Com. v. Cunningham, D.

J-A23021-22
2022 PA Super 213COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
DWAYNE CUNNINGHAM : No. 86 MDA 2022
Appeal from the Order Entered December 8, 2021
In the Court of Common Pleas of Schuylkill County Criminal Division at
No(s): CP-54-CR-0000856-2021
BEFORE: BOWES, J., McCAFFERY, J., and STEVENS, P.J.E.*
DISSENTING OPINION BY McCAFFERY, J.: FILED DECEMBER 13, 2022
Because I conclude Officer Bucek had no reasonable suspicion to detain
Appellee or to suspect he was armed and dangerous to justify a Terry1 frisk,
I am compelled to dissent.
At the suppression hearing, Minersville Borough Police Officer Michael
Bucek testified to the following sequence of events on the night of Appellee’s
arrest. On April 5, 2021, at approximately 10:30 p.m., Officer Bucek and his
partner2 were driving down the 200 block of North Street in Minersville when
he “detected an odor of [burnt] marijuana” through the open windows in his
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* Former Justice specially assigned to the Superior Court.
1 Terry v. Ohio, 329 U.S. 1 (1969).
2Officer Bucek did not provide the name of his partner, but stated he no longer
worked for the Minersville Borough Police Department. See N.T., 10/27/21,
at 6.
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vehicle. N.T. at 3-5. Officer Bucek “scanned the area” to determine the source
of the smell, and noticed “three hooded males[,]” one of whom was later
identified as Appellee. Id. at 4-5. Officer Bucek stated that as he approached
the men, “the odor of burned marijuana . . . grew stronger” so he parked and
exited his vehicle. Id. at 5. The Officer did not see any smoke, cigarettes, or
vape pens while observing the men. Id. at 12.
Officer Bucek testified that after exiting his car he began to approach
the men, but they crossed the street to “avoid[ ] contact” with him. N.T. at
15. He crossed the street to follow them and said, “Hey, man, give me a
second[,]” and asked them if they had been smoking marijuana. Id. at 6, 15.
In response, the three men “started yelling . . . aggressively[,]” although the
officer could not remember what, if anything, Appellee said. Id. at 6, 18. As
a result, Officer Bucek “told them to stop[.]” Id. at 6. He testified:
[The men] all started screaming, you know, F you, officer. I
attempted to get ID[’]s from them. They said, you know, [d]on’t
touch me. Get away from me. You can’t stop me. Why are you
stopping me? And just essentially yelling at me.
Id. The officer told his partner, “if something happens here” to call for backup.
Id. at 7.
Officer Bucek testified that he decided to pat the men down because
“[t]hey were acting aggressively and yelling[, i]t kind of seemed liked they
were circling” him and his partner, and he thought he was “in danger.” N.T.
at 8. After completing the pat down searches of the two other men and finding
nothing, the officer asked Appellee to place his hands on a nearby pole so he
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could conduct a “pat down.” Id. at 7-8, 16. When he initiated the search,
Appellee “kept scooting . . . away from” him around the pole. Id. at 7. It
was only at that time that Officer Bucek thought “[t]here’s something on
[Appellee]. There’s a reason why he’s doing this.” Id. at 8-9. Appellee
eventually stopped moving and Officer Bucek patted him down and felt what
he immediately identified as a “handgun in [Appellee’s] sweatshirt front
pocket.” Id. at 9. Appellee did not present any evidence.
Based on this testimony, the suppression court found (1) Officer Bucek
had reasonable suspicion of criminal activity to support an investigative
detention of Appellee and his cohorts, but (2) the officer did not possess the
requisite reasonable suspicion that Appellee was armed and dangerous to
support a Terry frisk of Appellee. See Supp. Ct. Op., 12/8/21, at 6, 8-9.
Although I agree with the trial court’s determination that Officer Bucek did not
have reasonable suspicion to conduct a frisk of Appellee, I also conclude that
Officer Bucek did not possess the requisite reasonable suspicion to conduct an
investigative detention of Appellee and his cohorts. Thus, I would affirm the
trial court’s order suppressing the evidence.
“The Fourth Amendment of the United States Constitution and Article 1,
Section 8 of our state Constitution protect citizens from unreasonable searches
and seizures.” Commonwealth v. Young, 162 A.3d 524, 527-28 (Pa. Super.
2017) (citation omitted). To secure this protection, Pennsylvania courts
require that officers “demonstrate ascending levels of suspicion to justify their
interactions with citizens[.]” Id. at 528 (citation omitted). There are three
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types of interactions between police and citizens − mere encounters,
investigative detentions, and custodial detentions. Id.
