order the Court of
Common Pleas of Philadelphia County entered on November 10, 2014,
granting Appellee Alvarez Dempsis’ motion to suppress the evidence seized
following Appellee’s arrest. The trial court found the officers did not have
reasonable suspicion to stop Appellee. In reaching this conclusion, the trial
court noted that the officers stopped Appellee based on “nebulous”
information provided by an “unnamed source,” with a “low indicia of
reliability,” and “very little police corroboration.” The record does not
support the trial court’s characterization of the evidence or its legal
conclusions. Accordingly, we reverse.
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*
Retired Senior Judge assigned to the Superior Court.
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The relevant factual and procedural background of the instant matter
can be summarized as follows. On November 11, 2009, Officer Russell
Wesley Simmons, a 17-year police veteran, was conducting a narcotics
investigation near the 6400 block of Palmetto Street, in the northeast
section of Philadelphia, based on information provided by a confidential
source of another officer, Officer Barber. The confidential source told Officer
Barber that he had a telephone number for a “Hispanic male” who could
provide a large quantity of heroin. The confidential source indicated that the
Hispanic male operated a 1997 dark-colored, two-door Acura, and delivered
drugs in the area of northeast Philadelphia. Later that day, around 11 p.m.,
the confidential source called the Hispanic male to make arrangements for
the delivery of a large quantity of heroin. Specifically, the confidential
source and the “Hispanic man” agreed that they would meet at Levick and
Rising Sun Avenue—located in the area of 6400 block of Palmetto Street 1—
shortly after the phone call to complete the sale. The phone call took place
in the presence of Officer Simmons, who could also hear the conversation as
it was on speaker.
Around 1 a.m. on November 12, 2009, Officer Simmons set up a
surveillance team in the area where the delivery was to take place. During
the surveillance, the confidential source received a phone call from the
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1
The officers described the area as “slightly residential and more business
area.” N.T. Hearing, 10/20/2014, at 18.
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Hispanic male, who was calling from the same number the confidential
source had called earlier that night. Based on the information, the
surveillance team was on the lookout for a Hispanic male in the area of
Levick and Rising Sun Avenue. Officer Jeffrey Francis of the surveillance
team saw a black, two-door Acura with three occupants parking on the 6400
block of Palmetto Street. Later he saw Appellee get out of the car and walk
south while holding a cell phone by his ear. When Appellee reached the 500
block of Levick Street, he started looking back and forth, before walking
westward. Another member of the surveillance team, Officer Pellum
Coaxum, a 20-year police veteran, saw Appellee walking back and forth on
the corner of Levick and Palmetto Streets. He had a cell phone in his hand
and appeared to be engaged in a phone call. No one else was on that street.
Along with other officers, Officer Coaxum approached Appellee and identified
himself as a police officer. While interacting with Appellee, Officer Coaxum
noted that Appellee had his right hand concealed in his jacket pocket.
Officer Coaxum believed Appellee might be armed and became concerned
for his safety. The officer repeatedly asked Appellee to keep his hand out of
the pocket, but Appellee refused to do so. Officer Coaxum then grabbed
Appellee’s right forearm and attempted to remove Appellee’s hand from the
pocket. In doing so, Officer Coaxum felt a hard object inside Appellee’s
sleeve, which he believed to be a weapon. A struggle between the two
ensued, and eventually they both fell on the ground where Appellee
continued to fight the officer by kicking his feet and swinging at the officer
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with the left arm/hand. Officer Coaxum and the other officers eventually
were able to subdue Appellee. He was arrested. Incident to his arrest, he
was frisked, at which point the officers found on Appellee 200 bundles of
heroin, four cell phones, and $2,380 in cash.
A criminal complaint was filed charging Appellee with possession with
intent to deliver a controlled substance (heroin), criminal use of
communication facility, and intentional possession of a controlled substance
without a license, and conspiracy. Following a preliminary hearing, only the
first three charges were bound over to the trial court. Before the trial court,
Appellee challenged the legality of his seizure, arguing the officers did not
have reasonable suspicion or probable cause to seize him. The trial court
agreed. This appeal followed.
