J-S43003-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA,                         IN THE SUPERIOR COURT OF
                                                            PENNSYLVANIA
                            Appellant

                       v.

NASIR JOHNSON,

                            Appellee                      No. 2942 EDA 2013


                 Appeal from the Order Entered September 19, 2013
                In the Court of Common Pleas of Philadelphia County
                Criminal Division at No(s): CP-51-CR-0010690-2012


BEFORE: GANTMAN, P.J., PANELLA AND OLSON, JJ.

MEMORANDUM BY OLSON, J.:                              FILED OCTOBER 02, 2015

       Appellant, the Commonwealth of Pennsylvania (Commonwealth),

appeals from an order entered on September 19, 2013 that granted a

motion to suppress filed by Appellee, Nasir Johnson (Johnson). 1                 Upon

careful consideration, we vacate and remand for further proceedings.

       Johnson was arrested on August 22, 2012 and charged with

possession with intent to deliver (35 P.S. § 780-113(a)(30)), simple

possession     (35   P.S.   § 780-113(a)(16)),     and   criminal   conspiracy    (18

Pa.C.S.A. § 903). Following a preliminary hearing on September 7, 2012, all

charges were held for court.           After several continuances, Johnson filed a

____________________________________________


1
   In its notice of appeal, the Commonwealth certified that the September
19, 2013 order will terminate or substantially handicap the prosecution of
this case. Hence, we have jurisdiction over this appeal pursuant to Pa.R.A.P.
311(d).
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motion to suppress on July 14, 2013. The trial court convened a hearing on

Johnson’s motion on September 10, 2013.

     At   Johnson’s     suppression   hearing,   the   Commonwealth          called

Philadelphia Police Officer Padraic Feeney, who was the sole witness to offer

testimony at the proceeding.    The trial court summarized Officer Feeney’s

testimony as follows.

     At approximately 11:30 [p.m.] on August 22, 2012 [P]olice
     [O]fficer Feeney and [his] partner Officer McGrorty were working
     in an unmarked vehicle at or near the area of the 1500 block of
     Longshore Avenue in the City of Philadelphia. The [o]fficers
     observed [Johnson] operating a gold Chevy Malibu with a
     Virginia [license] plate, traveling southbound from the 7000
     block of Large Street into an intersection[. At that location,
     Johnson came to a sudden] stop and permitted another
     individual to enter the vehicle[. Officer Feeney described] that
     individual as an Hispanic male.

     Based upon [the abrupt stop of Johnson’s vehicle], the officers
     radioed for backup and continued southbound activating their
     lights and sirens to issue a car stop. The intention of [Officer
     Feeney] was to issue a motor vehicle violation[, pursuant to 75
     Pa.C.S.A. § 3710], obstructing an intersection.

     The vehicle [operated by Johnson stopped] on command at 1500
     Longshore Avenue. While [Officer Feeney] indicated that the
     occupants of the vehicle did not comply immediately [with the
     officer’s] commands to [show] their hands, eventually [the
     occupants] did comply.

     [Next, Officer Feeney requested] that the occupants exit the
     vehicle.   After the males [] removed themselves from the
     vehicle, [Officer] Feeney indicated that he saw “a clear plastic
     [Ziploc] baggie, not in its entirety, just basically the corner of it
     sticking out of a panel of the center console.” Based upon that
     observation, solely without any indication of drugs or
     paraphernalia being seen, [O]fficer Feeney call[ed] his Sergeant
     to the scene, who then radio[d] for a narcotics canine officer to


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        come [] to conduct a search of the vehicle, along with a canine,
        trained for that specific purpose.

        Although it isn’t clear, the record appears that the time period
        between the stop of the vehicle and the arrival of the canine
        sniffing dog may have been somewhere between the twenty (20)
        minutes to two (2) hours. The canine alert[ed] positive for
        contraband[, which led to the] procurement of a search warrant,
        delivered at 5:15 a.m. The car [was] searched, resulting in a
        seizure of 595 packets containing a blue insert of off-white
        powder, alleged[ly] heroin.       [Johnson was] arrested and
        [$700.00 was recovered from his person].

Trial Court Opinion, 1/16/15, at 2-3.

        Based on the foregoing findings of fact, the trial court, by order

entered on September 19, 2013, suppressed all of the evidence recovered

from Appellee and his vehicle. Thereafter, the Commonwealth filed a timely

notice of appeal along with a concise statement of errors for which it sought

appellate review. The trial court issued a responsive opinion on January 16,

2015.

        In its brief, the Commonwealth raises the following question for our

review:
          Did the lower court err by suppressing hundreds of packets
          of heroin where the police properly detained defendant,
          following a lawful traffic stop, based upon a reasonable
          suspicion of criminal activity?

Commonwealth’s Brief at 3.

