Com. v. Stevenson

832 A.2d 1123

COMMONWEALTH of Pennsylvania, Appellee, v. Vanderlee STEVENSON, Appellant.

Superior Court of Pennsylvania.

Argued March 12, 2003.

Filed September 16, 2003.

Kenneth J. Haber, Pittsburgh, for appellant.

James R. Gilmore, Asst. Dist. Atty., Pittsburgh, for Com., appellee.

BEFORE: TODD, BENDER, and KELLY, JJ.

OPINION BY KELLY, J.:

¶ 1 Appellant, Vanderlee Stevenson, asks us to determine whether the trial court erred in denying his motion to suppress evidence where the police officers conducting an investigatory detention lacked articulable and reasonable suspicion to believe Appellant was engaged in criminal activity. We hold where the police act on an unsubstantiated radio broadcast that a person is engaged in narcotics activity and a mere assumption that the person is currently driving under suspension, based solely on an encounter with that person three years prior, and where the police fail to articulate grounds to support an allegation that the person is unlawfully parked, the police have failed to show the requisite reasonable basis for an investigative detention. Therefore, the investigative detention of Appellant in the instant case was unlawful, and the evidence garnered as a result of that detention should have been suppressed. Accordingly, we vacate Appellant's judgment of sentence and remand for further proceedings consistent with this opinion.

¶ 2 On the evening of February 23, 1999, Officer Green of the Pittsburgh Police observed Appellant driving a red Nissan Altima. Officer Green had a previous encounter with Appellant in 1996, where Appellant did not have a valid driver's license. Based on this previous encounter, Officer Green issued a "Be on the Lookout" ("BOLO") broadcast for Appellant. Officer Green gave Appellant's name, the car's make and model and described Appellant as a black male. Officer Green then lost sight of Appellant. Officer Bonkowski, along with his partner, heard Officer Green's BOLO broadcast, but did not hear Appellant's name. Officer Bonkowski also heard a broadcast from Task Force 42, a plain-clothes narcotics unit. Officer Bonkowski testified Task Force 42 broadcasted that Appellant's vehicle was involved in possible narcotics activity (N.T. Suppression Hearing, 4/28/00, at 23, 57), and that "narcotics" was heard over the radio (Id. at 72, 87). No member from Task Force 42 testified at the suppression hearing concerning the basis for the narcotics allegations. Officer Bonkowski and his partner searched the area and observed a car matching Officer Green's description. Appellant had "double parked" his vehicle as he waited for a relative to come outside to go shopping. Officer Bonkowski approached the vehicle, ordered Appellant to roll down his window and to end his cell phone conversation. Officer Bonkowski then asked Appellant for his driver's license. Appellant informed the officer that he did not have a license. Officer Bonkowski told Appellant to get out of the vehicle. Appellant complied and immediately put his hands on the car. Officer Bonkowski testified he observed Appellant's jacket hanging lower on one side and saw an object in the pocket. Officer Bonkowski touched the object with the back of his hand, manipulated the object, and realized it was a gun. Officer Bonkowski and his partner took Appellant down to the ground and removed the weapon. As the officer removed the weapon, a bag of marijuana fell out of Appellant's pocket. Officer Green arrived and identified Appellant as the subject of his BOLO broadcast. The officers then searched Appellant and found five more bags of marijuana.

¶ 3 Appellant was charged with two counts of violating the Uniform Firearms Act¹, one count of possessing a controlled substance², one count of possessing a controlled substance with intent to deliver³, driving while under suspension⁴ and double parking⁵. The trial court dismissed the charge of possession of a controlled substance with intent to deliver and found Appellant not guilty of double parking. The trial court found Appellant guilty at a bench trial of two counts of violating the Uniform Firearms Act, possession of a controlled substance, and driving under suspension. The court sentenced Appellant to eleven and one half to twenty-three months' incarceration. This timely appeal followed.

¶ 4 Appellant raises one issue for our review on appeal:

WHETHER THE TRIAL COURT ERRED BY RULING THAT THE POLICE OFFICERS POSSESSED THE REQUISITE REASONABLE SUSPICION AT THE TIME THEY APPROACHED AND QUESTIONED APPELLANT, PLACING HIM UNDER INVESTIGATIVE DETENTION, WHEN THE OFFICERS' ACTIONS RESULTED FROM POLICE RADIO BROADCASTS WHICH WERE NOT BASED ON SPECIFIC AND ARTICULABLE FACTS THAT APPELLANT WAS ENGAGED IN CRIMINAL ACTIVITY?