On appeal the Commonwealth raises the following issue:
Did the lower court err in suppressing evidence on the ground
that police lacked reasonable suspicion to stop [Appellee], where
he arrived at the pre-arranged location for a drug deal, in the
middle of the night, in a car identified by a known source, acted
suspiciously at the scene, and refused to remove his hand from
his pocket?
Commonwealth’s Brief at 4.
In reviewing an appeal by the Commonwealth of a suppression
order, we may consider only the evidence from the appellee’s
witnesses along with the Commonwealth’s evidence which
remains uncontroverted. Our standard of review is restricted to
establishing whether the record supports the suppression court’s
factual findings; however, we maintain de novo review over the
suppression court’s legal conclusions.
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Commonwealth v. Brown, 996 A.2d 473, 476 (Pa. 2010). At issue here is
whether the officers had sufficient reasonable suspicion to warrant Appellee’s
seizure. In making such determination, we are guided by the following
authorities:
[P]olice officers [may] detain individuals for a brief investigation
when they possess reasonable suspicion that criminal activity is
afoot. 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.
Id. at 476-77 (internal citations omitted).
Appellee argued, and the trial court agreed, that the quantum of
information the officers had when they conducted the stop was vague,
coming from an untested source, and barely corroborated by the police.
According to the trial court, the information provided by the source was
vague because it merely alerted the officers that the confidential source
knew of a Hispanic male willing to sell a large amount of heroin in the
northeast section of Philadelphia. We disagree.
When challenged by a defendant with a motion to suppress, the
Commonwealth must show it conducted a legal seizure or search. In the
instant matter, it had to show it had reasonable suspicion to stop Appellee.
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The reasonable suspicion standard is lower than probable cause, and
considerably lower than the beyond a reasonable doubt standard.2
However, “[t]he officer must be able to articulate more than an inchoate and
unparticularized suspicion or hunch of criminal activity.” Illinois v.
Wardlow, 528 U.S. 119, 123-24, (2000) (internal quotation marks and
citation omitted). Under a reasonable suspicion standard, the
Commonwealth must show that the officer conducting the stop reasonably
suspected that the individual was engaging in criminal conduct. 3 The
determination of whether the police officer had reasonable suspicion to stop
is based on the totality of the circumstances, see Commonwealth v.
Zhahir, 751 A.2d 1153, 1156-57 (Pa. 2000), which include tips, the
reliability of the informants, time, location, and suspicious activity, including
flight. In the Interest of M.D., 781 A.2d 192, 197 (Pa. Super. 2001).
“The totality of the circumstances test does not limit our inquiry to an
examination of only those facts that clearly indicate criminal conduct.”
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2
See, e.g., Commonwealth v. Epps, 608 A.2d 1095, 1096 (Pa. Super.
1994) (“It is well settled that to justify their decision to stop and briefly
detain appellant, the police need not establish their suspicions to a level of
certainty, a preponderance, or even a fair probability.”).
3
See Commonwealth v. Rogers, 849 A.2d 1185, 1190 (Pa. 2005)
(“reasonable suspicion does not require that the activity in question must be
unquestionably criminal before an officer may investigate further. Rather,
the test is what it purports to be—it requires a suspicion of criminal conduct
that is reasonable based upon the facts of the matter”) (internal citation
omitted) (emphasis in original).
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Commonwealth v. Davis, 102 A.3d 996, 1000 (Pa. Super. 2014) (citation
omitted). “Even a combination of innocent facts, when taken together, may
warrant further investigation by the police officer.” Commonwealth v.
Cook, 735 A.2d 673, 676 (Pa. 1999). Finally, “[i]n reviewing the propriety
of an officer’s conduct, courts do not have available empirical studies dealing
with inferences drawn from suspicious behavior, and we cannot reasonably
demand scientific certainty from judges or law enforcement officers where
none exists.” Wardlow, 528 U.S. at 125. Thus, “the determination of
reasonable suspicion must be based on commonsense judgments and
inferences about human behavior.” In the Interest of M.D., 781 A.2d at
199 (quoting Wardlow, supra).