        The Commonwealth challenges an order that granted Johnson’s motion

to suppress. It maintains that Officer Feeney and his partner conducted a

lawful traffic stopped based upon probable cause that Johnson committed a

violation of the Motor Vehicle Code.    The Commonwealth also asserts that



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Officer Feeney had lawful authority to order Johnson and the other

occupants out of the vehicle during the course of a lawful vehicle stop.

Lastly, the Commonwealth asserts that Officer Feeney possessed reasonable

suspicion to detain Johnson pending a canine sniff based upon his

observation of the corner of a Ziploc baggy protruding from a non-factory

compartment in the center console of the vehicle. Because Officer Feeney

possessed   reasonable   suspicion,   the   Commonwealth       concludes   that

Johnson’s detention was constitutionally justified and that the ensuing

searches and seizures were lawful.

      Our standard of review over such claims is as follows.

      In appeals from orders granting suppression, our scope of review
      is limited to the evidence presented at the suppression hearing.
      In the Interest of L.J., 79 A.3d 1073, 1088–1089 (Pa. 2013).
      Thus, we may consider only the evidence from [defense]
      witnesses together with the Commonwealth's evidence that,
      when read in context of the record at the suppression hearing,
      remains uncontradicted. Id.; Commonwealth v. Whitlock, 69
      A.3d 635, 637 (Pa. Super. 2013). As for the standard of review,
      we apply no deference to the suppression court's legal
      conclusions. Whitlock, 69 A.3d at 637. In contrast, we defer to
      the suppression court's findings of fact, “because it is the fact-
      finder's sole prerogative to pass on the credibility of the
      witnesses and the weight to be given to their testimony.” Id.

Commonwealth v. Davis, 102 A.3d 996, 999 (Pa. Super. 2014) (parallel

citations omitted).

      There is no dispute in this case that Officer Feeney and his partner

lawfully stopped Johnson’s vehicle and that they enjoyed the authority to

remove the occupants from the car.      Instead, the central question in this


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case is whether the canine sniff impermissibly extended the traffic stop in

the absence of reasonable suspicion of criminal activity. See Rodriguez v.

United States, 2015 WL 1780927, *5 (U.S. 2015).

      The following principles govern our assessment of whether an officer

possesses reasonable suspicion to extend a traffic stop in order to conduct a

canine sniff.

      A police officer may detain an individual in order to conduct an
      investigation if that officer reasonably suspects that the
      individual is engaging in criminal conduct. Commonwealth v.
      Cook, 735 A.2d 673, 676 (Pa. 1999). “This standard, less
      stringent than probable cause, is commonly known as
      reasonable suspicion.” Id. In order to determine whether the
      police officer had reasonable suspicion, the totality of the
      circumstances must be considered. In re D.M., 781 A.2d 1161,
      1163 (Pa. 2001). In making this determination, we must give
      “due weight ... to the specific reasonable inferences [the police
      officer] is entitled to draw from the facts in light of his
      experience.” Cook, 735 A.2d at 676 (quoting Terry v. Ohio,
      392 U.S. 1 (1968)). Also, the totality of the circumstances test
      does not limit our inquiry to an examination of only those facts
      that clearly indicate criminal conduct.       Rather, “[e]ven a
      combination of innocent facts, when taken together, may
      warrant further investigation by the police officer.” Cook, 735
      A.2d at 676.

Commonwealth v. Rodgers, 849 A.2d 1185, 1189 (Pa. 2004) (parallel

citations omitted).

      “[R]easonable suspicion does not require that the activity in question

must be unquestionably criminal before an officer may investigate further.”

Id. at 1190.    “Rather, the test is what it purports to be — it requires a

suspicion of criminal conduct that is reasonable based upon the facts of the

matter.” Id.

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       We hold the trial court erred as a matter of law in granting the

suppression motion.        The trial court failed to consider the totality of the

circumstances and give Officer Feeney the benefit of the inferences he drew

from those circumstances. The record shows that Officer Feeney reasonably

suspected that criminal activity was afoot and that Johnson was in

possession of contraband at the time of the traffic stop.

       In this case, Officer Feeney and his partner stopped Johnson’s car at

11:30 p.m. after watching him stop abruptly in an intersection and nearly

cause an accident. The officers ordered all of the occupants out of the car

because they engaged in furtive movements during which the officers lost

sight of the occupants’ hands. After the occupants exited the vehicle, Officer

Feeney observed the corner of a Ziploc baggy protruding from a non-factory

compartment2 near the passenger side floorboards of the vehicle’s center

console. Officer Feeney knew from his experience in investigating narcotics

offenses    that    unconventional      vehicle   compartments   were   used   for

transporting drugs.3      The officer testified explicitly that the presence of a

____________________________________________


2
   Officer Feeney’s characterization of the vehicle compartment                as
unconventional was not contested at the suppression hearing.
3
   A police officer may consider the “modes or patterns of operation of
certain kinds of lawbreakers” in drawing inferences and making deductions
about the presence of criminal activity. Commonwealth v. