Com. v. Basketbill, R. ( 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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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
Appellee :
:
v. :
:
RODNEY BASKETBILL :
:
Appellant : No. 1337 EDA 2020
Appeal from the Judgment of Sentence Entered June 10, 2020
In the Court of Common Pleas of Bucks County
Criminal Division at No(s): CP-09-CR-0006733-2018
BEFORE: OLSON, J., KING, J., and PELLEGRINI, J.*
MEMORANDUM BY KING, J.: FILED AUGUST 10, 2021
Appellant, Rodney Basketbill, appeals from the judgment of sentence
entered in the Bucks County Court of Common Pleas, following his stipulated
bench trial convictions for promoting prostitution, conspiracy to promote
prostitution, false identification to law enforcement, criminal use of a
communication facility, sexual abuse of children (two counts), possession of a
small amount of marijuana, and possession of drug paraphernalia.1 We affirm.
In its opinion, the trial court set forth the relevant facts of this case as
follows:
The Commonwealth called Officer Brian Bielecki to testify
about the circumstances surrounding the search of
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* Retired Senior Judge assigned to the Superior Court.
1 18 Pa.C.S.A. §§ 5902(b)(1), 903, 4914(a), 7512(a), 6312(b)(1) and (b)(2);
and 35 P.S. §§ 780-113(a)(31)(i) and 780-113(a)(32), respectively.
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Appellant’s phone. At the time of Appellant’s arrest, Officer
Bielecki worked in the Bensalem Township Police
Department’s Special Investigations Unit. Officer Bielecki
was conducting a prostitution investigation. The
investigation involved looking online at various websites
such as Pryor, Backpage, Escort Alligator, List Crawler, and
other websites and then locating prostitution
advertisements in Bensalem. Once a prostitution
advertisement was found, Officer Bielecki would arrange a
date through a phone call or text message. On September
24, 2019, Officer Bielecki came upon a prostitution
advertisement and another officer used the phone number
on the advertisement to arrange a date. Upon learning the
date would occur at the Neshaminy Motor Inn in Bensalem
in room 314, Officer Bielecki conducted surveillance of the
location. Room 314 was registered to Ms. Jazmine
Brownlee, the co-defendant. As the other officers
responded to room 314 and were making contact with its
occupants, Officer Bielecki continued to survey the area to
determine if there was anyone in the vicinity paying close
attention to room 314. As he was standing on the balcony,
Officer Bielecki looked directly below the balcony and
noticed a Dodge Charger with Appellant sitting in the
driver’s seat and a female, who he had noticed during his
previous surveillance, in the passenger seat. Officer Bielecki
left the balcony and went directly to the vehicle. When he
made contact with the vehicle, he smelled marijuana coming
from the vehicle and asked Appellant to step out of the
vehicle. As Appellant stepped out of the vehicle, he was
holding a cell phone and Officer Bielecki asked Appellant to
place the cell phone on top of the vehicle. Officer Bielecki
asked another officer to call the phone number listed on the
prostitution advertisement at that time, and Appellant’s
phone that he had placed on top of the vehicle began to
ring. Appellant was subsequently arrested and his cell
phone was searched and analyzed.
(Trial Court Opinion, filed January 5, 2021, at 2-3) (internal record citations
omitted).
On October 4, 2019, Appellant filed a motion to suppress. The court
held a suppression hearing on November 12, 2019, and at the conclusion of
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that hearing the court denied Appellant’s motion. On that same day, Appellant
proceeded to a stipulated waiver trial, and the court found Appellant guilty of
the above-mentioned crimes. On June 10, 2020, the court sentenced
Appellant to an aggregate 3-6 years’ incarceration plus two years’ probation.
Appellant timely filed a notice of appeal on July 10, 2020. On August
20, 2020, the court ordered Appellant to file a Pa.R.A.P. 1925(b) concise
statement of errors complained of on appeal. Appellant filed two requests for
an extension of time upon receipt of all transcripts. The court granted the
requested extensions, and Appellant filed his Rule 1925(b) statement on
December 12, 2020.
