J-S50029-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

JERRY MAHLEN BREESE

                            Appellant                 No. 2083 MDA 2015


       Appeal from the Judgment of Sentence entered November 5, 2015
               In the Court of Common Pleas of Bradford County
               Criminal Division at No: CP-08-CR-0000607-2014


BEFORE: MUNDY, STABILE, and FITZGERALD,* JJ.:

MEMORANDUM BY STABILE, J.:                              FILED JULY 22, 2016

        Appellant, Jerry Mahlen Breese, appeals from the November 5, 2015

judgment of sentence imposing six months and fifteen days to twenty-three

months and twenty-nine days of incarceration for possession of a controlled

substance and possession of drug paraphernalia.1 We vacate and remand.

        The trial court summarized the pertinent facts in its Pa.R.A.P. 1925(a)

opinion:

              On or about July 1, 2014, the Bradford County Drug Task
        Force conducted a search on 33 East Tioga Street, Canton,
        Bradford County, Pennsylvania pursuant to a search warrant.
        Canton Borough Police Officer, Sgt. [Trey] Kurtz, was requested
        to assist and detain. Upon entering the home, [Appellant] was
____________________________________________


*
    Former Justice specially assigned to the Superior Court.
1
    35 P.S. § 780-113(a)(16), (30).
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     in the kitchen area slicing a tomato.          Sgt. Kurtz detained
     [Appellant] and conducted a pat down for weapons for officer
     safety. Sgt. Kurtz felt a flat plastic container, similar to a game
     cartridge container, in [Appellant’s] front right pocket. He asked
     [Appellant] what it was and [Appellant] responded a Tylenol
     container. Sgt. Kurtz seized the container and placed it on the
     table. Sgt. Kurtz and his colleagues determined that it was not
     Tylenol in the container; rather it was Percocet, a controlled
     substance. [Appellant] was released after the search of the
     residence was complete. Although provided the opportunity,
     [Appellant] did not produce a valid prescription for the Percocet
     to the police. He was thereafter arrested.

Trial Court Opinion, 3/30/2016, at 1-2.

     The Commonwealth filed a criminal complaint against Appellant on July

28, 2014.     On October 28, 2014, Appellant filed a pretrial motion to

suppress evidence. Appellant challenged the validity of the pat-down search

that revealed the controlled substance. The trial court conducted a hearing

on December 8, 2014 and denied Appellant’s motion at the conclusion of the

hearing. The only issue before us is whether the trial court erred in denying

Appellant’s motion to suppress evidence.

     We conduct our review according to the following strictures:

           Our 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, we are bound by these findings and
     may reverse only if the court’s legal conclusions are erroneous.
     Where, as here, the appeal of the determination of the
     suppression court turns on allegations of legal error, the

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     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 our plenary
     review.

Commonwealth v. Jones, 988 A.2d 649, 654 (Pa. 2010) (internal citations

and quotation marks omitted).      We limit our review to the evidence

produced at the suppression hearing. In re L.J., 79 A.3d 1073 (Pa. 2013).

The Commonwealth bears the burden of producing evidence and establishing

that it did not violate the defendant’s rights in gathering evidence.

Pa.R.Crim.P. 581(H).

     Appellant argues Sergeant Kurtz violated Appellant’s rights under the

Fourth Amendment to the United States Constitution and Article I, § 8 of the

Pennsylvania Constitution in patting down Appellant and in seizing the

plastic container from Appellant’s pocket.   Appellant argues the pat down

was unlawful because Sergeant Kurtz did not believe Appellant was armed

and dangerous.   Appellant also argues that Sergeant Kurtz’ seizure of the

plastic container was unlawful because it was not immediately apparent to

Sergeant Kurtz that the item was unlawful.

     Police officers executing a warrant to search a place are permitted to

detain   any   persons   present   during    execution   of   the   warrant.

Commonwealth v. Stackfield, 651 A.2d 558, 560 (Pa. Super. 1994);

Commonwealth v. Hoffman, 589 A.2d 737, 741 (Pa. Super. 1991). “It is

well settled that the police may properly detain persons found on the



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premises during execution of a search warrant, in order to minimize the

possibility of harm to officers and prevent concealment or destruction of

evidence.”   Stackfield, 651 A.2d at 560.     Further, “a police officer has a

narrowly drawn authority to conduct a reasonable search for weapons, or a

protective pat-down, where […] the officer reasonably believes that criminal

activity is afoot, […] and that the suspect may be armed and dangerous.”

