Commonwealth of Pa. v. Reed

19 A.3d 1163

2011 PA Super 96

COMMONWEALTH of Pennsylvania, Appellee

v.Detrick Nelson REED, Appellant.

Superior Court of Pennsylvania.

Argued Jan. 25, 2011.Filed May 5, 2011.

Emily Smarto, Greensburg, for appellant.Michael A. Pacek, Assistant District Attorney, Greensburg, for Commonwealth, appellee.BEFORE: ALLEN, OLSON and COLVILLE ^*, JJ.OPINION BY OLSON, J.:

Appellant, Detrick Nelson Reed, appeals from the judgment of sentence entered on March 9, 2010 following his bench trial convictions for one count each of persons not to possess a firearm, firearms not to be carried without a license, false identification to law enforcement authorities, possession of a small amount of marijuana, and possession of drug paraphernalia.¹ We affirm.

The facts of this case may be summarized as follows. On June 22, 2009, while on-duty in a marked police vehicle, Officer Steve Sandor of the Delmont Police Department observed an automobile run a red light at the corner of State Route 66 and West Pittsburgh Street. Officer Sandor pulled the vehicle over. A female was driving and Appellant was a passenger. The driver could not produce identification, but provided Officer Sandor her name and birth date. Officer Sandor determined there was an outstanding warrant for her arrest. Subsequently, Officer Sandor arrested the driver, conducted a search of her person, and uncovered narcotics and paraphernalia in her jacket. Further, the police dispatcher told Officer Sandor that the vehicle belonged to a man in Fayette County. Office Sandor returned to the vehicle to ascertain whether Appellant was the owner of the vehicle. Appellant told Officer Sandor that his name was Brandon Thomas and gave a fictitious date of birth. There was no police record found regarding that information. When confronted, Appellant provided his real name and birth date. Officer Sandor determined that there were no outstanding warrants for Appellant. However, Officer Sandor asked Appellant to exit the vehicle and then conducted a protective frisk. Officer Sandor recovered a loaded 9 mm pistol from Appellant's right rear pocket. Appellant was arrested and an additional search conducted at the police station uncovered three straws with narcotics residue on them. Pursuant to a warrant, a search of the vehicle in question revealed a bag of a small amount of marijuana on the passenger side of the automobile.

The Commonwealth filed the aforementioned charges against Appellant. Appellant filed an omnibus pre-trial motion seeking suppression of the evidence obtained, as well as his subsequent statements to police. Following a hearing on February 24, 2010, the Honorable Alfred B. Bell of the Westmoreland County Court of Common Pleas denied relief. Judge Bell filed an opinion in support of his denial on March 15, 2010. Prior to trial, the Commonwealth filed a motion in limine to preclude defense counsel from arguing that Appellant's constitutional rights had been violated because Judge Bell had already determined that there were no violations when he denied suppression. The trial court granted the Commonwealth's motion in limine. On March 9, 2010, the case proceeded to a bench trial before President Judge John E. Blahovec wherein Appellant was convicted of all charges. The trial court sentenced Appellant to an aggregate sentence of 5 1/2 to 11 years of incarceration, with credit for time served. This timely appeal followed.²

On appeal, Appellant presents the following issues for our review:

I. Whether the lower court erred in denying [Appellant's] motion to suppress?

A. Whether a passenger in a lawfully stopped vehicle has a Fifth Amendment right to allow him to refuse to respond to an officer's request for identification?

B. Whether [Appellant] was subjected to an investigatory detention when Officer Sandor did not have, and could not articulate, specific facts that would give rise to a reasonable suspicion that criminal activity was afoot in violation of both the Fourth Amendment and Article I, Section 8 of the Pennsylvania Constitution?

C. Whether the Terry pat-down search of [Appellant] violates both the Fourth Amendment and Article I, Section 8 of the Pennsylvania Constitution, when the unlawful search was conducted without the presence of [a] reasonable articulable belief that [Appellant] was involved in criminal activity or that he was armed or dangerous?

II. Whether the trial court erred in granting the Commonwealth's motion in limine which disallowed defense counsel from arguing constitutional violation to the jury (4th and 5th Amendment issues); essentially a from [sic] of jury nullification?

