J-A27016-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT
                                                     OF PENNSYLVANIA
                         Appellee

                    v.

TYREAKE BROWN

                         Appellant                   No. 3908 EDA 2017


    Appeal from the Judgment of Sentence imposed November 17, 2017
            In the Court of Common Pleas of Philadelphia County
              Criminal Division at No: CP-51-CR-0012725-2015


BEFORE: BOWES, J., STABILE, J., and McLAUGHLIN, J.

MEMORANDUM BY STABILE, J.:                        FILED JANUARY 17, 2019

      Appellant, Tyreake Brown, appeals from the judgment of sentence

imposed in the Court of Common Pleas of Philadelphia County on November

17, 2017, following his conviction of possession with intent to deliver

(“PWID”), 35 P.S. § 780-113(30). Appellant argues the trial court erred in

denying his motion to suppress because he was improperly detained and

because the arresting officers lacked probable cause to conduct a search that

led to discovery of heroin in his genital region. Upon review, we affirm.

      Philadelphia Police Officer William Fritz was the sole witness at

Appellant’s suppression hearing. The facts of the case, based on his testimony

from Appellant’s suppression hearing, can be summarized as follows.         At

approximately 9:00 p.m. on November 27, 2015, two Philadelphia police

officers on routine patrol, including Officer Fritz, stopped an SUV in the 1500
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block of South 18th Street because it was being operated without headlights.

Before stopping the SUV, the officers ran the tag and determined the SUV was

a rental.

       As the officers approached the vehicle, they detected the odor of burnt

marijuana. Appellant was a passenger in the front seat of the SUV. Neither

he nor the driver was able to produce identification when requested by the

officers. A backseat passenger did have an identification card. Neither his

identification nor the verbal identification information provided by Appellant

and the driver matched the name on the rental agreement. The officers then

ran the names of the occupants and determined that none had a driver’s

license. Consequently, the officers had the occupants exit the SUV so they

“could conduct a safe live stop inventory.”1     Notes of Testimony (“N.T.”),

Suppression Hearing, 4/20/17, at 11.

       Two additional officers, including Officer Ngo, had arrived at the scene

by that time. One of them frisked the driver while one of the two original

officers frisked Appellant and the other frisked the backseat passenger. The

frisks yielded “bricks” of currency totaling $2550 in cash from the driver,

$1165 from the backseat passenger, and nothing from Appellant. Id. at 11-

13.   As Officer Fritz explained, “We were going to inventory the vehicle


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1 “The City of Philadelphia’s ‘Live Stop’ program involves the immediate
immobilization in place or towing to a different location of vehicles found to
be operated in violation of certain state motor vehicle statutes.” Trial Court
Rule 1925(a) Opinion, 2/21/18, at 1 n.2.

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[because they were going to live stop it and tow it away], and since there was

[were] three people, we were going to put them in the back of our vehicle in

the meantime. So we had to frisk them for that reason.” Id. at 12-13. Each

occupant was placed in a separate vehicle while the officers began to inventory

the SUV and discovered a “brown box of new and unused wax inserts,

commonly used for packaging heroin” on the floor of the front passenger-side

seat where Appellant was seated. Id. at 14. The officers also located a scale

in the cargo area of the SUV. Id. at 16.

      Upon discovering the wax inserts, the officers called for the K-9 unit,

rolled up the windows, and waited for the K-9 unit to arrive. Upon arrival of

the unit at 9:45 p.m., the “K-9 hit on both front doors and the rear of the

vehicle.” Id. at 15. “Once the dog hit, we then started pulling each person

out and did a thorough search [] incident to arrest.” Id. The officer who

searched Appellant “recovered a sandwich bag containing two smaller

sandwich bags of bulk heroin” from Appellant’s “genital region.” Id. at 16-

17. The officers also recovered cellphones from each occupant.

      With regard to the search of Appellant, Officer Fritz testified that it was

not a strip search and that Appellant’s pants were not pulled down during the

search. Id. at 27. As the officer conducting the search “reached the region

of his groin, [Appellant] was clenched tightly with his legs[.]” Id. at 28. “[The

officer] had to spread [Appellant’s] legs, and then he conducted a frisk of the




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area between his genitals and his ass” and “recovered the sandwich bag

containing the two sandwich bags of heroin from that area.” Id. at 29.

