Com. v. Brown, N. ( 2020 )

J-S32035-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
NATHANIEL BROWN :
:
Appellant : No. 507 EDA 2019
Appeal from the Judgment of Sentence Entered January 18, 2019,
in the Court of Common Pleas of Philadelphia County,
Criminal Division at No(s): CP-51-CR-0003397-2017.
BEFORE: KUNSELMAN, J., KING, J., and COLINS, J.*
MEMORANDUM BY KUNSELMAN, J.: Filed: October 29, 2020
Nathaniel Brown appeals from the judgment of sentence of time served
to 23 months incarceration and three years of probation, after a trial court
found him guilty of carrying a gun (1) in Philadelphia1 and (2) without a
license.2 Pretrial, Brown moved to suppress the firearm, but the trial court
denied relief. We reverse the denial of suppression and vacate the judgment
of sentence.
At 9:50 p.m., on February 13, 2017, Officers Brent McCauley and Logan
Johnson were in a marked patrol car in the 25th District of Philadelphia. Officer
Johnson performed the frisk at issue. However, he did not testify at the
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
1 18 Pa.C.S.A. § 6108.
2 18 Pa.C.S.A. § 6106.
J-S32035-20
suppression hearing. His partner, Officer McCauley, testified instead and said
that the 25th District is a “high crime, high drug, and high guns area.” N.T.,
5/21/18, at 7-8.
As the two officers rode in their patrol car, they saw a white Chevrolet
Impala with three occupants: a driver, a front-seat passenger (Brown), and
a back-seat passenger. The officers stopped the Impala, because they
suspected it was not registered with the Pennsylvania Department of
Transportation (“PennDOT”). They could not read the date on the temporary-
registration tag hanging in the rear window, and their search for the car
returned no record in PennDOT’s database.
Officer McCauley activated his lights and siren, and the driver promptly
pulled over. Officer McCauley approached the driver’s window, and Officer
Johnson approached Brown’s window. Officer McCauley smelled burnt
marijuana wafting from the car.
The officers ordered the driver and Brown to step out of the vehicle.
Both men complied without issue or making any sudden movements. See id.
at 24, 28. Office McCauley saw no weapons in the car or any bulges in the
men’s clothing. See id. at 27-28. When the occupants exited the vehicle,
Officer McCauley immediately patted down the driver, while Officer Johnson
immediately did the same to Brown.
Regarding the frisk of Brown, Officer McCauley testified as follows:
Q: [A]fter [the driver] and [Brown] both exited the
vehicle, what happened at that point?
-2-
J-S32035-20
A: My partner, at the time stated to me that [Brown] had
a gun. He said “Gun.” I immediately went over to
him, as I was placing the driver in the back of my
patrol car.
Q: And you said or indicated that Officer Johnson said
“Gun.” Did you observe Officer Johnson – is it fair to
say Officer Johnson would have frisked [Brown]?
A: Yes.
Q: And did you observe that?
A: As I was putting the passenger or the driver in my
vehicle, I was walking up to help him when he said,
“Gun.” Immediately when he said “Gun,” I went up
to my partner. I also had to make sure the driver was
secured first, as well as my vehicle, and then I went
and placed [Brown] in handcuffs.
Id. at 15-16.
Next, the prosecutor asked Officer McCauley why he frisked the driver.
He answered, “For the smell of weed throughout the vehicle. And even doing
a search as well.” Id. at 18.
The suppression court interjected, “For your safety?” Id.
“Yes, for my safety,” Officer McCauley responded. But throughout that
testimony, there was never any evidence produced as to Officer Johnson’s
reason for frisking Brown, because Officer Johnson did not testify. Instead,
the prosecutor asked Officer McCauley whether it is routine practice for the
Philadelphia Police to frisk everyone whom they ask to exit a vehicle:
Q: [Y]ou frisking someone when you take them out of the
vehicle, is that something that you typically do?
A: Yes.
-3-
J-S32035-20
Q: Have you received any training to do so when you
remove someone from a vehicle?
A: Yes, in my police training.
Id. (emphasis added). Thus, according to Officer McCauley, the Philadelphia
police typically frisk anyone whom they “take out of” a vehicle, even in a case
like this, where the suspected offenses are nonregistration with PennDOT and
marijuana use.
