Com. v. Key

789 A.2d 282

COMMONWEALTH of Pennsylvania, Appellee, v. James L. KEY, Appellant.

Superior Court of Pennsylvania.

Submitted August 27, 2001.

Filed December 27, 2001.

David J. Long, Reading, for appellant.

Mark C. Baldwin, Asst. Dist. Atty., Reading, for Com., appellee.

Before DEL SOLE, President Judge, CAVANAUGH J., and CERCONE, President Judge Emeritus. CERCONE, President Judge Emeritus.

¶ 1 Appellant, James L. Key, appeals from the judgment of sentence of five (5) days to twelve (12) months incarceration entered April 19, 2001. After review, we vacate the judgment of sentence and remand for further proceedings consistent with this opinion.

¶ 2 The Trial Court has set forth the facts underlying Appellant's conviction in its opinion as follows:

[O]n February 25, 2000 at approximately 10:30 a.m., Officers Robert Bickham and Nelson Berrios of the Reading Police Department were working undercover as part of the High Crime Unit plain clothes detail in the area of Front and Elm Streets.¹ (N.T. Omnibus Pretrial Hearing Tr. 02/01/01, p. 4, 11-12).

While patrolling in an unmarked car, the police observed the [Appellant] talking with another male. Upon seeing the undercover officers watching, the [Appellant] quickly turned and walked north on North Front Street. Id. at 5, 12. Officer Bickham exited the unmarked vehicle, approached the defendant, and queried, "[H]ey, could I talk to you bud [?]" Id. at 5. The [Appellant] replied, "[S]ure, no problem," Id. at 6.

Officer Berrios drove up to where Officer Bickham and the [Appellant] were conversing and exited the vehicle. Id. at 12. Officer Bickham identified himself and displayed his badge. He explained to the [Appellant] that he and Officer Berrios were working undercover in high crime areas and stopping people to see what they were doing and whether they lived in the area. Id. at 6. The [Appellant] provided [Officer Bickham] his name, date of birth, and address as 220 North Front Street. The [Appellant] explained that he was on his way to a district justice office to take care of some warrants or tickets. Officer Bickham ran the [Appellant's] name through the National Crime Information Center (NCIC) computer and informed the [Appellant] that he found nothing outstanding at the district justice office. Id. at 6, 12. At this point Officer Bickham shook hands with the [Appellant] and told him he was free to leave. Id. at 7, 9-10, 12.

Officer Berrios then asked the [Appellant] if he had any drugs or drug paraphernalia on him because he was in a high drug area. The [Appellant] stated no and then went through his pockets showing that he had nothing on him. Id. at 12, 15. Officer Berrios asked the [Appellant] if he could double check his pockets. The [Appellant] relied, "Go ahead, I have nothing to hide." Id. at 13. Officer Berrios found a cellophane packet of suspected heroin in the [Appellant's] left jacket sleeve pocket. The cellophane packet was seized and Officer Berrios conducted a Valtox test on the packet contents which yielded a positive result for heroin.

Trial Court Opinion, filed 5/31/2001, at 1-2.

¶ 3 Appellant was arrested. Prior to trial he filed an omnibus pretrial suppression motion on the basis that he was stopped and searched without reasonable suspicion in violation of the Fourth Amendment to the United States Constitution and Article 1, Section 8 of the Pennsylvania Constitution. The Trial Court conducted a suppression hearing on February 1, 2001 at which Officers Bickham and Berrios testified. Subsequently, the Court denied the suppression motion. Appellant proceeded to a bench trial and was convicted on April 19, 2001 of possession of a controlled substance (heroin).² This timely appeal followed.

¶ 4 On appeal to our Court Appellant presents one issue for our consideration:

A. DID NOT THE TRIAL COURT ERR IN DENYING APPELLANT'S MOTION TO SUPPRESS EVIDENCE OBTAINED DURING AN INVESTIGATIVE DETENTION NOT BASED ON REASONABLE SUSPICION OF CRIMINAL ACTIVITY BY APPELLANT, WHEN ANY CONSENT OBTAINED DURING THE ENCOUNTER IS TAINTED, IS NOT VOLUNTARY AND IS LEGALLY INSUFFICIENT TO SUPPORT THE SEARCH?

Appellant's Brief at 4.

