Opinion
86 MDA 2022 J-A23021-22
12-13-2022
COMMONWEALTH OF PENNSYLVANIA Appellant v. DWAYNE CUNNINGHAM
Appeal from the Order Entered December 8, 2021 In the Court of Common Pleas of Schuylkill County Criminal Division at No(s): CP-54-CR-0000856-2021
BEFORE: BOWES, J., McCAFFERY, J., and STEVENS, P.J.E. [*]
OPINION
STEVENS, P.J.E.
The Commonwealth appeals from the December 8, 2021, order entered in the Court of Common Pleas of Schuylkill County, which granted the pre-trial omnibus suppression motion filed by Appellee Dwayne Cunningham ("Cunningham"). After a careful review, we reverse the order granting the suppression motion, and we remand for further proceedings consistent with this decision.
In its notice of appeal, the Commonwealth certified it took this interlocutory appeal pursuant to Pa.R.A.P. 311(d), and the suppression court's ruling terminates or substantially handicaps its prosecution. See Commonwealth v. Holston, 211 A.3d 1264, 1268 (Pa.Super. 2019) (en banc).
Terry v. Ohio, 329 U.S. 1 (1969).
The relevant facts and procedural history are as follows: On April 6, 2021, a criminal complaint was filed against Cunningham charging him with 1 receiving stolen property, 18 Pa.C.S.A. § 3925(a), and firearms not to be carried without a license, 18 Pa.C.S.A. § 6106(a)(1). On October 12, 2021, Cunningham filed a counseled omnibus pre-trial suppression motion. Therein, Cunningham averred the police did not have reasonable suspicion to conduct a Terry stop and frisk. Relevantly, Cunningham specifically argued:
Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868 (1968).
Officer Bucek did not provide the name of his partner, but stated he no longer worked for the Minersville Borough Police Department. See N.T., 10/27/21, at 6.
20. In order for [the police] to detain [Cunningham] and conduct a pat-down frisk of [Cunningham], pursuant to the United States Supreme Court's holding in Terry[], [the police] must have a reasonable suspicion that [Cunningham] was involved with and/or committing a punishable crime and that [Cunningham] was in possession of a weapon based on the totality of the circumstances, respectively.
21. Due to the passage of the Medical Marijuana Act of 2016 in Pennsylvania and the recent Superior Court decision in Commonwealth v. Barr, 220 Pa.Super. 236 (2019), the odor of marijuana alone cannot be used as justification for a warrantless search of an individual detained during a motor vehicle stop.
22. As such, the odor of marijuana alone cannot be used as reasonable suspicion to detain an individual walking in public, in the open air, pursuant to Terry.
23. Moreover, [the police officer] did not have the requisite reasonable suspicion that [Cunningham] was carrying a weapon to satisfy a limited pat-down search pursuant to Terry.
24. Therefore, [the police officer's] Terry stop and subsequent frisk of [Cunningham] violated the Fourth Amendment of the United States Constitution and Article 1, Section 8 of the Pennsylvania Constitution.2
25. Accordingly, any evidence found as a result of or subsequent to the frisk should be found inadmissible at trial[.]Cunningham's Omnibus Pre-Trial Suppression Motion, filed 10/12/21, at 4-5 (footnote added).
We note the citation to Barr provided in Cunningham's pre-trial motion is incorrect. The correct citation is Commonwealth v. Barr, 240 A.3d 1263 (Pa.Super. 2019). Moreover, the Supreme Court vacated this Court's decision in Barr on December 29, 2021. Commonwealth v. Barr, ___Pa.___, 266 A.3d 25 (2021).
35 P.S. §§ 10231.101-10231.2110.
On October 27, 2021, the suppression court held a suppression hearing at which Minersville Borough Police Officer Michael Bucek was the sole testifying witness. Specifically, Officer Bucek testified he was on duty with his partner during the evening of April 5, 2021, and at approximately 10:30 p.m., he was driving slowly with the police vehicle's windows down. N.T., 10/27/21, at 4. As he traveled down the 200 block of North Street, which is in a residential area with vehicles parked on both sides of the road, he detected an odor of burnt marijuana coming from the area. Id. at 4-5. Officer Bucek scanned the area and "observed three hooded males on the left side of the sidewalk" in the middle of the block. Id. at 5. Cunningham was one of the males in the group. Id. Officer Bucek testified that, as he drove closer to the three males, "the odor of burnt marijuana grew, grew stronger." Id.
Officer Bucek testified he drove past the three men in the direction they were walking, and he parked the police vehicle near the intersection at the end of the block on the left side, which is the same side of the street on which the men were walking. Id. He testified that, as he and his partner exited the police vehicle, he observed the three men, including Cunningham, cross to the opposite side of the street as though trying to avoid the officers. Id. As the men continued walking down the right side of the street, Officer Bucek and 3 his partner walked across the crosswalk at the intersection and met them at the bottom of the block. Id. at 6, 15.
Officer Bucek testified he said to the whole group, "Hey, man, give me a second," and, in response, "they all kind of started yelling at [him]." Id. at 6. He noted the three men were "aggressive" and shouted profanities, including "Fuck you, Officer," and "Get the fuck out of here." Id. at 6, 11. He testified he "told them to stop at that point," and he announced his suspicions that they were smoking marijuana. Id. at 6, 15. He specifically asked them, "Are you guys smoking?" Id. at 15.
Officer Bucek testified that after he asked the men to stop and articulated his suspicions about the burnt marijuana, "[the men] were acting aggressively….It kind of seemed like they were circling around me and my partner there." Id. at 8. Officer Bucek testified he attempted to get identifications from the men. Id. at 6. In response, the men said, "Don't touch me. Get away from me. You can't stop me. Why are you stopping me?" Id.