A mere encounter can be any formal or informal interaction
between an officer and a citizen, but will normally be an inquiry
by the officer of a citizen. The hallmark of this interaction is
that it carries no official compulsion to stop or respond.
In contrast, an investigative detention, by implication, carries an
official compulsion to stop and respond, but the detention is
temporary, unless it results in the formation of probable cause for
arrest, and does not possess the coercive conditions consistent
with a formal arrest. Since this interaction has elements of
official compulsion it requires reasonable suspicion of
unlawful activity. . . .
Id. (citation omitted & emphases added).
An officer may conduct a Terry frisk under the following circumstances:
If, during the course of a valid investigatory stop, an officer
observes unusual and suspicious conduct on the part of the
individual which leads him to reasonably believe that the
suspect may be armed and dangerous, the officer may
conduct a pat-down of the suspect’s outer garments for
weapons. In order to establish reasonable suspicion, the
police officer must articulate specific facts from which he
could reasonably infer that the individual was armed and
dangerous. When assessing the validity of a Terry stop, we
examine the totality of the circumstances giving due
consideration to the reasonable inferences that the officer
can draw from the facts in light of his experience, while
disregarding any unparticularized suspicion or hunch.
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. This Court . . . emphasized the
significance of an officer’s experience in assessing whether the
requisite reasonable suspicion was present:
In conducting a reasonable suspicion inquiry, a suppression
court is required to “afford due weight to the specific,
reasonable inferences drawn from the facts in light of the
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officer’s experience[.]” Among the circumstances that can
give rise to reasonable suspicion are the [officer]’s
knowledge of the methods used in recent criminal activity
and the characteristics of persons engaged in such illegal
practices.”
Commonwealth v. Bozeman, 205 A.3d 1264, 1274 (Pa. Super. 2019)
(citations & some quotations marks omitted; emphases added). Further,
“[t]he purpose of a Terry frisk is not to discover evidence of a crime, but to
protect the police officer conducting the investigation.” Commonwealth v.
Davis, 102 A.3d 996, 999 (Pa. Super. 2014).
Preliminarily, I note that under Commonwealth v Barr, 266 A.3d 25(Pa. 2021), the smell of marijuana “may be a factor, but not a stand-alone
one, in evaluating the totality of the circumstances for purposes of
determining whether police had probable cause to conduct a warrantless
search.” Barr, 266 A.3d at 41. In Barr, officers initiated a legal traffic stop
and subsequently initiated a search after smelling burnt marijuana. Id. at 29-
30. The officers found marijuana and a firearm in the vehicle. Id. at 30. At
the suppression hearing, the trial court suppressed the evidence, finding that
due to the Medical Marijuana Act (MMA)3, the smell of marijuana is “no longer
per se indicative of a crime[,]” making the search unconstitutional. Id. at 31-
32. This Court vacated that order — concluding the trial court did not consider
all relevant factors — and our Supreme Court granted review. See id. at 34-
35.
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3 35 P.S. §§ 10231.101-10231.2110.
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Ultimately, the Supreme Court vacated this Court’s decision, and
reinstated the trial court’s order suppressing the evidence. Barr, 266 A.3d at
44. The Court concluded that “lawful possession of an item due to legislative
authorization to possess it” cannot afford an officer the information to infer
criminal activity and effectuate a Terry stop. Barr, 266 A.3d at 43. Further,
without prior knowledge that an individual is not permitted to possess an
otherwise legal item, an officer cannot presume it to be possessed illegally.
Id. citing Commonwealth v. Hicks, 208 A.3d 916, 936-37 (Pa. 2019)
(officer could not assume that possession of a concealed firearm was indicative
of criminal activity where it may be lawfully carried, and the officer did not
have “articulable facts supporting reasonable suspicion that a firearm is being
used or intended to be used in a criminal manner”).
Contrary to the suppression court, I conclude Officer Bucek had no
reasonable suspicion to escalate the mere encounter into an investigative
detention. Officer Bucek initiated contact based solely on the smell of
marijuana on an open street. Although he testified he noticed the odor
became stronger as he approached the three men, Officer Bucek admitted he
did not see Appellant or his cohorts smoking any substance before or after he
approached them. N.T. at 4-5, 12. Upon approaching the men, Officer Bucek
testified that Appellee and the two others became “aggressive[ ]” and yelled
at him to “[g]et away” from them. Id. at 6, 8. It merits emphasis, however,
the men did not become aggressive until after the officer approached them
without any suspicion of criminal activity and demanded they comply with this
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command to stop and answer questions. Id. The smell of marijuana alone
coupled with crossing the street in what the officer suspected was an attempt
to avoid him does not suggest nefarious intent. At this point, the officer could
only justify a mere encounter, meaning the men were free to leave and had
no obligation to comply with his commands. See Young, 162 A.3d at 528.