When reviewing the suppression court's denial of a motion to suppress, we must first ascertain whether the record supports the suppression court's factual findings. See Commonwealth v. Dangle, 700 A.2d 538, 539 (Pa.Super. 1997). When reviewing rulings of a suppression court, we must consider only the evidence of the prosecution and so much of the evidence for the defense as remains uncontradicted when read in the context of the record as a whole. See Commonwealth v. Lynch, 773 A.2d 1240, 1243 (Pa.Super.2001). We are bound by the suppression court's findings if they are supported by the record, and may only reverse the suppression court if the legal conclusions drawn from the findings are in error. See Commonwealth v. Perry, 710 A.2d 1183, 1184 (Pa.Super.1998).

Commonwealth v. Ortiz, 786 A.2d 261, 263-264 (Pa.Super.2001). "As a reviewing court, we are therefore not bound by the legal conclusions of the suppression court and must reverse that court's determination if the conclusions are in error or the law is misapplied." Commonwealth v. Turner, 772 A.2d 970, 972-973 (Pa.Super. 2001) (en banc).

¶ 5 Appellant argues that his motion to suppress should have been granted since the officers had no warrant and had seen nothing giving rise to a reasonable suspicion of Appellant's involvement in criminal activity which would have justified stopping Appellant on a public sidewalk. As a consequence, Appellant maintains that the consent which he gave to being searched was the tainted product of his illegal detention and could not justify the subsequent search of his person. After review, we conclude that Appellant is correct, and the Trial Court erred in failing to suppress the evidence obtained as a result of the search.

¶ 6 "Both the Fourth Amendment of the United States Constitution and Article 1 Section 8 of the Pennsylvania Constitution protect citizens from unreasonable searches and seizures." Commonwealth v. Cook 558 Pa. 50, 54, 735 A.2d 673, 675 (1999). The Fourth Amendment to the United States Constitution provides that:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

U.S. Const.Amend. IV. The Pennsylvania Constitution provides:

The people shall be secure in their persons, houses, papers and possessions from unreasonable searches and seizures, and no warrant to search any place or to seize any person or things shall issue without describing them as nearly as may be, nor without probable cause, supported by oath or affirmation subscribed to by the affiant.

Pa. Const. Art. I, § 8. Warrantless searches and seizures are therefore unreasonable per se, unless conducted pursuant to a specifically established and well-delineated exception to the warrant requirement. In the Interest of N.L., 739 A.2d 564, 566 (Pa.Super.1999), appeal denied, 562 Pa. 672, 753 A.2d 819 (2000) (citing Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967)).

As our Court has further reminded:

The Pennsylvania Supreme Court has been vigilant in the protection of the right to privacy guaranteed by Article I, Section 8 of our state Constitution. On repeated occasions, the Court has admonished that:

The seriousness of criminal activity under investigation, whether it is the sale of drugs or the commission of a violent crime, can never be used as justification for ignoring or abandoning the constitutional right of every individual in this Commonwealth to be free from intrusions upon his or her personal liberty absent probable cause.

Commonwealth v. Polo, , 759 A.2d 372, [376] (quoting Commonwealth v. Matos, 543 Pa. 449, 672 A.2d 769, 775-76 (Pa.1996)).

Commonwealth v. Beasley, 761 A.2d 621, 624 (Pa.Super.2000), appeal denied, 565 Pa. 662, 775 A.2d 801 (2001). "To secure the right of citizens to be free from such intrusions, courts in Pennsylvania require law enforcement officers to demonstrate ascending levels of suspicion to justify their interactions with citizens as those interactions become more intrusive." Id.

The first of these [interactions] is a "mere encounter" (or request for information) which need not be supported by any level of suspicion, but carries no official compulsion to stop or respond. The second, an "investigative detention" must be supported by reasonable suspicion; it subjects a suspect to a stop and period of detention, but does not involve such coercive conditions as to constitute the functional equivalent of arrest. Finally, an arrest or "custodial detention" must be supported by probable cause.

Commonwealth v. Phinn, 761 A.2d 176, 181 (Pa.Super.2000), appeal denied, ___ Pa. ____, 785 A.2d 89 (2001) (quoting Commonwealth v. Ellis, 541 Pa. 285, 293-294, 662 A.2d 1043, 1047-1048 (1995)).

¶ 7 In the instant case, the Trial Court held, and the Commonwealth now argues, that the nature of the interaction between Appellant and the officers amounted to nothing more then a "mere encounter." By contrast, Appellant asserts that the officers subjected him to an investigative detention. Our Supreme Court has recognized that "the line between a mere encounter and an investigative detention cannot be precisely defined because of the myriad of daily situations in which policemen and citizens confront each other on the street." Matos, supra at 457-458, 672 A.2d at 773-774. "[N]ot all personal contacts or exchanges between police officers and individuals involve `seizures' of persons; however, not every police interrogation may be dismissed as personal intercourse. When an officer, by means of physical force or show of authority, has restrained...