Opinion
J-A26035-13 No. 3327 EDA 2012
03-05-2014
COMMONWEALTH OF PENNSYLVANIA Appellant v. ROBERT MARSHALL REINHART Appellee
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Order Entered October 26, 2012
In the Court of Common Pleas of Bucks County
Criminal Division at No(s): CP-09-CR-0004397-2012
BEFORE: BOWES, J., DONOHUE, J., and OTT, J. MEMORANDUM BY OTT, J.:
The Commonwealth appeals from the order entered on October 26, 2012, granting, in part, Appellee's, Robert Marshall Reinhart's, motion to suppress evidence of drugs and drug paraphernalia. The Commonwealth asserts the trial court erred in granting the motion to suppress by finding the arrest of Reinhart was not proper. After a thorough review of the record, the parties' briefs, and the applicable law, we affirm.
The trial court summarized the facts and procedural history as follows:
On March 10, 2012, at approximately 2:11 A.M., Sergeant Raymond Branden responded to a property located at 1523 North Center Road, Lower Southhampton Township, Bucks County, Pennsylvania for a report of two (2) individuals, one of whom was a white male, carrying a flashlight and breaking into a Comcast van. The Comcast van was parked with the driver's side facing 1523 North Center Road; the driver's side tires were parked on the lawn and the passenger's side tires were on the street. [Reinhart] was standing next to the driver's side of theTrial Court Opinion, 2/14/13, at 1-3 (record citations and some footnotes omitted).
van and holding what appeared to be a flashlight. Sergeant Branden also observed a beige SUV parked on the street next to the Comcast van.
Believing a second individual was in the area, Sergeant Branden, who was in full uniform got out of his marked police vehicle, while using the vehicle for cover, and asked [Reinhart] to identify himself and show both of his hands. [Reinhart] did not answer, kept one hand in his pocket, and continued to walk towards Sergeant Brandon who again ordered [Reinhart] to show his hands. At this time, Officer Matthew Bowman of the Lower Southampton Police Department also responded in uniform, observed [Reinhart], circled behind the Comcast van, and came up behind [Reinhart]. Officer Bowman noted [Reinhart] "appeared to have a stare" and "wasn't really acknowledging Sergeant Branden," and he ordered [Reinhart] to put his hands on the hood of the vehicle. [Reinhart] complied, and, upon conducting a pat-down, Officer Bowman found a holster and handgun, which he secured. Officer Bowman had his left hand at the scruff of [Reinhart]'s neck and, after the firearm was secured, [Reinhart] and Officer Bowman lost their balance, falling to the left, and ended up on the ground where [Reinhart] was handcuffed.
Officer Bowman gave the handgun, which was loaded, to Sergeant Branden, who secured [Reinhart] while Officer Bowman looked for a second individual.1 While passing the SUV, Officer Bowman looked in with his flashlight and saw an open can of beer and an AK-47 laying against the front passenger seat. The butt of the weapon was against the floor with the muzzle pointing to the roof and was visibly loaded with a magazine in the well.
1 No second individual was ever located at the scene.
The officers subsequently discovered that the SUV was registered to [Reinhart]'s girlfriend, Jacqueline Fox, who resided at 315 Rosewood Avenue, a property a few hundred yards from the scene. The officers also learned the identity of [Reinhart] via his driver's license and that he had a permit to carry the handgun that had been issued earlier that same day.
[Reinhart] was arrested for the summary offense of Carrying Loaded Weapon.
[Reinhart] was taken back to the police station and searched incident to arrest.[]
[Reinhart] was charged with Possession of Drug Paraphernalia, Intentional Possession of a Controlled Substance, Carrying Loaded Weapon, and Public Drunkenness and Similar Misconduct. On October 24, 2012, [Reinhart] filed an omnibus pre-trial motion seeking the suppression of the drugs, paraphernalia, and [Reinhart]'s statements after arrest.
After a hearing on October 24, 2012 and argument on October 26, 2012, we granted [Reinhart]'s motion in part and suppressed the drugs and paraphernalia. The trial was continued for thirty (30) days to allow the Commonwealth to nolle pross the drug-related charges or file an interlocutory appeal.
During the search, Officer Bowman recovered from Reinhart's top left shirt pocket a small, clear glass bottle with a screw top, containing vegetable matter. The substance was tested and determined to be .64 grams of phencyclidine, a Schedule II controlled substance.
