Com. v. Green, A. ( 2020 )

J-A28012-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ANTHONY THOMAS GREEN :
:
Appellant : No. 2393 EDA 2018
Appeal from the Judgment of Sentence Entered May 30, 2018
In the Court of Common Pleas of Montgomery County Criminal Division
at No(s): CP-46-CR-0003259-2017
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ANTHONY THOMAS GREEN :
:
Appellant : No. 2412 EDA 2018
Appeal from the Judgment of Sentence Entered May 30, 2018
In the Court of Common Pleas of Montgomery County Criminal Division
at No(s): CP-46-CR-0003256-2017
BEFORE: PANELLA, P.J., STABILE, J., and STEVENS, P.J.E.*
MEMORANDUM BY STEVENS, P.J.E.: FILED MARCH 11, 2020
Appellant, Anthony Thomas Green, appeals from the judgments of
sentence entered in two separate cases on May 30, 2018, in the Court of
Common Pleas of Montgomery County. Specifically, as to lower court docket
number CP-46-CR-0003259-2017 (“3259-2017”), Appellant was convicted at
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* Former Justice specially assigned to the Superior Court.
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a bench trial of possession of a firearm prohibited, firearms not to be carried
without a license, two counts of possession with the intent to deliver a
controlled substance, and possession of a controlled substance.1 Further, as
to lower court docket number CP-46-CR-0003256-2017 (“3256-2017”),
Appellant was convicted at a bench trial of three counts of possession with the
intent to deliver a controlled substance, three counts of possession of a
controlled substance, and one count of possession of drug paraphernalia.2
After a careful review, we affirm Appellant’s judgments of sentence at both
lower court docket numbers.
The relevant facts and procedural history are as follows: On April 3,
2017, the police arrested Appellant and charged him with various firearm and
drug offenses. This case was docketed in the lower court at 3259-2017.
Appellant posted bail, and on April 9, 2017, the police arrested Appellant and
charged him with new drug offenses. This case was docketed in the lower
court at 3256-2017.
On July 28, 2017, Appellant filed a counseled pre-trial suppression
motion at both lower court docket numbers, and on October 24, 2017,
Appellant proceeded to a single suppression hearing related to both
suppression motions.
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1 18 Pa.C.S.A. §§ 6105 and 6106; 35 P.S. §§ 780-113(a)(30) and (a)(16),
respectively.
2 35 P.S. §§ 780-113(a)(3), (a)(16), and (a)(32), respectively.
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At the hearing, Norristown Police Detective David Crawford, who has
been a law enforcement officer for over ten years, testified he was “in charge
of burglary cases and sex crimes[,]” as well as part of the Montgomery County
Drug Task Force. N.T., 10/24/17, at 7-8. On April 3, 2017, at 10:45 a.m.,
Detective Crawford, who was on routine patrol in an unmarked police vehicle,
drove by Papa Guido’s restaurant, located at the intersection of West Main
Street and Haws Avenue, when he observed Mary Bannon, who he knew from
prior police interactions, standing on the street. Id. at 8-9. Specifically,
Detective Crawford testified he knew Ms. Bannon “from prior contact, from
prostitution, and also involving heroin. She’s a known heroin addict from
having overdosed in Norristown, and also being involved with prostitution in
that same area located—it’s now called Americas Best [Value Inn], which is
also within like a block of that area.” Id. at 9.
Detective Crawford testified he parked his unmarked police vehicle and
watched as Ms. Bannon approached various men, some of whom were in
vehicles. Id. at 9-10. In this regard, he noted Ms. Bannon approached a
man in a parking lot, followed him to his white pick-up truck, conversed with
the man for several minutes, and then walked away. Id. at 10. Further, when
a black SUV drove by, Ms. Bannon yelled to the driver of the SUV, and the
driver circled back to where Ms. Bannon was standing; however, the SUV did
not stop as Ms. Bannon was already conversing with another man. Id.
Additionally, Detective Crawford observed as Ms. Bannon re-approached the
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white pick-up truck, but she then walked away. Id. Detective Crawford
observed as Ms. Bannon walked from Main Street to George Street, and she
stood in the street at the intersection of George Street and Airy Street. Id.
at 10-11.
