Com. v. Alton, S. ( 2020 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
STANLEY ALTON, JR. :
:
Appellant : No. 1375 WDA 2018
Appeal from the Judgment of Sentence Entered August 23, 2018
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0012885-2017
BEFORE: PANELLA, P.J., KUNSELMAN, J., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY PANELLA, P.J.: FILED FEBRUARY 3, 2020
Stanley Alton appeals from the judgment of sentence entered on August
23, 2018, in the Allegheny County Court of Common Pleas after the trial court
convicted him of possession of ecstasy pursuant to a stipulated non-jury trial.
On appeal, Alton contends the trial court erred in failing to suppress the
ecstasy as he believes the frisk violated his constitutional rights. After careful
review, we affirm.
While on routine patrol, Pittsburgh Police Officers Dixon and Grey
watched as an SUV drove through a stop sign at a high rate of speed. Due to
the motor vehicle violations, they pursued the SUV and pulled it over.
When Officers Dixon and Grey approached the vehicle, an odor of
marijuana streamed from the car as the driver lowered his window. The
officers requested identification from the driver, Terrence Morgan, and his
passenger, Alton. Both men complied.
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After conducting identification and warrant checks, the officers
discovered that Morgan had an outstanding arrest warrant and a suspended
driver’s license. As a result, Morgan was placed in custody, and Alton was
patted down. No weapons were found on Alton.
However, during the pat down, Officer Dixon felt a bulge in Alton’s
pocket that, based on his training and experience, indicated to him it was
potential contraband. Shortly thereafter, Alton acknowledged that the object
was ecstasy, and Officer Dixon placed him in custody. The officers then
performed a search of Morgan’s vehicle and discovered a loaded handgun in
the glove compartment.
Following his arrest, Alton filed a motion to suppress the ecstasy,
claiming he was subject to an illegal search. The trial court denied his motion
and held the case for trial. The court found Alton guilty of one count of
possession of a controlled substance and sentenced him to 3 to 6 months’
imprisonment.1 This appeal is now properly before us.
In his brief, Alton raises two issues for our review: (1) the police failed
to establish the requisite reasonable suspicion to perform a protective frisk of
his person; and (2) the seizure of the pills violated the plain feel doctrine. See
Appellant’s Brief, at 9, 11.
As an initial matter, we must address the Commonwealth’s argument
that Alton waived his second claim. The Commonwealth here contends that
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1 See Pa.C.S.A. 35 § 780-113(a)(16).
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Alton failed to include his plain feel argument in his Pa.R.A.P. Rule 1925(b)
statement. See Appellee’s Brief, at 35. Our review of Alton’s 1925(b)
statement confirms the Commonwealth’s assertion, and Alton has not filed a
reply brief responding to the Commonwealth’s claim. As our Supreme Court
has noted, “any appellate issues not raised in a Rule 1925(b) statement will
be deemed waived.” Commonwealth v. Hill, 16 A.3d 484, 494 (Pa. 2011).
Therefore, based on our review of his Rule 1925(b) statement, we agree with
the Commonwealth that Alton waived this claim.
In his sole preserved issue on appeal, Alton contends the trial court
erred in denying his motion to suppress. In particular, Alton argues that Officer
Dixon failed to establish there was reasonable suspicion to believe he was
armed and dangerous. See Appellant’s Brief, at 11. Moreover, because Officer
Dixon lacked reasonable suspicion, Alton asserts that he was subject to an
illegal frisk as a result. See id. Therefore, Alton concludes the ecstasy was
illegally obtained.
The Commonwealth counters that Officer Dixon possessed the requisite
reasonable suspicion to conduct a frisk of Alton. Indeed, the Commonwealth
argues that the smell of marijuana and the driver’s arrest were specific and
articulable facts from which Officer Dixon could reasonably infer that Alton
was armed and dangerous. See Appellee’s Brief, at 24-25. As such, the
Commonwealth concludes the trial court did not err in denying Alton’s motion
to suppress.
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In reviewing the denial of a suppression motion, we must determine
whether the record supports the lower court’s factual findings and whether
the legal conclusions drawn from those facts are correct. Commonwealth v.
Raglin, 178 A.3d 868, 871 (Pa. Super. 2018). While our standard of review
is highly deferential to the suppression court’s factual findings and credibility
determinations, we afford no deference to the court’s legal conclusions, and
review such conclusions de novo. See Commonwealth v. Hughes, 836 A.2d
893, 898 (Pa. 2003).
Here, it is important to note that Alton does not challenge the initial
traffic stop or the subsequent search of the vehicle. See Appellant’s Brief, at
10. To that end, there is no dispute that Officers Dixon and Grey conducted a
lawful traffic stop, based upon violations of the Motor Vehicle Code, and a
permissible search of the vehicle. Further, our review of the record indicates
that such conduct was legally permissible. Accordingly, we will only address
whether Officer Dixon had reasonable suspicion to conduct a pat down search
of Alton after Morgan was placed in custody.
A police-citizen encounter may implicate the liberty and privacy
interests of the citizen as guaranteed by the Fourth Amendment to the United
States Constitution and Article I, § 8 of the Pennsylvania Constitution. See
Commonwealth v. Smith, 172 A.3d 26, 31 (Pa. Super. 2017). Fourth
Amendment jurisprudence recognizes three levels of interactions between
police officers and citizens: (1) a mere encounter; (2) an investigative
detention; and (3) a custodial detention. See id., at 32.
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The first of these interactions is a mere encounter, which need not be
supported by any level of suspicion, as it carries no official compulsion for a
citizen to stop or respond. See Raglin, 178 A.3d at 871. The second, an
investigative detention, must be supported by reasonable suspicion; it
subjects a suspect to a stop and a period of detention, but does not constitute
an arrest. See Commonwealth v. Baldwin, 147 A.3d 1200, 1202 (Pa.
Super. 2016). Finally, a custodial detention or an arrest must be supported by
probable cause. See Commonwealth v. Collins, 950 A.2d 1041, 1046 (Pa.
Super. 2008).
In the instant case, Officer Dixon conducted a frisk of Alton pursuant to
Terry v. Ohio, 392 U.S. 1 (1968). A Terry frisk is a type of investigative
detention in which an officer briefly detains a citizen if the officer “observes
unusual conduct which leads him to reasonably conclude, in light of his
experience, that criminal activity may be afoot.” Commonwealth v.
Fitzpatrick, 666 A.2d 323, 325 (Pa. 1995). If an officer is justified in believing
the detained individual is armed and dangerous, the officer may then conduct
a frisk of the individual’s outer garments for weapons. See Commonwealth
v. Scarborough, 89 A.3d 679, 683 (Pa. Super. 2014). Accordingly, a Terry
frisk applies to traffic stops, such as the one here, in the same way as other
typical police encounters. See Commonwealth v. Mesa, 683 A.2d 643, 646
(Pa. 1996).
To conduct a Terry frisk for weapons, the police must have reasonable
suspicion. See Commonwealth v. Simmons, 17 A.3d 399, 403 (Pa. Super.
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2011). “In order to establish reasonable suspicion, the police officer must
articulate specific facts from which he could reasonably infer that the
individual was armed and dangerous.” Commonwealth v. Mack, 953 A.2d
587, 590 (Pa. Super. 2008) (citation omitted). Further, the facts indicating
that an individual is armed and dangerous must be viewed under the totality
of the circumstances. See Commonwealth v. Holmes, 14 A.3d 89, 95 (Pa.
2011). If either the initial stop or the frisk is found to be unreasonable, all
evidence derived from the illegal government activity must be excluded. See
Simmons, 17 A.3d at 403.
Alton, as an occupant of the vehicle, was subject to a Terry frisk by
Officer Dixon following Morgan’s arrest. Generally, “all companions of [an]
arrestee within the immediate vicinity, capable of accomplishing a harmful
assault on the officer, are constitutionally subject to the cursory ‘pat-down’
reasonably necessary to give assurance that they are unarmed.”