On November 26, 2012, the Commonwealth filed this appeal pursuant to Pa.R.A.P. 311(d). On November 30, 2012, the trial court ordered the Commonwealth to file a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). The Commonwealth filed a concise statement on December 20, 2012, presenting the following issue:
1. This Honorable Court erred in holding that the arrest of [Reinhart], in connection to the summary offense [of carrying a loaded weapon] in the instant case, was not authorized by law and/or for finding that there was insufficient evidence for the police officers to believe that [Reinhart] was involved in a breach of peace, posed an imminent threat of violence and/or was a danger to himself or others where: [Reinhart] was observed by police on a public street in a residential neighborhood in the early morning hours, after police responded to a call of a possible theft in progress at 2:11 A.M., and where [Reinhart]'s own residence was unknown; where the vehicle [Reinhart] is driving is parked in front of a residence not belonging to him, where [Reinhart] had an odor of alcohol, slurred speech, bloodshot and watery eyes; where [Reinhart] appeared confused and was non-compliant; where [Reinhart] had on his person one legally owned firearm; and, where police observed a second, loaded AK47 firearm, with its barrel pointing up, on the passenger seat of [Reinhart]'s vehicle.Reinhart's Statement of Matters Complained on Appeal, 12/20/2012, at 1-2. The trial court issued an opinion pursuant to Pa.R.A.P. 1925(a) on February 14, 2013.
In the Commonwealth's first issue, it contends the trial court erred in concluding that the police officers lacked probable cause to arrest Reinhart, and that the drugs and paraphernalia subsequently seized by the police were recovered incident to arrest, because the police had probable cause to arrest Reinhart for the misdemeanor crimes of driving under the influence and/or loitering and prowling. Commonwealth's Brief at 16.
A review of the Commonwealth's concise statement reveals that it did not raise this issue with the trial court. It is well settled that "in order to preserve their claims for appellate review, [a]ppellants must comply whenever the trial court orders them to file a Statement of Matters Complained of on Appeal pursuant to Rule 1925. Any issues not raised in a 1925(b) statement will be deemed waived." Commonwealth v. Lord, 719 A.2d 306, 309 (Pa. 1998). See also Pa.R.A.P. 1925(b)(4)(vii) ("Issues not included in the Statement and/or not raised in accordance with the provisions of this paragraph (b)(4) are waived."). Accordingly, the Commonwealth has waived its first argument.
It is clear from the suppression hearing testimony on October 24, 2012 and oral argument on October 26, 2012, that the applicable summary charges at issue were public drunkenness and carrying a loaded weapon, and that the only charge held for court was carrying a loaded weapon.
In the Commonwealth's second issue, it contends the trial court erred in finding the officers were not authorized to arrest Reinhart for the summary offense of carrying a loaded weapon. Commonwealth's Brief at 22. The Commonwealth asserts that "[i]n light of [Reinhart]'s suspicious and troubling conduct at the time of his offense, the officers did, indeed have reason to believe that [he] was a danger and thus possessed the authority to arrest" Reinhart for the summary offense. Id. at 24. The Commonwealth points to the following evidence: (1) Reinhart was observed on another person's yard, walking around a parked van with a flashlight; (2) he initially failed to comply with Sergeant Branden's order to stop what he was doing and show his hands; and (3) he was carrying a loaded weapon and had an AK-47 assault rifle in a vehicle that was parked next to the van. Id. at 26. Moreover, the Commonwealth argues the fact that the police seized and secured the AK-47 prior to Reinhart's arrest is of no consequence because it "would not have resolved the officers' questions and concerns about [Reinhart]'s motives at the scene," and merely issuing a citation "would not have prevented him from continuing to prowl around another person's property" or getting behind the wheel and driving while in an intoxicated state. Id. at 27.
In the Commonwealth's second argument, it also contends the trial court erred in finding the officers lacked probable cause to charge Reinhart with public drunkenness under 18 Pa.C.S. § 5505. Commonwealth's Brief at 23. The Commonwealth states that based on the totality of the circumstances, "it was abundantly reasonable for the police to believe that [Reinhart] was intoxicated while he was in public, namely a resident street" and his "conduct at the time gave rise to the reasonable belief that he posed a danger to himself and others, an element of the public drunkenness statute." Id. Like the first argument, the Commonwealth failed to raise this contention in its concise statement or challenge it with the trial court below. Therefore, we find the issue waived and will not address it further. See Pa.R.A.P. 1925(b)(4)(vii).
Our well-settled standard of review when analyzing the grant of a suppression motion is as follows:
We begin by noting that where a motion to suppress has been filed, the burden is on the Commonwealth to establish by a preponderance of the evidence that the challenged evidence is admissible. In reviewing the ruling of a suppression court, our task is to determine whether the factual findings are supported by the record. If so, we are bound by those findings. Where, as here, it is the Commonwealth who is appealing the decision of the suppression court, we must consider only the evidence of the defendant's witnesses and so much of the evidence for the prosecution as read in the context of the record as a whole remains uncontradicted.Commonwealth v. Powell, 994 A.2d 1096, 1101 (Pa. Super. 2010) (citations and internal citations omitted).
