Com. v. Odem, D.

J. S21043/18
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
v. : No. 1791 WDA 2017
:
DEMETRIUS ANTONIO ODEM :
Appeal from the Order Entered November 9, 2017,
in the Court of Common Pleas of Mercer County
Criminal Division at No. CP-43-CR-0001034-2017
BEFORE: OLSON, J., MURRAY, J., AND FORD ELLIOTT, P.J.E.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED AUGUST 09, 2018
The Commonwealth appeals from the November 9, 2017 order entered
in the Court of Common Pleas of Mercer County that granted the omnibus
pretrial motion to suppress physical evidence filed by appellee,
Demetrius Antonio Odem. After careful review, we affirm.
The suppression court set forth the following:
This case arises out of a search of a vehicle [that
appellee] was operating on June 27, 2017.
[Appellee] was charged with possession of cocaine
with the intent to deliver, possession of heroin with
the intent to deliver, possession of a controlled
substance and possession of drug paraphernalia.[1]
A preliminary hearing was held on June 29, 2017,
before Magisterial District Judge Ronald Antos. At
the conclusion of the preliminary hearing, [appellee]
was ordered held for trial on all counts.
1 18 Pa.C.S.A. 35 P.S. §§ 780-113(a)(3), (a)(16), and (a)(32), respectively.
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[Appellee] was arraigned on August 29, 2017.
An omnibus motion seeking to suppress the results
of the search of [appellee’s] person and his vehicle
was filed.
An evidentiary hearing on the motion was held on
November 8, 2017. At the conclusion of the hearing,
this court made the following findings of fact:
1. Patrolman Joey Brant is employed by the
City of Farrell Police Department. He has
been so employed for over a year.
2. On June 17, 2017, Officer Brant was
working the midnight shift which runs
from 11:00 p.m. to 7:00 a.m.
3. At approximately 4:30 a.m., he was
proceeding north on Fruit Avenue when
he observed three individuals in the front
yard of a house that appeared to be
abandoned.
4. The steps to the residence were broken
down and the grass on the lawn was
approximately knee height.
5. Earlier that night the officer had
responded to a fire at an abandoned
house in the area.
6. The area is also known to have several
burglaries.
7. The officer observed as he passed the
house that one of the individuals
appeared to stumble, which indicated to
the officer that the individual was under
the influence.
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8. The officer went around the block. When
he returned, all three individuals were in
a 2008 Chrysler 200 four[-]door vehicle.
9. The officer pulled up next to the vehicle
and told the occupants they were not
free to leave.
10. [Appellee] was in the driver’s seat.
There was another individual in the
passenger front seat and an individual in
the passenger rear seat.
11. The individual in the passenger rear seat
was the same individual the officer saw
stumble.
12. The officer tried to engage that
individual, but the individual was close to
comatose.
13. The officer instructed all of the
individuals to remove their hands from
their pockets more than once. They did
so.
14. There is no evidence to show they were
reaching around the vehicle to find
anything.
15. Being concerned that there might be
something in their pockets because of
reaching in, the officer got the occupants
out of the vehicle and conducted a pat
down search.
16. Nothing was found during said pat down
search.
17. The officers then decided to search the
vehicle for weapons.
18. The officer opened the front console and
found a scale with residue.
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19. In the front seat area he also found a
cigarette pack which contained several
packets of heroin and several packets of
cocaine.
20. [Appellee] was placed under arrest and
money and cell phones were found on his
person.
On the basis of these facts, this court concluded the
search of the vehicle’s console was unlawful because
there were no facts to support the search and the
resulting search of [appellee’s] person was the
product of the unlawful search.
Suppression court opinion, 12/19/17 at 1-4 (unnecessary capitalization
omitted).
The record reflects that following entry of the order granting appellee’s
motion to suppress, the Commonwealth filed a motion for reconsideration,
which the suppression court denied. The Commonwealth then filed a timely
notice of appeal to this court. Within its notice of appeal, the
Commonwealth certified that the suppression court’s order would terminate
or substantially handicap appellee’s prosecution. See Pa.R.A.P. 311(d)
(permitting Commonwealth appeal from an interlocutory order if it certifies
that the order will terminate or substantially handicap the prosecution). The
suppression court then ordered the Commonwealth to file a statement of
errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). The
Commonwealth timely complied. Thereafter, the suppression court filed its
Rule 1925(a) opinion.
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The Commonwealth raises the following issues for our review:
1. Whether the suppression court erred by
holding that the scope of the Terry[2] frisk did
not include the protective search of the
vehicle?
2. Whether the suppression court erred by
holding that the officer did not have reasonable
suspicion to conduct a Terry/Long[3] search
of the vehicle?
Commonwealth’s brief at 4.
When the Commonwealth appeals from a
suppression order, we follow a clearly defined
standard of review and consider only the evidence
from the defendant’s witnesses together with the
evidence of the prosecution that, when read in the
context of the entire record, remains uncontradicted.
The suppression court’s findings of fact bind an
appellate court if the record supports those findings.
The suppression court’s conclusions of law, however,
are not binding on an appellate court, whose duty is
to determine if the suppression court properly
applied the law to the facts.
Our standard of review is restricted to establishing
whether the record supports the suppression court’s
factual findings; however, we maintain de novo
review over the suppression court’s legal
conclusions.