Officer Bucek noted that, because of the men's aggression and the fact they had encircled him and his partner, he was concerned for his safety and the safety of his partner, who had been on the force for less than a month at that point. Id. at 7-8. He testified he turned to his partner to ensure he had the radio, told him to "get [his] back," and instructed him to contact County if "something happens here[.]" Id. at 7. 4
Officer Bucek testified that, believing he and his partner were "in danger[,]" he decided to frisk the men for weapons. Id. at 8. He testified:
The first [man] ultimately, after arguing over it eventually gave me his ID. And I patted him down and nothing---I didn't find any weapons on him. But the second guy was still being aggressive. And at that point, I did pat him down; but it seemed like he was ready to turn around and do something. I'm not sure, you know-he was still acting aggressive, the second [man]. And then he still refused to ID himself at that point.Id.
Officer Bucek testified Cunningham was standing the "farthest away from [him] and the other officer," so he approached him last to pat him down. Id. Officer Bucek indicated that "right before" he turned to pat-down Cunningham, "he kept moving away from [the officer]." Id. at 7. Officer Bucek indicated he told Cunningham to put his hands on a pole, and Cunningham complied; however, when the officer attempted to pat him down, Cunningham tried to evade him by "scooting around the pole…away from [the officer]." Id. Officer Bucek told him, "Hey, stop moving." Id. He testified that "[e]ventually, he stopped moving[,] [a]nd then [he] ended up patting him down." Id.
Officer Bucek testified he immediately felt a handgun in Cunningham's sweatshirt front pocket. Id. at 9. He clarified that, based on his training and experience, he could immediately identify the item as a weapon when he patted it. Id. Officer Bucek testified he seized the weapon, which was a .380 Ruger. Id. at 10. 5
On cross-examination, Officer Bucek clarified he was approximately ten feet from the three men when he first smelled the odor of burnt marijuana. Id. at 12. He neither observed any of the men smoking any substance nor observed any "wafting smoke." Id. During the time he smelled the odor of marijuana while he was driving, there were no cars behind him, no cars in front of him, and no cars that passed him. Id. at 13. Officer Bucek noted the odor of burnt marijuana grew stronger as he drove slowly past the three men. Id. at 13-14. Officer Bucek clarified he did not ask for the men's identifications or seek to pat them down for weapons until they began to circle around the two officers. Id. at 16.
On redirect examination, Officer Bucek testified that, after he seized the handgun, he also found a lighter and a large amount of cash totaling $4,820.00 on Cunningham's person. Id. at 19. He indicated Cunningham indicated after the pat down that he had not been smoking marijuana; however, his "two friends were smoking it and they pitched it out while [the police] were passing [them]." Id.
At the conclusion of all testimony, by order entered on December 8, 2021, the suppression court granted Cunningham's pre-trial suppression motion and specifically directed that "all evidence obtained as a result of the Terry frisk of the defendant is suppressed." Suppression Court Order, filed 12/8/21 (unnecessary capitalization omitted). 6
In its opinion in support of the order, the suppression court held "[t]he interaction between Officer Bucek and [Cunningham] began as a mere encounter with [the officer] asking [the men] to give him a second; however, when he ordered them to stop, it became an investigative detention for which the officer must possess reasonable suspicion of criminal activity." Suppression Court Opinion, filed 12/8/21, at 4. The suppression court also concluded that, under "[t]he totality of the circumstances…Officer Bucek had reasonable suspicion of criminal activity to justify an investigative detention." Id. at 6.
However, as it pertained to the frisk of Cunningham for weapons, the suppression court concluded:
Officer Bucek did not state any specific and articulable facts indicating Cunningham might be armed. Cunningham's hands were on the pole when he was frisked. There was no testimony that he had reached into his pockets or concealed them at any time during his interaction with the police. Bucek testified that he felt threatened by the men's aggression. He and his partner had weapons if they felt their use was necessary to control the situation, but they had no justification to frisk them.Id. at 8.
The Commonwealth filed a notice of appeal on January 7, 2022, and all Pa.R.A.P. 1925 requirements have been met.
On appeal, the Commonwealth sets forth the following issue in its "Statement of Question Presented" (verbatim):
Did the trial court err in finding that an illegal Terry frisk occurred, and thereby suppressing all evidence as a result of said frisk?7 Commonwealth's Brief at 4.
Initially, we note that when this Court reviews a Commonwealth appeal from an order granting a suppression motion, as we are tasked to do here, we may consider only the evidence produced at the suppression hearing, and then only that evidence which comes from the defendant's witnesses, along with the Commonwealth's evidence which remains uncontradicted. Commonwealth v. Barr, ___Pa. ___, 266 A.3d 25 (2021). We must determine, in the first instance, whether the suppression court's factual findings are supported by the record, and if they are, we are bound to those findings. See id. We must always keep in mind that the suppression court, as the finder of fact, has the exclusive ability to pass on the credibility of witnesses. See Commonwealth v. Fudge, 213 A.3d 321, 326 (Pa.Super. 2019). Therefore, we will not disturb a suppression court's credibility determinations absent a clear and manifest error. Id. at 326-27.
We must also determine whether the legal conclusions the suppression court drew from its factual findings are correct. See Barr, supra, 266 A.3d at 39. Unlike the deference we give to the suppression court's factual findings, we have de novo review over the suppression court's legal conclusions. See Commonwealth v. Brown, 606 Pa. 198, 996 A.2d 473, 476 (2010).
