Com. v. Shelly

• Citation: 703 A.2d 499
• Parties: COMMONWEALTH of Pennsylvania, Appellee, v. Aaron SHELLY, Appellant.
• Decision Date: 18 November 1997
• Court: Superior Court of Pennsylvania

Page 499

703 A.2d 499

COMMONWEALTH of Pennsylvania, Appellee, v. Aaron SHELLY, Appellant.

Superior Court of Pennsylvania.

Argued March 21, 1996.

Filed Nov. 18, 1997.

Jay Stillman, Asst. Public Defender, Williamsport, for appellant.

Kenneth A. Osokow, Asst. Dist. Atty., Williamsport, for Commonwealth, appellee.

Before POPOVICH, SAYLOR and EAKIN, JJ.

EAKIN, Judge:

Aaron Shelly appeals from the judgment of sentence entered in the Court of Common Pleas of Lycoming County, following his conviction on charges of possession of a controlled substance, firearms not to be carried without a license, prohibited offensive weapons and obstructing the administration of law or other governmental function. ¹ On appeal, appellant contends the following: 1) the police did not have "reasonable suspicion of criminality" to "justify a request for consent to search" the vehicle in which he was a passenger; 2) the police did not have justification for a Terry ² frisk; and 3) his act of providing a false name to police did not constitute the offense of obstructing the administration of law or other governmental function. For the reasons set forth below, we affirm in part and reverse in part.

Our standard of review for the first issues is well-settled:

In reviewing the denial of a motion to suppress, our responsibility is to determine whether the record supports the suppression court's factual findings and the legitimacy of the inferences and legal conclusions drawn from those findings. If the suppression court held for the prosecution, we consider only the evidence of the prosecution's witnesses and so much of the evidence for the defense as, fairly read in the context of the record as a whole, remains uncontradicted.

Commonwealth v. Lopez, 415 Pa.Super. 252, 255, 609 A.2d 177, 178-79, alloc. denied, 533 Pa. 598, 617 A.2d 1273 (1992) (citation omitted). "If the evidence supports the findings of the lower court, we are bound by such findings and may reverse only if the legal conclusions drawn therefrom are in error." Commonwealth v. Espada, 364 Pa.Super. 604, 607, 528 A.2d 968, 969 (1987) (citation omitted).

The relevant facts in this case are not in dispute, and the record supports the suppression court's factual findings. On June 8, 1994, at approximately 12:10 a.m., Troopers R. Scott Hunter and David J. Hamer of the Pennsylvania State Police were on routine patrol in Williamsport when they saw a car travelling forty-eight to fifty miles per hour in a thirty-five mile per hour zone. Trooper Hunter clocked the vehicle for three-tenths of a mile, then directed it to the side of the road.

Trooper Hunter approached the driver and Trooper Hamer approached appellant, who was in the passenger's seat; the Troopers asked both for identification, but neither could produce any. The driver gave Trooper Hunter his correct name, date of birth and social security number, produced the vehicle's registration card and proof of insurance, and provided names and phone numbers of local people who could identify him. The car was registered in the name of an individual with a Philadelphia address; the driver told Trooper Hunter this was an acquaintance.

While Trooper Hunter was talking to the driver, Trooper Hamer talked to appellant, who said his name was Mauline Goodman and that the same individuals who could identify the driver could also identify him. The troopers contacted one of these individuals who confirmed the driver's identity, but stated appellant had lied about his identity, as appellant's correct name was Aaron Shelly.

Appellant's answers to other questions (triggered by his lack of ID) were vague, contradictory, and inconsistent with the driver's answers to the same questions. For instance, asked how long he had been in Williamsport, appellant said he "just got here"; later he said "three weeks." At one point he could not say where he was staying; later he said he was staying with a Mr. Brown on High Street. Police were able to contact a Mr. Brown, but he did not live on High Street.

After learning the vehicle was not listed in the NCIC computer as stolen, Trooper Hunter returned the registration card to the driver and issued a warning to him for the speeding violation. The trooper then asked the driver if he could search the vehicle; the driver consented. After the two men stepped out of the car, both were frisked; Trooper Hamer discovered a pistol in appellant's waistband. Based on this, appellant was arrested, arraigned, and taken to the Lycoming County Prison. No contraband was discovered during the search of the car.

The same day, Corrections Officer Kelly searched appellant's pants pockets at the prison and discovered narcotics. On June 23, 1994, Corrections Officer Miller discovered cocaine in the front flap of appellant's underwear which had been in a secured receiving area since his commitment to prison.

