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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37


COMMONWEALTH OF PENNSYLVANIA,            :     IN THE SUPERIOR COURT OF
                                         :          PENNSYLVANIA
                       Appellant         :
                 v.                      :
                                         :
EDWARD YOUNG,                            :
                                         :
                       Appellee          :
                                         :     No. 573 EDA 2016

                  Appeal from the Order January 14, 2016
            In the Court of Common Pleas of Philadelphia County
            Criminal Division at No(s): CP-51-CR-0010477-2015

BEFORE: BOWES, J., DUBOW, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY DUBOW, J.:                            FILED APRIL 11, 2017

     The Commonwealth appeals from the January 14, 2016 Order entered

in the Philadelphia County Court of Common Pleas granting the Motion to

Suppress filed by Appellee, Edward Young. After careful review, we conclude

that the trial court erred as a matter of law when it concluded that police

officers lacked reasonable suspicion to conduct an investigatory detention of

Appellee because: (i) Appellee and three officers were engaged in a mere

encounter when Appellee volunteered that he had marijuana on his person

and began reaching for his pocket; and (ii) as soon as Appellee admitted to

being in possession of marijuana, officers had probable cause to arrest

Appellee and to search him incident to that arrest. Accordingly, we reverse

the trial court’s Order and remand for further proceedings consistent with

this Memorandum.
J. S15023/17


      On October 2, 2015, Appellee was arrested and charged with Carrying

a Firearm Without a License, Possession of Marijuana, and Carrying a

Firearm on Public Streets in Philadelphia.1

      Appellee filed a Motion to Suppress, arguing that he had been subject

to an illegal detention and arrest. On January 14, 2016, the trial court heard

testimony on the Motion to Suppress. In its Pa.R.A.P. 1925(a) Opinion, the

trial court detailed the often-repetitive testimony adduced at the hearing.

The portions relevant to our disposition are as follows:

      Philadelphia Police Officer, Antonio Nieves, assigned to the 39th
      District, testified that on October 2, 2015, at approximately 9:00
      p.m., he performed his tour of duty at 1413 West Erie Avenue in
      the city of Philadelphia. Officer Nieves stated that he, along with
      his partners, Officers Bradley and Mertha, were patrolling this
      location because 1413 Erie Avenue is a known location for
      narcotics sales. He further noted that he receives constant
      complaints for narcotics sales and has made numerous arrests at
      the location. It was at this location that Officer Nieves, while
      driving in a patrol car, first came into contact with [Appellee].
      He observed [Appellee] standing in front of a Chinese store in
      the rain at 1413 Erie Avenue from his vehicle and identified
      [Appellee] in court.        Officer Nieves testified that he was
      patrolling the area and looking at the front of the store to see
      who was there. After Officer Nieves drove by a few times, he
      noticed [Appellee] was still standing in the rain.

      Approximately an hour passed before Officer Nieves and his two
      partners returned, got out of the unmarked patrol car, and
      identified themselves as police officers to [Appellee] since they
      were not wearing their uniforms.           After Officer Nieves
      approached [Appellee], he asked him what he was doing.
      [Appellee] replied that he was waiting for a bus. Officer Nieves
      stated to the court that he saw buses come and leave at this

1
  18 Pa.C.S. § 6106(a)(1); 35 P.S. 780-113(a)(31); and 18 Pa.C.S. 6108,
respectively.



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      location when he went by a few times. Officer Nieves then
      asked [Appellee] if he had anything on his person that could
      harm himself or his partners. [Appellee] responded by saying,
      “No.... All I have is two bags of weed.”

                                    ***

      Subsequent to asking [Appellee] what he was doing there,
      Officer Nieves asked if he had anything on his person that could
      hurt Officer Nieves or his partners. Officer Nieves explained that
      he asked this question for officer safety.        [Appellee] then
      responded by saying that he had two bags of weed and then
      started to reach for his pocket. Officer Nieves testified that he
      then told [Appellee] not to reach towards his pocket and
      proceeded to reach into [Appellee’s] pocket himself.        When
      Officer Nieves reached into [Appellee’s] right coat pocket to
      retrieve the marijuana, he recovered a black Ruger .380
      handgun, with a serial number 37332000. Officer Nieves stated
      that the handgun was loaded with six live rounds in the
      magazine and one round in the chamber and later placed on
      Property Receipt No. 3222254. He noted that the handgun was
      recovered from the pocket [Appellee] attempted to reach
      towards.

