Com. v. Breeland, A.

J-A09033-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
ANTHONY BREELAND : No. 1560 EDA 2021
Appeal from the Order Entered July 2, 2021
In the Court of Common Pleas of Monroe County Criminal Division at
No(s): CP-45-CR-0000976-2020
BEFORE: NICHOLS, J., SULLIVAN, J., and PELLEGRINI, J.*
MEMORANDUM BY PELLEGRINI, J.: FILED MAY 13, 2022
The Commonwealth appeals the order of the Court of Common Pleas of
Monroe County granting a suppression motion in favor of Anthony Breeland
(Breeland). We affirm.
On June 1, 2020, Breeland was sitting in a parked vehicle at a Clarion
Inn Hotel in Monroe County. Two Pennsylvania State troopers who were on
patrol found his presence there to be suspicious, so they approached him and
eventually had Breeland exit the vehicle. A search of Breeland’s person
yielded crack and powder cocaine, leading the officers to then search
Breeland’s vehicle, where additional controlled substances and contraband
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* Retired Senior Judge assigned to the Superior Court.
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were retrieved. During the encounter, Breeland also made incriminating
statements.
After he was charged with four drug-related offenses, Breeland moved
to exclude from the evidence at trial the retrieved substances and his
statements on the grounds that the initial search of his person violated his
Fourth Amendment right to be free from an unreasonable search and seizure.
At the suppression hearing, the sole witness was one of the two arresting
officers, Trooper Anthony Spegar. See Suppression Hearing Transcript,
2/1/2021, at pp. 10-72.
Trooper Spegar testified that he was on a routine patrol in a marked
police car near the Clarion Inn Hotel in Monroe County, which, according to
Trooper Spegar, was a high-crime area where he had made a number of drug-
related arrests.1 On the night in question, at about 9:45 p.m., Trooper Spegar
saw Breeland sitting alone in a parked Toyota sedan. After looking up the
vehicle’s registration, he found that it was linked to a woman from Allentown
who clearly was not Breeland.
At around 10:00 p.m., Trooper Spegar parked his patrol vehicle and
approach Breeland on foot. As he neared, the officer saw Breeland make what
appeared to be furtive movements toward the center console of the Toyota.
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1 Officer Spegar was accompanied by his partner, who did not testify at the
suppression hearing.
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He also noticed that Breeland had with him four cellular phones, and that there
was a white powdery substance on the center console. The officer testified
that Breeland appeared to be nervous, as evidenced by the movement of his
hands, a lack of eye contact, and the vague yet inconsistent reasons Breeland
gave him for sitting in the hotel’s parking lot.2 Suspecting that Breeland could
be concealing some kind of criminal activity, Trooper Spegar asked Breeland
to step out of the vehicle.
Initially, Breeland hesitated, asking why the request had been made.
Breeland’s reluctance to comply made the officer even more suspicious,
prompting the officer to order Breeland out of the car. Id. at p. 54. Breeland
again asked why he was being ordered to step out, and without clarifying, the
officer again demanded that he exit the vehicle.
When he agreed to step out, Breeland assumed what the officer
described as a “bladed” or “fight or flight” stance, leading the officer “to
believe that he may have a weapon on him[.]” Id. at p. 16. The officer
described this stance as a movement of Breeland’s hands from “down by his
sides” to “his lower chest area.” Id. at p. 29.
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2 The officer clarified during cross-examination that Breeland had at first
explained that he was sitting in his vehicle to avoid an argument with his
girlfriend. At some point later during the conversation, Breeland said that he
was not having an argument, and that he just wanted to listen to the radio in
the vehicle. See Suppression Hearing Transcript, 2/1/2021, at pp. 47-49.
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The officer then asked Breeland to consent to a pat-down search or frisk
of his person to determine whether he was armed. Breeland asked why that
request was made and “backed away” a few feet from the officer. Id. at p.
55. Moments later, however, he complied.
During the pat-down search for weapons, Trooper Spegar touched
Breeland’s pant pocket and felt “a rock-like substance” in a plastic bag. Id.
Based on his training and experience, he thought the bag could contain “a
number of different types of narcotics.” Id. at p. 16. The officer asked
Breeland directly what the bag contained, and Breeland said that he did not
know.