Id.; see also, Hoffman, 589 A.2d at 742 (noting that police officers may

conduct a pat down of individuals present at the execution of a lawful search

warrant if they “reasonably believe the person has a weapon in his

possession”).

     If, during a lawful patdown search for weapons, an officer feels a

concealed object whose criminal nature is immediately apparent, the officer

may seize that object pursuant to the plain feel doctrine. Commonwealth

v. Zahir, 751 A.2d 1153 (Pa. 1999).

            This Court has treated the phrase ‘immediately apparent’
     as essentially coextensive with probable cause, an inquiry which
     takes into account the totality of the circumstances surrounding
     the frisk, including, inter alia, the nature of the object, its
     location, the conduct of the suspect, the officer’s experience, and
     the reason for the stop. Moreover, an officer’s subjective belief
     that an item is contraband is not sufficient unless it is objectively
     reasonable in light of the facts and circumstances that attended
     the frisk.

Id. at 1163 (citations omitted). In addition, “[i]mmediately apparent means

that the officer readily perceives, without further exploration or searching,

that what he is feeling is contraband.     Commonwealth v. Pakacki, 901



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A.2d 983, 989 (Pa. 2006) (quoting Commonwealth v. Stevenson, 744

A.2d 1261, 1265 (Pa. 2000)).

     At the suppression hearing, Sergeant Kurtz testified that he did not

know Appellant prior to encountering him at the searched premises.              N.T

Hearing, 12/8/14, at 4. Appellant was not the owner or a resident of the

searched premises.   Id. at 6.    Appellant was among eight or ten persons

who were detained and handcuffed during the search.         Id. at 3-5.       Police

had a search warrant for the premises, and for the arrest of four individuals,

but Appellant was not one of the individuals to be arrested.          Id. at 5.

Sergeant Kurtz had no information on Appellant prior to encountering him

during the search.   Id. at 6.   Sergeant Kurtz testified he did not believe

Appellant was armed and dangerous, nor did he offer any evidence that he

immediately believed the seized object to be contraband, as evidenced in

this exchange between Sergeant Kurtz and defense counsel:

           Q.   Did you notice anything, despite viewing [Appellant],
     on his person that would have led you to believe he was armed
     and dangerous?

            A.    Not from looking at him, no.

          Q.    And when you conducted the patdown of [Appellant],
     what exactly did you feel?

           A.   What I recognized as just a plastic, a square plastic
     container.

           Q.   Obviously, did you know whether it was plastic
     before you held it in your hand?

           A.    I think I pushed on it a little bit, I did kinda feel like
     it was plastic. I’m not sure if – if your Honor is familiar, like a

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     Game Boy, they’re called DS, I think it’s like a case for one of
     the like a little game cartridge, it’s like an inch by a half inch,
     just a little plastic flip open used to store games for Nintendo.

           Q.    So it’s like a flat square plastic container?

           A.    Yes, yes.

           Q.    That you felt?

           A.    Yes, sir.

          Q.     And when you felt it, did you take it out of
     [Appellant’s] pocket yourself?

           A.    Yes, after he told me it was a Tylenor, yes.

           Q.     And before you took it out, you didn’t know what it
     was, is that correct?

           A.    Correct.

            Q.    In fact, you didn’t know what it was when you took it
     out, isn’t that correct?

           A.    It’s just a plastic container, correct.

           Q.    And you opened the container?

           A.    Once I – once I pulled it out and viewed it, yes.

            Q.   And you didn’t find out what it was until other
     officers searched on the internet, is that correct? Is that when
     you confirmed what it was?

           A.    Correct.

           Q.    So you didn’t know it was illegal until you actually
     took it out of his pocket, searched the internet, and found out
     what it was?

           A.    Correct.

Id. at 9-10.




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      In summary, Sergeant Kurtz testified that he had no reason to believe

Appellant was armed and dangerous, and he testified that he felt what he

believed was a plastic container in Appellant’s pocket.     Sergeant Kurtz did

not testify that he believed, prior to seizing the plastic container, that it was

contraband.     The object’s criminality became apparent only on further

investigation. For these reasons, we conclude the Commonwealth failed to

carry its burden of producing evidence that it did not violate Appellant’s

constitutional rights. Based on the evidence the Commonwealth produced at

the suppression hearing, the trial court erred in denying Appellant’s motion

to suppress evidence. We therefore vacate the judgment of sentence and

remand for further proceedings consistent with this memorandum.

      Judgment of sentence vacated.           Case remanded.         Jurisdiction

relinquished.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/22/2016




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