J-S15044-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellant

                       v.

BLAINE MATTHEW WARFIELD

                            Appellee                No. 1075 MDA 2014


                 Appeal from the Order Entered June 24, 2014
                In the Court of Common Pleas of Clinton County
              Criminal Division at No(s): CP-18-CR-0000129-2014


BEFORE: LAZARUS, J., WECHT, J., and JENKINS, J.

MEMORANDUM BY JENKINS, J.:                           FILED APRIL 07, 2015

        The Commonwealth appeals from the trial court’s order granting Blaine

Warfield’s motion to suppress. We conclude that there were valid grounds to

stop Warfield for an investigative detention to determine whether Warfield

furnished liquor to minors. Accordingly, we reverse and remand for further

proceedings consistent with this memorandum.

        Warfield was charged with furnishing liquor to minors1 based on a

series of events in and around Lock Haven, Pennsylvania on October 5,

2013.2 Warfield filed a pretrial motion to suppress alleging that liquor code
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1
    18 Pa.C.S. § 6310.1.
2
  Warfield also was charged with unlawful acts relating to liquor beverages
(“unlawful acts”) under 47 P.S. § 4-493. Following a preliminary hearing, a
magisterial district justice dismissed the unlawful acts charge. The case
proceeded to the trial court on the furnishing liquor charge alone.
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enforcement officers stopped him and his companions in violation of his

constitutional rights.     The trial court held a suppression hearing in which

three liquor code enforcement officers testified for the Commonwealth.

There were no defense witnesses. On June 24, 2014, the trial court entered

an   order    and   opinion    granting        Warfield’s   motion   to   suppress.   The

Commonwealth timely filed a notice of appeal3 and a Pa.R.A.P. 1925(b)

statement of matters complained of on appeal.                   The trial court filed a

Pa.R.A.P. 1925(a) opinion incorporating its June 24, 2014 opinion by

reference.

       The Commonwealth raises two issues in this appeal:

          1. Did the trial court err in finding that the interaction
             between the officer and the defendant was an
             investigative detention?

          2. Did the trial court err in finding that any investigative
             detention was not supported by reasonable
             suspicion?

Brief For Appellant, p. 4.

       When the Commonwealth appeals from a suppression order, our scope

of review consists of the evidence from the defendant’s witnesses together

with the evidence of the prosecution that, when read in the context of the

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3
   The Commonwealth may appeal an interlocutory order suppressing
evidence when it certifies in its notice of appeal that the order terminates or
substantially handicaps the prosecution. Pa.R.A.P. 311(d); Commonwealth
v. Whitlock, 69 A.3d 635, 636 n. 2 (Pa.Super.2013). The Commonwealth
provided the required certification in its notice of appeal.



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record as a whole, remains uncontradicted.     Whitlock, supra, 69 A.3d at

637. We defer to the suppression court’s findings of fact that are supported

by the record because, as the finder of fact, the suppression court has the

prerogative to decide the credibility of the witnesses and the weight of their

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

not bound by the suppression court’s conclusions of law, and we must

determine if the suppression court properly applied the law to the facts.

Whitlock, supra, 69 A.3d at 637.

      The relevant facts of this case, derived from the certified record in

accordance with the above scope and standards of review, are as follows.

On October 5, 2013, Officer Harbach and other liquor code enforcement

officers followed Warfield’s car to four establishments in or near Lock Haven.

N.T., 6/18/14, pp. 11-14 (suppression hearing). Warfield was driving, and

two young males accompanied Warfield.         Id.   Officer Harbach followed

Warfield in one vehicle, and two other officers followed in a second vehicle.

Id. at 11.   At the first stop, a state liquor store, Warfield walked into the

store alone and purchased items that he carried back to the car in plastic

bags. Id. at 31-33. At the second stop, Puff’s Six Pack, an establishment

that sells alcoholic beverages, Warfield walked inside alone and purchased

one 6-pack of bottles. Id. at 15. He returned to his car and dropped off the

6-pack, and then he walked back into the store alone and purchased one 12-

pack of cans.   Id.   The fact that Warfield made two separate purchases


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indicated that he purchased alcoholic beverages, because Pennsylvania law

prohibits restaurant licensees such as Puff’s from selling more than two 6-

packs in one sale. Id. at 16.

      At the third stop, one of the two young males purchased what

appeared to be soda. N.T., 6/18/14, pp. 33-34.        At the final stop, Eagle

Distributors, Warfield walked inside alone and purchased one 30-pack of

Busch Beer. Id. at 34-35.

      Based on Warfield’s string of purchases, Officer Harbach suspected

that the two males with Warfield were minors. N.T., 6/18/14, p. 15. She

testified that “[it] is a red flag … when somebody is making all the purchases

[alone and] there [are other] occupants, [because] if [the other occupants]

were 21 [they] could have made it all in one single sale … they all could

have carried [alcoholic beverages] out.” Id.