The officer then removed the bag from Breeland’s pocket, at which point
Breeland stated that he was not at the hotel for drugs and that he did have a
“drug problem.” Id. at p. 17. The officer identified the substance in the plastic
bag as possibly being either crack cocaine or powder cocaine. Breeland then
admitted that he had just picked up the crack cocaine, but he would not say
where he had gotten it. Trooper Spegar also found in Breeland’s pocket a few
hundred dollars wrapped in rubber bands. The officer testified that carrying
cash in this manner was indicative of drug trafficking. Breeland’s demeanor
was described as aggressive, defensive and non-cooperative and he was
arrested. Over Breeland’s objection, Trooper Spegar searched the Toyota,
yielding drug packaging, a scale with drug residue on it, and over $3,000 in
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cash. It was discovered after Breeland’s arrest that his driver’s license had
been suspended.
Crucially, Trooper Spegar admitted that at the time he ordered Breeland
out of the vehicle and prior to any of the searches, he “could not pinpoint a
specific criminal activity that was occurring.” Id. at p. 58. While the officer
had a general suspicion that crime was afoot, he could not “deduce it to a
specific criminal activity [without further investigation].” Id. Further, when
the officer initially felt the plastic baggie in Breeland’s pocket during the pat-
down search, he could only generally ascertain that “the rock-like substance
was consistent with the feel of cocaine, or heroin, meth, something in a rock-
like form.” Id. at p. 60.
Breeland moved to suppress the evidence obtained from the pat-down
search of his person on the ground that Trooper Spegar had been unable to
identify any contraband prior to removing the plastic bag in his pocket.
Further, Breeland argued that the illegality of that pat-down search made the
subsequent vehicle search and Breeland’s incriminating statements
inadmissible at trial.
The trial court granted Breeland’s motion to suppress the evidence
obtained from his person, as well as the resulting statements and evidence
obtained by the police thereafter. In its opinion, the trial court reasoned that
the pat-down search was unlawful because Trooper Spegar lacked probable
cause to believe that the bag he felt in Breeland’s pocket was contraband prior
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to removing it. See Trial Court Opinion, 7/2/2021, at 7-9. That is, the officer
had been unable to articulate how the feel of a rock-like substance in a plastic
bag could be distinguished from any number of “legitimate, small, hard objects
in a baggie.” Id. at 7.
By removing the item from Breeland’s pocket before it could be
identified as contraband, the officer exceeded the scope of a lawful frisk and
did not satisfy the “plain feel” exception to the warrant requirement.3 The
evidence obtained in that search (including Breeland’s statements and the
items seized from the vehicle he occupied) was also subject to exclusion from
trial as the product of the initial illegality. See id. at 10-11.
The Commonwealth timely appealed the suppression order and the trial
court entered a 1925(a) opinion outlining why the order should be upheld.
See 1925(a) Opinion, 9/25/2021, at 1-2. The trial court reiterated and
incorporated by reference the facts and reasoning discussed in its earlier
opinion: “In our Opinion and Order filed on July 2, 2021, we determined that
the record is devoid of evidence that the suspected crack cocaine had an
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3 The “plain feel” doctrine “allows an officer to 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.”
Commonwealth v. Stevenson, 744 A.2d 1261, 1265 (Pa. 2000).
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identifiable mass or contour to immediately identify it as such based upon a
preponderance of the evidence.” Id. at 2.
The Commonwealth now raises a single issue in its brief:
Whether the [trial court] erred as a matter of law when it applied
a preponderance of evidence analysis and failed to conduct a
probable cause inquiry into the totality of the circumstances
surrounding the pat-down search as required by the Plain Feel
Doctrine[.]
Appellant’s Brief, at 6.4
The Commonwealth’s main contention in this appeal is that the trial
court applied an incorrect legal standard when determining whether the
officer’s pat-down search of Breeland comported with the “plain-feel doctrine.”
According to the Commonwealth, the trial court incorrectly weighed the
evidence under a preponderance standard rather than the appropriate
standard of probable cause under the totality of the circumstances. The
Commonwealth argues further that, based on the totality of the
circumstances, the arresting officer had probable cause, as a matter of law,
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4 The Commonwealth’s appellate claims are limited to the trial court’s findings
as to the initial search of Breeland’s person. Accordingly, it is not necessary
for us review the portions of the trial court’s order concerning the suppression
of Breeland’s subsequent statements and the items later seized from the
vehicle he was occupying.
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to believe that the plastic bag retrieved from Breeland’s pocket contained
contraband.5
First, the record establishes that the correct legal standard was applied.