        Appellant was charged with PWID and criminal use of a communication

facility.2 Appellant filed an omnibus pre-trial motion on January 21, 2016.

After numerous continuances, the Honorable Jeffrey P. Minehart conducted a

suppression hearing on April 20, 2017. By order entered the same day, Judge

Minehart denied Appellant’s motion. Trial did not immediately follow the ruling

because Appellant’s counsel requested a continuance to secure an expert.

        The case proceeded to a bench trial before the Honorable William

Mazzola on November 21, 2017. The parties incorporated the transcript of

the suppression hearing and stipulated that the items retrieved from Appellant

were heroin and were of a quantity consistent with heroin possessed with

intent to deliver.     No additional testimony was presented.   Judge Mazzola

found Appellant guilty of PWID but not guilty of criminal use of a

communication facility. Sentencing was deferred until November 17, 2017, at

which time Judge Mazzola imposed a sentence of time served to twenty-three

months’ incarceration followed by four years’ probation. He also ordered that

Appellant be immediately paroled.




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2   18 Pa.C.S.A. § 7512.



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       Appellant did not file post-sentence motions but did file a timely appeal

from his judgment of sentence. Both Appellant and Judge Mazzola complied

with Pa.R.A.P. 1925.3

       Appellant presents the following two-part issue for our consideration:

       Did not the lower court err as a matter of law by denying
       appellant’s motion to suppress physical evidence—namely, bags
       of heroin seized from appellant’s genital region—where police
       violated appellant’s state and federal constitutional rights

          a. because appellant was unconstitutionally detained in the
             back of a police vehicle during an unlawful inventory search
             of a car in which he was a passenger; and

          b. because police lacked probable cause to arrest appellant
             and/or search his genital region?

Appellant’s Brief at 3.

       In Commonwealth v. Smith, 164 A.3d 1255 (Pa. Super. 2017), we

reiterated:

       An appellate court’s standard of review in addressing a challenge
       to the denial of a suppression motion is limited to determining
       whether the suppression court’s factual findings are supported by
       the record and whether the legal conclusions drawn from those
       facts are correct. Because the Commonwealth prevailed before
       the suppression court, we may consider only the evidence of the
       Commonwealth and so much of the evidence for the defense as
       remains uncontradicted when read in the context of the record as
       a whole. Where the suppression court’s factual findings are
       supported by the record, the appellate court is bound by those
       findings and may reverse only if the court’s legal conclusions are
       erroneous.

____________________________________________


3In his Rule 1925(a) Opinion, Judge Mazzola provides a more detailed factual
summary than that provided above. Rule 1925(a) Opinion, 2/21/18, at 2-4.
We find that his factual summary is supported by the record.

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         Where the appeal of the determination of the suppression court
         turns on allegations of legal error, the suppression court’s legal
         conclusions are not binding on an appellate court, whose duty it
         is to determine if the suppression court properly applied the law
         to the facts. Thus, the conclusions of law of the courts below are
         subject to plenary review.

Id. at 1257 (citation and alterations omitted).         Because we find Judge

Mazzola’s factual findings are supported by the record, we are bound by them.

Therefore, we must determine if the court properly applied the law to those

facts.

         Again, Appellant maintains that the officers involved violated his state

and federal constitutional rights by detaining him during “an unlawful

inventory search” and by arresting and searching him without probable cause.

As our Supreme Court has recognized:

         Article I, § 8 of the Pennsylvania Constitution and the Fourth
         Amendment to the United States Constitution both protect the
         people      from    unreasonable     searches      and    seizures.
         Commonwealth v. Smith, 575 Pa. 203, 836 A.2d 5, 10 (2003)
         (citation omitted). Jurisprudence arising under both charters has
         led to the development of three categories of interactions between
         citizens and police. Id. (citations omitted). The first, a “mere
         encounter,” does not require any level of suspicion or carry any
         official compulsion to stop or respond.          The second, an
         “investigative detention,” permits the temporary detention of an
         individual if supported by reasonable suspicion. The third is an
         arrest or custodial detention, which must be supported by
         probable cause. Id. (citations omitted).

Commonwealth v. Lyles, 97 A.3d 298, 302 (Pa. 2014).