Regarding the relevant substantive law, this Court has explained:
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."8
Commonwealth v. Strickler, 563 Pa. 47, 757 A.2d 884, 888 (2000). Specifically, police officers may not conduct a warrantless search or seizure unless one of several recognized exceptions applies. If a
defendant's detention violates the Fourth Amendment, then any evidence seized during that stop must be excluded as fruit of an unlawful detention.Commonwealth v. Mattis, 252 A.3d 650, 654 (Pa.Super. 2021) (citations omitted).
In determining whether a police officer's interaction with a citizen was proper, we are guided by the following:
Our Supreme Court has explained the three types of interactions between law enforcement and private citizens as follows:
The first is a mere encounter, sometimes referred to as a consensual encounter, which does not require the officer to have any suspicion that the citizen is or has been engaged in criminal activity. This interaction also does not compel the citizen to stop or respond to the officer. A mere encounter does not constitute a seizure, as the citizen is free to choose whether to engage with the officer and comply with any requests made or, conversely, to ignore the officer and continue on his or her way. The second type of interaction, an investigative detention, is a temporary detention of a citizen. This interaction constitutes a seizure of a person, and to be constitutionally valid[,] police must have a reasonable suspicion that criminal activity is afoot. The third, a custodial detention, is the functional equivalent of an arrest and must be supported by probable cause. A custodial detention also constitutes a seizure.
No bright lines separate these types of encounters, but the United States Supreme Court has established an objective test by which courts may ascertain whether a seizure has occurred to elevate the interaction beyond a mere encounter. The test, often referred to as the "free to leave test," requires the court to determine whether, taking into account all of the circumstances surrounding the encounter, the police would have communicated to a reasonable person that he was not at liberty to ignore the police presence and go about his business. Whenever a police9
officer accosts an individual and restrains his freedom to walk away, he has seized that person.Commonwealth v. Adams, 651 Pa. 440, 205 A.3d 1195, 1199-1200 (2019) (citations, brackets, and some quotation marks omitted).
Further, in considering whether a seizure occurred, or whether a reasonable person would feel free to leave, courts may examine the following:
[T]he number of officers present during the interaction; whether the officer informs the citizen they are suspected of criminal activity; the officer's demeanor and tone of voice; the location and timing of the interaction; the visible presence of weapons on the officer; and the questions asked. Otherwise inoffensive contact between a member of the public and the police cannot, as a matter of law, amount to a seizure of that person.Commonwealth v. Beasley, 761 A.2d 621, 624-25 (Pa.Super. 2000) (citation omitted). Further, "[w]ith respect to the show of authority needed for a detention, the circumstances must present some level of coercion, beyond the officer's mere employment, that conveys a demand for compliance or threat of tangible consequences from refusal." Commonwealth v. Luczki, 212 A.3d 530, 544 (Pa.Super. 2019). See Commonwealth v. Jones, 266 A.3d 1090, 1094-95 (Pa.Super. 2021).
In the case sub judice, we agree with the suppression court that "[t]he interaction between Officer Bucek and [Cunningham] began as a mere encounter with [Officer] Bucek asking [the men] to give him a second[.]" Suppression Court Opinion, filed 12/8/21, 4. That is, taking into account the circumstances of the encounter, at this point the police would have communicated to a reasonable person that he was at liberty to ignore the 10 police presence and go about his business. See Adams, supra; Beasley, supra.
Moreover, we agree with the suppression court that, after Officer Bucek told the men, including Cunningham, "to stop" and announced his suspicions that they were smoking marijuana, an investigative detention occurred. See Beasley, supra. Accordingly, we must determine whether the police had reasonable suspicion supporting the investigative detention.
We note the suppression court's holding that the officer had the necessary reasonable suspicion is based, in part, on this Court's decision in Barr, supra, which our Supreme Court subsequently vacated.
N.T. at 8.
"In determining whether police had reasonable suspicion to initiate an investigative detention, 'the fundamental inquiry is an objective one, namely, whether the facts available to police at the moment of the intrusion warrant a [person] of reasonable caution in the belief that the action taken was appropriate.'" Commonwealth v. Jefferson, 256 A.3d 1242, 1248 (Pa.Super. 2021) (en banc) (quotation omitted).
[This Court has recognized] [r]easonable suspicion exists only where the officer is able to articulate specific observations which, in conjunction with reasonable inferences derived from those observations, led him reasonably to conclude, in light of his experience, that criminal activity was afoot and that the person he stopped was involved in that activity.Commonwealth v. Jones, 874 A.2d 108, 116 (Pa.Super. 2005) (citations omitted). To demonstrate reasonable suspicion, the detaining officer must "articulate something more than an inchoate and unparticularized suspicion 11 or hunch." Jefferson, 256 A.3d at 1248 (citation omitted). To determine whether reasonable suspicion exists, we examine the totality of the circumstances through the eyes of a trained officer and not an ordinary citizen. See Commonwealth v. Riley, 715 A.2d 1131 (Pa.Super. 1998).
Historically, Pennsylvania courts have held the smell of marijuana alone was sufficient to establish a reasonable suspicion of criminal activity. However, after the passage of the Medical Marijuana Act ("MMA") and legalization of medical marijuana in the Commonwealth, our Supreme Court revisited this issue.
35 P.S. § 10231.101 et seq.
In Commonwealth v. Hicks, 652 Pa. 353, 208 A.3d 916 (2019), our Supreme Court held that "conduct in which hundreds of thousands of Pennsylvanians are licensed to engage lawfully" is, on its own, "an insufficient basis for reasonable suspicion that criminal activity is afoot." Hicks, supra, 208 A.3d at 945.