Generally, a tip is nothing more than information pertaining to an
alleged criminal activity, which might be the basis for further investigation.
See Commonwealth v. Winbush, 750 A.2d 807, 811-12 (Pa. 2000)
(“When the police receive unverified information that a person is engaged in
illegal activity, the police may observe the suspect and conduct an
investigation. If police surveillance produces a reasonable suspicion of
criminal conduct, the suspect may be stopped and questioned”) (citation
omitted). The information here alerted the officers of the exact location and
the approximate time of the delivery of a large amount of heroin. According
to the tip, the seller was a Hispanic male who operated a 1997, dark-
colored, two-door Acura. Based on this information, the officers set up a
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surveillance team to check on the reliability of the information provided. Not
too long after the surveillance team was in place, at least one officer saw
Appellee getting out of a black, two-door Acura, which was parked in the
general area where the drug transaction was to occur. After walking a short
distance, Appellee showed up at the time and location agreed upon by the
source and the Hispanic male. It was late at night, no one was present at
that location, a “slightly residential and more business area,” N.T. Hearing,
10/20/2014, at 18. Appellee appeared nervous while pacing back and forth
at the location set for the drug transaction. While at the location, the
officers decided to approach Appellee. When the officers approached
Appellee, Appellee kept his right hand in the pocket, and refused to take the
hand out, despite being asked by the officers to do so.
The foregoing shows officers did not stop Appellee merely because
they heard from an “unnamed” source that he was a drug dealer in the
northeast section of Philadelphia. Appellee was stopped because, inter alia,
he showed up at the time and location set for completing a large transaction
involving heroin. It was late at night in November. No one else was on that
street except Appellee, a Hispanic male, who just got out of a black, two-
door, Acura. Appellee appeared nervous while standing at the location.
When the officers approached him, Appellee kept his right hand in a pocket
of the jacket. Despite the officers repeatedly asking Appellee to take his
right hand out of the pocket, Appellee refused to do so. The trial court
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ignores that the “single factor of the defendant keeping his hand in his
pocket after being asked to remove it escalated the encounter into one of
reasonable suspicion.” Commonwealth v. Scarborough, 89 A.3d 679,
684 (Pa. Super. 2014) (citing Commonwealth v. Hall, 713 A.2d 650 (Pa.
Super. 1998), reversed on other grounds, 771 A.2d 1232 (Pa. 2001)). As
we have discussed, not only is that same factor present here, but there are
additional factors supporting a finding of reasonable suspicion. In light of
the foregoing, we conclude that in light of the totality of the circumstances,
the officers had reasonable suspicion to stop Appellee to investigate the tip.
Accordingly, the trial court erred in concluding otherwise.
The trial court noted that the tipster was not reliable because he had
not been used by the police previously as an informant. While the source
might not have provided information to investigators in the past, that is not
dispositive of the instant source’s reliability. If that were the test, no
informant would ever be able to meet the reliability test as understood by
the trial court. There is always a first time for informants. If there were
not, no one would ever qualify as reliable.
The trial court also noted that the fact the confidential source was a
defendant in another criminal matter made the information provided less
reliable. If anything, it made the information more reliable. The confidential
source, known to the police, had no incentive in not telling the officers the
truth. To the contrary, the informant had all incentives to be as helpful and
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precise as possible. Our appellate courts “have recognized a known
informant is far less likely to produce false information. A known informant’s
tip may carry sufficient “indicia of reliability” to justify an investigative
detention despite the fact that it may prove insufficient to support an arrest
or search warrant.” Brown, 996 A.2d at 477. Indeed, “a known informant
places himself at risk of prosecution for filing a false claim if the tip is
untrue, whereas an unknown informant faces no such risk.”
Commonwealth v Krisko, 884 A.2d 296, 301 (Pa. Super. 2005).
In light of the foregoing, we conclude the trial court erred in
suppressing the evidence obtained from the investigative detention.
Order reversed. Case remanded for further proceedings consistent
with this memorandum. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/27/2016
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