      Following the final purchase at Eagle Distributors, the officers followed

Warfield’s car to his residence on North Fairview Street. N.T., 6/18/14, pp.

14, 43.   Officer Harbach parked her car two car lengths behind Warfield’s

car. Id. at 14-15. When Warfield and the two males exited Warfield’s car,

Officer Harbach observed that “all occupants were in possession of alcoholic

beverages, and they were walking up towards me because I was actually

standing directly in front of their residence.”   Id. at 14. Upon viewing all

three males in possession of alcoholic beverages, Officer Harbach identified

herself as a liquor code enforcement officer and instructed the males to


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“drop the alcohol.”4 Id. at 17. Officer Harbach also directed the males to

produce identification and sit down on the ground. Id. at 17, 26. Warfield’s

identification showed that he was 21 years old; the other two individuals

were under age 21. Id. at 18.

       The Commonwealth argued in the trial court that the events in front of

Warfield’s residence were a “mere encounter” which did not require the

liquor code enforcement officers to harbor any suspicion of criminal

wrongdoing. Warfield countered that the events constituted an investigative

detention for which the officers needed (but lacked) reasonable suspicion of

criminal activity.      The trial court concluded that the incident was an

investigative detention, and that the officers lacked reasonable suspicion of

criminal activity.

       In this Court, the Commonwealth raises two arguments: (1) the

incident with Warfield was a “mere encounter,” and (2) even if it was an

investigative detention, Officer Harbach had reasonable suspicion to conduct

an investigative stop.          We conclude that the incident was a valid

investigative detention supported by reasonable suspicion that Warfield

illegally furnished liquor to minors.



____________________________________________


4
   The other two officers arrived at the scene after Officer Harbach
intercepted the males and initiated their detention. The trial court correctly
focused on Officer Harbach as the crucial state actor in this case.



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       The Fourth Amendment to the United States Constitution and Article I,

Section 8 of the Pennsylvania Constitution protect individuals against

unreasonable searches and seizures. Commonwealth v. Miller, 56 A.3d

424, 429 (Pa.Super.2012). A seizure is a restraint on personal liberty under

circumstances in which a reasonable person would not feel free to leave.

Lyles, 97 A.3d at 303.           Factors which determine whether police have

effectuated a seizure include, but are not limited to: (1) the presence or

absence of police excesses; (2) whether there was physical contact; (3)

whether police directed the citizen’s movements; (4) police demeanor and

manner of expression; (5) the location of the interdiction; (6) the content of

the questions and statements; (7) the existence and character of the initial

investigative detention, including its degree of coerciveness; (8) the degree

of   seamlessness       between       the   original    encounter    and    subsequent

developments; (9) whether the officer has told the citizen that he is free to

depart; and (10) whether the officer has told the citizen that he is not

required to consent to the search. Commonwealth v. Strickler, 757 A.2d

884, 888-89 (Pa.2000).

       There are three categories of interactions between citizens and police.

In   evaluating   the    level   of   interaction,     courts   conduct    an   objective

examination of the totality of surrounding circumstances. Lyles, 97 A.3d at

302.   The first interaction, a “mere encounter”, does not carry any official

compulsion to stop or respond and therefore does not require the police


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officer to have any level of suspicion.     Id.    A mere encounter is not a

seizure, because a reasonable person would feel free to leave or terminate

the encounter.    Id. at 302-03.    The second interaction, an “investigative

detention”, is a seizure which subjects an individual to a stop and temporary

detention but is not so coercive as to constitute the functional equivalent of

an arrest.    Strickler, 757 A.2d at 889.         An investigative detention is

permissible if the police officer has a reasonable and articulable suspicion

that the person seized is engaged in criminal activity, and the detention may

continue only so long as is necessary to confirm or dispel such suspicion.

Id.

      The third interaction, an arrest or custodial detention, the most

restrictive encounter, is a seizure that must be supported by probable cause.

Strickler, 757 A.2d at 889. Probable cause exists

             when the facts and circumstances which are within
             the knowledge of the officer at the time of the arrest,
             and of which he has reasonably trustworthy
             information, are sufficient to warrant a man of
             reasonable caution in the belief that the suspect has
             committed or is committing a crime. The question
             we ask is not whether the officer’s belief was correct
             or more likely true than false. Rather, we require
             only a probability, and not a prima facie showing, of
             criminal activity. In determining whether probable
             cause exists, we apply a totality of the circumstances
             test.

Commonwealth v. Martin, 101 A.3d 706, 721 (Pa.2014) (italics in

original).