Appellant raises the following issue for our review:
Did the trial court err in denying suppression of evidence
including Appellant’s cell phone, the contents of the cell
phone, and Appellant’s statements to the police, where
Appellant’s person was seized without reasonable suspicion
or probable cause, his cell phone was seized and searched
without a search warrant(s), and without exigent
circumstances, and Appellant’s rights to be free from illegal
searches and seizures were violated under the federal and
state constitution?
(Appellant’s Brief at v).
“Our standard of review in addressing a challenge to a trial court’s denial
of a suppression motion is limited to determining whether the factual findings
are supported by the record and whether the legal conclusions drawn from
those facts are correct.” Commonwealth v. H. Williams, 941 A.2d 14, 26
(Pa.Super. 2008) (en banc) (internal citations omitted).
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[W]e may consider only the evidence of the prosecution and
so much of the evidence for the defense as remains
uncontradicted when 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.
Id. at 27. The reviewing court’s scope of review is limited to the evidentiary
record of the pre-trial hearing on the suppression motion. In re L.J., 622 Pa.
126, 79 A.3d 1073 (2013). “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.” Commonwealth v. Luczki, 212 A.3d 530, 542 (Pa.Super.
2019) (quoting Commonwealth v. Clemens, 66 A.3d 373, 378 (Pa.Super.
2013)). If appellate review of the suppression court’s decision “turns on
allegations of legal error,” then the trial court’s legal conclusions are
nonbinding on appeal and subject to plenary review. Commonwealth v.
Smith, 164 A.3d 1255, 1257 (Pa.Super. 2017) (quoting Commonwealth v.
P. Jones, 121 A.3d 524, 526-27 (Pa.Super. 2015), appeal denied, 635 Pa.
750, 135 A.3d 584 (2016)).
Appellant argues that he was not free to leave when Officer Bielecki
arrived at Appellant’s vehicle and directed Appellant to roll down his window.
Appellant asserts he was subject to a custodial detention requiring probable
cause. Appellant insists the officer lacked probable cause to seize Appellant
because the only information Officer Bielecki had about Appellant at that time
was that Appellant was sitting in a legally parked car, with a woman, and the
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officer smelled an odor of marijuana. On these limited facts, Appellant
maintains the police had no information that would lead them to reasonably
believe that Appellant was involved in any criminal activity. Appellant insists
that the odor of marijuana on its own is insufficient to constitute probable
cause.
Appellant also contends that after he exited his vehicle, Officer Bielecki
unlawfully took possession of Appellant’s cell phone and placed it on the hood
of Appellant’s vehicle.2 Appellant claims this act was illegal because the officer
lacked reasonable suspicion or probable cause to believe the phone was being
used for a criminal purpose. Appellant emphasizes the officer’s testimony that
he took the phone because “I usually don’t like people having different items
in their hands if I’m investigating something.” (Appellant’s Brief at 14).
Appellant avers the police subsequently conducted an illegal warrantless
search of his cell phone when another officer dialed the phone number listed
in the prostitution advertisement which prompted Appellant’s cell phone to
ring. By monitoring Appellant’s phone to see if it would ring, Appellant
suggests the officer essentially accessed information contained within
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2 The Commonwealth claims Appellant waived his challenge to the seizure of
the cell phone because Appellant failed to raise it at the suppression hearing.
Nevertheless, the record confirms that before the hearing commenced,
Appellant stated that he sought to suppress the unlawful “taking of the
telephone.” (See N.T. Suppression Hearing, 11/12/19, at 3). Thus, we
decline the Commonwealth’s invitation to find waiver and we will address the
merits of this issue.
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Appellant’s cell phone without a warrant. Appellant concludes the court erred
in denying his suppression motion, and this Court should reverse and grant a
new trial. We disagree.