Commonwealth v. Korn, 139 A.3d 249, 252-253 (Pa.Super. 2016)
(internal citations and quotation marks omitted).
2 Terry v. Ohio, 392 U.S. 1 (1968).
3 Michigan v. Long, 463 U.S. 1032 (1983).
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With respect to the Commonwealth’s first issue, the suppression court
concluded that the Commonwealth “misstates” the suppression court’s ruling
and the law and that it:
did not hold that the scope of a Terry search does
not include a protective search of a vehicle. This
[c]ourt concluded that there were insufficient facts to
permit a reasonable prudent man to conclude a
weapon was in the console. This conclusion is
consistent with the existing case law. See
Commonwealth v. Morris, 644 A.2[d] 721 (Pa.
1994).
Suppression court opinion, 12/19/17 at 5.
Therefore, we proceed to the Commonwealth’s second claim of error,
which is that the suppression court erred when it held that Officer Brant did
not have reasonable suspicion to search the console of the car for weapons.
In Michigan v. Long, 463 U.S. 1032, 103 S. Ct.
3469, 77 L. Ed. 2d 1201 (1983), and
Commonwealth v. Morris, 537 Pa. 417, 644 A.2d
721 (Pa. 1994), the respective Supreme Courts
promulgated the test for determining whether a
police officer may conduct a protective search of the
interior compartment of a car for weapons. In Long,
the United States Supreme Court applied the test
announced in Terry v. Ohio, 392 U.S. 1, 88 S. Ct.
1868, 20 L. Ed. 2d 889 (1968), and held that a
weapons search may be performed where an officer
has reasonable suspicion that a firearm may be
secreted in the car and that the search may
encompass any area where a weapon could be
hidden and accessible to the defendant in the
vehicle. In Long, the High Court made the apt
observation that “detentions involving suspects in
vehicles are especially fraught with danger to police
officers.” Long, supra at 1047. The Long Court’s
specific holding is that
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the search of the passenger
compartment of an automobile, limited
to those areas in which a weapon may be
placed or hidden, is permissible if the
police officer possesses a reasonable
belief based on “specific and articulable
facts which, taken together with the
rational inferences from those facts,
reasonably warrant” the officers in
believing that the suspect is dangerous
and the suspect may gain immediate
control of weapons. “The issue is
whether a reasonably prudent man in the
circumstances would be warranted in the
belief that his safety or that of others
was in danger.”
Long, supra at 1049-50 (partially quoting Terry,
supra at 21).
In Morris, supra, our Supreme Court concluded that
the Long standard comported with the Pennsylvania
Constitution. In that case, the Supreme Court ruled
that a protective search of the interior of the car was
warranted based on the following narrative. After
being stopped for a traffic infraction, the defendant
leaned down toward the floor near the center
console, he briefly placed his hand between his legs
after being ordered to put them on the steering
wheel. In the course of the stop, the police observed
a metal pipe in the car. In upholding the existence
of reasonable suspicion to conduct a protective
weapons sweep of the vehicle, our Supreme Court
ruled that the police officer had sufficient facts at his
disposal to warrant a reasonably prudent man to
believe that his safety “was compromised”
sufficiently to allow the police intrusion in question.
Morris, supra at 723. The Court stated that the
defendant’s behavior of leaning down and reaching
between his legs was consistent with hiding a
weapon. See also Commonwealth v. Grahame,
607 Pa. 389, 7 A.3d 810, 816 (Pa. 2010) (a
protective search is justified under Terry when “the
officer can articulate facts that establish an
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individualized, objective basis for perceiving a threat
of armed violence”). We look at the totality of the
circumstances facing an officer when we examine
whether that officer came to a reasonable suspicion
to search for a weapon. Commonwealth v.
Simmons, 2011 Pa. Super. 43, 17 A.3d 399, 403
(Pa.Super. 2011).
Commonwealth v. Tuggles, 58 A.3d 840, 842-843 (Pa.Super. 2012).
Here, the suppression court concluded that Officer Brant lacked
reasonable suspicion to believe that appellee may have secreted a weapon in
the console of the automobile based upon the following facts which
Officer Brant articulated at the suppression hearing:
[I]t was night time, the area was a high crime area,
and [appellee] and his co-defendants kept their
hands in their pockets. There is no evidence they
were moving around the vehicle, reaching into any
areas of the car or doing anything.[4]
Suppression court opinion, 12/19/17 at 5.
Our review of the record reveals that Officer Brant failed to articulate
sufficient facts to support a conclusion that he had reasonable suspicion to
believe that a firearm may be secreted in the console of appellee’s vehicle
that would warrant a reasonably prudent man to believe that his safety was
4 We note that during the suppression court’s examination of Officer Brant,
the Officer testified that the back seat passenger was “moving his hand
around inside his pocket.” (Notes of testimony, 11/8/17 at 24.) When
asked whether the front seat passenger was “moving his hands around
anywhere,” the officer stated, “I can’t testify to that at this time.” (Id.)
When asked whether the officer saw appellee “moving his hands around
anywhere other than his pocket,” the officer stated, “I can’t testify that I
saw him reaching in his pocket.” (Id.)
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compromised. Therefore, the record supports the suppression court’s
factual determinations. We further find that the suppression court properly
applied the law to the facts.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/9/2018
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