Com. v. Reppert

• Decision Date: 10 December 2002
• Citation: 814 A.2d 1196
• Parties: COMMONWEALTH of Pennsylvania, Appellee, v. Benjamin R. REPPERT, Appellant.
• Court: Pennsylvania Superior Court

814 A.2d 1196

COMMONWEALTH of Pennsylvania, Appellee, v. Benjamin R. REPPERT, Appellant.

Superior Court of Pennsylvania.

Argued September 5, 2002.

Filed December 10, 2002.

Timothy A. Finn, Beaver, for appellant.

Ahmed Aziz, Assistant District Attorney, Beaver, for Com., appellee.

Before: McEWEN, P.J.E., JOHNSON, HUDOCK, FORD ELLIOTT, ORIE MELVIN, TODD, KLEIN, BOWES, and GRACI, JJ.

JOHNSON, J.

¶ 1 In this case we determine whether a police officer's observation of head and shoulder movements of the rear seat passenger in a motor vehicle, coupled with the officer's conclusion during a routine traffic stop that the passenger appeared "very, very nervous," provides sufficient reason for the officer to detain and search that passenger. Following a suppression hearing, the trial court concluded that the officer's observations were indeed sufficient. Defendant Benjamin R. Reppert appeals the court's ruling, contending that the officer's observations failed to create a reasonable suspicion of his involvement in criminal activity. We agree with Reppert's assertion and conclude accordingly that the officer detained him illegally. Accordingly, we reverse Reppert's judgment of sentence.

¶ 2 The record of the suppression hearing conducted by the trial court reveals the following uncontested evidence. On April 6, 2000, Reppert was riding as a passenger in the back seat of a car owned and operated by his friend, Justin Morgan. Morgan's car, a 1987 Dodge, displayed expired inspection and registration stickers. Driving down Fifth Street in the Borough of Beaver, Morgan passed Borough Police Chief Anthony Hovanec driving an unmarked police car in the opposite direction. The police chief spotted Morgan's expired stickers and turned and followed the car for "a couple hundred feet" with the intention of conducting a traffic stop on the basis of the expired stickers. During the brief time that he followed Morgan's car, Hovanec saw Reppert in the backseat and observed the movement of his head and shoulders, but not his hands. Chief Hovanec later described the movement as suggestive that Reppert was stuffing something into his pockets or between the seat cushions of the car. Hovanec activated police signal lights in the interior of his car, directing Morgan to pull over. Morgan complied and Hovanec approached the car from the rear, stopping at the driver-side window to question Morgan about the stickers. Morgan informed the police chief that another officer had stopped him three days before and allowed him five days in which to have the car inspected. Hovanec accepted Morgan's explanation and did not issue a citation.

¶ 3 During Hovanec's discussion with Morgan, he continued to observe Reppert, who remained seated in the back seat of the car holding on his lap a sandwich that he had been eating prior to the stop. The Chief recalled that Reppert, a nineteen-year-old college student, appeared "antsy" and "very, very nervous," with a "look on his face." He did not recognize Reppert, however, and did not ask his name. Although Reppert's hands remained in plain view throughout the encounter, the Chief ordered him to step out of the car based on suspicion of his head and shoulder movements prior to the stop and his nervous appearance during the stop. When Reppert exited the car, Hovanec saw bulges in the front pockets of his pants and directed him to empty the pockets. Hovanec had not seen the bulges previously. Reppert at first did not comply with the Chief's direction and Hovanec ordered him again to empty his pockets "for your safety and mine." Reppert responded, "I am screwed," but then emptied the pockets, revealing $51 in cash, forty-one grams of marijuana in a baggie, multiple smaller baggies, and a small scale. Hovanec then placed Reppert under arrest, handcuffed him, and seated him in a second police cruiser he had called as back-up. Upon returning to search Morgan's car, Hovanec discovered a sandwich wrapper and the remains of the sandwich Reppert had been eating prior to the stop. ¶ 4 The Commonwealth charged Reppert with Possession of a Controlled Substance, Possession with Intent to Deliver, and Possession of Drug Paraphernalia. See 35 P.S. § 780-113(a)(16), (30), (32) (respectively). Reppert filed an Omnibus Pre-trial Motion requesting suppression of both the physical evidence seized during the foregoing stop and his inculpatory statements. The trial court, The Honorable Robert C. Reed, P.J., denied Reppert's motion and, on January 4, 2001, convened a bench trial at which the Commonwealth introduced the allegedly tainted evidence. At the conclusion of trial, Judge Reed found Reppert guilty and, on February 12, 2001, imposed a sentence of three years' probation plus fines and costs. Reppert filed this appeal raising the following question for our review:

Where, following the conclusion of a routine traffic stop, there was an investigative detention of a back seat passenger who appeared "nervous," "antsy" and who was observed by the arresting officer to have been making furtive movements in the back seat prior to the stop, should the motion to suppress evidence have been granted since the arresting officer could not articulate facts to support a reasonable suspicion that criminal activity was afoot?

