In the Int. of: S.E., Appeal of: S.E.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: S.E., A MINOR IN THE SUPERIOR COURT
OF PENNSYLVANIA
APPEAL OF: S.E., A MINOR
No. 1817 EDA 2021
Appeal from the Dispositional Order August 30, 2021
In the Court of Common Pleas of Philadelphia County
Criminal Division at No.: CP-51-JV-0000764-2021
BEFORE: BENDER, P.J.E., STABILE, J., and PELLEGRINI, J.*
MEMORANDUM BY STABILE, J.: FILED DECEMBER 9, 2022
Appellant S.E. appeals from the August 30, 2021 dispositional order of
the Court of Common Pleas of Philadelphia County (“juvenile court”), which
adjudicated him delinquent of carrying a firearm as a minor and carrying a
firearm on public streets of Philadelphia.1 Upon review, we affirm.
The facts and procedural history of this care are undisputed. Briefly,
following a traffic stop, the Commonwealth filed a petition alleging delinquency
against Appellant, who was seventeen years old at the time of the incident,
charging him with multiple violations of the Pennsylvania Uniform Firearms
Act of 1995 (“VUFA”), 18 Pa.C.S.A. § 6101 et seq. Appellant eventually filed
a motion to suppress, asserting that the police lacked probable cause or
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* Retired Senior Judge assigned to the Superior Court.
1 18 Pa.C.S.A. §§ 6110.1(a) and 6108, respectively.
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reasonable suspicion to search him or his vehicle following the stop. As a
result, Appellant sought to suppress all physical evidence recovered from the
vehicle or his person. The juvenile court conducted a suppression hearing, at
which the Commonwealth presented the testimony of Police Officer Carlos Diaz
of the Philadelphia Police Department. N.T., Hearing, 7/21/21, at 11.
Officer Diaz testified that on July 1, 2021, at around 7:40 p.m., while
on duty in a marked patrol vehicle, he observed a vehicle on Merriam and
Girard Avenue, passing other vehicles on the shoulder. Id. Officer Diaz and
his partner followed the vehicle for two blocks before activating their lights
and pulling the vehicle over near Belmont Avenue. Id. at 11-12. Officer Diaz
recalled that, upon stopping the vehicle, his partner observed the driver, who
was identified as Appellant, “leaning over to the right towards the passenger’s
side.” Id. at 12, 13. Officer Diaz explained:
So we saw that it didn’t have no tint or anything. So we observed
it from the rear window, we’re behind him. We see him leaning
over towards his – what we believe to be his girlfriend at the time.
He leans over towards her. I don’t know if he was giving her a
kiss or what he was doing but he was leaning over. So my partner
and I told each other hey be careful he might be concealing a
weapon in there.
Id. at 13 (sic). Officer Diaz testified that he approached the stopped vehicle
from the driver’s side. Id. at 14. “As soon as I approached the vehicle I see
[Appellant] is nervous, shaking a little bit.” Id. at 13. Officer Diaz then
noticed a “small bulge” in front of Appellant’s shirt. Id. at 14. According to
Officer Diaz, less than five minutes elapsed from the time they approached
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Appellant’s vehicle to when they removed him from the vehicle. Id. at 17-18.
Describing what occurred after Appellant was removed from the vehicle,
Officer Diaz stated:
We took him out. I put his hands on top of the car and then I
went immediately to the front and that’s where I saw a gun and
[another officer] immediately grabbed his arm and we put his
hands behind his back and I recovered the firearm [from the front
of his waistband.]”
Id. at 18. Officer Diaz recalled that when he frisked Appellant, he immediately
felt the gun. Id. at 19. “It was a pretty big gun. It was big, it was like a 45.
It is probably a little bit bigger than mine.” Id. At the close of the hearing,
the juvenile court denied Appellant’s suppression motion and moved to
conduct an adjudicatory hearing. Id. at 34. There, the parties stipulated,
among other things, to the property receipt and the property receipt number.
