Com. v. Cook

• Decision Date: 23 July 1999
• Citation: 735 A.2d 673,558 Pa. 50
• Parties: COMMONWEALTH of Pennsylvania, Appellee, v. Gregory Spencer COOK, Appellant.
• Court: Pennsylvania Supreme Court

735 A.2d 673

558 Pa. 50

COMMONWEALTH of Pennsylvania, Appellee, v. Gregory Spencer COOK, Appellant.

Supreme Court of Pennsylvania.

Argued November 19, 1998.

Decided July 23, 1999.

Paul W. Muller, Sr. Deputy Public Defender, for Gregory S. Cook.

John F. Cherry, District Attorney, Eric R. Augustine, Deputy District Attorney, for Com.

Before FLAHERTY, C.J., and ZAPPALA, CAPPY, CASTILLE, NIGRO, NEWMAN and SAYLOR, JJ.

OPINION

CAPPY, Justice.

The sole issue presented in this appeal is whether the police officers demonstrated the requisite cause to stop appellant and recover the contraband discarded by him pursuant to Article 1, Section 8 of the Pennsylvania Constitution. For the reasons which follow, we agree with the lower courts and hold that the police officers demonstrated reasonable suspicion sufficient to permit a stop and thus, could lawfully recover the contraband abandoned by appellant.

As the issue before us stems from the ruling of the suppression court our standard of review is limited. When reviewing rulings of a suppression court, we must determine whether the record supports that court's factual findings. Commonwealth v. Cortez, 507 Pa. 529, 491 A.2d 111 (1985). As long as the record supports the findings of the suppression court, we are bound by those facts and may reverse only if the legal conclusions drawn therefrom are in error. Id.

The facts, as determined at the suppression hearing, established the following. On August 4, 1995, Officers Christopher Juba and Donald Heffner of the Harrisburg Police Bureau were patrolling the 1300 block of Market Street in the City of Harrisburg between 8 p.m. and 1 a.m.¹ The officers testified that while travelling east on Market, in an unmarked car, they noticed three individuals on the corner. The individuals were engaged in conversation. The officers passed the group at a very slow rate, and they observed appellant take his left hand out of his front pocket in a fist position and reach toward one of the other individuals. The individual reached out toward appellant and attempted to receive the unidentified item from his hand. To further investigate this conduct, Officer Heffner made a U-turn and drove to the corner where the group was gathered. As soon as appellant spotted the officers and the car, he placed his hand back in his pocket and began backing away from the group. Officer Juba exited the car, identified himself as a Harrisburg police officer, and began walking toward the group. Appellant immediately began to run "in almost a dead sprint." Officer Juba chased the appellant, with Officer Heffner following in the vehicle.

During the course of the chase, Officer Juba witnessed appellant throw two pagers to the ground; Officer Heffner saw appellant pull a sandwich bag from his pocket and throw it into the yard of an abandoned house. Ultimately, Officer Heffner apprehended appellant and recovered the sandwich bag. The bag was discovered to contain eighteen large rocks of crack cocaine and $45 in cash.

Appellant moved to suppress the evidence that was abandoned during the chase, by arguing that the evidence was obtained as a result of an illegal seizure. The suppression court denied appellant's motion and the Superior Court affirmed in a memorandum opinion. This court granted appellant's petition for allowance of appeal in order to determine whether the police officers demonstrated reasonable suspicion to stop appellant.

Appellant contends that pursuant to the facts in the instant case, the police officers did not have reasonable suspicion to stop him; therefore, the contraband that was recovered must be suppressed as the result of an unlawful seizure. Appellant relies on Commonwealth v. Tither, 448 Pa.Super. 436, 671 A.2d 1156 (1996) and Commonwealth v. Malson, 434 Pa.Super. 155, 642 A.2d 520 (1994) for his position. On the other hand, the Commonwealth contends that the officers possessed reasonable suspicion; therefore, the lower courts properly denied suppression.

