Com. v. McIntosh, S.

J-S40025-14
NON-PRECEDENTIAL DECISION SEE SUPERIOR COURT I.O.P 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
STEVEN DAYSEAN MCINTOSH,
Appellant No. 2156 MDA 2013
Appeal from the Judgment of Sentence Entered November 20, 2013
In the Court of Common Pleas of Franklin County
Criminal Division at No(s): CP-28-CR-0002301-2012
BEFORE: BENDER, P.J.E., BOWES, J., and PANELLA, J.
MEMORANDUM BY BENDER, P.J.E.: FILED AUGUST 26, 2014
Appellant, Steven Daysean McIntosh, appeals from the judgment of
sentence of thirty days probation and a $100 fine after he was found guilty
of possession of a small amount of marijuana. Appellant claims the trial
court erred when it denied his motion to suppress the seized contraband.
After careful review, we reverse the order denying suppression and reverse
the judgment of sentence.
A suppression hearing held on March 8, 2013, revealed the following
facts: Officer Travis Carbaugh, employed with the Waynesboro Police
Department for eight and a half years, testified that on December 3, 2012,
he received a dispatch indicating that multiple shots had been fired into a
residence at 115 West Second Street in Waynesboro. N.T., 3/8/13, at 4.
While responding to that call, he received a second dispatch regarding
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additional shots having been fired at 132 West North Street, two blocks
away from the location of the first shots. Id. Officer Carbaugh arrived at
the West North Street address, where he found four or five individuals
standing together on the sidewalk. Id. One of those individuals, Teresa
Dunn (Dunn), indicated that she had been walking her dog near 132 West
North Street when she heard multiple gunshots. Id. at 9-10. She then
ob
Id.
Id. Dunn was
the only person among the group on the sidewalk who witnessed anything.
Id. at 12.
Dunn did not observe any of the black males firing a weapon, nor is
there any indication that she observed any of them with a firearm.
after Dunn heard the shots and saw the flash of a gunshot. Id. at 11. After
retrieving this information from Dunn, Officer Carbaugh searched the area
Id. at 15. After this unsuccessful search, Officer Carbaugh returned to
Dunn, who then told the officer that the black males she had observed
Id. at 16. Officer
Carbaugh moved to that location, where he immediately observed three
black males, Appellant and two others. Id. at 18. Officer Carbaugh drew
his weapon and ordered them to the ground. Id.
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Id. at
19. Officer Carbaugh then waited for backup. Id. A few minutes later,
Officer Dewitt of the Washington Township Police arrived at the scene. Id.
Officer Dewitt handcuffed Appellant and one of his companions as the two
remained on the ground on their stomachs. Id. at 20. During this time,
Id. Soon thereafter, two adult probation officers arrived and cuffed the third
individual. Id. After Appellant was cuffed, Officer Dewitt patted him down
an
sweat pants. Id.
Id.
Id.
clear plastic baggie containing marijuana. Id.
The Commonwealth charged Appellant with possession of a small
amount of marijuana, 35 P.S. § 780-113(a)(31). On January 10, 2013,
Appellant filed a motion to suppress the marijuana as the product of an
illegal seizure. Following the March 8, 2013 suppression hearing, the parties
were ordered to file briefs. On May 2, 2013, the trial court issued an opinion
convicted following a stipulated bench trial in which the court incorporated
the testimony from the March 8, 2013 suppression hearing. Appellant was
sentenced on Nove
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Appellant filed a timely notice of appeal on December 2, 2013. He also
directing him to file a Pa.R.A.P. 1925(b) concise statement. Appellant now
presents the following question for our review:
Whether the court erred by not suppressing the evidence of a
small amount of marijuana and paraphernalia when [A]ppellant
was unlawfully arrested and illegally searched?
ef at 7.
We are mindful of the following standards that apply in our review of
court's denial of a suppression motion is whether the factual
findings are supported by the record and whether the legal
conclusions drawn from those facts are correct.... [W]e must
consider only the evidence of the prosecution and so much of the
evidence of the defense as remains uncontradicted when read in
Commonwealth v.
Eichinger, 591 Pa. 1, 915 A.2d 1122, 1134 (2007), cert.
denied, 552 U.S. 894, 128 S.Ct. 211, 169 L.Ed.2d 158 (2007).
reverse only if the legal conclusions drawn therefrom are in
Id.Commonwealth v. Thompson, 985 A.2d 928, 931 (Pa. 2009).
It is well settled that there are three distinct levels of interaction
between law enforcement and the general public. The first level
is the mere encounter, which need not be supported by any level
of suspicion, but it carries no official compulsion to stop or
respond. The second level is the investigative detention, which
must be supported by reasonable suspicion; it subjects a suspect
to a stop and period of detention, but it does not involve such
coercive conditions as to constitute the functional equivalent of
arrest. Finally, the third level is an arrest or custodial detention,
which must be supported by probable cause.
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Commonwealth v. Daniels, 999 A.2d 590, 596-97 (Pa. Super. 2010)
(internal citations omitted).
The key difference between an investigative detention and
conditions as to constitute the functional equivalent of an
r with the police is
consideration given to the reasonable impression conveyed to
the person interrogated rather than the strictly subjective view
Commonwealth v. Pakacki, 901 A.2d 983, 987 (Pa. 2006) (internal
citations omitted).
The Supreme Court of Pennsylvania has elaborated on the criteria for
determining whether a functional equivalent of an arrest, i.e., a custodial
detention, has occurred, as follows:
To guide the crucial inquiry as to whether or not a seizure has
been effected, the United States Supreme Court has devised an
objective test entailing a determination of whether, in view of all
surrounding circumstances, a reasonable person would have
believed that he was free to leave. In evaluating the
circumstances, the focus is directed toward whether, by means
of physical force or show of authority, the citizen-subject's
movement has in some way been restrained. In making this
determination, courts must apply the totality-of-the-
circumstances approach, with no single factor dictating the
ultimate conclusion as to whether a seizure has occurred.
Commonwealth v. Strickler, 757 A.2d 884, 889-90 (Pa. 2000) (internal
citations omitted).
Thus, we begin our analysis by considering whether Appellant was
subjected to an investigative or custodial detention at the time he was
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on the actions of Officer
Carbaugh at the scene, [Appellant] was under the control of the police and
therefore was in custody at the time he was subjected to an investigative
conclusion on the fact that:
Officer Carbaugh drew his firearm on the three individuals,
including [Appellant], and instructed them to get down on the
ground. He kept them in this position for approximately three to
five minutes until Officer Dewitt arrived at the scene. At that
time, [Appellant] was handcuffed and patted down. Based upon
these actions, it is reasonable that [Appellant] would believe he
was going to be taken into custody and was under the control of
keeping the group of
individuals, including [Appellant], face down on the ground for
several minutes at gunpoint is coercive enough to be the
equivalent of an arrest.
Id.subjected to the functional equivalent of an arrest because a reasonable
person would not feel free to leave in the circumstances presented by this
pat down of Appellant was supported by reasonable suspicion. This latter
baugh
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arrest. See Commonwealth v. Trenge, 451 A.2d 701, 710 (Pa. Super.
warrant, search a person validly arrested, and the constitutionality of a
search incident to a valid arrest does not depend upon whether there is any
indication that the person arrested possesses weapons or evidence as the
cause, there is no need to consider the legality of the subsequent pat down.
See id.by probable cause, then the marijuana discovered during the subsequent pat
as the result of
Commonwealth v. Modich, 334 A.2d 717, 719 (Pa. Super. 1975). In
we are mindful of the following:
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 man of reasonable caution in the
Commonwealth v. Rodriguez, 526 Pa. 268, 585 A.2d 988,
990 (1991). The question we ask is not whether the officer's
Texas v.
Brown, 460 U.S. 730, 742, 103 S.Ct. 1535, 75 L.Ed.2d 502Illinois v. Gates, 462 U.S.
213, 235, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983) (citation
omitted) (emphasis supplied). In determining whether probable
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cause exists, we apply a totality of the circumstances test.
Commonwealth v. Clark, 558 Pa. 157, 735 A.2d 1248, 1252
(1999) (relying on Gates, supra).Thompson, 985 A.2d at 931.
Officer Carbaugh did not have probable cause to arrest Appellant and
specificity upon which Officer Carbaugh could base a reasonable belief that
the men he stopped were the same men Dunn had observed emerging from
the alley. Dunn did not describe the facial features, clothing, age, size or
any other identifying characteristic of the men she initially observed. The
only identifying characteristics of note were the fact that the men were black
and that there were four of them.
However, the men stopped by Officer Carbaugh, including Appellant,
a particularly individualized description in the context of this case.1
Furthermore, Officer Carbaugh did not stop four black men; he stopped
three black men. Moreover, Officer Carbaugh did not find Appellant and his
companions until approximately 15 minutes after the shots were fired.
Carbaugh indicated that it took him several minutes to respond to the
dispatch, that he then spoke with Dunn for several minutes, and that he
____________________________________________
1
Defense counsel asked Officer Carbaugh
Id.
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searched for 5-10 minutes before returning to Dunn for more information.
Thus, a considerable amount of time had passed from when the shots were
fired until Appellant was stopped. That was certainly enough time for the
shooters to have moved more than a block away, which is where Appellant
was found. The only piece of information that linked Appellant and his
companions to the shooting that occurred in the alley was the fact that they
shared racial characteristics with the men observed by Dunn right after the
shooting.
Additionally, Dunn did not directly witness the shooting. The men she
observed emerging from the alley were not seen firing a weapon, carrying a
weapon, or fleeing from the scene of the shooting. According to Dunn, the
four black males casually walked out of the alley just seconds after she
heard the shots. N.T., 3/8/13, at 9-10. When Officer Carbaugh did stop
Appellant and his two companions, he did not observe any suspicious
behavior on their part.
Given the totality of these circumstances, it is clear that Officer
Carbaugh lacked probable cause to arrest Appellant. Specifically, he lacked
reasonably trustworthy information that Appellant and his companions were
the same individuals observed by Dunn emerging from the alley after the
gunshots were heard. Furthermore, Officer Carbaugh lacked reasonably
trustworthy information that the men observed by Dunn were responsible for
the shooting. Accordingly
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seized marijuana, which was the fruit of that illegal arrest.
reversed. Judgment of
sentence reversed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/26/2014
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