J-S62005-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA              :    IN THE SUPERIOR COURT OF
                                           :         PENNSYLVANIA
                                           :
              v.                           :
                                           :
                                           :
 STANLEY ALTON, JR.                        :
                                           :
                     Appellant             :    No. 1375 WDA 2018

      Appeal from the Judgment of Sentence Entered August 23, 2018
            In the Court of Common Pleas of Allegheny County
           Criminal Division at No(s): CP-02-CR-0012885-2017


BEFORE: PANELLA, P.J., KUNSELMAN, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY PANELLA, P.J.:                       FILED FEBRUARY 3, 2020

      Stanley Alton appeals from the judgment of sentence entered on August

23, 2018, in the Allegheny County Court of Common Pleas after the trial court

convicted him of possession of ecstasy pursuant to a stipulated non-jury trial.

On appeal, Alton contends the trial court erred in failing to suppress the

ecstasy as he believes the frisk violated his constitutional rights. After careful

review, we affirm.

      While on routine patrol, Pittsburgh Police Officers Dixon and Grey

watched as an SUV drove through a stop sign at a high rate of speed. Due to

the motor vehicle violations, they pursued the SUV and pulled it over.

      When Officers Dixon and Grey approached the vehicle, an odor of

marijuana streamed from the car as the driver lowered his window. The

officers requested identification from the driver, Terrence Morgan, and his

passenger, Alton. Both men complied.
J-S62005-19



        After conducting identification and warrant checks, the officers

discovered that Morgan had an outstanding arrest warrant and a suspended

driver’s license. As a result, Morgan was placed in custody, and Alton was

patted down. No weapons were found on Alton.

        However, during the pat down, Officer Dixon felt a bulge in Alton’s

pocket that, based on his training and experience, indicated to him it was

potential contraband. Shortly thereafter, Alton acknowledged that the object

was ecstasy, and Officer Dixon placed him in custody. The officers then

performed a search of Morgan’s vehicle and discovered a loaded handgun in

the glove compartment.

        Following his arrest, Alton filed a motion to suppress the ecstasy,

claiming he was subject to an illegal search. The trial court denied his motion

and held the case for trial. The court found Alton guilty of one count of

possession of a controlled substance and sentenced him to 3 to 6 months’

imprisonment.1 This appeal is now properly before us.

        In his brief, Alton raises two issues for our review: (1) the police failed

to establish the requisite reasonable suspicion to perform a protective frisk of

his person; and (2) the seizure of the pills violated the plain feel doctrine. See

Appellant’s Brief, at 9, 11.

        As an initial matter, we must address the Commonwealth’s argument

that Alton waived his second claim. The Commonwealth here contends that
____________________________________________



1   See Pa.C.S.A. 35 § 780-113(a)(16).

                                           -2-
J-S62005-19



Alton failed to include his plain feel argument in his Pa.R.A.P. Rule 1925(b)

statement. See Appellee’s Brief, at 35. Our review of Alton’s 1925(b)

statement confirms the Commonwealth’s assertion, and Alton has not filed a

reply brief responding to the Commonwealth’s claim. As our Supreme Court

has noted, “any appellate issues not raised in a Rule 1925(b) statement will

be deemed waived.” Commonwealth v. Hill, 16 A.3d 484, 494 (Pa. 2011).

Therefore, based on our review of his Rule 1925(b) statement, we agree with

the Commonwealth that Alton waived this claim.

      In his sole preserved issue on appeal, Alton contends the trial court

erred in denying his motion to suppress. In particular, Alton argues that Officer

Dixon failed to establish there was reasonable suspicion to believe he was

armed and dangerous. See Appellant’s Brief, at 11. Moreover, because Officer

Dixon lacked reasonable suspicion, Alton asserts that he was subject to an

illegal frisk as a result. See id. Therefore, Alton concludes the ecstasy was

illegally obtained.

      The Commonwealth counters that Officer Dixon possessed the requisite

reasonable suspicion to conduct a frisk of Alton. Indeed, the Commonwealth

argues that the smell of marijuana and the driver’s arrest were specific and

articulable facts from which Officer Dixon could reasonably infer that Alton

was armed and dangerous. See Appellee’s Brief, at 24-25. As such, the

Commonwealth concludes the trial court did not err in denying Alton’s motion

to suppress.