Appellant's Brief at 4–5 (complete capitalization omitted).

Appellant has presented his first issue with three sub-parts, each challenging different aspects of the order denying his motion to suppress. First, Appellant claims that his Fifth Amendment right to remain silent was violated because he was asked for identification at a time when police lacked reasonable suspicion that Appellant, as a passenger in a vehicle, was presently engaged in criminal activity. Id. at 17. In support of this claim Appellant cites Commonwealth v. Au, 986 A.2d 864 (Pa.Super.2009), which he claims effectively overruled our prior decision in Commonwealth v. Campbell, 862 A.2d 659 (Pa.Super.2004), for the contention that an illegal seizure occurred when Appellant was asked for identification. Appellant's Brief at 18–20. Next, Appellant claims that he was improperly subjected to an investigatory detention in the absence of reasonable suspicion that criminal activity was afoot. Lastly, Appellant asserts that Officer Sandor unlawfully conducted a protective frisk because he did not articulate a reasonable ground to believe Appellant was armed and dangerous. Specifically, Appellant argues “there was no contraband in plain view, no weapons in plain view, no furtive movements by [Appellant], and no odors emanating from the vehicle.” Id. at 21. We address each aspect of Appellant's claim in turn.

In reviewing these arguments, our standard is as follows:

[An appellate court's] standard of review in addressing a challenge to a trial court's denial of a suppression motion is limited to determining whether the factual findings are supported by the record and whether the legal conclusions drawn from those facts are correct. Since the prosecution prevailed in the suppression court, 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 factual findings of the trial court, we are bound by those facts and may reverse only if the legal conclusions drawn therefrom are in error.

Commonwealth v. Stevenson, 894 A.2d 759, 769 (Pa.Super.2006) (citation omitted).

We first address Appellant's contention that his Fifth Amendment constitutional right to remain silent was infringed upon when he was asked for identification. We begin by examining our decision in Campbell. Similar to the case at hand, Campbell was a passenger in a vehicle that was detained by police for failing to come to a stop at a stop sign. When the driver could not produce identification, police asked Campbell to identify himself and subsequently discovered an outstanding warrant for his arrest. During the search incident to arrest, police found narcotics on Campbell's person.

In Campbell, a panel of this Court first examined the three levels of police interaction between citizens:

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.

Campbell, 862 A.2d at 663 (internal citations omitted).

The Campbell panel then determined that police are permitted to stop an automobile after witnessing a motor vehicle violation and thereafter may request both the driver and the passengers to exit the vehicle. Id. Extending that logic, the Campbell Court determined that police may constitutionally request identification from a passenger during a routine traffic stop. Id. The Campbell panel concluded that, under the Fourth Amendment, there is no expectation of privacy regarding identification information. Id., quoting Commonwealth v. Duncan, 572 Pa. 438, 817 A.2d 455 (2003). Ultimately, our Court concluded:

We determine that asking a passenger for identification is reasonable; a person's name, like his voice or handwriting, is revealed in a variety of daily interactions and there is no legitimate expectation of privacy associated with one's identity. The principle that a person cannot claim the protections of the Fourth Amendment for what he “knowingly exposes to the public” is applicable in this matter.

Campbell, 862 A.2d at 665.

Additionally, we note that in Campbell, this Court also relied upon the United States Supreme Court decision Hiibel v. Sixth Judicial District Court of Nevada, 542 U.S. 177, 124 S.Ct. 2451, 159 L.Ed.2d 292 (2004). In Hiibel, police responded to a reported assault and asked Hiibel to identify himself when they approached him at the scene. Hiibel refused and was arrested pursuant to Nevada's stop and identify law.³ The Hiibel Court ultimately concluded that a police request for identification is essential to police investigation and does not implicate the Fourth Amendment. Id. at 185, 124 S.Ct. 2451.

Instantly, Appellant relies upon a portion of the Campbell decision wherein the panel stated that “the more difficult and troubling question involves Fifth Amendment concerns[ ]” because “the disclosure of one's identity may...