      Officer Nieves testified that after he recovered the handgun, he
      observed Officer Mertha reach into the Defendant's pants pocket
      in his presence and recover marijuana. The recovered marijuana
      was later placed on Property Receipt No. 3222255. Officer
      Nieves stated that he has made over ten (10) arrests in the
      West Erie Avenue area including a firearms arrest around the
      corner on Broad Street months apart from the instant matter.
      Officer Nieves described the area as one with "a lot of narcotics
      sales going on. It is very violent in that area and there have
      been numerous shootings and homicides in that general area."

Trial Court Opinion, filed 6/21/16, at 1-3 (references to the record omitted).

      At the close of the hearing, the trial court granted Appellee’s Motion to

Suppress.

      The Commonwealth filed a timely Notice of Appeal.              Both the

Commonwealth and the trial court complied with Pa.R.A.P. 1925.



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      The Commonwealth raises the following issue for our review:

      Did the lower court err by suppressing defendant’s gun on the
      ground that police had no reasonable suspicion of criminal
      activity where – upon being approached and briefly questioned
      at a drug sales location in a violent high crime area – [Appellee]
      said he had “weed” and reached for his pocket?

Commonwealth’s Brief at 3.

      Our standard of review applicable to suppression determinations is

well-settled.

      When the Commonwealth appeals from a suppression order, we
      follow a clearly defined standard of review and consider only the
      evidence from the defendant's witnesses together with the
      evidence of the prosecution that, when read in the context of the
      entire record, remains uncontradicted. The suppression court's
      findings of fact bind an appellate court if the record supports
      those findings. The suppression court's conclusions of law,
      however, are not binding on an appellate court, whose duty it is
      to determine if the suppression court properly applied the law to
      the facts.

Commonwealth v. Nester, 709 A.2d 879, 880-81 (Pa. 1998).

      The trial court’s findings of facts are not at issue in the instant appeal.

Rather, the Commonwealth argues that the trial court erred in its

conclusions of law because police officers had probable cause to arrest

Appellee for possession of a controlled substance or, at a minimum, had

reasonable suspicion to detain Appellee for investigation and conduct a frisk.

Commonwealth’s Brief at 11-12. After careful review, we agree.

      The Fourth Amendment of the United States Constitution and Article 1,

Section 8 of our state Constitution protect citizens from unreasonable

searches and seizures. In re D.M., 781 A.2d 1161, 1163 (Pa. 2001). “To


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secure the right of citizens to be free from . . . [unreasonable searches and

seizures], courts in Pennsylvania require law enforcement officers to

demonstrate ascending levels of suspicion to justify their interactions with

citizens as those interactions become more intrusive.” Commonwealth v.

Beasley, 761 A.2d 621, 624 (Pa. Super. 2000).         Our Supreme Court has

defined three levels of interaction between citizens and police officers: (1)

mere encounter, (2) investigative detention, and (3) custodial detention.

See Commonwealth v. Fuller, 940 A.2d 476, 478 (Pa. Super. 2007).

     This Court has explained the three levels of interaction as follows:

     A mere encounter can be any formal or informal interaction
     between an officer and a citizen, but will normally be an inquiry
     by the officer of a citizen. The hallmark of this interaction is that
     it carries no official compulsion to stop or respond.

     In contrast, an investigative detention, by implication, carries an
     official compulsion to stop and respond, but the detention is
     temporary, unless it results in the formation of probable cause
     for arrest, and does not possess the coercive conditions
     consistent with a formal arrest. Since this interaction has
     elements of official compulsion it requires reasonable suspicion
     of unlawful activity. In further contrast, a custodial detention
     occurs when the nature, duration and conditions of an
     investigative detention become so coercive as to be,
     practically speaking, the functional equivalent of an arrest.

Commonwealth v. Jones, 874 A.2d 108, 116 (Pa. Super. 2005) (citation

omitted).

     In the instant case, the trial court found that the interaction between

officers and Appellee rose to the level of an investigative detention because

“they made a show of authority by having three officers stand in front of




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him, during questioning, commanded [Appellee] to stop reaching for his

pocket, and searched his pockets.” Trial Court Opinion at 8.

      The trial court’s analysis ignores the intervening acts of Appellee.

Before officers ever “commanded [Appellee] to stop reaching for his pocket”

or “searched his pockets[,]” Appellee voluntarily told officers that he had

marijuana on his person. As soon as Appellee volunteered that information,

police had probable cause to arrest Appellee for possession of a controlled

substance. See Commonwealth v. Stokes, 389 A.2d 74, 78 (Pa. 1978)

(noting that “an admission per se is inherently reliable evidence” sufficient to

establish probable cause to arrest, but holding that “an admission

transmitted through an informant is only as reliable as its conduit is

trustworthy.”); Commonwealth v. Kondash, 808 A.2d 943, 949 (Pa.