Appellant filed a pre-trial motion to suppress the pistol and narcotics. Following an evidentiary hearing, the motion was denied. Appellant was tried October 19, 1994 and convicted of all charges; on January 26, 1995, he was sentenced to an aggregate sentence of three to nine years. This appeal followed.

In addressing appellant's arguments, ³ we first note he does not contend the initial stop of the vehicle in which he was a passenger was improper, or that the officers' conduct prior to issuing the driver a warning was improper. ⁴ Appellant has advanced two concise issues in regard to the search and seizure in this case, namely, whether the troopers had sufficient reasonable suspicion to justify a request for consent to search the vehicle and whether they conducted a valid Terry search for weapons.

Generally, there is no threshold of suspicion needed for a request to search; consent to a search obviates the need for any level of suspicion on the part of the police. Florida v. Bostick, 501 U.S. 429, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991). If the driver herein voluntarily gave permission for the search, then no analysis of the information known to the troopers is necessary. The trial court found that consent was freely given, and we find no reason to dispute that finding.

In Lopez, supra, we addressed a similar situation wherein officers made a valid traffic stop and eventually asked for consent to search. This court held Lopez's consent was requested while he was not free to leave, as the officer still held his license and registration. The court found Lopez was subject to detention that was coercive and rendered his consent less than voluntary. Here, as the trial court noted, the driver was free to go; his cards had been returned to him, he was given a warning for speeding, and the trooper had no hold on him at all at the time of the request. We decline to extend Lopez to create an absolute ban on legitimate, noncoercive roadside requests for consent.

In Commonwealth v. Hoak, 700 A.2d 1263 (Pa.Super.1997) (en banc ), this court recently considered a similar situation where an officer made a request of a driver after completing a traffic stop; we "reject[ed] appellant's dangerously precedential assertion that all post-traffic stop questioning necessarily constitutes detention." Id., at 1267. We held that "[a]bsent some coercive conduct by police, a request for cooperation or consent to search does not automatically convert an undeniably permissible encounter into an illegal seizure ..." Id., at 1267. Therefore, the trial court in the instant case did not err in finding the driver's consent voluntary and effective. ⁵

Clearly, the driver's consent to the search of the car does not comprise consent to the pat down of himself or appellant, so we must turn to a different analysis to review the propriety of the subsequent events.

Appellant does not dispute that if the driver's consent to search the vehicle was valid (and we have found that it was), the police could have ordered him out of the car. See generally Commonwealth v. Brown, 439 Pa.Super. 516, 528, 654 A.2d 1096, 1102, alloc. denied, 544 Pa. 642, 664 A.2d 972 (1995) (to mitigate danger in traffic stops, police "may request both drivers and their passengers to alight from a lawfully stopped car without reasonable suspicion that criminal activity is afoot").

The matter at issue, in terms of constitutional analysis, is not a "search" but a "frisk," a distinction with its roots in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). Terry dealt specifically with the right of police to intrude on a person because of concern for the officer's safety; similarly, the frisk herein was not conducted in the pursuit of evidence but out of concern for the safety of the officers. If that was a legitimate concern in 1963 when the events in Terry occurred, a fortiori it is a concern in the violent world of the late-1990's.

Terry and its progeny set as the standard for allowing a frisk, the presence of a "reasonable articulable suspicion" that criminal activity is afoot and that the suspect may be armed and dangerous. Commonwealth v. Graham, 454 Pa.Super. 169, 685 A.2d 132 (1996). It is a suspicion that is less than probable cause but more than a hunch. The determination is based on the totality of the circumstances, as seen by the trained police officer. Commonwealth v. Johnson, 444 Pa.Super. 289, 293, 663 A.2d 787, 789 (1995) (citing Commonwealth v. Epps, 415 Pa.Super. 231, 608 A.2d 1095 (1992)). We cannot evaluate the totality of the circumstances through the grudging eyes of hindsight nor " 'in terms of library analysis, but as understood by those versed in the field of law enforcement.' " Epps, 415 Pa.Super. at 234, 608 A.2d at 1096 (quoting United States v. Cortez, 449 U.S. 411, 418, 101 S.Ct. 690, 695, 66 L.Ed.2d 621 (1981)).

With this in mind, the trial court considered the following facts in finding the officers had a reasonable and articulable concern for their safety, sufficient to allow a brief and minimally-intrusive pat down:

1. It was...