Further, in Barr, supra, our Supreme Court recognized that although "the MMA makes abundantly clear that marijuana no longer is per se illegal in this Commonwealth[,]" the possession of marijuana is still illegal under the Controlled Substance, Drug, Device and Cosmetic Act "for those not qualified under the MMA." Barr, supra, 266 A.3d at 41. Accordingly, the Supreme 12 Court held in Barr that "the odor of marijuana may be a factor, but not a stand-alone one, in evaluating the totality of the circumstances for purposes of determining whether police had probable cause to conduct a warrantless search." Id. In so holding, the Supreme Court explained:
35 P.S. §§ 780-101-144.
We emphasize that the realization that a particular factor contributing to probable cause may involve legal conduct does not render consideration of the factor per se impermissible, so long as the factor is considered along with other factors that, in combination, suggest that criminal activity is afoot. [T]he totality-of-the-circumstances analysis encompasses the consideration of factors that may arguably be innocent in nature.Id. at 41-42.
This Court has had the opportunity to apply the Hicks and Barr decisions to various cases. In Commonwealth v. Dabney, 274 A.3d 1283, 129 (Pa.Super. 2022), we assumed, arguendo, that Barr applies to a determination of reasonable suspicion for an investigative detention, and we held that the officer could consider the odor of raw marijuana, as well as other factors, in making that determination. In Commonwealth v. Lomax, No. 470 MDA 2021 (Pa.Super. filed Feb. 14, 2022) (unpublished memorandum), we held the smell of fresh marijuana cannot objectively suggest anything more than possession of a substance that many Pennsylvanians can legally possess. 13 Therefore, we concluded that it cannot, on its own, establish the reasonable suspicion necessary to initiate an investigative detention.
We note that Pa.R.A.P. 126(b), amended effective, May 1, 2019, provides that non-precedential decisions of this Court filed after May 1, 2019, may be cited for their persuasive value.
More recently, in Commonwealth v. Felder, No. 1082 MDA 2021 (Pa.Super. filed Aug. 9, 2022) (unpublished memorandum), we recognized the MMA does not permit the smoking of marijuana; therefore, the police's knowledge that the defendant had paraphernalia for smoking marijuana gave the officer reason to believe the marijuana was being used illegally. Also, in Commonwealth v. Mercedes, No. 1275 MDA 2021 (Pa.Super. filed Sept. 23, 2022) (unpublished memorandum), we again recognized the MMA does not permit the smoking of marijuana. See 35 P.S. § 10231.304(b) ("It is unlawful to: (1) Smoke medical marijuana"). Accordingly, we held the police had reasonable suspicion that marijuana was being illegally smoked when they smelled burnt marijuana and observed the defendant or his companion smoking a cigarillo. See Mercedes, supra.
The Supreme Court in Barr noted the MMA permits marijuana to be consumed by way of vaporization; however, it remains illegal to smoke this substance. See Barr, supra.
In the case sub judice, viewing the totality of the circumstances, and applying our Supreme Court's holdings in Barr, supra, and its progeny, we conclude Officer Bucek had a reasonable suspicion that criminal activity was afoot when he subjected Cunningham to the investigative detention. 14
In addition to the smell of burnt marijuana, which Officer Bucek testified grew stronger as he approached the group of men, Officer Bucek testified the men crossed the street after he parked his police vehicle in an effort to evade him. See Commonwealth v. Foglia, 979 A.2d 357, 361 (Pa.Super. 2009) (en banc) (holding "[e]vasive behavior" is a relevant consideration in determining whether an officer has reasonable suspicion to conduct an investigatory detention). Further, Officer Bucek testified that, as soon as he approached the men and asked for them to give him a second, the three men became aggressive towards the officers, yelled at them, and shouted profanities.
Given the totality of the circumstances, the facts available to the officers gave them reason to believe that criminal activity was afoot. Thus, we agree with the suppression court that Officer Bucek and his partner had reasonable suspicion to support the investigative detention.
Next, we consider the Commonwealth's argument the suppression court erred in holding that, although Officer Bucek had reasonable suspicion that criminal activity was afoot to support the investigative detention, the officer "had no justification to frisk" Cunningham. In this vein, the Commonwealth notes the suppression court recognized "[Officer] Bucek testified that he felt threatened by the men's aggression." Suppression Court Opinion, filed 12/8/21, at 8. However, the Commonwealth notes the suppression court then erroneously held that, instead of frisking the three men, "[the officers] had 15 weapons if they felt their use was necessary to control the situation." Id. at 8.
This Court has explained:
It is well settled that an officer may pat-down an individual whose suspicious behavior he is investigating on the basis of a reasonable belief that the individual is presently armed and dangerous to the officer or others. To validate a Terry frisk, the police officer must be able to articulate specific facts from which he reasonably inferred that the individual was armed and dangerous. In determining whether a Terry frisk was supported by a sufficient articulable basis, we examine the totality of the circumstances.Commonwealth v. Gray, 896 A.2d 601, 605-06 (Pa.Super. 2006).