The Fourth Amendment to the United States Constitution and Article I,
Section 8 of the Pennsylvania Constitution guarantee the right of the people
to be secure in their persons, houses, papers, and possessions from
unreasonable searches and seizures. Commonwealth v. Morrison, 166
A.3d 357, 363-64 (Pa.Super. 2017). “To secure the right of citizens to be free
from unreasonable search and seizure, courts in Pennsylvania require law
enforcement officers to demonstrate ascending levels of suspicion to justify
their interactions with citizens to the extent those interactions compromise
individual liberty.” Commonwealth v. Hampton, 204 A.3d 452, 456
(Pa.Super. 2019). Because interactions between law enforcement and the
general citizenry are widely varied, search and seizure law examine how the
interaction is classified and if a detention has occurred. Commonwealth v.
DeHart, 745 A.2d 633, 636 (Pa.Super. 2000).
The focus of search and seizure law “remains on the delicate balance of
protecting the right of citizens to be free from unreasonable searches and
seizures and protecting the safety of our citizens and police officers by allowing
police to make limited intrusions on citizens while investigating crime.”
Commonwealth v. Moultrie, 870 A.2d 352, 356 (Pa.Super. 2005) (quoting
Commonwealth v. Blair, 860 A.2d 567, 571 (Pa.Super. 2004)) (internal
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quotation marks omitted). “[I]n assessing the lawfulness of citizen/police
encounters, a central, threshold issue is whether...the citizen-subject has
been seized.” Commonwealth v. Strickler, 563 Pa. 47, 57, 757 A.2d 884,
889 (2000).
Contacts between the police and citizenry fall within three general
classifications:
The first [level of interaction] is a “mere encounter” (or
request for information) which need not be supported by
any level of suspicion, but carries no official compulsion to
stop or to respond. The second, an “investigative detention”
must be supported by a reasonable suspicion; it subjects a
suspect to a stop and a period of detention, but does not
involve such coercive conditions as to constitute the
functional equivalent of an arrest. Finally, an arrest or
“custodial detention” must be supported by probable cause.
Commonwealth v. Goldsborough, 31 A.3d 299, 305 (Pa.Super. 2011),
appeal denied, 616 Pa. 651, 49 A.3d 442 (2012) (quoting Commonwealth
v. Bryant, 866 A.2d 1143, 1146 (Pa.Super. 2005), appeal denied, 583 Pa.
668, 876 A.2d 392 (2005)). Police must have reasonable suspicion that a
person seized is engaged in unlawful activity before subjecting that person to
an investigative detention. Commonwealth v. Cottman, 764 A.2d 595(Pa.Super. 2000).
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. 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
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appropriate.
* * *
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.
Commonwealth v. B. Jones, 874 A.2d 108, 116 (Pa.Super. 2005) (internal
citations omitted). “There is no clear formula for determining whether an
interaction constitutes a mere encounter or an investigative detention, but we
are guided by the question of whether a reasonable person, based on the
totality of the circumstances, would believe he is free to leave.”
Commonwealth v. Plante, 914 A.2d 916, 921-22 (Pa.Super. 2006),
“[T]he question of whether reasonable suspicion existed at the time of
an investigatory detention must be answered by examining the totality of the
circumstances to determine whether there was a particularized and objective
basis for suspecting the individual stopped of criminal activity.” Cottman,
supra at 598-99 (quoting Commonwealth v. Beasley, 761 A.2d 621, 625-
26 (Pa.Super. 2000), appeal denied, 565 Pa. 662, 775 A.2d 801 (2001)).
In making this determination, we must give due weight...to
the specific reasonable inferences the police officer is
entitled to draw from the facts in light of his experience.
Also, the totality of the circumstances test does not limit our
inquiry to an examination of only those facts that clearly
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indicate criminal conduct. Rather, even a combination of
innocent facts, when taken together, may warrant further
investigation by the police officer.