Id. at 37. Specifically, the parties stipulated that a black Smith and Wesson
M & P, semi-automatic 45 caliber with 15 live rounds and one magazine was
recovered from Appellant. Id. at 38. The court adjudicated Appellant
delinquent of carrying a firearm as a minor and carrying a firearm on public
streets of Philadelphia.
On August 30, 2021, the juvenile court conducted a dispositional hearing
at the conclusion of which Appellant was committed to a residential facility at
the Pennsylvania Department of Public Welfare for appropriate placement.
Appellant timely appealed. The juvenile court directed Appellant to file a
Pa.R.A.P. 1925(b) statement of errors complained of on appeal. Appellant
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complied, challenging the constitutionality of the frisk. In response, the court
issued a Pa.R.A.P. 1925(a) opinion.
On appeal, Appellant asserts a single issue for our review.
[I.] Did the [juvenile] court err in denying the motion to suppress
physical evidence, as [Appellant] was illegally seized and frisked
without reasonable suspicion that he was armed and dangerous
and that criminal activity was afoot?
Appellant’s Brief at 4. At the core, Appellant argues that the police lacked
reasonable suspicion to frisk him under Terry2 following a legitimate traffic
stop.3
As we have explained:
Our standard of review in addressing a challenge to the denial of
a suppression motion 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. Because the Commonwealth prevailed before the
suppression court, we may consider only the evidence of the
Commonwealth 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 suppression court’s factual findings are
supported by the record, we are bound by these findings and may
reverse only if the court’s legal conclusions are erroneous. Where,
as here, the appeal of the determination of the suppression court
turns on allegations of legal error, the suppression court’s legal
conclusions are not binding on an appellate court, whose duty it
is to determine if the suppression court properly applied the law
to the facts. Thus, the conclusions of law of the courts below are
subject to our plenary review.
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2 Terry v. Ohio, 392 U.S. 1 (1968).
3 Appellant tacitly concedes that the underlying traffic stop at issue was
constitutional. Appellant’s Brief at 8.
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Commonwealth v. Mbewe, 203 A.3d 983, 986 (Pa. Super. 2019)
(quotations and citations omitted). Our scope of review of suppression rulings
includes only the suppression hearing record and excludes evidence elicited at
trial. In the Interest of L.J., 79 A.3d 1073, 1085 (Pa. 2013).
Article I, Section 8 of the Pennsylvania Constitution and the Fourth
Amendment to the United States Constitution protect the people from
unreasonable searches and seizures. Commonwealth v. Lyles, 97 A.3d 298,
302 (Pa. 2014) (citation omitted). The Lyles Court explained:
Jurisprudence arising under both charters has led to the
development of three categories of interactions between citizens
and police. The first, a “mere encounter,” does not require any
level of suspicion or carry any official compulsion to stop and
respond. The second, an “investigatory detention,” permits the
temporary detention of an individual if supported by reasonable
suspicion. The third is an arrest or custodial detention, which
must be supported by probable cause.
In evaluating the level of interaction, courts conduct an
objective examination of the totality of the surrounding
circumstances. . . . The totality-of-the-circumstances test is
ultimately centered on whether the suspect has in some way been
restrained by physical force or show of coercive authority. Under
this test, no single factor controls the ultimate conclusion as to
whether a seizure occurred—to guide the inquiry, the United
States Supreme Court and [our Supreme] Court have employed
an objective test entailing a determination of whether a
reasonable person would have felt free to leave or otherwise
terminate the encounter. What constitutes a restraint on liberty
prompting a person to conclude that he is not free to leave will
vary, not only with the particular police conduct at issue, but also
with the setting in which the conduct occurs.
[Our Supreme] Court and the United States Supreme Court
have repeatedly held a seizure does not occur where officers
merely approach a person in public and question the individual or
request to see identification. Officers may request identification
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or question an individual so long as the officers do not convey a
message that compliance with their requests is required.