Detective Crawford testified Ms. Bannon’s behavior was consistent with
the solicitation of clients for prostitution and/or drug purchasing; accordingly,
he pulled his police vehicle away from the curb with the intent of speaking to
the driver of the white pick-up truck. Id. at 9-11. However, at this point, he
observed a blue minivan turn from Airy Street onto George Street. Id. at 11.
Detective Crawford testified the blue minivan came to a full stop “right
in the middle of the street” in front of where Ms. Bannon was standing, and
Ms. Bannon jumped into the passenger side of the minivan. Id. The detective
continued observing the blue minivan, which travelled fifty to sixty yards and
then parked alongside of the street. Id. Detective Crawford testified that,
when the vehicle parked alongside of the street, it was not in a legal parking
spot. Id. at 12. Specifically, he testified this portion of the street was posted
with a “No Parking Here Back to Corner” sign.3 Id. at 13.
Detective Crawford testified that, after the blue minivan pulled over and
parked, he exited his unmarked police vehicle and approached the driver’s
side of the blue minivan, which had all of its windows tinted except for the
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3 The Commonwealth introduced into evidence photographs of the parking
sign.
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front windshield. Id. at 15. Detective Crawford indicated he could not clearly
see inside of the minivan; however, he observed the driver leaning forward
and moving his hands “down low.” Id. Ms. Bannon was also still in the
minivan and seated in the front passenger seat. Id. at 17.
For his safety, Detective Crawford, who was wearing a marked police
shirt and displaying a badge, pulled out his handgun, kept it “low and ready,”
opened the driver’s side door of the blue minivan, and identified himself as
“Detective Crawford, Norristown Police Department.” Id. at 15. Detective
Crawford asked the driver, who was later identified as Appellant, to exit the
blue minivan and walk to the back of the minivan. Id. at 15-16. Appellant
complied. Id. at 19.
Detective Crawford testified he had no back-up officers on sight, so he
patted-down Appellant for his safety; however, he did not handcuff Appellant.
Id. Detective Crawford indicated that, as he begin talking to Appellant about
his suspicions regarding Ms. Bannon, Appellant “started to become upset, a
little bit hyper.” Id. at 19-20.
At this point, two of Detective Crawford’s fellow officers arrived on the
scene, so Detective Crawford asked Ms. Bannon to exit the blue minivan while
his fellow officers remained with Appellant. Id. at 20. Detective Crawford
testified “[Ms.] Bannon immediately explained to me that she got in the
vehicle to purchase $30 worth of heroin off of [Appellant].” Id. She also
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informed the detective that Appellant had a handgun under the front
passenger seat. Id. at 26.
Detective Crawford testified Appellant became more uncooperative,
began screaming, refused to comply with the officers’ directives that he keep
his hands in view on the minivan, and began “pushing off the vehicle[.]” Id.
at 20-21. In response, one of the detective’s fellow officers, Police Officer
Joshua Keenan, handcuffed Appellant. Id. at 21.
Detective Crawford re-approached Appellant, informed him of Ms.
Bannon’s statement, and asked him if he would give consent for the police to
search the blue minivan. Id. at 23. Appellant refused to give consent and
continued yelling. Id. at 24.
The police towed Appellant’s blue minivan to the Norristown Police
Station, where it was placed in a secure location. Id. at 25. Moreover, Ms.
Bannon was transported to the police station, and she gave a written
statement detailing her interactions with Appellant on April 3, 2017. Id. In
the statement, she reiterated that Appellant had a handgun under the front
passenger seat, and she clarified that, while she was sitting in the minivan,
she observed “him pushing it under the driver’s seat.” Id. at 26.
Detective Crawford secured and executed a search warrant on the blue
minivan on April 3, 3017. Id. at 28. He discovered a .40 caliber handgun
under the driver’s seat and three pills in the middle console. Id. at 28-29.
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Police Officer Joshua Keenan testified that, on April 3 2017, he
responded to Detective Crawford’s request for back-up officers. Id. at 70.
When he arrived on the scene, Appellant was standing at the back of the blue
minivan with the detective; Appellant was “very irate.” Id.
Officer Keenan confirmed Appellant was screaming, refused to keep his
hands on the minivan, and “push[ed] off of the vehicle.” Id. at 71. Concluding
Appellant was going to run or become a danger to himself or the officers,
Officer Keenan handcuffed Appellant. Id.
Officer Keenan testified that, due to Appellant’s demeanor and behavior,
he decided to place Appellant in the back of the police vehicle for the safety
of Appellant and the officers. Id. at 73-74. He also hoped it would de-escalate
the situation with regard to Appellant’s irate behavior. Id. at 80.