                                      -3-
J-S62005-19



      In reviewing the denial of a suppression motion, we must determine

whether the record supports the lower court’s factual findings and whether

the legal conclusions drawn from those facts are correct. Commonwealth v.

Raglin, 178 A.3d 868, 871 (Pa. Super. 2018). While our standard of review

is highly deferential to the suppression court’s factual findings and credibility

determinations, we afford no deference to the court’s legal conclusions, and

review such conclusions de novo. See Commonwealth v. Hughes, 836 A.2d

893, 898 (Pa. 2003).

      Here, it is important to note that Alton does not challenge the initial

traffic stop or the subsequent search of the vehicle. See Appellant’s Brief, at

10. To that end, there is no dispute that Officers Dixon and Grey conducted a

lawful traffic stop, based upon violations of the Motor Vehicle Code, and a

permissible search of the vehicle. Further, our review of the record indicates

that such conduct was legally permissible. Accordingly, we will only address

whether Officer Dixon had reasonable suspicion to conduct a pat down search

of Alton after Morgan was placed in custody.

      A police-citizen encounter may implicate the liberty and privacy

interests of the citizen as guaranteed by the Fourth Amendment to the United

States Constitution and Article I, § 8 of the Pennsylvania Constitution. See

Commonwealth v. Smith, 172 A.3d 26, 31 (Pa. Super. 2017). Fourth

Amendment jurisprudence recognizes three levels of interactions between

police officers and citizens: (1) a mere encounter; (2) an investigative

detention; and (3) a custodial detention. See id., at 32.

                                      -4-
J-S62005-19



      The first of these interactions is a mere encounter, which need not be

supported by any level of suspicion, as it carries no official compulsion for a

citizen to stop or respond. See Raglin, 178 A.3d at 871. The second, an

investigative detention, must be supported by reasonable suspicion; it

subjects a suspect to a stop and a period of detention, but does not constitute

an arrest. See Commonwealth v. Baldwin, 147 A.3d 1200, 1202 (Pa.

Super. 2016). Finally, a custodial detention or an arrest must be supported by

probable cause. See Commonwealth v. Collins, 950 A.2d 1041, 1046 (Pa.

Super. 2008).

      In the instant case, Officer Dixon conducted a frisk of Alton pursuant to

Terry v. Ohio, 392 U.S. 1 (1968). A Terry frisk is a type of investigative

detention in which an officer briefly detains a citizen if the officer “observes

unusual conduct which leads him to reasonably conclude, in light of his

experience, that criminal activity may be afoot.” Commonwealth v.

Fitzpatrick, 666 A.2d 323, 325 (Pa. 1995). If an officer is justified in believing

the detained individual is armed and dangerous, the officer may then conduct

a frisk of the individual’s outer garments for weapons. See Commonwealth

v. Scarborough, 89 A.3d 679, 683 (Pa. Super. 2014). Accordingly, a Terry

frisk applies to traffic stops, such as the one here, in the same way as other

typical police encounters. See Commonwealth v. Mesa, 683 A.2d 643, 646

(Pa. 1996).

      To conduct a Terry frisk for weapons, the police must have reasonable

suspicion. See Commonwealth v. Simmons, 17 A.3d 399, 403 (Pa. Super.

                                      -5-
J-S62005-19



2011). “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.” Commonwealth v. Mack, 953 A.2d

587, 590 (Pa. Super. 2008) (citation omitted). Further, the facts indicating

that an individual is armed and dangerous must be viewed under the totality

of the circumstances. See Commonwealth v. Holmes, 14 A.3d 89, 95 (Pa.

2011). If either the initial stop or the frisk is found to be unreasonable, all

evidence derived from the illegal government activity must be excluded. See

Simmons, 17 A.3d at 403.

      Alton, as an occupant of the vehicle, was subject to a Terry frisk by

Officer Dixon following Morgan’s arrest. Generally, “all companions of [an]

arrestee within the immediate vicinity, capable of accomplishing a harmful

assault on the officer, are constitutionally subject to the cursory ‘pat-down’

reasonably    necessary   to   give   assurance   that   they   are   unarmed.”