Commonwealth v. Jackson, 907 A.2d 540, 543-44 (Pa. Super. 2006) (citing
United States v. Berryhill, 445 F.2d 1189, 1193 (9th Cir. 1971). In other
words, an arrestee’s companion, like Alton, may be frisked if there is
reasonable suspicion that the companion is armed and dangerous. See id., at
544-45. However, we cannot conclude in this case that Officer Dixon
established the requisite reasonable suspicion to pat down Alton for weapons.
Here, Officer Dixon identified no specific, articulable facts that would
indicate Alton was armed or dangerous. The pat down, as Officer Dixon
testified, was performed based on the totality of the circumstances in this
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case; namely, the smell of marijuana and Morgan’s outstanding arrest
warrant. See N.T., Hearing, 06/12/18, at 8. Although the smell of marijuana
may indicate illegal activity, Pennsylvania does not recognize the “guns follow
drugs” presumption as a basis to justify a frisk for weapons. See
Commonwealth v. Grahame, 7 A.3d 810, 816 (Pa. 2010). In addition, there
is no evidence that Alton’s conduct conveyed a threat of danger to Officer
Dixon. The pat down of Alton was therefore illegal due to the absence of
reasonable suspicion.
Although the suppression court incorrectly found reasonable suspicion
existed here to frisk Alton, the error is not consequential to our conclusion
because the suppression court’s legal findings are not binding on this Court.
See In re O.J., 958 A.2d 561, 564 (Pa. Super. 2008). Moreover, “if the record
supports the result reached by the suppression court, we may affirm on any
ground.” Commonwealth v. Brown, 64 A.3d 1101, 1105 n.3 (Pa. Super.
2013) (citation omitted). Therefore, we can affirm the trial court’s denial of
Alton’s motion to suppress if we conclude another basis exists to justify the
Terry frisk here.
In its brief, the Commonwealth asserts there is an alternative basis upon
which to affirm the suppression court’s decision in this case: the inevitable
discovery doctrine. See Appellee’s Brief, at 27. The Commonwealth argues
there was probable cause to search Morgan’s car based upon the odor of
marijuana that was detected by the officers during the traffic stop. See id.,
at 31-32. After police discovered the firearm inside the vehicle, the
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Commonwealth asserts that Officer Dixon would have had at least reasonable
suspicion to believe Alton might have also had a firearm on his person. See
id., at 34. Therefore, on that basis, the Commonwealth contends that the frisk
would have resulted in the inevitable discovery of the drugs on Alton’s person.
See id. For that reason, the Commonwealth concludes we should affirm the
suppression court’s decision.
The inevitable discovery doctrine provides that “evidence which would
have been discovered was sufficiently purged of the original illegality to allow
admission of the evidence.” Commonwealth v. Ingram, 814 A.2d 264, 272
(Pa. Super. 2002). This doctrine requires that the evidence at issue would
have been discovered inevitably despite the initial illegality. See
Commonwealth v. Gonzalez, 979 A.2d 879, 890 (Pa. Super. 2009).
Consequently, the burden of proving such inevitable discovery, by a
preponderance of the evidence, rests with the Commonwealth. See
Commonwealth v. Hoffman, 589 A.2d 737, 743 (Pa. Super. 1991).
Here, Alton was arrested after Officer Dixon patted him down and
located the ecstasy pills in his pocket. Although Officer Dixon lacked
reasonable suspicion to frisk Alton initially, the officer would have eventually
acquired reasonable suspicion to pat him down. The lawful search of Morgan’s
car for marijuana in which police found a firearm would have provided Officer
Dixon with reasonable suspicion to frisk Alton for weapons. See
Commonwealth v. Powell, 934 A.2d 721, 723-24 (Pa. Super. 2007)
(holding that pat down of passenger was justified where police had already
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retrieved a gun from the driver). And so, Officer Dixon’s pat down of Alton
would have resulted in the inevitable discovery of the drugs in his pocket.
Hence, we conclude that the Commonwealth established by a
preponderance of the evidence that the drugs in Alton’s pocket would have
been inevitably discovered absent police error. For that reason, the record
supports the suppression court’s finding that the evidence was not subject to
suppression.
Judgment affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/3/2020
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