Accordingly, prior to placing Appellant in the back of the police vehicle,
Officer Keenan patted-down Appellant. Id. at 72. Officer Keenan testified
that, as he began “patting down the area of [Appellant’s] left jacket pocket,
[Appellant] continued to scream. [Since] the jacket pocket was loose, [the
officer] could see there was a large amount of bundled heroin bags inside[.]”
Id.
Officer Kennan seized the bundle, which contained yellow bags of
methamphetamine, as well as twist-tied baggies of heroin. Id. at 74.
Appellant was arrested and transported to the Norristown Police Station. Id.
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At the police station, the officers discovered $317.00 of cash, as well as a cell
phone, on Appellant’s person. Id.
Additionally, Officer Keenan testified that, on April 8, 2017, he was on
patrol in a high crime area in an unmarked police vehicle when he made
contact with a confidential informant who had provided reliable information to
the officer in the past.4 Id. at 87, 101. Officer Keenan indicated:
[The] confidential informant told [him] that he had purchased $40
worth of narcotics from a male he knew as Ant. He stated that he
purchased two bags of methamphetamine and two bags of heroin.
***
He described [Ant] as a younger black male. I asked what he
drove. He said he used to have a blue van. And he said that the
van was recently seized when he was arrested…[i]n Norristown.
***
He stated that [the blue minivan] had been seized a few days
before and that because [Ant] didn’t have that van, he was now
driving a blue Subaru.
Id. at 88.
The confidential informant advised Officer Keenan that he had
purchased the $40.00 worth of drugs from “Ant” at the Americas Best Value
Inn in Norristown just before meeting with the officer. Id. at 90. The
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4 Officer Keenan testified the confidential informant provided information in
February of 2017 that “directly led to the apprehension of a violent fugitive.”
Id. at 87, 98. Specifically, the confidential informant contacted Officer Keenan
and told him a known violent fugitive was staying at a certain house in
Norristown. Id. at 102-03. The officer conducted surveillance on the
residence and arrested the violent fugitive. Id. at 103.
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confidential informant gave the officer some of the methamphetamine and
heroin as proof that he had just purchased it. Id.
Officer Keenan testified that, prior to April 3, 2017, he was aware that
a person known as “Ant” was dealing drugs in Norristown; however, he
became aware of the fact that “Ant” was actually Appellant on April 3, 2017,
when Appellant was arrested. Id. at 89. Thus, when the confidential
informant provided the information to Officer Keenan on April 8, 2017, he
believed the confidential informant was referring to Appellant. Id.
However, believing Appellant was in prison in connection with the April
3, 2017, incident, Officer Keenan testified he asked the confidential informant
how it was possible that he had just purchased a controlled substance from
Appellant since Appellant was incarcerated. Id. The confidential informant
advised Officer Keenan that, although the police had “Ant’s” minivan, “Ant”
was out of jail on bail. Id.
In addition, the confidential informant told the officer that “Ant” would
be returning to the Americas Best Value Inn in approximately fifteen to twenty
minutes. Id. at 90-91. Accordingly, Officer Keenan, who was sitting in his
unmarked police vehicle on the 200 block of Knox Street, set up surveillance
to watch the Americas Best Value Inn. Id. at 91.
Soon thereafter, the officer “observed a blue Subaru Outback traveling
south on Stanbridge Street.” Id. The officer maneuvered so that he was
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behind the Subaru and ran the license plate number. Id. The vehicle was
registered to Appellant. Id.
At this point, Officer Keenan initiated a stop of the Subaru, and when he
approached the Subaru, Appellant was in the driver’s seat. Id. at 92, 94.
Appellant was “immediately confrontational, tried to reach towards the center
console, refused to keep his hands visible, and was irate and screaming.” Id.
Officer Keenan asked Appellant to exit the vehicle, and Appellant refused. Id.
Accordingly, the officer “pulled him out of the vehicle” and placed Appellant,
who continued being combative, in handcuffs. Id.
Officer Keenan testified he patted-down Appellant for the officer’s
safety. Id. at 93. Officer Keenan explained that he used just the “inside” of
his hands to pat-down “the outline of [Appellant’s] body.” Id. at 115. He
testified Appellant “was extremely animated as [the officer] was patting him
down.” Id. at 93. As the officer patted down the right side of Appellant’s
body and tried to hold him still, Appellant “tried to turn away from [the
officer].” Id.