They were also free to react negatively in a verbal and non-violent fashion to
the prospect of an officer questioning them when they gave no impression of
illegal conduct. However, Officer Bucek escalated the interaction into an
improper investigative detention by demanding they stop based on the smell
of marijuana coupled with their perceived attempt to avoid him by crossing
the street, and their negative reaction to his command. See N.T. at 5-6, 15.
I conclude this is insufficient to support a “reasonable suspicion of unlawful
activity.” Young, 162 A.3d at 528 (citation omitted). Thus, I would affirm
the suppression ruling on this basis alone. While we often repeat that a mere
encounter carries with it no official compulsion to stop or respond, sanctioning
an officer’s command to comply where a citizen refuses to stop or respond
abrogates those same directives and pays lip service to the Fourth
Amendment.
However, the trial court also concluded that the subsequent frisk of
Appellee was not supported by a reasonable belief that he was armed and
dangerous. The court opined:
[W]hen asked why he decided to conduct a pat down search of
the men, Officer [Bucek] cited their aggressive behavior and
yelling and his perception that they were circling around him and
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his partner. Specifically, with respect to [Appellee], [Officer
Bucek] said [Appellee] was farthest from the officers, and, even
though [Appellee] complied with [the officer’s] order to place his
hands on a . . . pole, he scooted around [it and] away from [Officer
Bucek]. When asked what he was thinking, Officer [Bucek]
testified he thought “There’s something on him. There’s a reason
why he’s doing this.”
Officer [Bucek] did not state any specific and articulable
facts indicating [Appellee] might be armed. [Appellee’s] hands
were on the pole when he was frisked. There was no testimony
that he had reached into his pockets or concealed them at any
time during his interaction with the police. [Officer Bucek]
testified that he felt threatened by the men’s aggression. He and
his partner had weapons if they felt their use was necessary to
control the situation, but they had no justification to frisk them.
It appears, that [Officer Bucek] did so merely in a search for
evidence of criminal activity, not for fear [Appellee] possessed a
weapon. . . .
Supp. Ct. Op. at 8-9. Assuming arguendo that the investigative detention was
proper, I agree with the trial court that Officer Bucek had no basis to support
a Terry frisk.
Officer Bucek provided no specific or articulable facts to support a
suspicion that Appellee was armed and dangerous. See Bozeman, 205 A.3d
at 1274. While Officer Bucek decided to conduct a pat down frisk because the
men were “circling” him and he felt he was “in danger,” he did not testify that
Appellee was reaching for his pockets, or that he, or either of his cohorts made
any furtive movements, gave any indication that the men were armed, nor
did the officer see anything resembling a weapon on Appellee’s person.
While I acknowledge the officer stated he felt he was in danger when
the men “kind of seemed liked they were circling” him, this still provides no
indicia that any of the men had a weapon, and the officer acknowledged as
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much. See id. at 8-9, 17. During his testimony, Officer Bucek admitted he
did not suspect Appellee had “something” on him until after he attempted to
initiate the frisk. See N.T. at 9. Even then, the officer gave no indication that
he suspected Appellee had a weapon on him. See N.T. at 17 (Officer Bucek
“didn’t observe [a] bulge” in Appellee’s sweatshirt pocket). Based on this
record, there are no facts before us suggesting any of the men were armed
and dangerous. The totality of the circumstances — the smell of burnt
marijuana, the verbal aggressiveness, and the three men “kind of seem[ing]
like they were circling around”4 the officers — do not equate to articulable or
specific facts justifying a Terry frisk. See Bozeman, 205 A.3d at 1274.
Rather, I agree with the trial court that Officer Bucek conducted the frisk in
search of criminal activity, which is not permitted. See Davis, 102 A.3d at
999; Trial Ct. Op. at 9.
I emphasize that general statements of safety concerns without factors
indicating an individual is armed are not enough to justify the search of a
person. See Commonwealth v. Cooper, 994 A.2d 589, 594-95 (Pa. Super
2010) (concluding the trial court should have suppressed evidence recovered
after a Terry frisk when the officer made only “general statements of safety
concerns” and there was no evidence that the defendant was reaching for his
pockets or that the officer saw anything resembling a weapon on defendant’s
person), citing Commonwealth v. Preacher, 827 A.2d 1235, 1240 (Pa.
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4 N.T. at 8.