In its opinion, the trial court thoroughly set forth the law governing the
permissible scope of a pat-down search or “frisk” for weapons, as well as the
“plain feel” doctrine, which is the narrow exception to the warrant requirement
invoked by the Commonwealth to justify the initial search of Breeland’s person
in this case. The following summary of law, taken verbatim from the trial
court’s opinion, demonstrates that the trial court used the correct legal
standards:
It is well-established that a police officer may conduct a brief
investigatory stop of an individual if the officer observes unusual
conduct which leads [him or her] to reasonably conclude that
criminal activity may be afoot. Moreover, if the officer has a
reasonable suspicion, based on specific and articulable facts, that
the detained individual may be armed and dangerous, the officer
may then conduct a frisk of the individual’s outer garments for
weapons.
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5 When an order granting a suppression motion is being appealed, our review
“is limited to determining whether the suppression court’s factual findings are
supported by the record and whether the legal conclusions drawn from those
facts are correct.” Commonwealth v. Stem, 96 A.3d 407, 409 (Pa. Super.
2014) (citation omitted). “[O]ur scope of review is limited to the factual
findings and legal conclusions of the suppression court.” In re L.J., 79 A.3d
1073, 1080 (Pa. 2013) (citation omitted). We defer to the suppression court,
“as factfinder[,] to pass on the credibility of witnesses and the weight to be
given to their testimony.” Commonwealth v. Elmobdy, 823 A.2d 180, 183
(Pa. Super. 2003). “[H]owever, we maintain de novo review over the
suppression court’s legal conclusions.” Commonwealth v. Brown, 996 A.2d
473, 476 (Pa. 2010).
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Commonwealth v. Stevenson, 744 A.2d 1261, 265 (Pa. 2000)
(citations omitted).
Since the sole justification for a Terry [frisk] is the protection of
the officer or others nearby, such a protective search must be
strictly limited to that which is necessary for the discovery of
weapons which might be used to harm the officer or others
nearby. Thus, the purpose of the limited search is not to discover
evidence, but to allow the officer to pursue [his or her]
investigation without fear of violence.
[Id.] (citations omitted).
If the Terry protective search goes beyond what is needed to
determine the presence of weapons, it is no longer valid, and
evidence seized must be suppressed. Minnesota v. Dickerson,
508 U.S. 366, 373 (1993).
Where the police extend a frisk of an individual beyond the limited
purposes of a Terry frisk [for officer and public safety], the
Commonwealth needs a separate exception [to the warrant
requirement] to justify the search and any subsequent seizure of
the individual’s personal property.
Commonwealth v. Graham, 721 A.2d 1075, 1078 (Pa. 1998).
[T]he United States Supreme Court considered the question of
whether an officer may also properly seize non-threatening
contraband “plainly felt” during a Terry frisk for weapons.
Answering the question in the affirmative, the [Supreme Court]
adopted the so-called plain feel doctrine and held that 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. As [it] made clear, the 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 or she] 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
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search, the immediately-apparent requirement has not
been met, and the plain feel doctrine cannot justify the
seizure of the object.
Stevenson, supra, at 1265 (citations omitted, emphasis added).
In the course of the Terry frisk, a trooper must form
probable cause to believe he or she is feeling contraband
before seizing it. Dickerson, supra, at 376. “An officer’s
subjective belief that an object is contraband is not sufficient,
unless it is objectively reasonable in light of the facts and
circumstances existing at the time of the frisk.” Commonwealth
v. Zhahir, 751 A.2d 1153, 1163 (Pa. 2000).
Further, the Commonwealth has the burden of proving
evidence is admissible when challenged in a suppression
motion. Pa. R. Crim. P. 581(H). Therefore, it must prove
by a preponderance of the evidence that the suspected
crack was immediately-apparent contraband. See
Commonwealth ex. Rel. Butler v. Rundle, 239 A.2d 426, 429
(Pa. 1968).
Courts in Pennsylvania have addressed the issue whether an
unknown, small, hard object felt in a plastic “container” during a
Terry frisk is immediately apparent as drugs, when thought to be
consistent with the packaging of drugs, Stevenson, supra, at
1267 (officer felt small, hard object wrapped in plastic and
determined it was crack cocaine only after conducting further
search — squeezing and manipulating the object — and its seizure
was not justified by the plain feel doctrine); compare Zhahir,
supra, at 1163 (defendant had 91 pieces of crack cocaine inside
two bags, which obviously would have a unique feel that a single
piece does not); Commonwealth v. Bryant, 866 A.2d 1143,
1145 (Pa. Super. 2005) (same, where an officer felt 40 heat-
sealed baggies of suspected crack).