When Officer Johnson frisked Brown under this protocol, he found an
unlicensed firearm. The officers then arrested Brown.
In his motion to suppress, Brown alleged, among other things, that
Officer Johnson lacked reasonable suspicion under Terry v. Ohio, 392 U.S. I
(1968), and its progeny to frisk him. The suppression court disagreed.
The court observed police may conduct an investigative detention, a.k.a.
a Terry stop, if the officer has reasonable suspicion that a driver or passenger
is armed and dangerous. The court explained that a frisk is only justified if
the police can point to “specific and articulable facts indicating the person they
intend to frisk may be armed and dangerous . . .” Commonwealth v.
Cooper, 994 A.2d 589, 593 (Pa. Super. 2010). Analogizing this matter to
Commonwealth v. Simmons, 17 A.3d 399, 403 (Pa. Super. 2011), the
suppression court reasoned:
the totality of the circumstances led Officer Johnson and
Officer McCauley to reasonably believe that the driver,
[Brown], or the back-seat passenger may have been armed
or may have otherwise posed a risk to the officers’ safety.
First, the underlying incident involved a traffic stop. . . . The
stop occurred around 9:50 p.m., in the 25th District of
-4-
J-S32035-20
Philadelphia, a “high crime, high drug, and high guns” area.
(N.T. 5/21/18 at 7-8). In fact, Officer McCauley explained
that “the whole entire 25th District is a violent crime area,
high drugs, a lot of guns, thefts. We pretty much lead the
city in most crimes in the city of Philadelphia.” Although
presence in a dangerous neighborhood, alone, is insufficient
to support a finding of reasonable suspicion, it is a relevant
consideration in a Terry analysis. In re D.M., 781 A.2d
1161, 1163-64 (Pa. 2001).
The instant matter is distinguishable from Simmons
in one aspect. In that case, officers observed the defendant
make furtive or suspicious movements. Here, there was no
testimony showing that any of the vehicle’s occupants made
furtive movements.
Id. at 8-9 (some citations and punctuation omitted).
Nonetheless, the suppression court believed additional factors created
reasonable suspicion. The court stated:
Specifically, here, the two officers were outnumbered, as
there were three male occupants in the stopped vehicle.
. . . Additionally, the officers had reason to suspect that the
vehicle’s occupants possessed an illegal substance, as there
was a strong odor of marijuana emanating from the vehicle.
This court recognizes that the smell of marijuana, alone,
does not necessarily support a Terry frisk. However, in
conjunction with the other circumstances, this supported a
finding of reasonable suspicion that the vehicle’s occupants
might be armed and dangerous.
Id. at 10.
After denying suppression, the court convicted Brown and sentenced
him as detailed above. This timely appeal followed.
Brown asks this Court:
Whether the suppression court erred, because Officer
Johnson frisked [him] unlawfully, inasmuch as [Officer
McCauley] provided no specific and articulable facts to
-5-
J-S32035-20
support a reasonable suspicion that [Brown] was armed and
dangerous, in violation of the federal and state
constitutions?
Brown’s Brief at 3.3
Brown challenges the frisk under both the Fourth Amendment to the
Constitution of the United States and Article I, § 8 of the Constitution of the
Commonwealth of Pennsylvania.4 Brown argues that “no officer provided any
specific and articulable facts to support a reasonable suspicion that [he] was
armed and dangerous.” Id. at 8. Indeed, he asserts that the police gave no
reason for frisking him and emphasizes that the officer who actually frisked
him did not testify to explain why he did so. According to Brown, Officer
McCauley’s general statement that he was worried for his safety, in response
to the suppression court’s question, was generalized and constitutionally
deficient.
In reply, the Commonwealth relies on the analysis of the suppression
court. It notes that an officer who asks a person to exit a vehicle may “conduct
a quick frisk for weapons if [the officer] reasonably fears that the person with
____________________________________________
3 Brown’s other appellate issues involve the constitutionality of the traffic stop
and the scope of the Terry frisk. See Brown’s Brief at 3. We need not address
these claims, in light of our conclusion that the police lacked reasonable
suspicion to frisk Brown.
4 Brown does not assert greater protections under the state constitution. See
Commonwealth v. Edmunds, 586 A.2d 887 (Pa. 1991) (articulating a four-
part test for litigants to argue and for courts to analyze when facing state
constitutional questions as being separate and distinct issues from those in
the federal charter). We therefore deem Brown’s state and federal
constitutional claims to be coextensive and consider them together.