(Appellant's Brief at 5).

¶ 5 As a preliminary matter, we note the trial court failed to enter findings of fact and conclusions of law following the suppression hearing. (See Pa.R.Crim.P. 581(I)) (stating trial court must enter on record findings of fact and conclusions of law at end of suppression hearing). Where a trial court fails to abide by Rule 581(I), however, this Court may look at the trial court's Rule 1925(a) opinion to garner findings of fact and conclusions of law. See Commonwealth v. Reppert, 814 A.2d 1196, 1200 (Pa.Super.2002). Here, the trial court issued a 1925(a) opinion that adequately relates the court's findings of fact and conclusions of law. Thus, we will review Appellant's issue. Id.

¶ 6 We begin by noting:

Our standard of review of a denial of suppression is whether the record supports the trial court's factual findings and whether the legal conclusions drawn therefrom are free from error. Our scope of review is limited; we may 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. Where the record supports the findings of the suppression court, we are bound by those facts and may reverse only if the court erred in reaching its legal conclusions based upon the facts.

Id. (internal citations and quotation marks omitted). At the suppression hearing, the onus is on the Commonwealth to "establish by a preponderance of evidence that the challenged evidence is admissible." Pa. R.Crim.P. 581(H). See also Commonwealth v. Andersen, 753 A.2d 1289, 1291 (Pa.Super.2000).

¶ 7 There are three types of interactions between police and the citizenry. See generally Commonwealth v. DeHart, 745 A.2d 633, 636 (Pa.Super.2000).

Interaction between citizens and police officers, under search and seizure law, is varied and requires different levels of justification depending upon the nature of the interaction and whether or not the citizen is detained. Such interaction may be classified as a "mere encounter," an "investigative detention," or a "custodial detention." 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. In further contrast, a custodial detention occurs when the nature, duration and conditions of an investigative detention become so coercive as to be, practically speaking, the functional equivalent of an arrest.

Id. at 636 (internal citations and some quotation marks omitted).

¶ 8 "The protection against unreasonable searches and seizures afforded by the Pennsylvania Constitution is broader than that under the Federal Constitution." Commonwealth v. Jackson, 548 Pa. 484, 488, 698 A.2d 571, 573 (1997). However, "[i]n determining whether reasonable suspicion exists for a Terry⁶ stop, the inquiry is the same under either Article 1, Section 8 of the Pennsylvania Constitution or the Fourth Amendment of the United States Constitution." Commonwealth v. McClease, 750 A.2d 320, 324 (Pa.Super.2000).

¶ 9 To determine if an interaction rises to the level of an investigative detention, i.e., a Terry stop, the court must examine all the circumstances and determine whether police action would have made a reasonable person believe he was not free to go and was subject to the officer's orders. Commonwealth v. Sierra, 555 Pa. 170, 175, 723 A.2d 644, 646 (1999). An investigative detention, unlike a mere encounter, constitutes a seizure of a person and thus activates the protections of Article 1, Section 8 of the Pennsylvania Constitution. Commonwealth v. Melendez, 544 Pa. 323, 331, 676 A.2d 226, 229 (1996). To institute an investigative detention, an officer must have at least a reasonable suspicion that criminal activity is afoot. Sierra, supra at 176, 723 A.2d at 647. Reasonable suspicion requires a finding that based on the available facts, a person of reasonable caution would believe the intrusion was appropriate. See Commonwealth v. Zhahir, 561 Pa. 545, 751 A.2d 1153 (2000).

¶ 10 Our Supreme Court has opined:

In Whiteley [v. Warden, Wyo. State Penitentiary, 401 U.S. 560, 91 S.Ct. 1031, 28 L.Ed.2d 306 (1971)], the Supreme Court concluded that evidence uncovered during a search incident to an arrest upon reliance on a flyer is permissible so long as the officer who issued the flyer possessed probable cause to arrest. It is irrelevant as to whether the arresting officers have the specific facts which led the issuing officer to conclude that probable cause existed so long as the issuing officer has the necessary articulable facts.

Applying the Whiteley analysis in [U.S. v. Hensley, 469 U.S. 221, 232-33, 105 S.Ct. 675, 83 L.Ed.2d 604 (19

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