Commonwealth of Pa. v. Simmons

17 A.3d 399

2011 PA Super 43

COMMONWEALTH of Pennsylvania, Appellant

v.Jamar SIMMONS, Appellee.

Superior Court of Pennsylvania.

Argued Dec. 8, 2010.Filed March 8, 2011.

Anne Palmer, Assistant District Attorney, Philadelphia, for Commonwealth, appellant.Aaron C. Finestone, Philadelphia, for appellee.BEFORE: BENDER, OLSON and OTT, JJ.OPINION BY OLSON, J.:

Appellant, the Commonwealth of Pennsylvania, appeals from an order entered on April 16, 2010, which granted Jamar Simmons' motion to suppress physical evidence. For the following reasons we reverse and remand for further proceedings.

The trial court set forth the relevant factual and procedural history as follows:

In opposition to the motion [to suppress] the Commonwealth produced Philadelphia Police Officer Charles Galiczynski. He testified that on January 9, 2009, he was on a tour of duty for the 15th District in a marked car with a fellow officer when he arrested [Simmons] at about 6:45 p.m. in the 4600 block of North Penn Street. (N.T. 9/3/2008, p. 6–7). They had observed a vehicle traveling without brake lights being driven by a male and in which [Simmons] was a passenger. Id. at 8. They activated their lights and siren and the vehicle stopped, at which time Galiczynski observed [Simmons] “... make a movement towards the floor area in a downward motion and then coming backwards on the seat and then across his chest with his right arm to his left area of his jacket.” Id. at 8–9. He continued with

I observed that motion. I then immediately told my partner that the male [Simmons] was making a movement as I got closer. At which time I did pat-down [Simmons], did a protective frisk, at which time I could see and feel a large bulge on his right chest area, at which time when I did the pat-down, I could feel multiple cylinder-shaped objects that was [sic] recognizable to me as narcotics packaging.... At which time—recognizing that based on my experience and training, I recovered a plastic bag which contained ... [what turned out to be cocaine in numerous vials].

Id. at 9–10.

He then testified that he had been a Philadelphia police officer for 12 years, that he was familiar with the area for that length of time, that it's a high crime, high drug area, that he had made hundreds of narcotics arrests in the 15th District, that he had made approximately 35 to 45 narcotics arrests in the area of 4600 Penn Street, of which about 15 involved crack cocaine, the majority of which were in plastic packets of vials. Id. at 12–13. He described making the observation of [Simmons] while he was a passenger in the Police Ford Explorer, [Simmons] being a passenger in a Mercury Marquis, and as he was exiting his vehicle and approaching [Simmons] and that [Simmons'] movements indicated to him that [Simmons] was attempting to conceal a weapon. Id. at 14–15. He conducted the pat-down while [Simmons] was still sitting in the vehicle “for safety reasons”, patting him down on “his left breast side of his jacket” where he had “observed the bulge”, feeling what he believed to be narcotics in numerous cylinder-shaped objects approximately one to one and a half inches long. Id. at 15–16. He clarified that when he saw the movements, he suspected a weapon and did a protective frisk for weapons, but when he felt it, he recognized it “to be what it was.” Id. at 16.

On cross examination the officer acknowledged that at the preliminary hearing he had testified that he had made the observations of [Simmons'] movements while he was still sitting in his police vehicle ( Id. at 20), that he had opened the front passenger side car door where [Simmons] was sitting without asking [Simmons] to step outside of the vehicle ( Id. at 22), and that, when he gave a statement to a police detective who was preparing a police report, he did not mention seeing a bulge before conducting the frisk ( Id. at 24).

Trial Court Opinion, 8/3/2010, at 2–3.

Simmons filed a motion to suppress the evidence recovered as a result of the protective frisk. After a hearing and additional briefing, the motion to suppress was granted on April 16, 2010. This appeal followed.¹ All requirements of Pennsylvania Rule of Appellate Procedure 1925 have been satisfied in this matter.

The Commonwealth presents one issue for appeal:

Did the lower court err in suppressing evidence on the ground that police lacked reasonable suspicion where [Simmons], a passenger in a car that had been lawfully stopped, made furtive movements in reaching to the floor of the vehicle and then toward his chest, leading police to suspect that he might have a weapon?

Commonwealth's Brief at 2.