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Super. 2003) (officer’s statement in “general terms” that he feared for “his
safety and the safety of others” did not provide a sufficient basis to conduct a
frisk incident to an investigatory stop). Additionally, as stated supra, the
smell of marijuana alone cannot justify the search of a vehicle. See Barr,
266 A.3d at 41. Logic follows that if smell alone does not give rise to suspicion
of criminal activity inside of a vehicle, then smell alone on an open street does
not permit an officer to initiate a search of one’s person.
The Majority maintains, however, that the following circumstances
combine to support reasonable suspicion for the pat down search: (1) upon
the officers’ approach, “the three men almost immediately became
aggressive, cursed at the officers, and encircled” them; (2) when Officer Bucek
performed a pat down search of Appellee’s companions, “the second man . . .
continued to act aggressively . . . like he was ready to turn around and do
something[;]” and (3) Appellee “kept moving away” from the officer before
he performed the search. Majority Opinion at 18-19 (record citations &
quotation marks omitted). Further, the Majority concluded:
The suppression court failed to consider the totality of the
circumstances and give Officer [Bucek] the benefit of the
inferences he drew from those circumstances. The record shows
the officer reasonably suspected that criminal activity was afoot
and that [Appellee] was armed and potentially dangerous. The
totality of the circumstances establishes that “a reasonably
prudent man in the circumstances would be warranted in the belief
that his safety or the safety of other was in danger.” Cooper,
994 A.2d at 592 (citation omitted).
Majority Opinion at 19 (some citations omitted). I disagree.
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The Majority cites to factors that do not support a reasonable suspicion
that Appellee was “armed and potentially dangerous.” See Majority Opinion
at 19. The aggression exhibited by the three men was completely verbal.
Moreover, their anger and perceived encirclement of the officers stemmed
from a command to stop that was unsupported by reasonable suspicion of
criminal activity. The Majority also highlights the aggressive actions of the
“second man” after Officer Bucek initiated the search, conduct which is
irrelevant to (1) the decision to frisk Appellee, or (2) the decision the officer
made before the continued aggression to search any of the men. See
Majority Opinion at 18-19.
There is simply no evidence that Appellee or either of the other two men
made any aggressive movements toward the officers; nor did Appellee reach
into his pockets, or act as though he was ready to initiate physical contact.
Instead, the Majority focuses on Officer Bucek’s subjective feeling that he was
threatened by their angry response. As noted supra, Officer Bucek’s general
statements of concern for his and his partner’s safety absent suspicion
Appellee was armed are not enough to conduct a pat down search. See
Cooper, 994 A.2d at 594-95. The Majority’s conclusion implies that an officer
may initiate a custodial detention of an individual simply based upon a
negative reaction to an unlawful police directive. Further, it would allow the
greater intrusion of a Terry frisk of that person without any articulable
suspicion of a weapon. It seems the Majority is selectively choosing certain
testimony to afford all inferences to the losing party. See Commonwealth
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v. Cost, 224 A.3d 641, 650 (Pa. Super. 2020) (“[T]he record of a suppression
hearing is to be read in the light most favorable to the prevailing party[.]”).
However, the Majority ignores the following: (1) Officer Bucek initiated
an investigative detention based only on the smell of marijuana and an
assumption that the three men crossed the street to avoid him, (2) he never
expressed suspicion that any of the men possessed a weapon, and (3) the
actions of Appellee after the officer initiated the search cannot support a
finding of reasonable suspicion to initiate a frisk. Therefore, I conclude the
Majority’s analysis misses the mark.
Lastly, I acknowledge the concern of both the Majority and the
Commonwealth over the trial court’s statement that if the officers were fearful
for their safety, they could have drawn their weapons. See Majority Opinion
at 19-20; Commonwealth Brief at 10; Trial Ct. Op. at 8. However, I disagree
with the Commonwealth’s characterization that the trial court “seems to
qualify itself as [a] use of force expert.” Id. at 10-11. While I find the
comment a bit cavalier, the court was simply reiterating its belief that Officer
Bucek did not possess the requisite reasonable suspicion to perform a pat
down search.
Officer Bucek could not justify an investigative detention where he only
smelled burned marijuana, observed three men crossing the street, and the
men had a negative reaction to his questions. See Young, 162 A.3d at 528
(citation omitted). Even if the investigative detention was proper, absent
specific and articulable facts to support Officer Bucek’s suspicion that Appellee
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was armed before he initiated the pat down search, I would affirm the trial
court’s suppression order. See Bozeman, 205 A.3d at 1274;
Commonwealth v. Tillery, 249 A.3d 278, 280 (Pa. Super. 2021) (where the
record supports the decision of the suppression court, this Court is bound by
those facts).
Thus, I respectfully dissent.
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