Both the Fourth Amendment of the United States Constitution and Article 1, § 8 of the Pennsylvania Constitution protect citizens from unreasonable searches and seizures. Commonwealth v. Jackson, 548 Pa. 484, 698 A.2d 571, 573 (1997). In Commonwealth v. Matos, 543 Pa. 449, 672 A.2d 769 (1996), this court established that the reasonableness requirement was met where police, at the very least, demonstrated reasonable suspicion to recover contraband abandoned by a person fleeing the police. Matos involved three separate cases, which were consolidated for appeal: Matos, Commonwealth v. McFadden and Commonwealth v. Carroll. Id. at 770. In Matos, the facts established that two Philadelphia police officers responded to a radio broadcast that unknown persons were selling narcotics in the vicinity of Reese Street. Id. at 771. As the police approached a group of three men in a nearby playground, the men fled. The police pursued the men and one of the officers observed Matos discarding a plastic bag of cocaine as he was being chased. The police recovered the bag. Id. In McFadden, two uniformed police officers in a marked vehicle approached McFadden. McFadden looked at them and promptly ran away. One of the officers chased him a short distance. Id. During the chase, the officer saw McFadden toss a handgun into the bushes. The officer recovered the handgun, and arrested McFadden for carrying an unlicensed firearm. Id. Lastly, in Carroll, two uniformed police officers in a marked vehicle saw two men standing on the sidewalk. Id. The officers exited the patrol car and spoke to one of the two men. As the police were talking to the first man, Carroll stood with his hands in his jacket pockets. One of the officers approached Carroll and asked him to remove his hands from his pocket, at which point Carroll turned and fled. As Carroll was running, he slipped and fell. One of the officers saw two broken tinted heat sealed packets containing white substance fall from Carroll's pocket. Carroll was arrested and the packets were recovered. Id. In all three cases, the trial court suppressed the evidence, but the Superior Court reversed. This court reversed the Superior Court and remanded to the respective trial courts for further disposition. Id. at 776.

In announcing its decision, this court rejected the United States Supreme Court's decision in California v. Hodari D., 499 U.S. 621, 111 S.Ct. 1547, 113 L.Ed.2d 690 (1991),² and determined that due to heightened privacy considerations in Pennsylvania, a police officer's pursuit of a person fleeing the officer was a seizure for purposes of Article 1, Section 8 of the Pennsylvania Constitution. Id. at 776. Thus, pursuant to Matos, any contraband discarded during the pursuit was abandoned by coercion and "the officer must demonstrate either probable cause to make the seizure or reasonable suspicion to stop and frisk." Matos, 672 A.2d at 771. Where the police officers do not possess either probable cause or reasonable suspicion, then the contraband is illegally obtained and must be suppressed. Id. The court held that based on the facts and circumstances surrounding each of the individual cases, the police were unable to demonstrate either probable cause or reasonable suspicion. Id. at 776. Therefore, based on Matos, the inquiry in the instant case is whether the police officers demonstrated reasonable suspicion at the time they recovered the contraband abandoned by appellant.³

In the seminal case on reasonable suspicion, the United States Supreme Court recognized that circumstances may exist which require a police officer on the "beat" who has made on the spot observations to take immediate action or investigate further by stopping and perhaps frisking the individual involved. Terry v. Ohio, 392 U.S. 1, 20, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). In Terry, a police officer with 30 years experience in patrolling the vicinity for shoplifters and pickpockets, observed Terry and another man taking turns pacing down the street and peering into a nearby store window and then walking back to the corner and rejoining his companion. Id. at 6, 88 S.Ct. 1868. At one point, the officer observed a third man approach the two men, engage in conversation, and then walk on. Id. Following this, Terry and his companion resumed their pacing. Id. The two individuals repeated this process five or six times each. After this had gone on for ten to twelve minutes, the two men walked away in the same direction taken by the third man. Id. By this time, the officer suspected that the two men were "casing a job, a stick up." Id. Therefore, he decided to investigate further and followed the men. He saw the men stop on the sidewalk and meet up with the third man. Id. At this point he determined that the situation was ripe for action, so he approached the group and asked them for their names. Id. at 7, 88 S.Ct. 1868. When the men only mumbled in response to his question, the officer grabbed Terry, spun him around and with Terry between himself and the other two men, he patted down the outside of Terry's clothing. Id. The officer felt a pistol in Terry's coat pocket. Id. Unable to get a grip on the gun, the officer ordered all three men into a nearby store, where he proceeded to pat down the other two men. Id. The officer found a gun on one of the other men. Id. Ultimately, the two men were arrested and formally charged with carrying concealed weapons. Id.

The Supreme Court held that the pistol seized from Terry at the time of the stop was properly admitted into evidence. Id. at 30, 88 S.Ct. 1868. Although the court stressed that the police must, whenever practicable, obtain a search warrant, the decision in Terry was based, in part, on the "recognition that a police officer may in appropriate circumstances and in an appropriate manner approach a person for purposes of investigating possibly criminal behavior even though there is no probable cause to make an arrest." Id. at 22, 88 S.Ct....