As Officer Keenan felt the outside of a small pocket located above the
main pocket of Appellant’s jeans, he “could feel the outline of a small ziplock
bag filled with what was immediately apparent to [the officer] as a rocklike
substance consistent with crack cocaine.” Id. at 93, 115. Officer Keenan
specifically testified that, based on his experience in law enforcement, “this
packaging [was] consistent with how crack cocaine is packaged.” Id. at 93-
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94. Officer Keenan testified he reached into the pocket and retrieved a small
ziplock bag containing crack cocaine. Id. at 94.
At this point, Appellant was arrested, and the Subaru was towed to the
Norristown Police Department’s secure evidence bay. Id. Officer Keegan
secured a search warrant for the Subaru, and upon execution of the warrant,
the officer discovered, in the dashboard of the driver’s seat area, 126 small
ziplock bags containing crack cocaine, 14 small ziplock bags containing powder
cocaine, 11 small ziplock bags containing crystal methamphetamine, and 35
ziplock bags containing suspected heroin. Id. at 96-97. The officer also found
numerous black and green rubber bands, a sandwich bag containing an
unknown white substance, a pill bottle containing two capsules of amoxicillin,
four cellular phones, a wallet, and the vehicle registration. Id. at 97. Further,
Appellant’s person was searched incident to his arrest, and the police
discovered $1,402.00 on his person. Id.
At the conclusion of all testimony, the suppression court denied
Appellant’s motion to suppress in both cases,5 and on March 27, 2018,
following a bench trial, the trial court convicted Appellant of the offenses listed
above in each case. On May 30, 2018, Appellant proceeded to a sentencing
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5 The suppression court filed an order in which it provided the court’s detailed
factual findings from the suppression hearing. See Suppression
Court Order, filed 12/12/17.
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hearing as to both cases, and he was sentenced to an aggregate of 10½ years
to 40 years in prison.
On June 7, 2018, Appellant filed a timely, counseled post-sentence
motion in both cases, which the trial court denied on July 13, 2018. On August
13, 2018, Appellant filed a separate notice of appeal at each lower court
docket number.6
On August 16, 2018, the trial court ordered Appellant to file a Pa.R.A.P.
1925(b) statement in both cases; however on August 23, 2018, Appellant’s
trial counsel filed a petition seeking to withdraw his representation. On August
27, 2018, the trial court granted counsel’s petition, and thereafter, new
counsel entered his appearance on behalf of Appellant.
New counsel filed a petition in the trial court seeking an extension of
time to file a Pa.R.A.P. 1925(b) statement; however, the trial court filed an
opinion on October 15, 2018, deeming all issues to be waived under Pa.R.A.P.
1925(b) in both cases. Accordingly, on October 23, 2018, new counsel filed
in this Court a motion for remand to file a Rule 1925(b) statement in both
cases, and on November 21, 2018, we granted the motion and remanded for
the appropriate filing of Rule 1925(b) statements.
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6 We note each notice of appeal included a corresponding single lower court
docket number, and therefore, the notices of appeal comply with the dictates
of Commonwealth v. Walker, 646 Pa. 456, 185 A.3d 969 (2018).
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On December 3, 2018, Appellant filed a timely Rule 1925(b) statement,
which was docketed in both cases, and the trial court filed a Rule 1925(a)
opinion.7 This Court sua sponte consolidated Appellant’s two separate notices
of appeal on January 29, 2019.
On appeal, Appellant sets forth the following issues in his “Statement of
the Questions Presented” (verbatim):
1. Whether the trial court erred and abused its discretion in case
3259-2017 by denying Appellant’s motion to suppress physical
evidence recovered from [Appellant’s] person and motor
vehicle as a result of an unlawful stop, seizure, and/or
investigative detention of Appellant all of which rendered the
application for the search warrant lacking probable cause?
2. Whether the trial court erred and abused its discretion in case
3256-2017 by denying Appellant’s motion to suppress physical
evidence recovered from [Appellant’s] person and motor
vehicle as a result of an unlawful stop, seizure, and/or
investigative detention of Appellant all of which rendered the
application for the search warrant lacking probable cause?
Appellant’s Brief at 2.
Appellant’s issues challenge the lower court’s order, which denied his
motions to suppress the physical evidence seized by the police. We review
such claims using the following standard and scope of review.