There are many legitimate small and hard items that a person may
have inside a plastic “container” in a pocket. Such things in plastic
are not contraband per se, and the identity of the substance could
only be determined by further searching or analysis after
removing the object from the pocket. In other words, the record
does not contain evidence to conclude that a piece of crack cocaine
in plastic has a peculiar “mass or contour” that immediately
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distinguishes it from legitimate, small, hard objects in a baggie.
See Stevenson, supra, at 1265.
Trial Court Opinion, 7/2/2021, at 5-7 (emphases added).
After correctly stating the law governing the constitutionality of
warrantless pat-down searches and the plain feel doctrine, the trial court
accurately cited the record evidence, concluding that the arresting officer
lacked probable cause at the time of Breeland’s pat-down to believe that he
was in possession of contraband. In doing so, the trial court analogized the
circumstances of the present case to the facts of several controlling opinions
in which the officer’s observations did not pass constitutional muster. See id.
at 7-9.6
In all of those cases, the courts applied a probable cause analysis to
determine that the search was unlawful because the criminal nature of the
item in question was not immediately apparent from its mass and contour.
Taken in context, the trial court’s reference to the preponderance standard
concerned the Commonwealth’s burden of proof in establishing the
admissibility of evidence after a motion to suppress was filed. See
Pa.R.Crim.P. 581(H). This, too, was an accurate statement of law. See id.
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6The trial court likened the facts of the present case with those in Minnesota
v. Dickerson, 508 U.S. 366, 373 (1993); Commonwealth v. Stevenson,
744 A.2d 1261, 1265 (Pa. 2000); Commonwealth v. Stackfield, 651 A.2d
558, 562 (Pa. Super. 1994); Commonwealth v. Guillespie, 745 A.2d 654,
659 (Pa. Super. 2000); and Commonwealth v. Spears, 743 A.2d 512, 515
(Pa. Super. 1999). The Commonwealth has not attempted to distinguish any
of these cases in its appellate brief.
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Second, we consider the Commonwealth’s claim that the trial court
ignored the totality of the evidence and assigned too much weight to the
arresting officer’s uncertainty as to what the plastic bag in Breeland’s pocket
contained. The Commonwealth argues that the trial court erred in granting
suppression because the officer had probable cause to believe that the plastic
bag contained contraband based on his training in recognizing controlled
substances and Breeland’s location and demeanor during the encounter.
We find this argument unpersuasive because all of the circumstances
cited by the Commonwealth were only relevant insofar as they would enable
the officer to identify the item in Breeland’s pocket from touch alone. As
discussed above, a critical component of the plain feel doctrine is that an
object’s criminal nature must be immediately apparent from its mass or
contour. See Stevenson, 744 A.2d at 1265 (“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.”).
Here, despite all of the officer’s experience, training and observations,
the criminal character of the plastic bag in Breeland’s pocket was not
immediately apparent to the officer prior to its removal. Upon feeling a “rock-
like substance” inside a plastic bag, the officer speculated vaguely that it could
have been “a number of different types of narcotics.” Suppression hearing
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Transcript, at 2/1/2021, at p. 16. Since the officer did not know whether the
substance was contraband or what kind of narcotic the substance could be,
the officer asked Breeland to identify it:
Defense Counsel: [B]ecause you weren’t clear which of those
things it was you asked Mr. Breeland, what’s this? And you
assumed, as you said a moment ago, that he’d answer, right?
Officer: That is correct.
Defense Counsel: Okay. He gives you a response, I don’t know
what it is in my pocket, right? And so you go in, you remove it
yourself to determine, officially, what it is?
Officer: That is correct.
Id. at pp. 61-62.
The trial court did not err in relying on these facts to conclude that the
plain feel doctrine was inapplicable, as the officer essentially conceded that
further investigation was needed for him to identify the criminal nature of the
substance. See e.g., Spears, 743 A.2d 512 (finding no probable cause to
satisfy plain feel doctrine where officer felt a “plastic and hard substance”
during a pat-down and further investigation was needed to identify it as crack
cocaine). Accordingly, for the foregoing reasons, we find that the trial court
did not abuse its discretion in granting Breeland’s motion to suppress the
evidence.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/13/2022
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