Although police may request a person’s identification, such
individual still maintains the right to ignore the police and go about
his business.
Id. at 302-03 (internal citations and quotation marks omitted). “We adhere
to the view that a person is ‘seized’ only when, by means of physical force or
a show of authority, his freedom of movement is restrained. Only when such
restraint is imposed is there any foundation whatever for invoking
constitutional safeguards.” United States v. Mendenhall, 446 U.S. 544,
553 (1980).
Here, it is undisputed that Officer Diaz’s pat-down of Appellant
amounted to an investigative detention necessitating reasonable suspicion. It
is settled that reasonable suspicion necessary for investigative detentions
is a less demanding standard than probable cause not only in the
sense that reasonable suspicion can be established with
information that is different in quantity or content than that
required to establish probable cause, but also in the sense that
reasonable suspicion can arise from information that is less
reliable than that required to show probable cause.
Commonwealth v. Davis, 102 A.3d 996, 1000 (Pa. Super. 2014) (citations
omitted). In Commonwealth v. Simmons, 17 A.3d 399 (Pa. Super. 2011),
appeal denied, 25 A.3d 328 (Pa. 2011), we explained that Pennsylvania has
adopted the holding of Terry:
[T]he Terry stop and frisk[] permits a police officer to briefly
detain a citizen for investigatory purposes if the officer observes
unusual conduct which leads him to reasonably conclude, in light
of his experience, that criminal activity may be afoot. Terry
further held that when an officer is justified in believing that the
individual whose suspicious behavior he is investigating at close
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range is armed and presently dangerous to the officer or to others
the officer may conduct a pat down search to determine whether
the person is in fact carrying a weapon. The purpose of this
limited search is not to discover evidence of crime, but to allow
the officer to pursue his investigation without fear of violence.
In order to conduct an investigatory stop, the police must have
reasonable suspicion that criminal activity is afoot. In order to
determine whether the police had reasonable suspicion, the
totality of the circumstances—the whole picture—must be
considered. Based upon that whole picture the detaining officers
must have a particularized and objective basis for
suspecting the particular person stopped of criminal
activity. To conduct a pat down for weapons, a limited search or
frisk of the suspect, the officer must reasonably believe that his
safety or the safety of others is threatened.
Simmons, 17 A.3d at 403 (citations, quotation marks, brackets, and some
paragraph breaks omitted) (emphasis added). In assessing the totality of the
circumstances, a court must give weight to the inferences that a police officer
may draw through training and experience. Commonwealth v. Holmes, 14
A.3d 89, 95 (Pa. 2011); see Commonwealth v. Williams, 980 A.2d 667,
672 (Pa. Super. 2009) (citations omitted) (noting that “[r]easonable suspicion
must be based on specific and articulable facts, and it must be assessed based
upon the totality of circumstances viewed through the eyes of a trained police
officer.”), appeal denied, 990 A.2d 730 (Pa. 2010).
However, “[t]he officer need not be absolutely certain that the individual
is armed; the issue is whether a reasonably prudent man in the circumstances
would be warranted in the belief that his safety or the safety of others was in
danger.” Commonwealth v. Taylor, 771 A.2d 1261, 1268-69 (Pa. 2001).
In conducting a reasonable suspicion inquiry, a suppression court is required
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to “afford due weight to the specific, reasonable inferences drawn from the
facts in light of the officer’s experience[.]” Commonwealth v. Brown, 996
A.2d 473, 477 (Pa. 2010). If weapons are found because of the pat-down
search, the police officer may seize them. Commonwealth v. Thompson,
939 A.2d 371, 376 (Pa. Super. 2007), appeal denied, 956 A.2d 434 (Pa.
2008).
