Commonwealth v. Luczki

212 A.3d 530

COMMONWEALTH of Pennsylvania, Appellee

v.Brian LUCZKI, Appellant

No. 93 WDA 2018

Superior Court of Pennsylvania.

Submitted November 13, 2018

Filed June 7, 2019

Stephanie M. Noel, Public Defender, Pittsburgh, for appellant.

Margaret B. Ivory, Assistant District Attorney, Pittsburgh, for Commonwealth, appellee.

BEFORE: GANTMAN, P.J., BENDER, P.J.E., and OLSON, J.

OPINION BY GANTMAN, P.J.:

Appellant, Brian Luczki, appeals from the amended judgment of sentence entered in the Allegheny County Court of Common Pleas, following his bench trial conviction for possession of a controlled substance.¹ We affirm.

In its opinion, the trial court accurately set forth the relevant facts of this case as follows:

In this case, the evidence presented at [the suppression hearing/stipulated trial] established that on November 29, 2016, Officer William Luffey of the Allegheny County Port Authority Police was working with other police officers as part of the District Attorney task force targeting the sale of illegal narcotics ("DANET"). Officers were in the area of Federal and Henderson Streets on the North Side of Pittsburgh due to complaints of drug sales. The Sandusky Court housing project is adjacent to the area and the task force had made in excess of thirty drug arrests in the area that month.

Officer Luffey first observed [Appellant] walking away from the officers and toward the Sandusky Court Housing Project. [Appellant] was with an individual known to [Officer] Luffey as he had arrested that individual on drug charges on five prior occasions. [Appellant and the individual] walked toward Sandusky Court and out of the view of the officers. Approximately 14 minutes later, the two individuals were observed coming back from the area of Sandusky Court walking toward the officers. Officer Luffey testified that based on his training and experience, and the observations he made, he believed that the individuals had purchased illegal narcotics. Officer Luffey and Sgt. Wagner who were in plain clothes, but wearing their badges around their necks, waited until the individuals were a few feet away and announced themselves as police officers. Officer Luffey stated, "I need to speak to you," and both [Appellant] and the other individual turned and started to walk away. [Appellant pulled] his hand out of his front pocket and Officer Luffey could clearly see a stamp bag in [Appellant's] hand. After asking [Appellant] to open his hand [Officer Luffey] observed three stamp bags marked "no pain" in [Appellant's] hand. [Appellant] was then placed under arrest for possession of a controlled substance.

(Trial Court Opinion, filed April 27, 2018, at 2-3) (internal citations to record and footnote omitted) (emphasis added). The packets taken from Appellant contained heroin, and the Commonwealth charged Appellant with possession of a controlled substance.

Appellant filed a motion to suppress on August 25, 2017, in which he argued the interaction between the police and Appellant constituted an unlawful search and seizure, without reasonable suspicion or probable cause. Specifically, Appellant claimed the police seized him without reasonable suspicion or probable cause, and searched his person without a warrant, probable cause, or any other valid exception to the warrant requirement. Appellant claimed the moment the officers approached him with displayed badges and identified themselves as police officers, they had "seized" him, and then conducted an illegal search when the officer ordered Appellant to show what he had in his hand. (See Motion To Suppress Evidence, filed 8/25/17, at 4.)

The court conducted a suppression hearing on December 15, 2017. The Commonwealth presented one witness, Officer Luffey, who testified he is a twenty-two-year veteran police officer. He has been working with DANET for nine years, has attended numerous narcotics investigation interdiction classes during his entire career, and had made in excess of thirty arrests over a four-week period in the area where he interacted with Appellant. Officer Luffey stated he and his partner had been assigned to the area due to numerous complaints of illegal drug deals. Officer Luffey said he actually knew Appellant's companion and had arrested Appellant's companion for possession of narcotics five times within the past year. Officer Luffey described how Appellant's and his companion's actions roused the officers' suspicion and explained: "[F]rom my training and experience being in the area where I've made numerous drug arrests over the past few weeks, the history of [Appellant's companion] and the short amount of time they were gone, I believed that the two purchased illegal narcotics." (N.T. Suppression Hearing, 12/15/17, at 3-7). Officer Luffey observed Appellant and his companion as they walked back from the area of Sandusky Court toward the officers. Officer Luffey stated:

Commonwealth: Okay....can you tell the Court what happened after that[?]