         Appellant first contends that the trial court erred in denying his motion

to suppress because he was wrongly detained during an unlawful inventory


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search of the vehicle in which he was a passenger. Before considering the

merits of this issue, we must determine if it has been preserved for appeal.

      In his omnibus pre-trial motion, Appellant asserted his arrest was illegal

because he was arrested without probable cause, because he was subjected

to a stop and frisk on less than reasonable suspicion, and because he was

arrested without a warrant or other legal justification.     Omnibus Motion,

1/21/16, at I(B)(1)(a-c).   He did not assert a challenge to the inventory

search.

      At the suppression hearing, Appellant’s counsel explained that she

would argue the officers “did not have reasonable suspicion to detain

[Appellant], did not have reasonable suspicion to frisk him, and did not have

probable cause to search [Appellant].” N.T., Suppression Hearing, 4/20/17,

at 4. During her cross-examination of Officer Fritz, she did not challenge the

decision to conduct an inventory search. The challenges raised, as projected

in counsel’s opening remarks, were limited to the claims involving detaining,

frisking and searching Appellant. See id. at 21-31.

      We find Appellant preserved a challenge to being detained following the

stop but not to the inventory search itself. Our analysis of Appellant’s first

issue is limited accordingly. See Pa.R.A.P. 302(a) (“Issues not raised in the

lower court are waived and cannot be raised for the first time on appeal.”).

      Officer Fritz testified that he and his partner stopped the SUV because

it was being operated at night without headlights. As they approached the


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vehicle, the officers detected the odor of burnt marijuana before they even

reached the SUV and its occupants. It was then determined the vehicle was

rented by someone other than the occupants and that none of the occupants

possessed a driver’s license.   Therefore, the officers began the process of

impounding the SUV in accordance with the Philadelphia Live Stop program.

The occupants were frisked for the protection of all involved.

      Appellant does not challenge the stop of the vehicle. Clearly, “[a] police

officer may conduct a lawful traffic stop if he or she reasonably believes that

a car is in violation of a Motor Vehicle Code equipment provision.”

Commonwealth v. Hynes, 730 A.2d 960, 962 (Pa. Super. 1999).                 The

provisions of 75 Pa.C.S.A. § 4302 require that “[t]he operator of a vehicle

upon a highway shall display the lighted head lamps and other lamps and

illuminating devices required under this chapter . . . [b]etween sunset and

sunrise.”

      Our Supreme Court has noted that “if there is a legitimate stop for a

traffic violation (based on probable cause), additional suspicion may arise

before the initial stop’s purpose has been fulfilled; then, detention may be

permissible to investigate the new suspicions.” Commonwealth v. Chase,

960 A.2d 108, 115 n. 5 (Pa. 2008) (citation omitted). Further, as that Court

recognized in In Interest of A.A., 195 A.3d 896 (Pa. 2018), “the odor of

marijuana alone, particularly in a moving vehicle, is sufficient to support at




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least reasonable suspicion, if not the more stringent requirement of probable

cause” that an individual is involved in criminal activity. Id. at 904.

       Here, there was a legitimate stop. Additional suspicions based on the

odor of marijuana were raised even before it was discovered the SUV was

rented by someone other than the occupants and that none of the occupants

possessed a driver’s license. As the trial court explained, “The failure to use

headlights justified the initial detention and the immediate detection of the

use of marijuana justified further investigation which entitled the officers to

have the occupants exit the vehicle and undergo a pat down for the safety of

all concerned while they searched it.”     Trial Court Rule 1925(a) Opinion,

2/21/18, at 5.

      Under the circumstances, we conclude there was reasonable suspicion

permitting the officers’ temporary detention of Appellant and his cohorts.

Further, we find the duration of the detention was reasonable under the

circumstances.

