Com. v. Howe, J. ( 2021 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
JAMES D. HOWE :
:
Appellant : No. 1089 MDA 2020
Appeal from the Judgment of Sentence Entered August 12, 2020
In the Court of Common Pleas of Centre County
Criminal Division at No: CP-14-CR-0001142-2019
BEFORE: OLSON, J., STABILE, J., and MUSMANNO, J.
MEMORANDUM BY STABILE, J.: FILED AUGUST 03, 2021
Appellant, James D. Howe, appeals from the August 12, 2020 judgment
of sentence imposed by the Court of Common Pleas of Centre County following
Appellant’s bench trial conviction for use of, or possession with the intent to
use, drug paraphernalia.1 Upon review, we reverse the denial of suppression
and vacate the judgment of sentence.
The facts of this case as found by the trial court established as follows:
It is undisputed that the stop and frisk of [Appellant] took place
on the evening of January [7], 2019, outside [Appellant’s]
residence in Philipsburg, Centre County, Pennsylvania. The
arresting officer, Trooper Trevor Danko ([]"Trooper Danko"), was
at [Appellant’s] residence to serve a warrant [on] an individual
other than [Appellant]. Trooper Danko testified that[,] when he
was knocking on the residence’s door to serve the warrant,
[Appellant] approached him and his fellow officers from outside
the residence. Trooper Danko testified that, upon shining his
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1 35 P.S. § 780-113(a)(32).
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flashlight on [Appellant], he saw a large black object in
[Appellant’s] hand, which [Appellant] then hid behind his back
when asked to identify it. Trooper Danko testified that his
experience as a trained officer led him to consider this
concealment of the object as a safety risk. When [Appellant]
revealed the object upon request of the officers, Trooper Danko
identified it as a joy star shiner Christmas light [projector]. Still
believing there to be a risk of harm to himself and his fellow
officers, Trooper Danko conducted a pat-down of [Appellant] for
weapons. Trooper Danko felt, and immediately recognized
through his training and experience, a small smoking device in
[Appellant’s] pocket. [Appellant] then emptied his pockets,
revealing a glass smoking device and a small clear bag with white
residue. [Appellant] was arrested and charged with [the
aforementioned crime].
Trial Court Opinion, 1/28/20, at 1-2 (unnecessary capitalization omitted).
On October 30, 2019, Appellant filed an omnibus pre-trial motion
seeking to suppress the evidence and testimony derived from the search of
Appellant’s person by Trooper Danko on the grounds that Trooper Danko
lacked reasonable suspicion that Appellant was armed and dangerous,
thereby, resulting in an unconstitutional search of Appellant’s person.
Appellant’s Omnibus Pre-Trial Motion, 10/30/19. On January 16, 2020, the
trial court entertained argument on Appellant’s omnibus pre-trial motion. The
trial court subsequently denied the motion on January 28, 2020. On August
7, 2020, the trial court, in a non-jury trial, found Appellant guilty of the
aforementioned crime. On the same date, the court sentenced Appellant to
six months’ probation and ordered Appellant to pay the fines and costs of
prosecution. This appeal followed.2
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2 Both Appellant and the trial court complied with Pa.R.A.P. 1925.
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Appellant raises the following issue for our review:
Did the trial court err in denying [Appellant’s omnibus pre-trial]
motion to suppress, which argued that [Appellant] was subjected
to an unconstitutional search as law enforcement lacked proper
justification for this search and failed to establish a reasonable
belief that [Appellant] had been armed and dangerous at the time
of the search?
Appellant’s Brief at 7 (unnecessary capitalization omitted).
Our standard and scope of review of a challenge to a suppression court’s
order denying, or granting, a motion to suppress evidence is well-settled.
When we review the ruling of a suppression court[,] we must
determine whether the factual findings are supported by the
record. When it is a defendant who [] appealed, we must consider
only the evidence of the prosecution and so much of the evidence
for the defense as, fairly read in the context of the record as a
whole, remains uncontradicted. Assuming that there is support in
the record, we are bound by the facts as are found and we may
reverse the suppression court only if the legal conclusions drawn
from those facts are in error.
Commonwealth v. Hicks, 208 A.3d 916, 925 (Pa. 2019) (citation omitted).