-6-
J-S32035-20
whom [the officer] is dealing may be armed and dangerous.”
Commonwealth’s Brief at 9-10 (quoting In re D.M., 727 A.2d 556, 557 (Pa.
1999)). “As the [suppression] court determined . . . the officers reasonably
sought to protect their safety under the totality of the circumstances while
conducting a car stop, at night, while outnumbered, in an area known for a
high-crime rate with lots of guns.” Commonwealth’s Brief at 5.
We begin with our scope and standard of review. When, as in this case,
there is a warrantless search, “determinations of reasonable suspicion and
probable cause should be reviewed de novo on appeal.” Ornelas v. United
States, 517 U.S. 690, 699, (1996). Thus, when police perform a warrantless
search, including a Terry frisk, their actions are subject to the highest degree
of appellate scrutiny. We accept the suppression court’s factual findings, if
competent evidence of record from the hearing supports them. See
Commonwealth v. Bradley, 636 A.2d 619, 621 (Pa. 1994); see also In re
L.J., 79 A.3d 1073 (Pa. 2013). The “reviewing court should take care both to
review findings of historical fact only for clear error and to give due weight to
inferences drawn from those facts by resident judges and local law
enforcement officers.” Ornelas at 699.
Both the state and federal constitutions protect people from intrusions
by the police into their privacy. The Constitution of the United States dictates
that “The right of the people to be secure in their persons, houses, papers,
and effects, against unreasonable searches and seizures, shall not be violated
. . . .” U.S. Const. amnd. IV. Similarly, “The people shall be secure in their
-7-
J-S32035-20
persons, houses, papers, and possessions from unreasonable searches . . . .”
Pa. Const. art. I, § 8. Thus, “warrantless search or seizure of evidence is . . .
presumptively unreasonable under the Fourth Amendment and Article I, § 8,
subject to a few specifically established, well-delineated exceptions.”
Commonwealth v. Luczki, 212 A.3d 530, 546 (Pa. Super. 2019).
One exception is a constitutionally executed Terry frisk. To perform a
permissible Terry frisk, an officer must possess reasonable suspicion that the
person the officer is frisking is armed and dangerous. To rebut the
presumption that the warrantless frisk of Brown was unreasonable, the
Commonwealth needed to prove that “a reasonably prudent man in the
circumstances [of Officer Johnson] would be warranted in the belief that his
safety or that of others was in danger.” Terry, 392 U.S. at 20. The
Commonwealth’s suppression-hearing evidence failed to make that showing.
By way of example, we turn to a case that the Commonwealth cites in
its brief, In re D.M., supra. See Commonwealth’s Brief at 10. In that case,
a Philadelphia police officer received a radio report of an armed robbery in his
vicinity. He arrived near the crime scene about one to two minutes later. The
officer saw four men fitting the eyewitness’s description of the robbers moving
in a hurried fashion. When they saw the officer, they changed directions to
avoid him. The officer caught up to and detained them. A Terry frisk ensued.
The Supreme Court of Pennsylvania held that the officer could, on those
facts, detain the men to investigate whether they were involved in the
robbery. The High Court then considered the separate issue of whether the
-8-
J-S32035-20
officer could pat them down. Affirming this Court and the suppression’s
rulings, the Supreme Court upheld the Terry frisk as constitutional.
Chief Justice Castille explained that “The officer’s investigation could not
have been safely pursued had he not patted the group down for weapons since
the radio call alerted police to a gunpoint robbery.” In re D.M., 727 A.2d
556, 558 (emphasis added). “In light of the report that the robbery had been
committed with a gun, ‘a reasonably prudent man under the circumstances
would be warranted in the belief that his safety or that of others was in
danger.’” Id. (quoting Terry at 20). Thus, all three courts that reviewed the
police actions in D.M. concluded the officer’s concern for his safety was
reasonable.
Here, unlike D.M., police had no report of a violent crime or eyewitness
identification of Brown to tie him to a violent act. Officers McCauley and
Johnson stopped a vehicle to investigate its PennDOT registration. Officer
McCauley testified to nothing particular about any of these three men – and
especially not Brown – that would lead a reasonably prudent person to think
that they were armed or dangerous. No danger arises from a temporary-
registration tag being only partially taped to a rear window.
