IN INTEREST OF NL

• Decision Date: 20 September 1999
• Citation: 739 A.2d 564
• Parties: In the INTEREST OF N.L. Appeal of N.L., Commonwealth of Pennsylvania.
• Court: Pennsylvania Superior Court

739 A.2d 564

In the INTEREST OF N.L.

Appeal of N.L., Commonwealth of Pennsylvania.

Superior Court of Pennsylvania.

Submitted June 1, 1999.

Filed September 20, 1999.

John W. Packel, Assistant Public Defender, Philadelphia, for appellant.

Peter J. Gardner, Assistant District Attorney, Philadelphia, for Com., Participating party.

Before DEL SOLE, LALLY-GREEN, and MONTEMURO¹, JJ.

LALLY-GREEN, J.:

¶ 1 Appellant, N.L., appeals the order dated August 21, 1997, entering an adjudication of delinquency and commitment. We affirm.

¶ 2 The sole issue raised by Appellant on appeal is whether the trial court erred in denying his motion to suppress physical evidence of a weapon discovered on his person during a Terry² stop and frisk. The record reflects that the trial court properly denied Appellant's motion.

¶ 3 On August 11, 1997, at approximately 12:00 a.m., Police Officer Marcus Kirkland responded to a radio call relative to a robbery that occurred in the 4400 block of Market Street. N.T., August 21, 1997, at 4-5. There Officer Kirkland and several other police officers spoke to a female complainant. Id. at 5. The complainant indicated to the officers that she was at the gas station on the 4400 block of Market Street when two individuals appeared. Id. at 10. One of these individuals approached the complainant and said "give it up," uttered some expletives and motioned toward his mid-area, leading her to believe that he had a gun. Id. This individual then took the complainant's purse and "some other items of hers" and ran with his companion toward the 4400 block of Sansom Street. Id. at 5. According to Officer Kirkland, this incident occurred approximately five minutes prior to the time when he arrived at the scene. Id. The police officers then accompanied the complainant to the 4400 block of Sansom Street where they encountered four male persons sitting on the corner stoop. Id. The complainant identified one of the four males sitting on the stoop as the individual that had allegedly robbed her. Id. at 6. Appellant was seated directly beside the alleged perpetrator of the robbery. Id. At that time, Officer Kirkland asked the three individuals seated with the perpetrator, including Appellant, "to go up against the wall, to put their hands up to pat them down for the police officer[s'] safety." Id. at 7. During this "pat-down," Officer Kirkland found a .25 caliber automatic weapon on Appellant. Id.

¶ 4 Prior to trial, Appellant moved to suppress the gun seized from his person, alleging that the search and seizure violated his rights under Pennsylvania and United States constitutions because there was no reasonable basis for the search. After a hearing, the suppression court denied Appellant's motion and found Appellant guilty of possession of a firearm by a minor.³ The court then entered an adjudication of delinquency and commitment. This appeal followed.

¶ 5 Appellant contends on appeal that the trial court erred in denying his motion to suppress the physical evidence of the weapon found on his person because it was the fruit of an unlawful search.

Our scope of review in evaluating the trial court's refusal to suppress evidence is to determine whether the factual findings of the suppression court are supported by the record. When it is a defendant who has appealed, we must consider only the evidence of the prosecution and so much of the evidence of the defense as, fairly read in the context of the record as a whole, remains uncontradicted. Assuming that there is support in the record, we are bound by the facts as are found and we may reverse the suppression court only if the legal conclusions drawn from those facts are in error. Thus, if sufficient evidence is of record to support the suppression court's ruling and that court has not misapplied the law, we will not substitute our credibility determination for that of the suppression court judge.

Commonwealth v. Days, 718 A.2d 797, 801 (Pa.Super.1998) (quoting Commonwealth v. Marinelli, 547 Pa. 294, 315-16, 690 A.2d 203, 214 (1997), cert. denied, 523 U.S. 1024, 118 S.Ct. 1309, 140 L.Ed.2d 473 (1998) (citation omitted)).

¶ 6 Both the Fourth Amendment to the United States Constitution and Article I, Section 8 of the Pennsylvania Constitution protect citizens from unreasonable searches and seizures.⁴ Warrantless searches and seizures are unreasonable per se, unless conducted pursuant to a specifically established and well-delineated exception to the warrant requirement. Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967).