Our standard of review…is whether the record supports the trial
court’s factual findings and whether the legal conclusions drawn
therefrom are free from error. Our scope of review is limited; we
may consider only the evidence of the prosecution and so much
of the evidence for the defense as remains uncontradicted when
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7 The trial court’s Rule 1925(a) opinion, which incorporated its factual findings
from the prior suppression order, provided a detailed analysis of Appellant’s
suppression issues discussed infra.
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read in the context of the record as a whole. Where the record
supports the findings of the suppression court, we are bound by
those facts and may reverse only if the court erred in reaching its
legal conclusions based upon the facts.
Commonwealth v. Galendez, 27 A.3d 1042, 1045 (Pa.Super. 2011) (en
banc) (citation omitted).
Additionally, “[a]ppellate courts are limited to reviewing only the
evidence presented at the suppression hearing when examining a ruling on a
pretrial motion to suppress.” Commonwealth v. Bush, 166 A.3d 1278,
1281–82 (Pa.Super. 2017) (citation omitted). “It is within the suppression
court’s sole province as factfinder to pass on the credibility of witnesses and
the weight to be given their testimony.” Id. at 1282 (citation omitted).
In his first issue, which relates to Appellant’s conviction at 3259-2017
for his offenses committed on April 3, 2017, Appellant contends he was subject
to an illegal investigative detention when Detective Crawford opened the
driver’s side door of his parked minivan without having the requisite
reasonable suspicion.
There are three types of interactions between police and the citizenry.
See generally Commonwealth v. DeHart, 745 A.2d 633, 636 (Pa.Super.
2000).
Interaction between citizens and police officers, under
search and seizure law, is varied and requires different levels of
justification depending upon the nature of the interaction and
whether or not the citizen is detained. Such interaction may be
classified as a “mere encounter,” an “investigative detention,” or
a “custodial detention.” A “mere encounter” can be any formal or
informal interaction between an officer and a citizen, but will
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normally be an inquiry by the officer of a citizen. The hallmark of
this interaction is that it carries no official compulsion to stop or
respond.
In contrast, an “investigative detention,” by implication,
carries an official compulsion to stop and respond, but the
detention is temporary, unless it results in the formation of
probable cause for arrest, and does not possess the coercive
conditions consistent with a formal arrest. Since this interaction
has elements of official compulsion it requires “reasonable
suspicion” of unlawful activity. In further contrast, a custodial
detention occurs when the nature, duration and conditions of an
investigative detention become so coercive as to be, practically
speaking, the functional equivalent of an arrest.
Commonwealth v. Stevenson, 832 A.2d 1123, 1127 (Pa.Super. 2003)
(citation omitted).
Instantly, the lower court determined that, when Detective Crawford
approached Appellant’s parked minivan and opened the driver’s side door,
Appellant was subject to an investigative detention for which reasonable
suspicion was needed.
To determine if an interaction rises to the level of an
investigative detention, i.e., a Terry[8] stop, the court must
examine all the circumstances and determine whether police
action would have made a reasonable person believe he was not
free to go and was subject to the officer’s orders. An investigative
detention, unlike a mere encounter, constitutes a seizure of a
person and thus activates the protections of Article 1, Section 8 of
the Pennsylvania Constitution.
Stevenson, 832 A.2d at 1127 (citations omitted) (footnote added).
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8 Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868 (1968).
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In the case sub judice, it is undisputed that Detective Crawford
approached Appellant’s parked minivan on foot, opened the driver’s side door
with his handgun “low and ready,” identified himself as a police officer, and
asked Appellant to exit the minivan. Under these circumstances, we agree
with the suppression court that a reasonable person in Appellant’s situation
would not have felt free to ignore the detective’s requests and simply drive
off. Thus, the initial encounter between the detective and Appellant
constituted an investigative detention.9 See Stevenson, supra (holding an
investigative detention occurred where the police officer approached the
appellant’s parked vehicle on foot, told the appellant to roll down the window,
repeatedly told the appellant to end his telephone conversation, and asked
the appellant if he had a driver’s license).10
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9 We note the police encounter did not constitute a “traffic stop” since
Appellant’s vehicle was already parked when Detective Crawford made his
initial encounter with Appellant. See Stevenson, supra; Commonwealth
v. DeHart, 745 A.2d 633, 636 (Pa.Super. 2000). “[However,] [a]lthough the
police did not ‘stop’ the car, the encounter still had to pass constitutional
muster.” Stevenson, 832 A.2d at 1129 (citation omitted).