“As an appellate court, we are not bound by the suppression court’s
conclusions of law; rather, when reviewing questions of law, our standard of
review is de novo and our scope of review is plenary.” Hicks, 208 A.3d at
925 (citation and original quotation marks omitted). Moreover, our scope of
review from a suppression ruling is limited to the evidentiary record that was
created at the suppression hearing. In re L.J., 79 A.3d 1073, 1087 (Pa.
2013).
Here, Appellant contends that Trooper Danko lacked reasonable
suspicion that Appellant was armed and dangerous to justify the subsequent
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frisk of Appellant’s person. Appellant’s Brief at 16-31. Appellant contends
that, “Trooper Danko was required to set forth on the record specific and
articulable facts that would have led a reasonable officer to believe [Appellant]
was armed and dangerous at the time of the pat-down for weapons.” Id. at
21.3 Appellant asserts that upon Appellant’s compliance with Trooper Danko’s
request to show his hands and the object he was concealing behind his back,
and upon Trooper Danko’s discovery that the object was a Christmas light
projector, “any suspicion that [Appellant] was armed and dangerous [was]
dispelled.” Id. at 30. Appellant contends that to justify the subsequent frisk
of Appellant, Trooper Danko needed to articulate specific facts demonstrating
a reasonable suspicion that Appellant was armed and dangerous. Id. at
30-31. We agree.
The Fourth Amendment to the United States Constitution, made
applicable to the states through the Fourteenth Amendment, and Article I,
Section 8 of the Pennsylvania Constitution protect a person from unlawful
searches and seizures.4 Our Supreme Court has long held that although the
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3 In so arguing, Appellant does not challenge that Trooper Danko had
reasonable suspicion to stop Appellant and request that he produce the object
that Appellant concealed behind his person.
4 The Fourth Amendment to the United States Constitution provides:
The right of the people to be secure in their persons, houses,
papers, and effects, against unreasonable searches and seizures,
shall not be violated, and no Warrants shall issue, but upon
probable cause, supported by Oath or affirmation, and particularly
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Pennsylvania Constitution provides broader protection from unreasonable
searches and seizures than the United States Constitution, the Terry doctrine,
announced in the seminal case of Terry v. Ohio, 392 U.S. 1 (1968), “sets
forth the reasonableness standard for Article I, [Section] 8 of the
Pennsylvania Constitution.” Hicks, 208 A.3d at 925, 940 (“the Terry doctrine
unequivocally requires something suggestive of criminal activity before an
investigative detention may occur”).
Hicks explained the distinction between a mere encounter and an
investigative detention as follows:
[W]arrantless interactions between citizens and police officers fall
into three categories, distinguished one from another by
consideration of whether the citizen has been “seized” within the
meaning of the Fourth Amendment, the intrusiveness and extent
of the seizure, and the justification therefor. The first type of
interaction - a mere encounter - does not constitute a seizure. It
generally involves a request for information and requires no
particular suspicion of criminality because it carries no official
compulsion to stop or to respond. During a mere encounter, as
long as the person to whom questions are put remains free to
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describing the place to be searched, and the persons or things to
be seized.
U.S. CONST. amend. IV. The Pennsylvania Constitution provides:
The people shall be secure in their persons, houses, papers and
possessions from unreasonable searches and seizures, and no
warrant to search any place or to seize any person or things shall
issue without describing them as nearly as may be, nor without
probable cause, supported by oath or affirmation subscribed to by
the affiant.
PA CONST. art. I, § 8.
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disregard the questions and walk away, there has been no
intrusion upon that person’s liberty or privacy as would under the
Constitution require some particularized and objective
justification.
We recognize only two types of lawful, warrantless seizures of the
person, both of which require an appropriate showing of
antecedent justification: first, an arrest based upon probable
cause; second, a[n investigative detention] based upon
reasonable suspicion. Here, we are concerned with this latter type
of seizure - interchangeably labeled an “investigative detention,”
a “Terry stop,” or, when coupled with a brief pat-down search for
weapons on the suspect's person, a “stop and frisk.”
To maintain constitutional validity, an investigative detention
must be supported by a reasonable and articulable suspicion that
the person seized is engaged in criminal activity and may continue
only so long as is necessary to confirm or dispel such suspicion.
The asserted grounds for an investigative detention must be
evaluated under the totality of the circumstances. So long as the
initial detention is lawful, nothing precludes a police officer from
acting upon the fortuitous discovery of evidence suggesting a
different crime than that initially suspected[.] However, an
unjustified seizure immediately violates the Fourth Amendment
rights of the suspect, taints the evidence recovered thereby, and
subjects that evidence to the exclusionary rule.
Hicks, 208 A.3d at 927-928 (citations, original quotation marks, and original
brackets omitted). The reasonable suspicion standard allows “a police officer
to stop an individual based upon [‘]specific and articulable facts[’] and
[‘]rational inferences from those facts[’] that warrant a belief that the
individual is involved in criminal activity.” Id. at 932 (citation and original
quotation marks omitted). “A Terry frisk is a type of investigative detention
requiring reasonable suspicion that criminal activity is afoot and that the
individual whose suspicious behavior [the police officer] is investigating at
close range is armed and presently dangerous to the [police] officer or to
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others.” Commonwealth v. Davis, 102 A.3d 996, 999 (Pa. Super. 2014)
(citation and original quotation marks omitted, emphasis added). “The
[police] officer need not be absolutely certain that the individual is armed; the
issue is whether a reasonably prudent [person] in the circumstances would be
warranted in the belief that his[, or her,] safety[,] or the safety of others[,]
was in danger.” Commonwealth v. Cooper, 994 A.2d 589, 592 (Pa. Super.
2010) (citation omitted). “The purpose of a Terry frisk is not to discover
evidence of a crime, but to protect the police officer conducting the
investigation.” Davis, 102 A.3d at 999.
Pennsylvania courts have long held that, “[i]f, during the course of a
valid investigatory stop, [a police] officer observes unusual and suspicious
conduct on the part of the individual which leads [the police officer] to
reasonably believe that the suspect may be armed and dangerous, the [police]
officer may conduct a pat-down of the suspect’s outer garments for weapons.”
Commonwealth v. E.M., 735 A.2d 654, 659 (Pa. 1999). “Such a frisk,
permitted without a warrant and on the basis of reasonable suspicion less than
probable cause, must always be strictly ‘limited to that which is necessary for
the discovery of weapons which might be used to harm the [police] officer or
others nearby.’” Id. (quoting Minnesota v. Dickerson, 508 U.S. 366, 373
(1993)).
Here, the suppression court, in denying Appellant’s omnibus pre-trial
motion to suppress, found,
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[Appellant] acted in a suspicious manner upon interacting with
Trooper Danko. . . . [Appellant] was moving toward the
officers[] and concealed an unidentified dark object behind his
back once Trooper Danko interacted with him. [The trial] court
finds that the actions of [Appellant,] as observed by Trooper
Danko in light of the surrounding circumstances and his
experience and training, could create the requisite reasonable
belief that [Appellant] may have been armed and dangerous[.]
Trial Court Opinion, 1/28/20, at 3.
The record demonstrates that at 8:17 p.m. on January 7, 2019, Trooper
Danko, along with two other officers, were at Appellant’s residence for the
purpose of serving a warrant on a person other than Appellant but who was
believed to be at Appellant’s residence. N.T. Suppression, 1/16/20, at 4-5,
12-13, 18.5 Trooper Danko testified that while the officers were attempting
to serve the warrant,6 he was positioned on the sidewalk outside Appellant’s
residence, and he noticed an individual, later identified as Appellant, walking
towards him. Id. at 5. Appellant was not yelling or rushing towards him but
was walking towards the front door of his residence. Id. at 13. The area of
the encounter was “dark” and illuminated only by a nearby traffic light.7 Id.
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5 We note that the suppression hearing transcript contains three pages of
testimony (pages marked 34-36) that pertain to a matter other than the
instant case. These pages are disregarded for purposes of this disposition.
6 Trooper Danko stated that the officers had the residence “pretty well
surrounded” and Appellant was approaching the front door as Trooper Danko
was knocking on the door of Appellant’s residence. Id. at 5.
7 The Commonwealth concedes that “the record does not contain information
concerning whether the area was a high[-]crime area.” Commonwealth Brief
at 12.
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at 5, 17. Due to this darkness, the trooper used a flashlight to see Appellant.
Id. at 17. Appellant was holding a “big black object” in his right hand, which
Trooper Danko described as “the size of a softball” with an attachment that
resembled a tent stake. Id. at 5-6, 13-14. The object did not appear to have
a handle. Id. at 6, 14. Trooper Danko asked Appellant what was in his hand.
Id. at 6. In response, Appellant put “his hand behind his back.” Id. at 6, 14.