Super. 2002) (defendant’s admission that he was in possession of

hypodermic needles “provided probable cause to believe that the pouch

contained illegal paraphernalia subject to immediate lawful seizure.”). The

officers were also authorized to search him incident to that arrest or

immediately prior to placing him under arrest.           See Commonwealth v.

Trenge, 451 A.2d 701, 710 n.8 (Pa. Super. 1982) (“[A] search conducted

immediately prior to an arrest is as valid as a search conducted subsequent

and incident to   the arrest provided    the   officer    had   probable   cause

to arrest prior to the search as long as the contraband discovered in the

search is not used as justification or probable cause for the arrest.”).



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      The question is, therefore, whether the interaction that occurred

before Appellee admitted possession of marijuana constituted a mere

encounter or rose to the level of an investigative detention.

      A mere encounter between a police officer and a citizen does not need

to be supported by any level of suspicion and “carr[ies] no official

compulsion on the part of the citizen to stop or to respond.” Fuller, supra

at 479 (citation omitted). There is no constitutional provision that prohibits

police officers from approaching a citizen in public to make inquiries of them.

See Beasley, supra at 624.

      A mere encounter may escalate into an investigatory detention or

seizure if police action becomes too intrusive. Id. “In evaluating the level

of interaction, courts conduct an objective examination of the totality of the

surrounding circumstances. We are bound by the suppression court's factual

findings, if supported by the record; however, the question presented—

whether a seizure occurred—is a pure question of law subject to plenary

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

omitted).

      When applying the totality of the circumstances test, our inquiry

focuses “on whether the suspect has in some way been restrained by

physical force or show of coercive authority.”        Id. (citation omitted).

Although no single factor controls our analysis, “[b]oth the United States and

Pennsylvania Supreme Courts have held that the approach of a police officer



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followed by questioning does not constitute a seizure.” Commonwealth v.

Coleman, 19 A.3d 1111, 1116 (Pa. Super. 2011) (citations omitted). This is

true even if the officer asks the individual whether he is carrying a weapon.

Id. (holding that officer was engaged in a mere encounter when he

approached the defendant and asked him if he had a gun). This is also true

if multiple officers approach an individual to ask him questions.     Lyles,

supra at 303-04 (finding a mere encounter where two uniformed police

officers arrived in an unmarked police car, approached the defendant, and

asked for identification). In Lyles, our Supreme Court emphasized the fact

that, although multiple officers approached the defendant, asked him what

he was doing there, and requested his identification, there were no

“circumstances of restraint of liberty, physical force, show of authority, or

some level of coercion beyond the officer’s mere employment, conveying a

demand for compliance or that there will be tangible consequences from a

refusal.” Id. at 304.

     In the instant case, Officer Nieves and his two partners exited an

unmarked patrol car and approached Appellee on a public sidewalk.       N.T.,

1/14/16, at 8.   The three officers were not in uniform, so they identified

themselves to Appellee as police officers.   Id.   The three officers did not

surround Appellee, but instead all three stood in front of him.   Id. at 18.

They then asked him two questions: first, Officer Nieves asked Appellee

“what he was doing.”    Id. at 8.   Next, concerned for his safety, Officer



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Nieves asked Appellee “if he had anything on his person that could harm

[Officer Nieves] or [his] coworkers[.]” Id. at 8, 10. At that point, Appellee

stated no, but that he was in possession of “two bags of weed.” Id. at 8.

     It is clear to this Court that, based on the case law discussed supra,

Officer Nieves and his partners were free to approach Appellee on a public

street and ask him questions.    The two brief questions that Officer Nieves

asked constituted a mere encounter, and neither the presence of other

officers nor his question about Appellee having anything “that could harm”

the officers turned this mere encounter into an investigatory detention. Nor

did the trial court find that any other circumstances prior to Appellee’s

admission constituted “[a] restraint of liberty, physical force, show of

authority, or some level of coercion beyond the officer’s mere employment,

conveying a demand for compliance or that there will be tangible

consequences from a refusal.” Lyles, supra at 304.

     Moreover, it is clear from the record and the factual findings of the

trial court that, during the mere encounter, Appellee admitted that he was in

possession of two bags of marijuana.    The subsequent seizure of Appellee

and search of his person were properly supported by probable cause.

     Therefore, the trial court erred as a matter of law when it granted

Appellee’s Motion to Suppress.    Accordingly, we reverse the trial court’s

Order and remand for further proceedings consistent with this Memorandum.

     Order reversed. Case remanded. Jurisdiction relinquished.



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 4/11/2017




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