Commonwealth v. Young, 904 A.2d 947, 957 (Pa.Super. 2006), appeal
denied, 591 Pa. 664, 916 A.2d 633 (2006) (internal citations and quotation
marks omitted).
An arrest or “custodial detention” must be supported by probable cause:
Probable cause is made out when the facts and
circumstances which are within the knowledge of the officer
at the time of the arrest, and of which he has reasonably
trustworthy information, are sufficient to warrant a [person]
of reasonable caution in the belief that the suspect has
committed or is committing a crime. The question we ask
is not whether the officer’s belief was correct or more likely
true than false. Rather, we require only a probability, and
not a prima facie showing, of criminal activity. In
determining whether probable cause exists, we apply a
totality of the circumstances test.
Commonwealth v. R. Williams, 2 A.3d 611 (Pa.Super. 2010) (en banc),
appeal denied, 610 Pa. 586, 19 A.3d 1051 (2011) (internal citations and
quotation marks omitted) (emphasis in original).
“The key difference between an investigative and a custodial detention
is that the latter ‘involves such coercive conditions as to constitute the
functional equivalent of an arrest.’” Commonwealth v. Gonzalez, 979 A.2d
879, 887 (Pa.Super. 2009) (quoting Commonwealth v. Pakacki, 587 Pa.
511, 519, 901 A.2d 983, 987 (2006)). Unlike a custodial detention or a formal
arrest, an investigative detention does not require probable cause because it
lacks the same magnitude of coercive conditions. Commonwealth v.
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Douglass, 539 A.2d 412 (Pa.Super. 1988).
The court considers the totality of the circumstances to
determine if an encounter is investigatory or custodial, but
the following factors are specifically considered: the basis
for the detention; the duration; the location; whether the
suspect was transported against his will, how far, and why;
whether restraints were used; the show, threat or use of
force; and the methods of investigation used to confirm or
dispel suspicions.
Commonwealth v. Teeter, 961 A.2d 890, 899 (Pa.Super. 2008).
Additionally, the odor of marijuana can supply reasonable suspicion or
probable cause in certain circumstances:
The odor of marijuana alone, absent any other
circumstances, cannot provide individualized suspicion of
criminal activity when hundreds of thousands of
Pennsylvanians can lawfully produce that odor. What it does
provide to police is a general, probabilistic suspicion of
criminal activity based on the fact that most citizens cannot
legally consume marijuana. Thus, it is a factor that can
contribute to a finding of probable cause, consistent with
prior precedent…, assuming some other circumstances
supply more individualized suspicion that the activity is
criminal. This does not imply a change in the probable cause
test, because, previously, the possession of marijuana was
universally illegal. That universal factual circumstance
established particularized suspicion of criminal activity,
because every instance of possession of marijuana was
previously a crime.
Commonwealth v. Barr, 240 A.3d 1263, 1287 (Pa.Super. 2020), appeal
granted, No. 583 MAL 2020, 2021 WL 1661050 (Pa. Apr. 28, 2021).3
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3 The Supreme Court granted allowance of appeal limited to the following
issues: (1) What weight, if any, should the odor of marijuana be given in
determining whether probable cause exists for a warrantless vehicle search,
(Footnote Continued Next Page)
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Consequently, “[o]dor is a factor that can contribute to a finding of probable
cause, assuming other circumstances supply more individualized suspicion
that the activity is criminal.” Commonwealth v. Grooms, 247 A.3d 31, 40
(Pa.Super. 2021). See also Commonwealth v. Foy, No. 376 WDA 2019,
2021 WL 141509 at *3 (Pa.Super. filed Jan 15, 2021) (unpublished
memorandum)4 (holding police had reasonable suspicion to stop appellant
based on odor of fresh and burnt marijuana, along with appellant’s red and
glassy eyes; officer had reasonable grounds to suspect that appellant was
illegally in possession of marijuana to justify investigative detention; since
possession of marijuana is still illegal in Pennsylvania unless Medical Marijuana
Act applies, officer’s suspicion of criminal activity being afoot was reasonable;
officer did not need to have absolute proof that possession of marijuana was
illegal; trial court did not err by relying on “plain smell” principle to deny
suppression motion on that ground).