      Regarding the duration, Appellant contends he was detained in the back

of a police car for forty-five minutes. The record reflects otherwise. Here, the

initial stop occurred at 9:01 p.m.     The officers stopped their patrol car,

approached the SUV (detecting the odor of burnt marijuana in the course of

doing so), requested a driver’s license from the operator, requested

identification from the operator and the passengers, ran the names provided

through the DMV for licensing information, obtained the rental agreement for


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the SUV, removed each of the occupants from the vehicle, frisked each

occupant in light of the impending Live Stop, and initiated the inventory

search, which resulted in locating a box of wax inserts used for packaging

heroin. Upon finding the inserts, the officers called for the K-9 unit, shut the

doors, rolled up the windows, and waited for K-9 to arrive.       The K-9 unit

arrived at 9:45, forty-four minutes after the initial stop. Therefore, we reject

Appellant’s assertion that he was unlawfully detained for forty-five minutes in

the back of a patrol car. Based on the testimony, we cannot say that the

amount of time from the initial stop until arrival of the K-9 unit was

unreasonable in duration.

      We find no violation of Appellant’s constitutional rights in relation to

being detained or in relation to the duration of the detention.      Again, an

investigative detention permits detention of an individual if supported by

reasonable suspicion. Based on the suppression hearing testimony, we find

that reasonable suspicion existed. Therefore, Appellant’s first claim fails for

lack of merit.

      Appellant next argues his constitutional rights were violated because the

police lacked probable cause to arrest him and/or search his genital region.

He contends that the arrest and search were based on the wax inserts

recovered from the SUV and that Appellant was not in constructive possession

of the inserts.   He suggests that the officers’ arrest of all three occupants

indicates they did not suspect any one of them of committing a crime but


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rather they were determined to arrest all three for the same crime. Appellant’s

Brief at 24-25.

      In Commonwealth v. Evans, 685 A.2d 535 (Pa. 1996), our Supreme

Court addressed the probable cause required to support a warrantless arrest.

The Court stated:

      To be constitutionally valid, a warrantless arrest must, of course,
      be supported by probable cause. Commonwealth v. Barnette,
      484 Pa. 211, 398 A.2d 1019 (1979). It is well-settled that in
      considering whether probable cause exists to justify a warrantless
      arrest, the totality of the circumstances must be considered.
      Commonwealth v. Banks, 540 Pa. 453, 658 A.2d 752 (1995),
      citing Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76
      L.Ed.2d 527 (1983). As this court has held, “probable cause exists
      where the facts and circumstances within the officer’s knowledge
      are sufficient to warrant a person of reasonable caution in the
      belief that an offense has been or is being committed.”
      Commonwealth v. Gibson, 536 Pa. 123, 130, 638 A.2d 203,
      206 (1994). As we quoted several years ago, probable cause
      must be “viewed from the vantage point of a prudent, reasonable,
      cautious police officer on the scene at the time of the arrest guided
      by his experience and training.” Commonwealth v. Norwood,
      456 Pa. 330, 334, 319 A.2d 908, 910 (1974) (citation omitted).

      Our case law makes clear, as well, that mere suspicion alone will
      not support a finding of probable cause. Commonwealth v.
      Kelly, 487 Pa. 174, 409 A.2d 21 (1979) (mere sight of a small
      amber-colored prescription vial on the seat of an automobile,
      without more, does not suffice to establish the requisite probable
      cause for arrest). However, it is also true that, to establish
      probable cause to arrest, criminal activity need not be shown to,
      in fact, exist, but rather only that it may be reasonably inferred
      from the circumstances. Commonwealth v. Weidenmoyer,
      518 Pa. 2, 13, 539 A.2d 1291, 1297 (1988).

Id. at 537 (footnote omitted).

      The Commonwealth suggests the officers acquired probable cause for

an arrest in the course of their investigation. First, there was the odor of

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marijuana emanating from the SUV.         Appellant was sitting in the front

passenger seat and a box of wax inserts—commonly used in packaging

heroin—was located on the floor in front at that seat. Appellant’s cohorts were

carrying large sums of cash. A canine officer “hit” on the front doors of the

SUV, including the front passenger door where Appellant was seated. A scale

was found in the cargo area of the SUV.            Under the totality of the

circumstances, the officers could reasonably infer criminal activity, and there

was probable cause to believe Appellant possessed the drug paraphernalia

located on the front passenger-seat floor. Commonwealth’s Brief, at 24. As

the suppression court recognized, the officers properly conducted a live stop

and a frisk of the occupants of a vehicle that was being operated without

headlights that emanated the odor of marijuana.       After finding substantial

amounts of money on two occupants and the wax inserts on the front

passenger-seat floor, the officers called the K-9 unit. The K-9 unit hit on the

front doors and the rear of the SUV. As Judge Minehart concluded:

      At this point, [the officers] had reason to detain the defendants
      and arrest them. They did the full search, and [Appellant] was
      found to have two . . . bags of heroin in his groin area. Based on
      all the evidence as I heard it, the motion to suppress is denied.