10 Appellant suggests that, since Detective Crawford approached the vehicle
with his gun “low and ready,” the initial encounter constituted a “custodial
detention,” as opposed to an “investigative detention.” See Appellant’s Brief
at 24-27. We disagree. “Our law enforcement officers are not required to
take any more risks than those already inherent in stopping a drug suspect,
particularly one in an automobile.” Commonwealth v. Johnson, 849 A.2d
1236, 1239 (Pa.Super. 2004). “Likewise, it cannot be said that whenever
police draw weapons the resulting seizure must be deemed an arrest rather
than a stop….” Commonwealth v. Dennis, 433 A.2d 79, 80 n.5 (Pa.Super.
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Next, we examine the lower court’s holding that Detective Crawford had
reasonable suspicion to institute the investigative detention.
Commonwealth v. Chambers, 55 A.3d 1208, 1215 (Pa.Super. 2012) (“To
institute an investigative detention, an officer must have at least a reasonable
suspicion that criminal activity is afoot.”). “Reasonable suspicion requires a
finding that based on the available facts, a person of reasonable caution would
believe the intrusion was appropriate.” Id. (quotation marks and quotation
omitted).
Reasonable suspicion exists only where the officer is able to
articulate specific observations which, in conjunction with
reasonable inferences derived from those observations, led him
reasonably to conclude, in light of his experience, that criminal
activity was afoot and that the person he stopped was involved in
that activity. Therefore, the fundamental inquiry of a reviewing
court must be an objective one, namely, whether the facts
available to the officer at the moment of intrusion warrant a
[person] of reasonable caution in the belief that the action taken
was appropriate.
Id. (citation omitted).
Whether reasonable suspicion exists at the time of an investigatory
detention must be determined by examining the totality of the circumstances,
“including such factors as tips, the reliability of the informant, time, location,
and suspicious activity, including flight.” Commonwealth v. Smith, 172
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1981). See Commonwealth v. Dix, 207 A.3d 383 (Pa.Super. 2019) (holding
police stop was an investigative detention, as opposed to a custodial
detention, when police approached the defendant with their guns drawn and
forced him to place his hands on the roof of his truck; only two officers
approached the defendant).
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A.3d 26, 33 (Pa.Super. 2017) (quotation marks, quotation, and citation
omitted). Further, a defendant’s presence in a high crime area supports the
existence of reasonable suspicion. See Commonwealth v. Foglia, 979 A.2d
357, 361 (Pa.Super. 2009) (en banc). “In assessing the totality of the
circumstances, courts must also…acknowledge that innocent facts, when
considered collectively, may permit the investigative detention.”
Commonwealth v. Walls, 206 A.3d 537, 541-42 (Pa.Super. 2019) (citations
omitted).
In the case sub judice, as the lower court determined, Detective
Crawford is a “veteran police officer with over ten years of experience with the
Norristown Police Department and has extensive training, knowledge and
experience with such criminal acts as prostitution and controlled substance
offenses.” Trial Court Opinion, filed 12/26/18, at 12. Further, Detective
Crawford was well acquainted with Mary Bannon prior to April 3, 2018, and he
knew she was involved in prostitution and drug activity. See Suppression
Court Order, filed 12/12/17.11
On April 3, 2018, Detective Crawford, while on routine patrol, observed
Ms. Bannon on the street in a high crime area. He indicated she had been
involved in prostitution at the Americas Best Value Inn, which was just a block
from where he first observed Ms. Bannon. Id.____________________________________________
11 The suppression court’s order is not paginated.
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In his unmarked police vehicle, he conducted surveillance and watched
as she approached, called out to, and spoke to different men. See id. He
then observed as she walked to a nearby intersection at George and Airy
Streets. Id. Detective Crawford testified Ms. Bannon’s actions were
consistent with the solicitation of clients for prostitution and/or drug activity.