“A search occurs when police intrude upon a constitutionally protected
area without the individual’s explicit or implicit permission.” Commonwealth
v. Fulton, 645 Pa. 296, 317, 179 A.3d 475, 487-88 (2018). “To constitute
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in light of the enactment of the Medical Marijuana Act, 35 P.S. § 10231.101
et seq.?; and (2) To what extent does this Court’s decision in Commonwealth
v. Hicks, 652 Pa. 353, 208 A.3d 916 (2019), apply to probable cause
determinations involving the possession of marijuana following the enactment
of the Medical Marijuana Act, 35 P.S. § 10231.101 et seq.?
4 See Pa.R.A.P. 126(b)(2) (stating non-precedential decisions of Superior
Court filed after May 1, 2019 may be cited for their persuasive value).
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such an intrusion, the action need not uncover something ‘of great personal
value’; even a small, seemingly insignificant act of information gathering by
police in a constitutionally protected area is a search.” Id. at 317, 179 A.3d
at 488. “It is well-settled that the extraction of data from a cell phone
constitutes a search that requires police to obtain a search warrant prior to
extraction.” Commonwealth v. Knoble, 188 A.3d 1199, 1207 (Pa.Super.
2018), appeal denied, 649 Pa. 667, 198 A.3d 332 (2018).
In Fulton, supra, our Supreme Court held that a detective’s (1)
warrantless act of powering up a flip phone constituted a search; (2) the act
of navigating through the flip phone’s menus to obtain its number was a
search; and (3) monitoring the flip phone’s incoming calls and text messages
was a search. See id. at 318, 179 A.3d at 488. Specifically, the Court
explained:
Turning on the phone exposed to view portions of the phone
that were previously and not otherwise authorized by a
warrant or an exception to the warrant requirements.
Powering on the phone is akin to opening the door to a
home. It permitted police to obtain and review a host of
information on the cell phone, including viewing its
wallpaper, reviewing incoming text messages and calls, and
accessing all of the data contained in the phone.
… After powering on the phone, [the detective] navigated
through the menus of the flip phone to obtain its number.
… [The U.S. Supreme Court has] rejected the…conclusion
that accessing a cell phone to obtain its phone number was
permissible without a warrant. The act of navigating the
menus of a cell phone to obtain the phone’s number is
unquestionably a search that required a warrant.
… To aid in [the detective’s] investigation of [victim’s]
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murder, he kept the phone powered on, monitoring the calls
and text messages that came through by viewing the
number and/or assigned name of the individual calling or
texting on the flip phone’s internal or external display. The
day after the phone was delivered to homicide, [the
detective] reviewed a number of calls and texts that were
incoming during the course of time that the phone was in
the homicide unit, and then answered a phone call… …
Contrary to the finding of the trial court and the argument
advanced by the Commonwealth before this Court, there is
little difference between monitoring the internal and
external viewing screens on a cell phone and searching the
phone’s call logs. Both result in accessing more than just
phone numbers, but also any identifying information that an
individual might add to his or her contacts, including the
caller’s photograph, the name assigned to the caller or
sender of the text message. Further, and unlike a call log,
monitoring a phone’s incoming text messages allows the
viewer to see the content of a text message, which
indisputably constitutes private data. …
Id. at 318-19, 179 A.3d at 488-89 (internal citations and quotation marks
omitted).
Instantly, Officer Bielecki testified at the suppression hearing that he
works as a Bensalem Township Police Officer in the special investigation unit.