N.T., Suppression Hearing, 4/20/17, at 39-40.

      As the trial court explained in its Rule 1925(a) opinion,

      The odor of marijuana reasonably led to the discovery of the
      money and drug packaging which reasonably led to the discovery
      of the scale and justified the dog sniff which reasonably led to the
      discovery of heroin on [Appellant’s] person. Each step in the
      process provided the police with a reasonable belief that crimes

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      were being or had been committed and to finally conclude they
      had enough probable cause to justify arrests which in turn justified
      more intensive searches, by a K-9 unit and themselves. . . . In
      this case every step of the officers’ investigation was justified.

Trial Court Rule 1925(a) Opinion, 2/21/18, at 10-11. We agree there was

probable cause to arrest Appellant and search him incident to that arrest.

      Regarding the search itself, in Commonwealth v. Taylor, 771 A.2d

1261, 1271 (Pa. 2001), our Supreme Court explained that the scope of a

proper search incident to arrest extends to the arrestee’s person and those

things within the arrestee’s immediate control. Here, the search was limited

to Appellant’s person and yielded heroin and a cellphone.

       As reflected above, after the K-9 hit on the doors and rear of the SUV,

the officers placed Appellant and his cohorts under arrest and searched them

incident to the arrest for paraphernalia. While Appellant suggests that the

officers strip-searched him, see Appellant’s Brief at 8 (“Appellant was

consequently strip searched” and “the invasive strip search of [A]ppellant was

conducted incident to arrest”), that statement is refuted by Officer Fritz’s

testimony in the following exchanges:

      Appellant’s Counsel: And at this point, it was a strip search, right?

      Officer Fritz: No.

N.T., 4/20/17, at 27. Further:

      Appellant’s Counsel: Now, Officer Fritz, this was a strip search,
      right?

      Officer Fritz: No. I answered your question.


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      Appellant’s Counsel: Okay. So, his pants were not pulled down?

      Officer Fritz: Not during the search, no.

Id. Officer Fritz did not conduct the search but witnessed the search, which

was performed by Officer Ngo. Id. at 37-38.

      Officer Fritz explained that the usual search of a person goes from head

to toe. In this case, when Officer Ngo “reached the region of [Appellant’s]

groin, [Appellant] was clenched tightly with his legs, his legs were tight.” N.T.,

Suppression Hearing, 4/20/17, at 28. It was apparent to Officer Fritz that

Appellant had “something between his legs.” Id. at 29. As a result Officer

Ngo “had to spread [Appellant’s] legs, and then he conducted a frisk” of the

area, leading to the recovery of bulk heroin. Id.

      Our United States Supreme Court has explained:

      The test of reasonableness under the Fourth Amendment is not
      capable of precise definition or mechanical application. In each
      case it requires a balancing of the need for the particular search
      against the invasion of personal rights that the search entails.
      Courts must consider the scope of the particular intrusion, the
      manner in which it is conducted, the justification for initiating it,
      and the place in which it is conducted.


Bell v. Wolfish, 441 U.S. 520, 559 (1979).                Balancing the need for a

particular search in the instant case, we cannot find that the scope of the

intrusion, the manner in which the search was conducted, the justification for

initiating   it,   or   the   place   where   it   was   conducted,   constitutes   an

unconstitutional invasion of personal rights. Appellant’s second claim does

not provide any basis for relief.


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       We find no error in the trial court’s legal conclusions with regard

Appellant’s detention and arrest. Although the trial court did not separately

address the issue of the actual search in its Rule 1925(a) opinion, we find no

violation of Appellant’s constitutional rights in the conduct of the search. 4

Finding no error in the denial of Appellant’s suppression motion, we affirm

Appellant’s judgment of sentence.

       Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/17/19




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4"It is well-settled that an appellate court may affirm the decision of the trial
court if there is any basis on the record to support the trial court’s action.”
See Commonwealth v. Harper, 611 A.2d 1211, 1213 n.1 (Pa. Super. 1992).

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