To assert reasonable suspicion that the three men were armed and
dangerous, the Commonwealth and the suppression court relied upon five
facts, none of which were particular as to Brown. Those general facts were:
(1) geographical profiling (police have dubbed their 25th District of Philadelphia
a “high crime” and “high drug” area); (2) the time of day (i.e., 9:50 p.m.);
-9-
J-S32035-20
(3) the traffic stop itself; (4) the officers-to-suspects ratio; and (5) the smell
of marijuana emanating from the vehicle. The suppression court deemed
these five facts to be “the totality of the circumstances.” Trial Court Opinion,
12/17/19, at 9. We disagree.
Additional facts comprised the totality of the circumstances that night,
but the suppression court ignored them. It therefore erroneously failed to
weigh those additional facts against the Commonwealth’s claim that frisking
Brown was based upon a particularized, reasonable belief that Brown, himself,
was armed and dangerous.
First, as mentioned above regarding In re D.M., there was no evidence
or eyewitness report linking Brown to a crime of violence, such as a recent
armed robbery. Indeed, the only crimes that the officers believed were afoot
when they pulled the vehicle over was that the car may not have been properly
registered with PennDOT because the temporary registration in the rear
window was coming untaped.5 See N.T., 5/21/18, at 11. Granted, Officer
McCauley also testified that he observed the man in the rear seat rolling a
blunt before the police began following the car, but (a) that is not a crime of
violence, and (b) it was in no way linked to Brown or the degree of danger he
presented to the police or others. See id. at 10-11. Brown was the front-
seat passenger. Thus, when the officers directed Brown to exit the car, as far
____________________________________________
5 A temporary registration permit “shall be affixed to the extreme lower left-
hand (diver side) inside corner of the rear window of a vehicle with the printed
information visible from the outside.” 75 Pa.C.S.A. § 1310.1(c).
- 10 -
J-S32035-20
as they knew, his greatest “offense” was riding in a vehicle with an improperly
taped temporary registration tag. There was no indication that any violent
crime was afoot.
Also, the Commonwealth provided no evidence or testimony as to why
Officer Johnson frisked Brown. As previously indicated, Officer Johnson did
not testify. Officer McCauley, who frisked the driver, saw no furtive
movements by anyone in the car as the two police approached the vehicle.
He reported no other facts that would warrant a reasonable person to believe
that a weapon was present. Police saw no visibly apparent firearms or any
bulges in the men’s clothing that might give rise to an inference that they
were carrying concealed guns.
Instead of identifying a particular risk that Brown presented, Officer
McCauley explained that Officer Johnson patted him because that is what
Philadelphia Police “typically do” during a traffic stop. N.T., 5/21/18, at 18.
According to Officer McCauley, he received “training to do so when [police]
remove someone from a vehicle.” Id. Indeed, the Commonwealth relied
solely on this testimony to justify the search of Brown. The assistant district
attorney explained at the close of the suppression hearing that Officer
McCauley “received training in the Philadelphia Police Academy, if you’re going
to take an individual out of a car, you can frisk . . . .” Id. at 47.
This is incorrect. The police may not frisk an individual, simply because
they take him out of his car. This practice, if used as Officer McCauley claimed,
is devoid of any individualized suspicion regarding the person being frisked.
- 11 -
J-S32035-20
Granted, under Pennsylvania v. Mimms, 434 U.S. 106 (1977), police
may, as a matter of course and in the interest of their safety, “order the driver
to exit the vehicle despite the lack of an articulable basis to believe that
criminal activity is afoot or that the driver is armed and dangerous.”
Commonwealth v. Brown, 654 A.2d 1096, 1100 (Pa. Super. 1995). In
Mimms, the Supreme Court explained that, once the vehicle is constitutionally
stopped, “police have already lawfully decided that the driver shall be briefly
detained; the only question is whether he shall spend that period sitting in the
driver’s seat of his car or standing alongside it.” Mimms, 434 U.S. at 111.
Standing beside one’s vehicle during a traffic stop is a “mere inconvenience.”