Id.As Ms. Bannon stood at the intersection, Appellant’s minivan turned onto
George Street, and it suddenly came to a full stop “right in the middle of the
street” in front of where Ms. Bannon was standing. Id. Ms. Bannon
immediately entered the passenger side of the vehicle. Id. This was
indicative of a pre-planned meeting between Ms. Bannon and Appellant. Id.“The blue minivan moved about fifty (50) to sixty (60) yards down the
block before pulling over and illegally parking, which through the Detective’s
training and experience, was consistent with a drug transaction.” Id. (citation
to transcript omitted). The detective approached the minivan and observed
Appellant was “leaning forward and moving his hands down low in his lap area,
but [the detective] could not see what his hands were doing specifically. Any
further observations were limited due to the vehicle’s tinted windows.” Id.(citation to transcript omitted). Based on Appellant’s movements, it was
reasonable for the Detective to believe that Appellant could have been
reaching for a weapon. As a result, Detective Crawford, for officer safety,
opened the driver’s side door and asked Appellant to exit his vehicle.
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Based on the totality of the circumstances, we agree with the lower court
that Detective Crawford articulated specific observations, which in conjunction
with all reasonable inferences derived therefrom, led him to reasonably
conclude that criminal activity was afoot. See Chambers, supra. Thus, we
agree with the suppression court that Detective Crawford had the necessary
reasonable suspicion to support the initial investigative detention, and
accordingly, Appellant’s first claim is meritless.12
In his next issue, which relates to Appellant’s conviction at 3256-2017
for his offenses committed on April 9, 2017, Appellant contends Officer Keenan
did not have the requisite reasonable suspicion to stop his blue Subaru.
Initially, with regard to vehicle stops, we recognize the following:
“Traffic stops based on a reasonable suspicion: either of criminal
activity or a violation of the Motor Vehicle Code under the
authority of Section 6308(b) must serve a stated investigatory
purpose.” Commonwealth v. Feczko, 10 A.3d 1285, 1291
(Pa.Super. 2010) (en banc) (citation omitted). For a stop based
on the observed violation of the Vehicle Code or otherwise non-
investigable offense, an officer must have probable cause to make
a constitutional vehicle stop. Feczko, 10 A.3d at 1291 (“Mere
reasonable suspicion will not justify a vehicle stop when the
driver’s detention cannot serve an investigatory purpose relevant
to the suspected violation.”).
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12 Appellant avers that, “[a]fter redacting the evidence derived from
Appellant’s unlawful stop…and excising those averments in the affidavit
alleging drug trafficking by Appellant, the affidavit lacks probable cause to
support the [search] warrant [of Appellant’s minivan].” Appellant’s Brief at
28-29. However, inasmuch as we conclude Detective Crawford had a
reasonable suspicion to conduct the initial investigative detention, we find this
averment to be meritless.
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Commonwealth v. Harris, 176 A.3d 1009, 1019 (Pa.Super. 2017).
In the case sub judice, as the lower court held, Officer Keenan stopped
Appellant’s blue Subaru on April 9, 2017, in order to investigate suspected
drug activity (as opposed to stopping the Subaru for an observed Vehicle Code
violation or otherwise non-investigable offense). See Suppression Court
Order, filed 12/12/17. Thus, Officer Keenan needed reasonable suspicion that
criminal activity was afoot before stopping Appellant’s Subaru. See
Chambers, supra.A wide variety of circumstances may give rise to a reasonable suspicion
to conduct an investigative detention for suspected drug activity. Information
provided by a confidential informant or a “tipster” can help establish
reasonable suspicion for an investigative detention. See Commonwealth v.
Ranson, 103 A.3d 73, 78–79 (Pa.Super. 2014) (holding tip from nightclub
patron while police officer was working security detail at club in high-crime
area, identifying the defendant and stating that he was carrying firearm, was
legitimate factor upon which officer could rely in determining that reasonable
suspicion existed to stop the defendant even though officer did not know the
informant’s name).
Here, we conclude reasonable suspicion existed for Officer Keenan to
stop Appellant’s blue Subaru. Specifically, Officer Keenan, who was on duty,
came in contact with a confidential informant, who had proven reliable in the
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past. See Trial Court Opinion, filed 12/26/18, at 19; See Suppression Court
Order, filed 12/12/17.