Instantly, based on the totality of the circumstances of this case, it is
beyond peradventure that Officer Diaz had reasonable suspicion to believe
that Appellant might be armed and dangerous. As the juvenile court found,
and Appellant concedes, Appellant’s vehicle was stopped lawfully for a Vehicle
Code violation. Upon being stopped, Appellant was nervous and shaking a bit.
Officer Diaz observed a small bulge under Appellant’s shirt. Fearing for his
safety, Officer Diaz directed Appellant out of the vehicle and patted him down.4
As a result of the pat-down search, Officer Diaz recovered a firearm from
Appellant’s waistband. Juvenile Court Opinion, 12/20/21, at 3-4. Officer
Diaz’s pat-down search of Appellant passes constitutional muster because
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4 Under Pennsylvania v. Mimms, 434 U.S. 106 (1977), police may, as a
matter of course and in the interest of their safety, “order the driver to exit
the vehicle despite the lack of an articulable basis to believe that criminal
activity is afoot or that the driver is armed and dangerous.” Commonwealth
v. Brown, 654 A.2d 1096, 1100 (Pa. Super. 1995). In Mimms, the Supreme
Court explained that, once the vehicle is constitutionally stopped, “police have
already lawfully decided that the driver shall be briefly detained; the only
question is whether he shall spend that period sitting in the driver’s seat of
his car or standing alongside it.” Mimms, 434 U.S. at 111. Standing beside
one’s vehicle during a traffic stop is a “mere inconvenience.” Id.Unsurprisingly, we are not called upon to decide here whether the police had
a right to order Appellant out of the vehicle.
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Appellant was nervous, shaking a little and had a bulge under his shirt. Officer
Diaz, therefore, had reasonable suspicion to frisk Appellant under Terry.
Accordingly, under the totality of the circumstances of this case, we cannot
conclude that the juvenile court erred in denying Appellant’s suppression
motion.
To the extent Appellant relies on Commonwealth v. Hicks, 208 A.3d
916 (Pa. 2019), to compel a different outcome, such reliance is inapposite. In
Hicks, police stopped Hicks’s vehicle in a gas station parking lot based on
information that he was in possession of a firearm. Hicks, 208 A.3d at 922.
An officer restrained Hicks’s arms and removed his handgun from his holster,
and a search of the vehicle followed. Id. Police later determined that Hicks
possessed a valid license to carry a concealed firearm, and he was not
statutorily prohibited from possessing a firearm. Id. Thus, Hicks was not
charged with firearms offenses. Id. The trial court denied suppression,
reasoning that possession of a concealed weapon justifies an investigatory
stop to determine whether the individual has a license. Id. at 922-23.
Ultimately, the Pennsylvania Supreme Court evaluated whether carrying a
concealed firearm could justify an investigative detention. Id. at 934. The
Supreme Court first recognized that an individual may legally carry a
concealed firearm in public if he is licensed to do so. Id. at 926. The Court
further recognized that it is impossible to ascertain an individual’s licensing
status from his appearance. Id. at 937. Following an extensive review of
applicable Fourth Amendment jurisprudence, see id. at 930-36, the Court
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concluded that there is “no justification for the notion that a police officer may
infer criminal activity merely from an individual’s possession of a concealed
firearm in public.” Id. at 936. Thus, possession of a concealed firearm “alone
is an insufficient basis for reasonable suspicion that criminal activity is afoot.”
Id. at 945.
First, unlike Hicks, the police here did not initiate an investigative
detention on the grounds that Appellant was armed. Rather, it is undisputed
that Appellant was stopped lawfully after having committed a violation of the
Vehicle Code. Second, and most important, the Hicks Court specifically noted
that it was not addressing the question of “whether a police officer who has
effectuated a lawful investigative detention may treat the suspect’s possession
of a firearm as per se authorization to ‘frisk’ the detainee.” Id. at 934. The
Court explained that decisions involving whether an armed individual is
automatically dangerous for purposes of a Terry frisk “have no relevance to
this appeal.” Id.