Brief for Appellant at 3.

¶ 5 Reppert's question raises the issue of whether the trial court erred in denying his motion to suppress evidence obtained after Chief Hovanec ordered him to alight from the backseat of Morgan's car. "Our standard of review of a denial of suppression is whether the record supports the trial court's factual findings and whether the legal conclusions drawn therefrom are free from error." Commonwealth v. McClease, 750 A.2d 320, 323 (Pa.Super.2000). Our scope of review is limited; 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." Commonwealth v. Maxon, 798 A.2d 761, 765 (Pa.Super.2002). "Where the record supports the findings of the suppression court, we are bound by those facts and may reverse only if the court erred in reaching its legal conclusions based upon the facts." McClease, 750 A.2d at 323-24 (quoting In the Interest of D.M., 560 Pa. 166, 743 A.2d 422, 424 (1999)).

¶ 6 In this case, the trial court did not enter Findings of Fact on the record; nor did it state its findings in court at the conclusion of the suppression hearing. Accordingly, we are constrained to focus our review on Judge Reed's Memorandum Opinion of April 20, 2001, filed in accordance with Pennsylvania Rule of Appellate Procedure 1925(a). In that Opinion, the court recounted the occurrences detailed above and also cited evidence that when Chief Hovanec conducted the stop at issue, Reppert was under investigation for "narcotics distribution" in Beaver Borough. Trial Court Opinion, 4/20/01, at 5. The court concluded that because Beaver police suspected Reppert of such involvement, Chief Hovanec could proceed on the presumption that he was armed, and lawfully could order him out of the car as a prelude to a Terry search. Trial Court Opinion, 4/20/01, at 4-6 (citing Commonwealth v. Patterson, 405 Pa.Super. 17, 591 A.2d 1075, 1078 (1991)) (citing Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)). The court concluded further that when Reppert exited the car, Chief Hovanec justifiably relied on the sight of his bulging pockets to augment prior observations of the defendant's nervous demeanor. Trial Court Opinion, 4/20/02, at 6-8. Although the court's discussion does not state expressly when the Chief's interaction with Reppert became an investigatory detention, the court's reliance on the appearance of Reppert's pockets suggests that it did not consider Reppert seized until after he exited the car.

¶ 7 Reppert faults the court's rationale on two bases, contending first that the court misinterpreted the evidence at the suppression hearing and second that it failed to recognize and apply controlling law. Brief for Appellant at 7, 8. In support of his challenge to the court's findings, Reppert argues that the court erred in treating the pendency of a drug investigation as a contributing factor in Chief Hovanec's decision to detain him. Brief for Appellant at 7. Reppert contends that evidence adduced at the suppression hearing established that the Chief did not suspect him of selling of drugs and did not rely on knowledge of a drug investigation in determining whether to detain him. Brief for Appellant at 7. In support of his challenge to the court's legal conclusions, Reppert argues that the court failed to recognize the point at which his encounter with Chief Hovanec arising out of the original traffic stop became an investigatory detention. Brief for Appellant at 8. Reppert contends that his detention began, not as the court suggested, after Chief Hovanec ordered him to empty his pockets, but at the moment when the Chief ordered him out of the car. Brief for Appellant at 8. Reppert reasons accordingly that Chief Hovanec conducted his detention merely on the basis of the "furtive" movements and nervous demeanor he had observed to that point and, therefore, acted illegally. Following scrutiny of the certified record and the law, we agree. We conclude that the trial court erred both in assessing the evidence at the suppression hearing and in failing to follow controlling appellate decisions that prescribe the point at which a seizure commences and the level of suspicion necessary to meet Constitutional muster.

¶ 8 The Fourth Amendment to the United States Constitution and Article I, Section 8 of the Pennsylvania Constitution protect citizens from "unreasonable searches and seizures, including those entailing only a brief detention." Commonwealth v. Strickler, 563 Pa. 47, 757 A.2d 884, 888 (2000). See also Commonwealth v. Morris, 422 Pa.Super. 343, 619 A.2d 709, 711 (1992). To secure...