Moreover, if the evidence supports the factual findings of the suppression court, this Court will reverse only if there is an error in the legal conclusions drawn from those findings.
In summary criminal cases, Pennsylvania Rule of Criminal Procedure 400 governs the means by which an officer may institute a proceeding: (1) issuing a citation to the defendant; (2) filing a citation; (3) filing a complaint; or (4) arresting without a warrant when arrest is specifically authorized by law. See Pa.R.Crim.P. 400. Pennsylvania Rule of Criminal Procedure 440 provides:
When an arrest without a warrant in a summary case is authorized by law, a police officer who exhibits some sign of authority may institute proceedings by such an arrest.Pa.R.Crim.P. 440 (emphasis added).
Comment: Only a police officer, as defined in Rule 103, may institute a summary criminal proceeding by arrest. It is intended that these proceedings will be instituted by arrest only in exceptional circumstances such as those involving violence, or the imminent threat of violence, or those involving a danger that the defendant will flee.
Here, the trial court focused on Reinhart's summary offense for carrying a loaded weapon and found the criminal statute "does not authorize a policeman to effectuate a warrantless arrest for its violation[.]" Trial Court Opinion, 2/14/2013, at 5.
An individual commits the summary offense of carrying a loaded weapon as follows:
(a) General rule. --Except as provided in Title 34 (relating to game), no person shall carry a loaded pistol, revolver, shotgun or rifle, other than a firearm as defined in section 6102 (relating to definitions), in any vehicle. The provisions of this section shall not apply to persons excepted from the requirement of a license to carry firearms under section 6106(b)(1), (2), (5) or (6) (relating to firearms not to be carried without a license) nor shall the provisions of this section be construed to permit persons to carry firearms in a vehicle where such conduct is prohibited by section 6106.18 Pa.C.S. § 6106.1(a).
Based on clear language of Section 6106.1, we agree with the trial court that there is no specific statutory authorization, which provides that a police officer may, without a warrant, arrest an individual for the summary offense of carrying a loaded weapon.
However, in certain exceptional circumstances, a police officer may make a warrantless arrest without statutory authorization under a municipal code. Commonwealth v. Bullers, 637 A.2d 1326 (Pa. 1994), relied on by the trial court, is instructive. In Bullers, the Pennsylvania Supreme Court considered whether an arrest of a minor for the summary offense of underage drinking was authorized under the law. The Supreme Court rejected the Commonwealth's contention that 18 Pa.C.S. § 6308 contained statutory language that authorized the warrantless arrest for underage consumption or possession of liquor. Moreover, the Supreme Court concluded the Commonwealth's argument that authority could also be found within Section 46121 of the Borough Code because the hazards and dangers that may accompany underage drinking tended "to imperil the personal security" of citizens as unpersuasive. The Court stated the defendant was merely walking down the street with an odor of alcohol on his breath. The Court then held that "a violation of [Section] 6308, unaccompanied by any disorderly conduct, a breach of the peace, or public drunkenness, does not fall within [Section] 46121 of the Borough Code." Bullers, 637 A.2d at 1329.
Section 6106.1 is distinguishable from other legislation, which includes clear, specific language that authorizes police officers to make warrantless arrests. See 18 Pa.C.S. § 3904 (theft), and 75 Pa.C.S. §§ 6304 (vehicle code violations) and 3731 (driving under the influence of alcohol or controlled substance).
Section 46121 of the Borough Code provided:
§ 46121. Appointment suspension, reduction, discharge, powers; mayor to have controlBullers, 637 A.2d at 1329. Section 46121 was substantially reorganized and amended in 2012. See 53 P.S. § 46121 and 2012, May 17, P.L. 262, No. 43, § 122 [effective July 16, 2012].
Borough council may, subject to the civil service provisions of this act, if they be in effect at the time, appoint and remove, or suspend, or reduce in rank, one or more suitable persons, citizens of the United States of America, as borough policemen, who shall and may, within the borough or upon property owned or controlled by the borough or by a municipal authority of the borough whether such property is within or outside the limits of the borough, without warrant and upon view, arrest, and commit for hearing any and all persons guilty of breach of the peace, vagrancy, riotous or disorderly conduct or drunkenness, or who may be engaged in the commission of any unlawful act tending to imperil the personal security or endanger the property of the citizens, or for violating any ordinance of the borough for the violation of which a fine or penalty is imposed, and notwithstanding any statute pertaining to the same or similar offenses. Any person so arrested shall be received for confinement by the keepers of the jail, lockups, or station houses within the county.53 P.S. § 46121 (emphasis added).