(See N.T. Suppression Hearing, 11/12/19, at 8). On September 24, 2018, he
and other officers took part in an investigation of online website
advertisements for prostitution. (Id.) One of the police officers dialed a
telephone number included in an online advertisement to arrange a meeting.
(Id. at 10). The officer arranged the meeting to occur in Room 314 of the
Neshaminy Inn. (Id. at 10). Before the meeting, the police conducted a pre-
surveillance investigation. (Id.) During this investigation, Officer Bielecki
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observed two females walking together at a nearby Dunkin’ Donuts. (Id. at
13). Subsequently, he discovered from the Inn’s front desk that the registered
guest for Room 314 was Ms. Brownlee, and he viewed a photocopy of Ms.
Brownlee’s driver’s license. (Id.) He recognized Ms. Brownlee as one of the
women he had recently seen walking near the Dunkin’ Donuts. (Id.) As part
of the pre-surveillance investigation, the police checked “to see if there’s
anybody either coming or going from the room [314], if there’s a high traffic,
if there’s other people paying attention to certain rooms, if we have that room
already or not.” (Id. at 11). The police conduct this additional surveillance
“[b]ecause it’s common there could be a pimp or somebody who was there
for protection or another female who is involved.” (Id. at 12). Often this
additional person is nearby to assist the woman located inside the hotel room.
(Id.)
As soon as the other police officers contacted Ms. Brownlee inside Room
314, Officer Bielecki noticed a Dodge Charger parked in the lot under this
room. (Id. at 13). Officer Bielecki saw Appellant and a female sitting inside
this vehicle. (Id.) He immediately recognized the female passenger as the
same woman who he had seen earlier walking with Ms. Brownlee at the
Dunkin’ Donuts. (Id.) Officer Bielecki approached the vehicle, and he
immediately detected an odor of marijuana coming from the vehicle. (Id. at
14). Officer Bielecki instructed Appellant to exit the vehicle. (Id.) The court
found Officer Bielecki’s testimony credible, and it accepted his testimony in its
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entirety. (See id. at 34-35).5
Initially, we must decide whether Officer Bielecki’s interaction with
Appellant constituted an investigatory detention (as the Commonwealth
suggests and the trial court found), or a custodial detention (as Appellant
claims). Our review of the record shows that Officer Bielecki approached
Appellant alone and asked Appellant to roll down his window and exit the
vehicle. (See id. at 13). Significantly, the officer did not transport Appellant,
handcuff him, or threaten to use any force. Although Appellant claims that he
“was not free to leave,” that fact by itself is not the hallmark of a custodial
detention, as an investigatory detention also subjects a suspect to a stop and
a period of detention. See Goldsborough, supra. Under the totality of the
circumstances, we cannot agree with Appellant’s position that Officer Bielecki’s
instruction for Appellant to roll down his window and exit his vehicle
constituted such coercive conditions as to constitute the functional equivalent
of an arrest. See Pakacki, supra; Gonzalez, supra; Teeter, supra;Douglass, supra. Rather, the record supports the suppression court’s finding
that the encounter amounted to an investigatory detention. See, e.g.,
Plante, supra (holding officer’s encounter with appellant amounted to
investigatory detention and not custodial detention where: officer observed
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5 We are cognizant that the suppression court as factfinder has the sole
discretion to pass on the credibility of witnesses and the weight to be given
their testimony. See Luczk, supra.- 15 -
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passenger vehicle parked by loading dock in industrial area where cars are not
permitted; officer found two individuals nearby, who claimed they were “going
to the bathroom;” officer told men to leave but as they drove away, officer
noticed numerous radio antennae on trunk of vehicle, which further raised
officer’s suspicion; officer had doubts about suspects’ statements that they
were just looking for place to urinate, given their distance from car when he
saw them, their demeanor, and way in which car was parked; officer
conducted traffic stop of vehicle and observed numerous radios installed and
operating on dash of vehicle; officer “was aware that individuals engaging in
criminal activity often possess such devices to track the location of police;”
officer asked men to step out of vehicle, out of concern for his safety).