¶ 7 In Terry v. Ohio, supra, the United States Supreme Court created an exception to the Fourth Amendment requirement that police have probable cause before conducting a search of a citizen. The Terry exception permits a police officer to briefly detain a citizen for investigatory purposes if the officer "observes unusual conduct which leads him to reasonably conclude, in light of his experience, that criminal activity may be afoot." Commonwealth v. Fitzpatrick, 446 Pa.Super. 87, 666 A.2d 323, 325 (1995) (citation omitted). ¶ 8 In order for a stop and frisk to be reasonable, the police conduct must meet two separate and distinct standards. Commonwealth v. Martinez, 403 Pa.Super. 125, 588 A.2d 513, 514 (1991),appeal denied, 530 Pa. 653, 608 A.2d 29 (1992). Specifically, the police officer must have a "reasonable, articulable suspicion" that criminal activity may be afoot and that the suspect may be armed and dangerous. Commonwealth v. Shelly, 703 A.2d 499, 503 (Pa.Super.1997), appeal denied, 555 Pa. 743, 725 A.2d 1220 (1998). See also Commonwealth v. Robinson, 410 Pa.Super. 614, 600 A.2d 957, 959 (1991),appeal denied, 533 Pa. 599, 617 A.2d 1273 (1992).

¶ 9 In addressing the level of suspicion that must exist, this Court previously stated that "[i]t is a suspicion that is less than a preponderance of the evidence but more than a hunch." Shelly, 703 A.2d at 503. See also Commonwealth v. Epps, 415 Pa.Super. 231, 608 A.2d 1095, 1096 (1992). In deciding whether reasonable suspicion was present, courts must take into account "the totality of the circumstances—the whole picture." In the Interest of B.C., 453 Pa.Super. 294, 683 A.2d 919, 923 (1996), appeal granted, 557 Pa. 643, 734 A.2d 392, 1998 Pa. Lexis 2735 (1998). These circumstances are to be viewed through the eyes of a trained officer, not an ordinary citizen. Commonwealth v. Fink, 700 A.2d 447, 449 (Pa.Super.1997), appeal denied, 552 Pa. 694, 716 A.2d 1247 (1998). "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." Shelly, 703 A.2d at 503 (citations omitted).

¶ 10 Appellant complains that because a per se "automatic companion" rule is unconstitutional and because no independent reasonable suspicion existed to establish that he was engaged in criminal conduct and that he was armed and dangerous, the search of his person and subsequent seizure of his weapon were unlawful. We disagree.

¶ 11 The "automatic companion" rule provides that "all companions of [an] arrestee within the immediate vicinity, capable of accomplishing a harmful assault on the officer, are constitutionally subjected to the cursory `pat-down' reasonably necessary to give assurance that they are unarmed." United States v. Berryhill, 445 F.2d 1189, 1193 (9 th Cir.1971). The Supreme Court of Pennsylvania has not yet addressed the constitutionality of this rule, although it has noted the existence of the rule in several decisions. See, e.g., Commonwealth v. Kue, 547 Pa. 668, 671 n. 1, 692 A.2d 1076, 1077 n. 1 (1997); Commonwealth v. Shiflet, 543 Pa. 164, 172 n. 4, 670 A.2d 128, 131 n. 4 (1995).

¶ 12 This Court has ruled that a Terry frisk of an arrestee's companion is permissible and, recently, addressed the constitutionality of the automatic companion rule. Cases finding the Terry frisk of an arrestee's companion permissible include: Commonwealth v. Kearney, 411 Pa.Super. 274, 601 A.2d 346, 348 (1992); Commonwealth v. Chamberlain, 332 Pa.Super. 108, 480 A.2d 1209, 1212 (1984); and Commonwealth v. Hook, 313 Pa.Super. 1, 459 A.2d 379, 382 (1983).

¶ 13 The constitutionality of the "automatic companion" rule was addressed in Commonwealth v. Graham, 454 Pa.Super. 169, 685 A.2d 132 (1996), rev'd on other grounds, 554 Pa. 472, 721 A.2d 1075 (1998). The Graham court rejected a per se rule that a companion of an arrestee is subject to a "pat-down" regardless of the justification for such search as contrary to the Fourth Amendment of the United States Constitution and Article I, Section 8 of the Pennsylvania Constitution. Id. at 136. In Graham, we reiterated the two separate standards that generally must be met for a proper stop and frisk, i.e., the officer must have reasonable suspicion, based on articulable facts, that criminal activity may be afoot and that the suspect may be armed and dangerous. Id. ¶ 14 The Graham court held that the first prong of the "stop and frisk" test is a nullity in cases involving companions of arrestees.

In light of the extreme risks facing lawmen in performing arrests, it will always be reasonable for officers to take some actions to insure their safety concerning companions of arrestees. To find otherwise, would be equivalent to turning a blind eye to reality and declaring open season on our protectors of the peace. Consequently, it is inherently reasonable for a law enforcement officer to briefly detain and direct the movement of an arrestee's companion, regardless of whether reasonable suspicion exists that the companion is involved in criminal activity. Such minimal intrusion upon the companion's federal and state constitutional rights are clearly outweighed by the need to extinguish the risks otherwise posed to the lawman's well-being. Accordingly, the first prong of the "stop and frisk" test is a nullity in cases involving an

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