Com. v. Allen

Citation681 A.2d 778,452 Pa.Super. 200
PartiesCOMMONWEALTH of Pennsylvania, Appellant v. William ALLEN.
Decision Date19 September 1996
CourtSuperior Court of Pennsylvania

Mary L. Porto, Assistant District Attorney, Philadelphia, for Commonwealth, appellant.

Karl Morgan, Philadelphia, for appellee.

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

CERCONE, President Judge Emeritus:

This is an appeal by the Commonwealth from an order suppressing physical evidence found on appellee William Allen. 1 We reverse.

After the suppression hearing, the lower court made the following findings of fact:

On October 24, 1994 at approximately 1:25 PM Philadelphia Police Officer Kyle Bey assigned to the 22nd Police District received information from one Grixby Stevens who works with senior citizens with regard to certain drug activity.... Mr. Stevens is a retired Philadelphia Police Department lieutenant and has only formerly worked for the 22nd Police District.... Mr. Stevens was known to Officer Bey.

That Stevens informed Bey that drugs were being sold by a heavyset middle-aged male known as ... Mookie ... out of a house located at 2128 North Latona Street in Philadelphia.... Mr. Stevens further stated that Mookie is known to also carry a gun....

That Stevens told Bey that a senior citizen lives in the house in which Stevens asserted the drugs were being sold.... Stevens ... received this information from a senior citizen ... for whom he provides services.

That Stevens told Bey that the senior citizen is allowing the drugs to be sold out of her house, not by herself, but by Mookie. Stevens further stated that drugs were also being sold on the street in front of the residence.... Bey testified that the 21 hundred block of Latona Street was known as a high drug traffic area.

That Officer Bey based upon Stevens' description stated [that Mookie] was a person he had come in contact with on a prior occasion.... Bey indicated that he was familiar with the 21 hundred block of Latona Street because he and his partner had come into contact with drug sales on the street; ... Bey testified he had never made any arrests on the block.

That based upon the information acquired from Stevens[,] Bey and his partner Officer Craig Noll rode to the 21 hundred block of Latona Street and to the residence of 2128 North Latona along with Mr. Stevens.

That as the officers entered the block they observed a male whom they believed to be the [appellee], sitting on the sidewalk in a chair with his hands folded, leaning back with his head down, and his eyes appearing to be closed, outside of the property at 2128 North Latona Street.

That Officer Bey approached the [appellee] and observed a large bulge in his left pants pocket.... Bey told the [appellee] to get up and put his hands on the wall....

That Officer Bey observed a clear plastic baggie which contained off-white chunky substances inside ... the flared front pocket of the [appellee's] sweatshirt. The [appellee] was handcuffed and searched.

That upon searching the [appellee] Bey retrieved from the [appellee's] pants pocket clear and multicolored packets which contained rocklike substance also alleged to be crack-cocaine.... [T]he [appellee] was subsequently arrested....

Findings of Fact and Conclusions of Law dated May 12, 1995 at 2-5. Appellee, thereafter, moved to suppress the physical evidence seized. After presiding over a hearing on March 13, 1995, the suppression court concluded as a matter of law that the officer lacked either reasonable suspicion to conduct an investigative stop or probable cause to make an arrest. Consequently, the lower court granted appellee's motion. In this timely appeal, the Commonwealth contends that the lower court erred in granting appellee's suppression motion.

In reviewing an appeal taken by the Commonwealth from an order suppressing evidence,

[an appellate] court must first ascertain whether the record supports the factual findings of the suppression court, and then determine the reasonableness of the inferences and legal conclusions drawn therefrom.... If the evidence supports the [suppression court's] factual findings, we may only reverse if the legal conclusions drawn therefrom are in error.

Commonwealth v. Gommer, 445 Pa.Super. 571, 573, 665 A.2d 1269, 1270 (1995) (citations omitted). The suppression court bears exclusive responsibility for assessing the credibility of witnesses and determining the weight to be accorded to their testimony. Commonwealth v. Dorsey, 439 Pa.Super. 494, 498, 654 A.2d 1086, 1088 (1995). Although we are bound by findings of fact which are supported by the record, we are not bound by the legal conclusions drawn from those facts. Id.

Fourth Amendment jurisprudence delineates three categories of interaction between citizens and the police. Commonwealth v. Ellis, 541 Pa. 285, 293, 662 A.2d 1043, 1047 (1995).