Under that standard then, police may conduct a limited pat-down of a person's outer clothing "in an attempt to discover the presence of weapons which may be used to endanger the safety of police or others." Commonwealth v. Wilson, 927 A.2d 279, 285 (Pa.Super. 2007) (quotation and quotation marks omitted). In making this determination of whether there was reasonable suspicion,
we must give due weight…to the specific reasonable inferences the police officer is entitled to draw from the facts in light of his experience. Also, the totality of the circumstances test does not limit our inquiry to an examination of only those facts that clearly indicate criminal conduct. Rather, even a combination of innocent facts, when taken together, may warrant further investigation by the police officer.Commonwealth v. Young, 904 A.2d 947, 957 (Pa.Super. 2006) (citations, quotation, and quotation marks omitted). 16
As this Court has recognized, "[a]n overt threat by the suspect or clear showing of a weapon is not required for a frisk." Commonwealth v. Mack, 953 A.2d 587, 591 (Pa.Super. 2008). Indeed, "[t]he officer need not be absolutely certain that the individual is armed; the issue is whether a reasonably prudent man in the circumstances would be warranted in the belief that his safety or the safety of others was in danger." Commonwealth v. Cooper, 994 A.2d 589, 592 (Pa.Super. 2010) (citation omitted).
The purpose of a Terry frisk is to allow an officer to continue an investigation without fearing for the safety of the officer or others nearby. See Commonwealth v. Scarborough, 89 A.3d 679, 683 (Pa.Super. 2014). Moreover, in considering whether evidence supports a Terry frisk, we are "guided by common sense concerns, giving preference to the safety of the officer during an encounter with a suspect where circumstances indicate that the suspect may have, or may be reaching for a weapon." Mack, 953 A.2d at 590.
With these principles in mind, we agree with the Commonwealth that the suppression court erred in concluding Officer Bucek did not have reasonable suspicion to conduct a pat-down search of Cunningham. Indeed, there were several circumstances that, while not dispositive on their own or individually applicable to Cunningham, combined to support reasonable suspicion for the pat-down search. See Young, supra. 17
Specifically, the undisputed evidence reveals that, after Officer Bucek and his partner approached the three men, including Cunningham, the three men almost immediately became aggressive, cursed at the officers, and encircled the two officers. As the suppression court found:
The three men moved in a manner that led Officer Bucek to believe [the three men] were trying to circle him. Their movements and aggressive tone led him to believe he was in danger. Officer Bucek's partner, who had the radio, had been on the force less than a month. Bucek told his partner to call for help if anything happened.Suppression Court Opinion, filed 12/8/21, at 2. It was at this point that Officer Bucek decided to pat down the three men for weapons.
Specifically, Officer Bucek testified on direct examination as follows:
Q: From the point where you requested Mr. Cunningham to stop based on the odor of burnt marijuana until the point where you began to ask him to allow you to frisk him, what was going on or what caused you to make that decision to perform a pat-down on him?
A: They were acting aggressively and yelling. It kind of seemed like they were circling around me and my partner there.
Q: What were you thinking at that point?
A: That I'm in danger.N.T., 10/27/21, at 7-8.
Furthermore, the undisputed evidence reveals that Officer Bucek patted down Cunningham's companions before he patted down Cunningham. The officer testified the second man he patted down continued to act aggressively and "like he was ready to turn around and do something." N.T., 10/27/21, at 8. This same man refused to provide identification, and at this point, Officer Bucek turned to pat down Cunningham. 18
Officer Bucek indicated that "right before" he turned to pat-down Cunningham, "he kept moving away from [the officer]." Id. at 7. Officer Bucek indicated he told Cunningham to put his hands on a pole, and Cunningham complied; however, when the officer attempted to pat him down, Cunningham tried to evade him by "scooting around the pole…away from [the officer]." Id. Officer Bucek told him, "Hey, stop moving." Id. He testified that "[e]ventually, he stopped moving[,] [a]nd then [he] ended up patting him down. Id.
Based on the aforementioned, we hold the suppression court erred as a matter of law in granting the suppression motion. "The suppression court failed to consider the totality of the circumstances and give Officer [Bucek] the benefit of the inferences he drew from those circumstances." Commonwealth v. Davis, 102 A.3d 996, 1000 (Pa.Super. 2014). The record shows the officer reasonably suspected that criminal activity was afoot and that Cunningham was armed and potentially dangerous. The totality of evidence establishes that "a reasonably prudent man in the circumstances would be warranted in the belief that his safety or the safety of other was in danger." Cooper, 994 A.2d at 592 (citation omitted).
Moreover, we specifically disagree with the suppression court's suggestion that "[Officer Bucek] and his partner had weapons if they felt their use was necessary to control the situation, but they had no justification to frisk them." Suppression Court Opinion, filed 12/8/21, at 8. The purpose of 19 the Terry frisk is to allow an officer to continue an investigation without fearing for the safety of officers or others nearby. Commonwealth v. Scarborough, supra. Common sense concerns give preference to the safety of officers in such circumstances, and certainly, officers should not have to rely on drawing and/or otherwise using their own weapons in lieu of frisking "a suspect where circumstances indicate that the suspect may have, or may be reaching for a weapon." Mack, 953 A.2d at 590.
The learned Dissent indicates the officer stated he felt he was in danger when the men "'kind of seemed like they were circling' him" and goes on to state the officer did not see a weapon until after the search. Dissenting Opinion at 2. Respectfully, a law enforcement officer should not have to wait until his or her life is in imminent danger before taking action. Here, the totality of the circumstances supports the police officer's justification to frisk Cunningham.
For all of the foregoing reasons, we reverse the suppression court's order and remand for further proceedings consistent with this decision.
Order reversed and case remanded. Jurisdiction relinquished.
Judge Bowes has joined the Opinion
Judge McCaffery files a Dissenting Opinion
Judgment Entered. 20
DISSENTING OPINION
McCAFFERY, J.
Because I conclude Officer Bucek had no reasonable suspicion to detain Appellee or to suspect he was armed and dangerous to justify a Terry 1 frisk, I am compelled to dissent.