The confidential informant explained that he had just purchased $40.00
worth of drugs from “Ant” at the Americas Best Value Inn, which is in a high
crime area, and he showed some of the drugs to the officer. The confidential
informant described “Ant” as a younger black male, knew that “Ant” had been
arrested, knew that “Ant’s” blue minivan had been seized, knew “Ant” was out
of jail on bail,” and knew that “Ant” was now driving a blue Subaru. See
Suppression Court Order, filed 12/12/17. From his prior experience with
Appellant, Officer Keenan knew that “Ant” was actually Appellant.13 See id.The confidential informant told the officer that, within the next fifteen
to twenty minutes, “Ant” would be returning to the Americas Best Value Inn
in his blue Subaru. See id. Officer Keenan conducted surveillance, saw a
blue Subaru approach the area, ran the Subaru’s license plate number, and
confirmed the Subaru was registered to Appellant. See id.Based on the totality of the circumstances, including the confidential
informant’s information and Officer Keenan’s independent corroboration
thereof, Officer Keenan had reasonable suspicion to believe that Appellant was
involved in drug activity on April 8, 2017. See Johnson, 849 A.2d at 1238
____________________________________________
13 Additionally, Officer Keenan was undisputedly involved with the
investigatory stop and arrest of Appellant on April 3, 2017, and accordingly,
he was aware that controlled substances were seized from Appellant on that
day.
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(“We…conclude that based on the information given by a C.I. who had proven
to be reliable in the past, when a man fitting the description arrived at the
appointed location in a car similar to the one that had been described by the
C.I., the police had reasonable suspicion that criminal activity was afoot.”).
Accordingly, the officer properly stopped Appellant’s Subaru to investigate
suspected drug activity.
Appellant next suggests that, assuming, arguendo, Officer Keenan was
permitted to conduct a Terry frisk for weapons after stopping Appellant’s
Subaru, the officer exceeded the scope of the permissible search by illegally
reaching into Appellant’s small jean pocket to remove the small ziplock bag of
crack cocaine. We find no merit to this claim and agree with the lower court
that Officer Keenan justifiably put his hand into Appellant’s small pocket under
the “plain feel doctrine.”
Under 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. [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.
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Commonwealth v. Pakacki, 587 Pa. 511, 521, 901 A.2d 983, 989 (2006)
(citation and quotation omitted).
In the case sub judice, the lower court relevantly indicated the following:
When Officer Keenan approached Appellant’s [Subaru],
[Appellant] was moving his hands about and screaming, and he
did not comply with the officer’s requests to keep his hands visible.
Because of [Appellant’s] defiant demeanor, and knowing he [had]
carried firearms in the past, Officer Keenan removed Appellant
from [the Subaru]…and patted him down for weapons[.]
During the pat-down, [which the officer did with the inside
of his hands to feel the outline of Appellant’s body,] Appellant
continued to be uncooperative with the Officer and repeatedly
turned away from him, making the pat-down difficult and
requiring Officer Keenan to direct him to stand still a number of
times. While patting Appellant down, Officer Keenan felt, in the
[small] pocket of [Appellant’s] pants, a ziploc[k] bag with a raised
plastic seal containing a rocklike substance, which was
immediately apparent to the Officer as being [crack] cocaine.
There is no indication that the pat-down was anything more than
just that.
Trial Court Opinion, filed 12/26/18, at 19 (citations to record omitted). See
Suppression Court Order, filed 12/12/17.
We conclude the suppression court’s factual findings are supported by
the record, and we agree with the court’s sound reasoning. Simply put, during
the lawful pat-down, the officer felt an object which he knew from his
experience in law enforcement to be crack cocaine packaged in a ziplock bag.
Under the totality of the circumstances, the incriminating nature of the crack
cocaine was immediately apparent to Officer Keenan, who had a lawful right
of access to it. Based on these facts, the suppression court properly found no
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merit to Appellant’s suppression issue with regard to the plain feel doctrine.14
See Pakacki, supra.For all of the foregoing reasons, we find no merit to the suppression
issues presented by Appellant with regard to his cases docketed in the lower
court at 3259-2017 and 3256-2107. Accordingly, we affirm both judgments
of sentence.
Judgments of Sentence Affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/11/20
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14 Appellant contends that, after redacting the evidence derived from
Appellant’s unlawful stop and Officer Keenan’s unlawful seizure of the crack
cocaine from Appellant’s pocket on April 9, 2017, the affidavit for the search
warrant of Appellant’s Subaru lacks probable cause. See Appellant’s Brief at
44-46. However, inasmuch as we conclude Officer Keenan had the necessary
reasonable suspicion to stop the Subaru, as well as properly seized the crack
cocaine from Appellant’s small jean pocket, we find this averment to be
meritless.
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