Trooper Danko approached Appellant and “made him show his hands[,]” and
Appellant complied by putting his hands in front of him. Id. at 7. Trooper
Danko retrieved the item and discovered it was a “Christmas light[] star
shiner” projector used to project a light display on a house. Id. at 7-8, 14.
Appellant told the trooper that he found it in a trashcan a couple blocks away.
Id. at 10. Trooper Danko believed the item to be stolen based upon the moist
dirt that was still attached to the projector stake, consistent with a stake that
was just removed from the ground.8 Id. at 11.
Trooper Danko “patted [Appellant] down for weapons.” Id. at 8. He
explained his reasons for frisking Appellant as follows:
[COMMONWEALTH:] And why did you pat [Appellant] down for
weapons after you recovered the
[Christmas light projector] from him?
[TROOPER:] For my safety.
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8 Although several news releases were issued in an attempt to locate a victim
of the suspected theft, no victim came forward, and no other evidence
demonstrated that the Christmas light projector was stolen. Id. at 11.
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[COMMONWEALTH:] And why were you concerned for your
safety?
[TROOPER:] Because [Appellant,] obviously, was
hiding something behind his back before.
I don’t know if that object was – what that
object was. I – well, after I [discovered
what the object was,] there still could
have been something behind his back that
he was reaching for. Does that make
sense?
Id. at 17-18. Other than Appellant positioning the large black object behind
his back upon encountering Trooper Danko, Trooper Danko did not state that
Appellant moved, or attempted to move, towards an object behind his back,
in his pockets, or anywhere else on his person. Trooper Danko stated,
however, that based upon his experience, when an individual has an object in
his hands and conceals it behind his back, this presents a safety concern
because the concealed object may be a weapon. Id. at 7, 18.
When patting down Appellant’s outer garments for weapons, Trooper
Danko felt an object in Appellant’s “front left pocket” that “was apparent to
[him] to be a smoking device” used for the purpose of ingesting a controlled
substance.9 Id. at 8-9. Trooper Danko asked Appellant about the contents
of his pocket and Appellant removed a green smoking device from his front
left pocket. Id. at 9. Trooper Danko “emptied [Appellant’s] pockets” and
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9 Trooper Danko testified that, upon retrieval and examination, the green
smoking device contained a residue “consistent with controlled substances”
but the origin of the residue was not identified at the suppression hearing. Id.
at 12.
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discovered an empty plastic inch-by-inch bag that contained some “white
powder residue.”10 Id. at 9-10.
Trooper Danko’s initial inquiry concerning what Appellant was holding in
his hands was a mere encounter, since the trooper did not order Appellant to
stop or issue any other commands. Hicks, 208 A.3d at 927 (“as long as the
person to whom questions are put remains free to disregard the questions and
walk away, there has been no intrusion upon that person's liberty or privacy
as would under the Constitution require some particularized and objective
justification”). Thus, Appellant remained free to disregard Trooper Danko’s
request for information and walk away, and this specific interaction did not
intrude on his liberty or require particularized or objective justification.
This mere encounter transformed into an investigative detention when
Appellant, who initially concealed the item in his possession, produced the
Christmas light projector upon Trooper Danko’s request. At that point,
Trooper Danko formulated reasonable suspicion, based upon the totality of
the circumstances, that Appellant stole the item, since Appellant concealed
the item when he was asked about it, and the moist soil on the projector’s
stake indicated it had recently been dislodged from the ground. Trooper
Danko’s reasonable suspicion that criminal activity was afoot permitted him
to stop and detain Appellant for investigatory purposes. See id. (“an
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10 The Commonwealth did not introduce evidence identifying the origin of the
“white powder residue” in the empty plastic bag or the residue found on the
green smoking device.
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investigative detention must be supported by a reasonable and articulable
suspicion that the person seized is engaged in criminal activity and may
continue only so long as is necessary to confirm or dispel such suspicion”).
The Commonwealth contends that Trooper Danko not only had
reasonable suspicion that criminal activity was afoot but also had the authority
to frisk Appellant for weapons, since Appellant’s furtive concealment of the
contents in his hands created reasonable suspicion that he was armed and
dangerous. We disagree.
While we understand and appreciate the trooper’s concerns for his
safety, his decision to frisk Appellant rested more on a hunch than a
reasonable belief or suspicion that he was armed and dangerous.