Officer Luffey: Sergeant Wagner and myself, we approached the two with our badges displayed and verbally identified ourselves as police officers.

Commonwealth: Officer Luffey, were you in uniform this day or were you in plainclothes?

Officer Luffey: I was in plainclothes as was Sergeant Wagner.

Commonwealth: But you had a badge around your neck?

Officer Luffey: Yes, a badge around my neck and a radio in my hand and verbally announcing myself, which [Appellant's companion] knew me from narcotics encounters with him.

Commonwealth: [Appellant's companion] would have recognized you in plainclothes regardless of your badge?

* * * Commonwealth: Officer Luffey, did you approach [Appellant] and [his companion]?

Officer Luffey: When we identified ourselves with our badges displayed they both had looks of shock on their face[s] and they started walking away. And when they were doing that I observed [Appellant]. He was going into his front pants pocket. And I could clearly see him removing stamp bags of heroin.

Commonwealth: Now, you said that—your observation of [Appellant] when he removed his hand from his pocket, what did you see in his hand?

Officer Luffey: I could clearly see white stamp bags of heroin. I didn't know how many there were, but I knew it was heroin.

Commonwealth: And are you familiar with the packaging that's typically used to sell illegal narcotics?

Officer Luffey: Absolutely, from working DANET and being a police officer for twenty-two years I've probably made four to five hundred heroin arrests.

Commonwealth: Can you describe briefly what that stamp bag might look like?

Officer Luffey: It's the size of a stamp, you know, like, it's white, and each bag always has a mark on it, a label.

Commonwealth: Okay. And is that what you observed in [Appellant's] hand?

Officer Luffey: Yeah. But I couldn't see the label. I could see it was a stamp bag, but I could not see the stamping on it.

Commonwealth: Okay. And after you observed the stamp bags of heroin in [Appellant's] hand what happened after that?

Officer Luffey: I advised him to open up his hand and he complied, and there were three stamp bags of heroin stamped "No pain" on them.

Commonwealth: Now, at any time was [Appellant], prior to this, was [Appellant] detained?

Officer Luffey: No. We just approached and identified ourselves as police officers. And he walked away. He reached into his pocket, and I [saw] the heroin.

Commonwealth: Was he handcuffed?

Officer Luffey: No.

Commonwealth: Prior to observing those stamp bags in his hands did you pat him down?

Officer Luffey: Nothing. No.

Commonwealth: Okay. And after you observed the stamp bags in his hand what did you do after that?

Officer Luffey: That's when I placed him under arrest and detained him.

(Id. at 8-11). During cross-examination, Officer Luffey confirmed the testimony he had given on direct examination about his training and experience, and the fact that the officers were in plainclothes. The cross-examination testimony added that the officers were on foot in public, and not in police vehicles, when they interacted with Appellant and his companion. Upon the officers' approach, identification, and request, Appellant and his companion separated and turned to walk away, which was when Officer Luffey saw Appellant remove white bags from his right pocket, cupped in his right hand, and in plain view. The incident occurred in the afternoon, about 4:35 P.M., on November 29, 2016. The product in the bags confiscated from Appellant tested positive for heroin. (Id. at 11-21).

In closing argument, defense counsel said:

You heard Officer Luffey's testimony that he approached, identified himself, saw [Appellant] walk away from him pulling something out of his pocket that the officer could tell based on his training and experience was three stamp bags.

I think what you are hearing him testify to is a hunch and a belief that these two individuals were there to purchase or use heroin. He saw something white come out of my client's pocket. He assumed that that was a stamp bag based on the fact that my client was with a known drug user. When he ordered my client to open his hands that is where the unlawful search lies. Ordering him to open his hands is the same as telling him to empty his pockets. He suspected there was something illegal in his hand. He ordered him to open it so that he could verify that that was, in fact, something illegal. Once he did that he saw that my client did, in fact, have heroin in his hand. I'm not denying the fact that this officer has been doing this for a long time and he had a good sense of what was going on. It does not give him the right to search my client just because he was in a high crime area with a known drug user. That does not give him a right to conduct a search without something more. He maybe had reasonable suspicion to conduct an investigatory stop. He maybe could have asked some questions. But he didn't do that. He ordered him to open his hands. He ordered my client to open his hands and show him the contents of his hands.

I

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