Turning to the present case, the trial court applied Bullers and determined that the facts in this case did not give rise to statutory authorization pursuant to the Second Class Township Code, 53 P.S. § 66905. Specifically, it found the following:
Lower Southampton Township is designated as a township of the second class. The Second Class Township Code provides as follows: "Each township police officer has those powers and abilities as are granted to police officers under the laws of this Commonwealth or the rules of the Supreme Court or the ordinances of the township for which a fine or penalty is imposed unless otherwise excepted in this act." 53 P.S. § 66905.
Here, [Reinhart] was approached by clearly identified policemen who lawfully ordered him to identify himself and show his hands to them. While the first series of orders were notTrial Court Opinion, 2/14/2013, at 6-8 (citation and record citations omitted).
followed, [Reinhart] eventually complied with the officers' orders. Thereafter, he was fully compliant with law enforcement and identified by his driver's license. Following [Reinhart]'s surrender the officers detained him pursuant to their investigation and then searched the area for another individual who was never found. During this time, [Reinhart] was subjected to a legal pat-down during which officers found a loaded firearm in a holster. Thereafter, it was determined that [Reinhart] possessed a license to carry said firearm.
During the search officers found the aforementioned AK-47 rifle sitting upright in the SUV. When questioned [Reinhart] told the officers his girlfriend owned the SUV, which he had been driving. The SUV was registered to his girlfriend at an address nearby. [Reinhart] was then placed in the back of a marked police vehicle and transported to the police station for processing and searched. The search revealed the presence of drug paraphernalia on [Reinhart]'s person.
[Reinhart] was under arrest upon being placed in the police vehicle and transported to the police station. The offense for which he was arrested, Carrying Loaded Weapon, is a summary offense that does not expressly allow for a warrantless arrest. Because the officers could not arrest [Reinhart] for this offense without a warrant, they were required to have observed disorderly conduct, a breach of the peace or, public drunkenness to do so. The facts presented do not indicate a compelling case for any of the exceptions. While [Reinhart] did initially ignore the officers' orders he did eventually comply and thereafter fully cooperate with [the] officers' instructions so it cannot be said that he was disorderly. There is similarly no indication that [Reinhart] was exhibiting signs of public drunkenness aside from the smell of alcohol on his breath. Additionally, [Reinhart] did not pose a risk of flight as he was identified to police through his driver's license and his girlfriend lived on the same street on which he was arrested.
The officers did find a firearm on [Reinhart]'s person during the initial search, but the handgun was legally possessed by [Reinhart]. The legal possession of a firearm pursuant to a license or permit cannot be said to constitute disorderly conduct or any other offense. The Commonwealth asserts that the presence of the AK-47 in the car constituted a danger to the personal safety of both the officers and the public at large.
However, the rifle was secured at the time of the arrest by the officers. Had they simply issued a citation they would have seized the weapon and the dangerous condition would have been alleviated without effectuating the arrest of [Reinhart].
Because [Reinhart] displayed no indication of disorderly conduct or public drunkenness and no one's personal security was imperiled at the time of his warrantless arrest for the summary offense of Carrying Loaded Weapon said arrest is therefore illegal.
We recognize that Section 66905 of the Second Class Township Code, applicable here, does not contain the same language as Section 46121 of the Borough Code, applicable in Bullers, with respect to the explicit exceptional circumstances that allow for a warrantless arrest in a summary offense matter, namely, disorderly conduct, a breach of the peace, or public drunkenness. Nevertheless, it is of no consequence since we are limited to the exceptional circumstances as set forth in Rule 440, which include those involving violence, the imminent threat of violence, or a danger that the defendant will flee. Furthermore, we agree with the trial court that the facts of this case did not present exceptional circumstances as Reinhart did not exhibit violence, he did not threaten the possibility of violence, nor did he act as though he would flee. Rather, Reinhart was compliant with the police officers' requests, he did not make an attempt to get the AK-47 when approached by the officers, and the AK-47 was immediately secured by the officers upon observing it. Therefore, we conclude the trial court did not err in finding the officers were not authorized to arrest Reinhart for the summary offense of carrying a loaded weapon. Accordingly, we affirm the court's order.
We note the amended version of Section 46121 of the Borough Code is now substantially similar in language to Section 66905 of the Second Class Township Code.
Order affirmed. Judgment Entered. __________
Joseph D. Seletyn, Esq.
Prothonotary