At the suppression hearing, Minersville Borough Police Officer Michael Bucek testified to the following sequence of events on the night of Appellee's arrest. On April 5, 2021, at approximately 10:30 p.m., Officer Bucek and his partner2 were driving down the 200 block of North Street in Minersville when he "detected an odor of [burnt] marijuana" through the open windows in his 1 vehicle. N.T. at 3-5. Officer Bucek "scanned the area" to determine the source of the smell, and noticed "three hooded males[,]" one of whom was later identified as Appellee. Id. at 4-5. Officer Bucek stated that as he approached the men, "the odor of burned marijuana . . . grew stronger" so he parked and exited his vehicle. Id. at 5. The Officer did not see any smoke, cigarettes, or vape pens while observing the men. Id. at 12.
Officer Bucek testified that after exiting his car he began to approach the men, but they crossed the street to "avoid[ ] contact" with him. N.T. at 15. He crossed the street to follow them and said, "Hey, man, give me a second[,]" and asked them if they had been smoking marijuana. Id. at 6, 15. In response, the three men "started yelling . . . aggressively[,]" although the officer could not remember what, if anything, Appellee said. Id. at 6, 18. As a result, Officer Bucek "told them to stop[.]" Id. at 6. He testified:
[The men] all started screaming, you know, F you, officer. I attempted to get ID[']s from them. They said, you know, [d]on't touch me. Get away from me. You can't stop me. Why are you stopping me? And just essentially yelling at me.Id. The officer told his partner, "if something happens here" to call for backup. Id. at 7.
Officer Bucek testified that he decided to pat the men down because "[t]hey were acting aggressively and yelling[, i]t kind of seemed liked they were circling" him and his partner, and he thought he was "in danger." N.T. at 8. After completing the pat down searches of the two other men and finding nothing, the officer asked Appellee to place his hands on a nearby pole so he 2 could conduct a "pat down." Id. at 7-8, 16. When he initiated the search, Appellee "kept scooting . . . away from" him around the pole. Id. at 7. It was only at that time that Officer Bucek thought "[t]here's something on [Appellee]. There's a reason why he's doing this." Id. at 8-9. Appellee eventually stopped moving and Officer Bucek patted him down and felt what he immediately identified as a "handgun in [Appellee's] sweatshirt front pocket." Id. at 9. Appellee did not present any evidence.
Based on this testimony, the suppression court found (1) Officer Bucek had reasonable suspicion of criminal activity to support an investigative detention of Appellee and his cohorts, but (2) the officer did not possess the requisite reasonable suspicion that Appellee was armed and dangerous to support a Terry frisk of Appellee. See Supp. Ct. Op., 12/8/21, at 6, 8-9. Although I agree with the trial court's determination that Officer Bucek did not have reasonable suspicion to conduct a frisk of Appellee, I also conclude that Officer Bucek did not possess the requisite reasonable suspicion to conduct an investigative detention of Appellee and his cohorts. Thus, I would affirm the trial court's order suppressing the evidence.
"The Fourth Amendment of the United States Constitution and Article 1, Section 8 of our state Constitution protect citizens from unreasonable searches and seizures." Commonwealth v. Young, 162 A.3d 524, 527-28 (Pa. Super. 2017) (citation omitted). To secure this protection, Pennsylvania courts require that officers "demonstrate ascending levels of suspicion to justify their interactions with citizens[.]" Id. at 528 (citation omitted). There are three 3 types of interactions between police and citizens - mere encounters, investigative detentions, and custodial detentions. Id.
A mere encounter can be any formal or informal interaction between an officer and a citizen, but will normally be an inquiry by the officer of a citizen. The hallmark of this interaction is that it carries no official compulsion to stop or respond.
In contrast, an investigative detention, by implication, carries an official compulsion to stop and respond, but the detention is temporary, unless it results in the formation of probable cause for arrest, and does not possess the coercive conditions consistent with a formal arrest. Since this interaction has elements of official compulsion it requires reasonable suspicion of unlawful activity. . . .Id. (citation omitted & emphases added).
An officer may conduct a Terry frisk under the following circumstances:
If, during the course of a valid investigatory stop, an officer observes unusual and suspicious conduct on the part of the individual which leads him to reasonably believe that the suspect may be armed and dangerous, the officer may conduct a pat-down of the suspect's outer garments for weapons. In order to establish reasonable suspicion, the police officer must articulate specific facts from which he could reasonably infer that the individual was armed and dangerous. When assessing the validity of a Terry stop, we examine the totality of the circumstances giving due consideration to the reasonable inferences that the officer can draw from the facts in light of his experience, while disregarding any unparticularized suspicion or hunch.
To conduct a pat down for weapons, a limited search or "frisk" of the suspect, the officer must reasonably believe that his safety or the safety of others is threatened. This Court . . . emphasized the significance of an officer's experience in assessing whether the requisite reasonable suspicion was present:
In conducting a reasonable suspicion inquiry, a suppression court is required to "afford due weight to the specific, reasonable inferences drawn from the facts in light of the4
officer's experience[.]" Among the circumstances that can give rise to reasonable suspicion are the [officer]'s knowledge of the methods used in recent criminal activity and the characteristics of persons engaged in such illegal practices."Commonwealth v. Bozeman, 205 A.3d 1264, 1274 (Pa. Super. 2019) (citations & some quotations marks omitted; emphases added). Further, "[t]he purpose of a Terry frisk is not to discover evidence of a crime, but to protect the police officer conducting the investigation." Commonwealth v. Davis, 102 A.3d 996, 999 (Pa. Super. 2014).