The first of these 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 to respond. See Florida v. Royer, 460 U.S. 491, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983); Florida v. Bostick, 501 U.S. 429, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991). The second, an "investigative detention" must be supported by a reasonable suspicion; it subjects a suspect to a stop and a period of detention, but does not involve such coercive conditions as to constitute the functional equivalent of an arrest. See Berkemer v. McCarty, 468 U.S. 420, 104 S.Ct. 3138, 82 L.Ed.2d 317 (1984); Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). Finally, an arrest or "custodial detention" must be supported by probable cause. See Dunaway v. New York, 442 U.S. 200, 99 S.Ct. 2248, 60 L.Ed.2d 824 (1979); Commonwealth v. Rodriquez, 532 Pa. 62, 614 A.2d 1378 (1992).

Id. at 293-94, 662 A.2d at 1047-48 (footnote omitted). Preliminarily, we must determine whether the detaining officer initially subjected appellee to an investigative detention or a custodial detention.

A custodial detention arises when the conditions and or duration of an investigative detention become so coercive as to be the functional equivalent of an arrest. Commonwealth v. Douglass, 372 Pa.Super. 227, 239, 539 A.2d 412, 418 (1988), appeal denied, 520 Pa. 595, 552 A.2d 250 (1988) (plurality opinion). Whether an arrest has occurred depends upon the impression conveyed to the person detained, not upon the officers' subjective intentions. Commonwealth v. McManus, 353 Pa.Super. 355, 359, 509 A.2d 1314, 1316 (1986). In determining whether a detention is investigative or custodial, a reviewing court considers the totality of the circumstances including

"the basis for the detention (the crime suspected and the grounds for suspicion); the duration of the detention; the location of the detention (public or private); whether the suspect was transported against his will (how far, why); the method of detention; the show, threat, or use of force, and, the investigative methods used to confirm or dispel suspicion."

Gommer, 445 Pa.Super. at 581, 665 A.2d 1269, 1274 (quoting Commonwealth v. Douglass, 372 Pa.Super. at 244-45, 539 A.2d at 421) (after observing appellant driving in an erratic and dangerous manner, an off-duty officer stopped the suspect's vehicle, took possession of his keys, and briefly detained him until other officers could arrive; this did not amount to a custodial detention or arrest). See also Commonwealth v. White, 358 Pa.Super. 120, 516 A.2d 1211 (1986) (suspects were not subject to a custodial detention when officers detained them in a police car for a period of five minutes to ensure the safety of one officer while the other officer investigated the crime scene; the suspects were not frisked, handcuffed or formally placed under arrest, nor did the officers draw their weapons).

In this case, Officer Bey detained appellee based on reports of drug dealing. The officer directed appellee to stand, walk about five (5) feet to a wall and place his hands against that wall to facilitate a weapons frisk. See White, supra, 358 Pa.Super. at 128, 516 A.2d at 1215 (in assessing whether a detention is too long in duration to be justified as an investigative stop, the courts consider whether the police diligently pursued a means of investigation that was likely to confirm or dispel their suspicions quickly during the time it was necessary to detain the suspect). It does not appear from the record that the officer drew a weapon while approaching appellee. Further, it is unclear whether the officer approached appellee alone or with his partner. As he was about to initiate the frisk, the officer saw the packet of cocaine in appellee's pocket. At that point, the officer handcuffed appellee and placed him under arrest. We cannot agree that the brief period of detention which occurred prior to the officer's observation of cocaine can be equated with an arrest or custodial detention. See White, 358 Pa.Super. at 131, 516 A.2d at 1217 (noting that every Terry stop involves both a stop and a period of detention during which the suspect is not free to leave but is subject to the control of the police officer).

Assuming that the officer instead conducted an investigative detention, we must now determine whether that stop was predicated on "reasonable suspicion." " '[When] a police officer observes unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot' the officer may briefly stop the suspicious person and make 'reasonable inquiries' aimed at confirming or dispelling his suspicions." Minnesota v. Dickerson, 508 U.S. 366, 373, 113 S.Ct. 2130, 2135, 124 L.Ed.2d 334, 344 (1993) (quoting Terry v. Ohio, 392 U.S. 1, 30, 88 S.Ct. 1868, 1884, 20 L.Ed.2d 889, 911 (1968)). "[F]or such a stop to be reasonable ..., the officer must point to specific and...

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