Id.Frisking someone, by contrast, is no “mere inconvenience.” It is a bodily
intrusion against his or her private person and individual liberty; hence, it is
a search. At common law, it could constitute a battery.6 Thus, the courts
have never extended the rationale of Mimms and Brown to the act of frisking
people after asking them to exit their cars, as Officer McCauley and the
Commonwealth seemingly believe.
____________________________________________
6 “The definition of [a] battery [is] set forth in THE RESTATEMENT (SECOND) OF
TORTS, § 18, as well as the battery definition included in Pennsylvania
Suggested Standard Jury Instruction (Civil) 17.20 (providing that ‘a battery is
an act done with the intent to cause a harmful or offensive contact with the
body of another and that directly or indirectly results in the harmful or
offensive contact with the body of another.’” Cooper ex rel. Cooper v.
Lankenau Hosp., 51 A.3d 183, 190 n.6 (Pa. 2012) (some punctuation
omitted).
- 12 -
J-S32035-20
Officer Johnson was not frisking Brown based upon a reasonable,
individualized suspicion that Brown was armed or dangerous. At best, this
record only shows that Officer Johnson frisked Brown as part of a typical
practice of frisking everyone police ask to exit a vehicle. Thus, he had no
individualized, reasonable suspicion to frisk Brown. All of the facts upon which
the suppression court relied are part of the general risks police inherently face
every day. However, they remain generally applicable facts that extend to
every member of the public the police encounter. Those facts do not reflect
upon anyone in particular or indicate that Brown, himself, might have been
armed and dangerous.
Being in a “high crime” or “high gun” neighborhood at 9:50 p.m. does
not indelibly brand everyone in that neighborhood as a danger to police or
others. And as the public defender correctly argued in her closing, “if we use
high crime, high drug, we would be frisking every single person that’s in the
City and County of Philadelphia.” N.T., 5/12/18, at 43. Thus, while the
police’s characterization of a neighborhood may enhance suspicion if tied to
some specific conduct by the frisked individual, it does not carry much weight
in and of itself. Also, 9:50 p.m. is not so late to be driving in a major
metropolitan center, such as Philadelphia, that to do so leads to a reasonable
belief that the car’s occupants are armed and dangerous.
Nor is there anything in the record to establish that a passenger riding
in a car with a loosely taped temporary registration tag gives rise to such a
reasonable belief. Furthermore, we disagree with the suppression court’s
- 13 -
J-S32035-20
unsubstantiated conclusion that being in a car that smells of burnt marijuana
increases the likelihood that one is armed or dangerous. See
Commonwealth v. Grahame, 7 A.3d 810, 811 (Pa. 2010) (concluding the
Superior Court erred in presuming “guns follow drugs” to justify a protective
search for weapons pursuant to Terry). The Commonwealth offered no
evidence connecting marijuana use to an increased risk of violence. And the
actions of these men, calm and compliant, lessens the chances that they
might have attacked the officers. Driving under the influence of marijuana
would have made the driver unsafe to drive as a matter of law,7 but this driver
had pulled off the road immediately after the police activated their lights,
thereby eliminating that threat by the time police frisked him and Brown.
Thus, that crime no longer threatened anyone.
Lastly, the suppression court’s contention that the police were
outnumbered has some credence. But in light of the other facts of record,
especially the lack of any real sign of danger from any of these three men
or that they were attempting to escape or threaten the police, the police-to-
suspect ratio carries little constitutional weight. The protections of the Fourth
Amendment and Article I, § 8 do not evaporate if the police elect to engage a
group of peaceful men who happen to outnumber law enforcement.
We hold that the frisk Officer Johnson executed on Brown violated both
constitutions. Such police conduct did not conform to the requirements that
____________________________________________
7See 75 Pa.C.S.A. § 3802(d). There is nothing of record to indicate that the
driver was under the influence in this case.
- 14 -
J-S32035-20
police possess individualized, reasonable suspicion that the person frisked
may be armed and dangerous. The Commonwealth failed to rebut the
presumption that this warrantless search of Brown was unreasonable by
proving that circumstances to support a Terry frisk existed. See Luczki,
supra. The gun that police discovered and seized during this unconstitutional
search is the fruit of the poisonous tree which the court below should have
suppressed. See Wong Sun v. United States, 371 U.S. 471 (1963).
Judgment of sentence vacated. Order denying suppression reversed.
Case remanded for further proceedings consistent with this decision.
Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/29/20
- 15 -