Preliminarily, I note that under Commonwealth v Barr, 266 A.3d 25 (Pa. 2021), the smell of marijuana "may be a factor, but not a stand-alone one, in evaluating the totality of the circumstances for purposes of determining whether police had probable cause to conduct a warrantless search." Barr, 266 A.3d at 41. In Barr, officers initiated a legal traffic stop and subsequently initiated a search after smelling burnt marijuana. Id. at 29-30. The officers found marijuana and a firearm in the vehicle. Id. at 30. At the suppression hearing, the trial court suppressed the evidence, finding that due to the Medical Marijuana Act (MMA)3, the smell of marijuana is "no longer per se indicative of a crime[,]" making the search unconstitutional. Id. at 31-32. This Court vacated that order - concluding the trial court did not consider all relevant factors - and our Supreme Court granted review. See id. at 34-35. 5
Ultimately, the Supreme Court vacated this Court's decision, and reinstated the trial court's order suppressing the evidence. Barr, 266 A.3d at 44. The Court concluded that "lawful possession of an item due to legislative authorization to possess it" cannot afford an officer the information to infer criminal activity and effectuate a Terry stop. Barr, 266 A.3d at 43. Further, without prior knowledge that an individual is not permitted to possess an otherwise legal item, an officer cannot presume it to be possessed illegally. Id. citing Commonwealth v. Hicks, 208 A.3d 916, 936-37 (Pa. 2019) (officer could not assume that possession of a concealed firearm was indicative of criminal activity where it may be lawfully carried, and the officer did not have "articulable facts supporting reasonable suspicion that a firearm is being used or intended to be used in a criminal manner").
Contrary to the suppression court, I conclude Officer Bucek had no reasonable suspicion to escalate the mere encounter into an investigative detention. Officer Bucek initiated contact based solely on the smell of marijuana on an open street. Although he testified he noticed the odor became stronger as he approached the three men, Officer Bucek admitted he did not see Appellant or his cohorts smoking any substance before or after he approached them. N.T. at 4-5, 12. Upon approaching the men, Officer Bucek testified that Appellee and the two others became "aggressive[ ]" and yelled at him to "[g]et away" from them. Id. at 6, 8. It merits emphasis, however, the men did not become aggressive until after the officer approached them without any suspicion of criminal activity and demanded they comply with this 6 command to stop and answer questions. Id. The smell of marijuana alone coupled with crossing the street in what the officer suspected was an attempt to avoid him does not suggest nefarious intent. At this point, the officer could only justify a mere encounter, meaning the men were free to leave and had no obligation to comply with his commands. See Young, 162 A.3d at 528. They were also free to react negatively in a verbal and non-violent fashion to the prospect of an officer questioning them when they gave no impression of illegal conduct. However, Officer Bucek escalated the interaction into an improper investigative detention by demanding they stop based on the smell of marijuana coupled with their perceived attempt to avoid him by crossing the street, and their negative reaction to his command. See N.T. at 5-6, 15. I conclude this is insufficient to support a "reasonable suspicion of unlawful activity." Young, 162 A.3d at 528 (citation omitted). Thus, I would affirm the suppression ruling on this basis alone. While we often repeat that a mere encounter carries with it no official compulsion to stop or respond, sanctioning an officer's command to comply where a citizen refuses to stop or respond abrogates those same directives and pays lip service to the Fourth Amendment.
However, the trial court also concluded that the subsequent frisk of Appellee was not supported by a reasonable belief that he was armed and dangerous. The court opined:
[W]hen asked why he decided to conduct a pat down search of the men, Officer [Bucek] cited their aggressive behavior and yelling and his perception that they were circling around him and7
his partner. Specifically, with respect to [Appellee], [Officer Bucek] said [Appellee] was farthest from the officers, and, even though [Appellee] complied with [the officer's] order to place his hands on a . . . pole, he scooted around [it and] away from [Officer Bucek]. When asked what he was thinking, Officer [Bucek] testified he thought "There's something on him. There's a reason why he's doing this."
Officer [Bucek] did not state any specific and articulable facts indicating [Appellee] might be armed. [Appellee's] hands were on the pole when he was frisked. There was no testimony that he had reached into his pockets or concealed them at any time during his interaction with the police. [Officer Bucek] testified that he felt threatened by the men's aggression. He and his partner had weapons if they felt their use was necessary to control the situation, but they had no justification to frisk them. It appears, that [Officer Bucek] did so merely in a search for evidence of criminal activity, not for fear [Appellee] possessed a weapon. . . .Supp. Ct. Op. at 8-9. Assuming arguendo that the investigative detention was proper, I agree with the trial court that Officer Bucek had no basis to support a Terry frisk.
Officer Bucek provided no specific or articulable facts to support a suspicion that Appellee was armed and dangerous. See Bozeman, 205 A.3d at 1274. While Officer Bucek decided to conduct a pat down frisk because the men were "circling" him and he felt he was "in danger," he did not testify that Appellee was reaching for his pockets, or that he, or either of his cohorts made any furtive movements, gave any indication that the men were armed, nor did the officer see anything resembling a weapon on Appellee's person.
While I acknowledge the officer stated he felt he was in danger when the men "kind of seemed liked they were circling" him, this still provides no indicia that any of the men had a weapon, and the officer acknowledged as 8 much. See id. at 8-9, 17. During his testimony, Officer Bucek admitted he did not suspect Appellee had "something" on him until after he attempted to initiate the frisk. See N.T. at 9. Even then, the officer gave no indication that he suspected Appellee had a weapon on him. See N.T. at 17 (Officer Bucek "didn't observe [a] bulge" in Appellee's sweatshirt pocket). Based on this record, there are no facts before us suggesting any of the men were armed and dangerous. The totality of the circumstances - the smell of burnt marijuana, the verbal aggressiveness, and the three men "kind of seem[ing] like they were circling around"4 the officers - do not equate to articulable or specific facts justifying a Terry frisk. See Bozeman, 205 A.3d at 1274. Rather, I agree with the trial court that Officer Bucek conducted the frisk in search of criminal activity, which is not permitted. See Davis, 102 A.3d at 999; Trial Ct. Op. at 9.