In Commonwealth v. Grahame, 7 A.3d 810 (Pa. 2010), our Supreme
Court noted:
The Terry case created an exception to the requirement of
probable cause, an exception whose “narrow scope” [the U.S.
Supreme] Court “has been careful to maintain.” Under that
doctrine a law enforcement officer, for his own protection and
safety, may conduct a patdown to find weapons that he
reasonably believes or suspects are then in the possession of the
person he has accosted. . . . Nothing in Terry can be understood
to allow a generalized “cursory search for weapons” or, indeed,
any search whatever for anything but weapons. The “narrow
scope” of the Terry exception does not permit a frisk for weapons
on less than reasonable belief or suspicion directed at the person
to be frisked[.]
Id. at 815 (quoting Ybarra v. Illinois, 444 U.S. 85, 93-94 (1979)).
“In order to assess whether a reasonable belief existed, consideration is
given to the specific reasonable inferences which the officer can draw from
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the facts in the light of his experience but no consideration is given to his
unparticularized suspicions or hunches.” In re J.V., 762 A.2d 376, 380 (Pa.
Super. 2000) (citation omitted). “To justify a frisk incident to an investigatory
stop, the police need to point to specific and articulable facts indicating the
person they intend to frisk may be armed and dangerous; otherwise, the
talismanic use of the phrase ‘for our own protection,’ a phrase invoked by the
officers in this case, becomes meaningless.” Commonwealth v. Myers, 728
A.2d 960, 963 (Pa. Super. 1999) (emphasis in original).
Significantly, “while reasonable suspicion of unlawful activity is sufficient
to justify a forcible stop, it does not necessarily justify a frisk for weapons. . .
Only when the officer reasonably believes the suspect may be armed and
dangerous is a weapons frisk appropriate.” Commonwealth v. Mackey, 177
A.3d 221, 227 (Pa. Super. 2017); see also Commonwealth v. Brown, 2020
WL 6335982 (Pa. Super. 2020). The nature of the suspected criminal activity
is relevant to the decision whether to frisk. Commonwealth v. Zhahir, 751
A.2d 1153, 1162 (Pa. 2000). “Where the crime might typically involve
violence or the use of a weapon, the decision to frisk may be reasonable.” Id.Where the suspected offense does not typically involve a weapon, other
circumstances must be present, such as, for example, a bulge in the suspect’s
pocket or clothing, observation of an object that may be a weapon, sudden
movements toward a pocket or place where a weapon could be kept, or
backing away to provide time and space to draw a weapon. Id. at 1162-63.
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Instantly, Trooper Danko did not articulate
any specific reason that would suggest Appellant was armed and
dangerous, stating only in general terms that he frisked Appellant
for his safety[.] Under the current state of the law in this
Commonwealth, such a general statement does not provide a
sufficient basis for conducting a frisk incident to an investigatory
stop.
Commonwealth v. Cooper, 994 A.2d 589, 594 (Pa. Super. 2010). While
Appellant’s conduct in hiding the Christmas light projector provided
reasonable suspicion to believe that Appellant was involved in criminal
activity, nothing Appellant did suggested that he was armed or dangerous.
He promptly and unequivocally complied with all of Trooper Danko’s requests,
including the request to show his hands. After that, Appellant did not do or
say anything indicating that he was armed or dangerous. N.T. Suppression,
1/16/20, at 13-14. Furthermore, Appellant was not being investigated for an
offense involving a weapon or a crime of violence. The trooper was merely
investigating the suspected theft of a Christmas light projector. Finally, it is
worth noting that the Appellant’s residence was not noted as being located in
a high-crime area, and the officers had the residence surrounded because they
were executing a warrant nearby.
In short, Trooper Danko had reasonable suspicion to conduct an
investigatory detention, but he lacked reasonable suspicion to believe that
Appellant was armed or dangerous or to frisk Appellant for weapons. As a
result, the items discovered and seized during the search are the fruit of the
poisonous tree which the trial court should have been suppressed. Brown,
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2020 WL 6335982, *7 (suppressing evidence where officer lacked reasonable
suspicion to conduct frisk).
Order denying suppression reversed. Judgment of sentence vacated.
Case remanded for further proceedings consistent with this decision.
Jurisdiction relinquished.
Judge Musmanno joins the memorandum.
Judge Olson files a dissenting memorandum.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/3/2021
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