The record further supports the suppression court’s decision that Officer
Bielecki had reasonable suspicion to conduct an investigatory detention. The
following facts support this determination. Officer Bielecki approached
Appellant after discovering Appellant parked in a car directly below room 314.
Based on his training and experience, Officer Bielecki knew that pimps or other
individuals associated with prostitutes tended to be located nearby. Officer
Bielecki immediately recognized the female passenger in the car with
Appellant as the woman he had previously seen with Ms. Brownlee, who was
the registered occupant of Room 314. (Id. at 13). Further, Officer Bielecki
detected an odor of marijuana emanating from the Appellant’s vehicle when
he approached it. (Id. at 14). Under the totality of the circumstances, Officer
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Bielecki had articulable specific observations including Appellant’s location, his
passenger and the odor of marijuana that led him reasonably to conclude, in
light of his experience, that criminal activity was afoot and that Appellant was
involved in that activity.6 See B. Jones, supra; Cottman, supra; Foy,
supra.
Regarding Appellant’s complaint that the officer “seized” his cell phone,
the record shows that once Appellant exited the vehicle, Officer Bielecki
noticed that Appellant “had a cell phone, and as [Appellant] exited[, Officer
Bielecki] asked [Appellant] to place [the cell phone] or [Officer Bielecki] placed
[the cell phone] on top of the vehicle.” (See N.T. Suppression Hearing at 14).
Officer Bielecki explained that during his investigations he does not like the
subjects being interviewed to have any items in their hands. (Id. at 17).
Even if it was Officer Bielecki who placed the cell phone on top of the
car, we cannot agree with Appellant’s classification of this event as a “seizure.”
Rather, the placement of Appellant’s cell phone on top of the vehicle
constituted only a minor inconvenience during which the officer would have
touched Appellant’s phone for only a moment. See, e.g., Commonwealth
v. Lyles, 54 A.3d 76, 83 (Pa.Super. 2012) (explaining that police demand for
suspect to keep hands out of pockets is “minor inconvenience” and “not a
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6 Even if the interaction had amounted to a custodial detention, these facts
would have also supplied the officer with the requisite probable cause. See
R. Williams, supra; Grooms, supra; Barr, supra.
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substantial impairment on [a defendant’s] liberty of movement, particularly
considering the officers’ legitimate concerns for their own safety”);
Commonwealth v. Coleman, 19 A.3d 1111 (Pa.Super. 2011) (noting that
officer’s request that defendant remove his hands from his pockets did not
constitute a seizure).
We further disagree with Appellant’s contention that the police
“searched” his phone when Officer Bielecki asked another officer to dial the
telephone number listed in the online prostitution advertisement, which
prompted Appellant’s phone to ring. Although Appellant relies on Fulton,
supra, that case is distinguishable. Here, Officer Bielecki did not take custody
of Appellant’s phone or manipulate it in any way to actively monitor the phone
for private information.7 Compare Fulton, supra. Because the trial court’s
factual findings are supported by the record, the court’s suppression ruling
was proper. See H. Williams, supra. Accordingly, we affirm.
Judgment of sentence affirmed.
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7 Decisions from other jurisdictions support this view. See, e.g., United
States v. Chambers, 2017 WL 4005641 (D. Del. Sept. 12, 2017) (concluding
officer’s phone call to defendant’s phone was not search under Fourth
Amendment); United States v. Pacheco, 2015 WL 3402832 (W.D.N.Y. May
27, 2015) (holding officer did not search defendant’s cell phone when he dialed
number using his own cell phone and observed defendant’s phone ringing).
Although decisions of the federal courts and other state courts are not binding
on this Court, they can be cited for persuasive value in this Commonwealth.
See Commonwealth v. Seskey, 170 A.3d 1105, 1109 (Pa.Super. 2017).
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/10/2021
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