I emphasize that general statements of safety concerns without factors indicating an individual is armed are not enough to justify the search of a person. See Commonwealth v. Cooper, 994 A.2d 589, 594-95 (Pa. Super 2010) (concluding the trial court should have suppressed evidence recovered after a Terry frisk when the officer made only "general statements of safety concerns" and there was no evidence that the defendant was reaching for his pockets or that the officer saw anything resembling a weapon on defendant's person), citing Commonwealth v. Preacher, 827 A.2d 1235, 1240 (Pa. Super. 2003) 9 (officer's statement in "general terms" that he feared for "his safety and the safety of others" did not provide a sufficient basis to conduct a frisk incident to an investigatory stop). Additionally, as stated supra, the smell of marijuana alone cannot justify the search of a vehicle. See Barr, 266 A.3d at 41. Logic follows that if smell alone does not give rise to suspicion of criminal activity inside of a vehicle, then smell alone on an open street does not permit an officer to initiate a search of one's person.
The Majority maintains, however, that the following circumstances combine to support reasonable suspicion for the pat down search: (1) upon the officers' approach, "the three men almost immediately became aggressive, cursed at the officers, and encircled" them; (2) when Officer Bucek performed a pat down search of Appellee's companions, "the second man . . . continued to act aggressively . . . like he was ready to turn around and do something[;]" and (3) Appellee "kept moving away" from the officer before he performed the search. Majority Opinion at 18-19 (record citations & quotation marks omitted). Further, the Majority concluded:
The suppression court failed to consider the totality of the circumstances and give Officer [Bucek] the benefit of the inferences he drew from those circumstances. The record shows the officer reasonably suspected that criminal activity was afoot and that [Appellee] was armed and potentially dangerous. The totality of the circumstances establishes that "a reasonably prudent man in the circumstances would be warranted in the belief that his safety or the safety of other was in danger." Cooper, 994 A.2d at 592 (citation omitted).Majority Opinion at 19 (some citations omitted). I disagree. 10
The Majority cites to factors that do not support a reasonable suspicion that Appellee was "armed and potentially dangerous." See Majority Opinion at 19. The aggression exhibited by the three men was completely verbal. Moreover, their anger and perceived encirclement of the officers stemmed from a command to stop that was unsupported by reasonable suspicion of criminal activity. The Majority also highlights the aggressive actions of the "second man" after Officer Bucek initiated the search, conduct which is irrelevant to (1) the decision to frisk Appellee, or (2) the decision the officer made before the continued aggression to search any of the men. See Majority Opinion at 18-19.
There is simply no evidence that Appellee or either of the other two men made any aggressive movements toward the officers; nor did Appellee reach into his pockets, or act as though he was ready to initiate physical contact. Instead, the Majority focuses on Officer Bucek's subjective feeling that he was threatened by their angry response. As noted supra, Officer Bucek's general statements of concern for his and his partner's safety absent suspicion Appellee was armed are not enough to conduct a pat down search. See Cooper, 994 A.2d at 594-95. The Majority's conclusion implies that an officer may initiate a custodial detention of an individual simply based upon a negative reaction to an unlawful police directive. Further, it would allow the greater intrusion of a Terry frisk of that person without any articulable suspicion of a weapon. It seems the Majority is selectively choosing certain testimony to afford all inferences to the losing party. 11 See Commonwealth v. Cost, 224 A.3d 641, 650 (Pa. Super. 2020) ("[T]he record of a suppression hearing is to be read in the light most favorable to the prevailing party[.]").
However, the Majority ignores the following: (1) Officer Bucek initiated an investigative detention based only on the smell of marijuana and an assumption that the three men crossed the street to avoid him, (2) he never expressed suspicion that any of the men possessed a weapon, and (3) the actions of Appellee after the officer initiated the search cannot support a finding of reasonable suspicion to initiate a frisk. Therefore, I conclude the Majority's analysis misses the mark.
Lastly, I acknowledge the concern of both the Majority and the Commonwealth over the trial court's statement that if the officers were fearful for their safety, they could have drawn their weapons. See Majority Opinion at 19-20; Commonwealth Brief at 10; Trial Ct. Op. at 8. However, I disagree with the Commonwealth's characterization that the trial court "seems to qualify itself as [a] use of force expert." Id. at 10-11. While I find the comment a bit cavalier, the court was simply reiterating its belief that Officer Bucek did not possess the requisite reasonable suspicion to perform a pat down search.
Officer Bucek could not justify an investigative detention where he only smelled burned marijuana, observed three men crossing the street, and the men had a negative reaction to his questions. See Young, 162 A.3d at 528 (citation omitted). Even if the investigative detention was proper, absent specific and articulable facts to support Officer Bucek's suspicion that Appellee 12 was armed before he initiated the pat down search, I would affirm the trial court's suppression order. See Bozeman, 205 A.3d at 1274; Commonwealth v. Tillery, 249 A.3d 278, 280 (Pa. Super. 2021) (where the record supports the decision of the suppression court, this Court is bound by those facts).
Thus, I respectfully dissent. 13
[*] Former Justice specially assigned to the Superior Court.