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      The incident in this case exceeds the bounds of a mere encounter,

because Officer Harbach exerted “official compulsion to stop or respond” by

directing Warfield and the two minors to “drop the alcohol”, sit on the

ground and produce identification.    Lyles, 97 A.3d at 302.     A reasonable

person would not have felt free to leave or to terminate this encounter.

Compare Lyles at 304-06 (interaction did not escalate beyond mere

encounter when officers approached defendant and another man in front of

abandoned building in area where numerous burglaries had recently

occurred, asked what they were doing there, and requested identification;

officer’s jotting down of identification information, as opposed to attempting

to memorize it, did not restrain defendant’s freedom of movement; officer’s

request was not accompanied by physical restraint, manifestation of

authority, or mandate to comply; and officer did not tell defendant that he

was not free to leave, or brandish a weapon).

      This incident falls within the scope of an investigative detention, which

Officer Harbach had the right to make if she had reasonable suspicion that

criminal activity was afoot. Strickler, 757 A.2d at 889. In the course of an

investigatory stop, an officer may frisk the individual’s outer garments if he

has reasonable suspicion that the suspect is armed and dangerous.

Commonwealth v. Clemens, 66 A.3d 373, 381 (Pa.Super.2013).                 The

officer also can take other reasonable measures designed to protect himself

during an investigatory detention. See, e.g., Commonwealth v. Revere,


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888    A.2d   694,   707    (Pa.2005)     (“there   are   certain   exigencies—and

particularly, the need for safety or security in conducting and completing an

investigatory detention — the existence of which would make it reasonable

under the authority of Terry [v. Ohio, 392 U.S. 1 (1968)] … to place a

suspect in a vehicle and transport him a short distance during an

investigatory detention”); see also United States v. Ramires, 307 F.3d

713,   716    (8th   Cir.2002)   (based    on   reasonable      suspicion   of   drug

manufacturing, officers authorized to order defendants out of crawl space at

gunpoint and handcuff them, because drug trafficking is often accompanied

by dangerous weapons). On the other hand, “if the protective search goes

beyond what is necessary to determine if the suspect is armed, it is no

longer valid under Terry … ” Minnesota v. Dickerson, 508 U.S. 366, 373

(1993).

       Officer Harbach reasonably suspected that Warfield was furnishing

liquor to minors based on several factors: (1) the youthful appearance of the

two passengers in Warfield’s car, (2) Warfield’s solo purchases of alcohol (or

what    Officer   Harbach    reasonably     believed      was   alcohol)    at   three

establishments while the two young males waited in Warfield’s car, and (3)

Officer Harbach’s observation, from a lawful vantage point, of Warfield and

the two young males carrying alcohol in plain view outside of Warfield’s

residence. Therefore, Officer Harbach had the authority to stop Warfield and

the other two males for an investigative detention. See Commonwealth v.


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Hayes, 898 A.2d 1089, 1093-94 (Pa.Super.2006) (officer had articulable

and adequate suspicion that defendant was furnishing alcohol to minors so

as to support investigative detention in which officer stopped vehicle as it

backed out of parking space; officer saw vehicle in front of liquor store and

saw driver pass something to defendant which he thought was money,

officer formed suspicion that driver was probably underage based on

experience     as   10-year     veteran        of   police   department’s   division   for

investigating furnishing alcohol to minors, defendant began walking towards

liquor store, but turned back before she went inside and yelled to others in

vehicle, “apple, apple,” and then “oh watermelon,” and defendant purchased

two bottles of what officer believed was alcohol based on appearance and

place of purchase).5

       Officer Harbach’s command to “drop the alcohol” was a reasonable

measure to protect herself during the investigative detention.                  Revere,

supra.     At the time of the stop, Warfield or his companions conceivably

could have attacked Officer Harbach with the bottles of alcohol in their

hands.    The command to drop the alcohol was a reasonable measure to

prevent Warfield or his friends from using the bottles as weapons.



____________________________________________


5
  Notably, Hayes also comments: “It is per se reasonable for one to assume
that when a person goes into a liquor store in Pennsylvania and emerges
with bottles, that person has purchased alcohol.” Id. at 1094.



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      Officer Harbach had the authority to examine Warfield’s license and

the   other    males’     licenses   during   the   investigatory   detention.

Commonwealth v. Bennett, 827 A.2d 469, 478 (Pa.Super.2003) (deputy

was authorized to stop defendant and request identification based on

reasonable suspicion that defendant was engaging in underage drinking).

Upon determining from the licenses that Warfield was 21 and the two other

males were underage, Officer Harbach had probable cause to believe that

Warfield was furnishing liquor to minors in violation of 18 Pa.C.S. § 6310.1.

      For these reasons, we conclude that the trial court erred by granting

Warfield’s motion to suppress the evidence obtained as part of the

investigatory detention outside of Warfield’s residence.

      Order reversed. Case remanded. Jurisdiction relinquished.




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/7/2015




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