Where a motion to suppress has been filed, the burden is on the Commonwealth to establish by a preponderance of the evidence that the challenged evidence is admissible. Commonwealth v. Powell, 994 A.2d 1096, 1101 (Pa.Super.2010), citing Pa.R.Crim.P. 323(h); Commonwealth v. Iannaccio, 505 Pa. 414, 480 A.2d 966 (1984). When reviewing a decision from the suppression court, our responsibility is (1) to determine whether the record supports the factual findings of the court below, and (2) to evaluate the legitimacy of the inferences and legal conclusions drawn from those findings. Commonwealth v. Bull, 382 Pa.Super. 559, 555 A.2d 1341 (1989). Where, as here, it is the Commonwealth who is appealing the decision of the suppression court, we must consider only the evidence of the defendant's witnesses and so much of the evidence for the prosecution which when read in the context of the record as a whole, remains uncontradicted. Commonwealth v. Hamlin, 503 Pa. 210, 469 A.2d 137, 139 (1983). If the record supports the factual findings below, we are bound by those findings. Commonwealth v. James, 506 Pa. 526, 486 A.2d 376, 379 (1985).

However, while we are bound by the suppression court's findings of fact if supported by the record, we are not bound by the court's legal conclusions which are drawn from the facts of the case. Commonwealth v. Lagana, 517 Pa. 371, 537 A.2d 1351, 1353 (1988). In the present case, both parties are in agreement as to the facts; therefore, the question which remains is whether the court committed an error in its legal conclusions drawn from those facts. See Bull, 555 A.2d at 1343.

In particular, the Commonwealth appeals the trial court's finding that the officers did not have a reasonable basis to conduct a protective frisk of Simmons. According to the Commonwealth, the trial court's holding was based upon an improper reading and application of this Court's en banc decision in Commonwealth v. Reppert, 814 A.2d 1196 (Pa.Super.2002). The Commonwealth argues that, contrary to the trial court's belief, the factual scenario in Reppert is significantly different from the facts of the instant matter and that, when one considers the totality of the circumstances in the instant matter, it becomes apparent that the police officers had a reasonable basis to conduct a protective frisk of Simmons. We agree.

Specifically, “[i]t is hornbook law that the [F]ourth [A]mendment to the United States Constitution as well as Article I, § 8 of the Pennsylvania Constitution protect citizens from ‘unreasonable searches and seizures.’ ” Commonwealth v. Baer, 439 Pa.Super. 437, 654 A.2d 1058, 1059 (1994). Warrantless searches and seizures (such as occurred in this case) are unreasonable per se, unless conducted pursuant to specifically established and well-delineated exceptions to the warrant requirement. Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). One such exception, the 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.” Commonwealth v. Fitzpatrick, 446 Pa.Super. 87, 666 A.2d 323, 325 (1995); Terry v. Ohio, 392 U.S. 1, 30, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).

Terry further held that “[w]hen an officer is justified in believing that the individual whose suspicious behavior he is investigating at close 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.” Terry, 392 U.S. at 24, 88 S.Ct. 1868. “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.” Adams v. Williams, 407 U.S. 143, 146, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972).

In order to conduct an investigatory stop, the police must have reasonable suspicion that criminal activity is afoot. Terry, 392 U.S. at 30, 88 S.Ct. 1868. In order to determine whether the police had reasonable suspicion, the totality of the circumstances—the whole picture—must be considered. United States v. Cortez, 449 U.S. 411, 417, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981). “Based upon that whole picture the detaining officers must have a particularized and objective basis for suspecting the particular person stopped of criminal activity.” Id. at 417–418, 101 S.Ct. 690. 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. Commonwealth v. Arch, 439 Pa.Super. 606, 654 A.2d 1141, 1144 (1995). If either the seizure (the initial stop) or the search (the frisk) is found to be unreasonable, the remedy is to exclude all evidence derived from the illegal government activity. Commonwealth v. Gibson, 536 Pa. 123, 638 A.2d 203, 206–207 (1994).

The Terry totality of the circumstances test applies to traffic stops or roadside encounters in the same way that it applies to typical police encounters. See Commonwealth v. Mesa, 453 Pa.Super. 147, 683 A.2d 643, 646 (1996). Moreover, the principles of Terry apply to all occupants of the stopped vehicle, not just the driver. See id. (applying the principles...