Similarly, Appellant’s reliance on Commonwealth v. Malloy, 257 A.3d
142 (Pa. Super. 2021) also is misplaced. There, the police detained the
occupants of a vehicle following a lawful traffic stop. A police officer instructed
Malloy, who was seated behind the driver, to roll down the passenger window.
Id. at 145. The officer then asked Malloy for identification. Id. In response,
Appellant pulled out a lanyard from his hooded sweatshirt. Id. Upon
observing the lanyard, the officer immediately asked Malloy whether he had a
firearm. Id. The officer explained that, “in his experience, it was common
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for people who worked in armed security positions at local bars to keep their
identification badges in lanyards.” Id. Malloy answered that he did have a
firearm and worked as a security guard at Bananas—a bar—where he and the
other occupants of the vehicle had just finished working for the day. Id. The
officer eventually secured the firearm for his safety and the safety of the other
occupants of the vehicle. Id. The officer, thereafter, questioned Malloy
regarding his firearm licensure status and, over the next 15 to 20 minutes,
ran checks on Malloy to determine whether had a valid license to carry. Id.
at 146. The officer determined that Malloy did not have a valid license. Id.
The officer then arrested Malloy on charges related to the unlawful possession
of a firearm. Id.
On appeal, a panel of this Court concluded that the trial court erred in
failing to grant Malloy’s suppression motion. We explained:
[O]nce [the officer] secured the firearm, [Malloy’s] legal authority
to own or possess a gun clearly bore no discernable relationship
to individual safety or security within the context of the traffic
stop. Under these circumstances, where seizure of a firearm has
substantially diminished the risk to officers and others who may
be present during a lawful vehicle detention, we see no reason
why the Fourth Amendment, in the absence of independent
justification, suspicion, or cause, should tolerate even a 10- to 15-
minute extension of a routine traffic stop for the investigation of
a secondary criminal matter.
Id. at 153.
Instantly, by contrast, and as noted, the police did not initiate an
investigative detention on the grounds that Appellant was armed. Rather, it
is undisputed that Appellant was stopped lawfully after having committed a
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violation of the Vehicle Code. Officer Diaz immediately noticed a small bulge
in Appellant’s shirt, which Officer Diaz believed could be a firearm. Fearing
for his own safety and for the safety of other officers, Officer Diaz directed
Appellant from the vehicle and patted him down, resulting in the recovery of
a firearm from Appellant’s waistband.
The facts of Malloy align with Hicks. Unlike here, but like Hicks, the
appellant in Malloy was detained only after the officer learned that he
possessed a firearm. We determined that any questions posed to Malloy
regarding his firearms licensure status were not incidental to the underlying
traffic stop.5 Separately, unlike the officer in Malloy, Officer Diaz never
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5 In Malloy, we rejected the trial court’s conclusion that the officer’s request
for Malloy’s documented firearms authorization could be pursued as incidental
to the traffic stop.
Here, neither the trial court nor the Commonwealth cite legal
authority which equates an investigation of a passenger’s
documented authority to carry a firearm to the incidental inquiries
permitted during a lawful traffic stop under [Rodriguez v. U.S.,
135 S. Ct. 1609, 575 U.S. 348 (2015)] and which promote safe
and financially responsible operation of motor vehicles. More
tellingly, neither the trial court nor the Commonwealth offer any
explanation as to how or why a passenger’s firearms licensure
status relates to these incidental inquiries or, more broadly, to the
safe and financially responsible operation of a motor vehicle in
general. We are convinced that a passenger’s legal authority to
own or possess a firearm is simply unrelated to a driver’s authority
to operate a motor vehicle, the existence of outstanding warrants
against the driver, and whether a lawfully detained vehicle is
properly registered or insured.
Malloy, 257 A.3d at 152.
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conducted an independent investigation into Appellant’s firearm licensure
status during the traffic stop. Appellant’s reliance on Malloy is misplaced.
Dispositional order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/9/2022
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