Commonwealth v. Jackson, 907 A.2d 540, 543-44 (Pa. Super. 2006) (citing

United States v. Berryhill, 445 F.2d 1189, 1193 (9th Cir. 1971). In other

words, an arrestee’s companion, like Alton, may be frisked if there is

reasonable suspicion that the companion is armed and dangerous. See id., at

544-45. However, we cannot conclude in this case that Officer Dixon

established the requisite reasonable suspicion to pat down Alton for weapons.

      Here, Officer Dixon identified no specific, articulable facts that would

indicate Alton was armed or dangerous. The pat down, as Officer Dixon

testified, was performed based on the totality of the circumstances in this

                                      -6-
J-S62005-19



case; namely, the smell of marijuana and Morgan’s outstanding arrest

warrant. See N.T., Hearing, 06/12/18, at 8. Although the smell of marijuana

may indicate illegal activity, Pennsylvania does not recognize the “guns follow

drugs” presumption as a basis to justify a frisk for weapons. See

Commonwealth v. Grahame, 7 A.3d 810, 816 (Pa. 2010). In addition, there

is no evidence that Alton’s conduct conveyed a threat of danger to Officer

Dixon. The pat down of Alton was therefore illegal due to the absence of

reasonable suspicion.

      Although the suppression court incorrectly found reasonable suspicion

existed here to frisk Alton, the error is not consequential to our conclusion

because the suppression court’s legal findings are not binding on this Court.

See In re O.J., 958 A.2d 561, 564 (Pa. Super. 2008). Moreover, “if the record

supports the result reached by the suppression court, we may affirm on any

ground.” Commonwealth v. Brown, 64 A.3d 1101, 1105 n.3 (Pa. Super.

2013) (citation omitted). Therefore, we can affirm the trial court’s denial of

Alton’s motion to suppress if we conclude another basis exists to justify the

Terry frisk here.

      In its brief, the Commonwealth asserts there is an alternative basis upon

which to affirm the suppression court’s decision in this case: the inevitable

discovery doctrine. See Appellee’s Brief, at 27. The Commonwealth argues

there was probable cause to search Morgan’s car based upon the odor of

marijuana that was detected by the officers during the traffic stop. See id.,

at 31-32. After police discovered the firearm inside the vehicle, the

                                     -7-
J-S62005-19



Commonwealth asserts that Officer Dixon would have had at least reasonable

suspicion to believe Alton might have also had a firearm on his person. See

id., at 34. Therefore, on that basis, the Commonwealth contends that the frisk

would have resulted in the inevitable discovery of the drugs on Alton’s person.

See id. For that reason, the Commonwealth concludes we should affirm the

suppression court’s decision.

        The inevitable discovery doctrine provides that “evidence which would

have been discovered was sufficiently purged of the original illegality to allow

admission of the evidence.” Commonwealth v. Ingram, 814 A.2d 264, 272

(Pa. Super. 2002). This doctrine requires that the evidence at issue would

have     been   discovered   inevitably   despite      the   initial   illegality.   See

Commonwealth v. Gonzalez, 979 A.2d 879, 890 (Pa. Super. 2009).

Consequently, the burden of proving such inevitable discovery, by a

preponderance of the evidence, rests with the Commonwealth. See

Commonwealth v. Hoffman, 589 A.2d 737, 743 (Pa. Super. 1991).

        Here, Alton was arrested after Officer Dixon patted him down and

located the ecstasy pills in his pocket. Although Officer Dixon lacked

reasonable suspicion to frisk Alton initially, the officer would have eventually

acquired reasonable suspicion to pat him down. The lawful search of Morgan’s

car for marijuana in which police found a firearm would have provided Officer

Dixon    with   reasonable   suspicion    to   frisk   Alton    for    weapons.      See

Commonwealth v. Powell, 934 A.2d 721, 723-24 (Pa. Super. 2007)

(holding that pat down of passenger was justified where police had already

                                      -8-
J-S62005-19



retrieved a gun from the driver). And so, Officer Dixon’s pat down of Alton

would have resulted in the inevitable discovery of the drugs in his pocket.

      Hence, we conclude that the Commonwealth established by a

preponderance of the evidence that the drugs in Alton’s pocket would have

been inevitably discovered absent police error. For that reason, the record

supports the suppression court’s finding that the evidence was not subject to

suppression.

      Judgment affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/3/2020




                                     -9-
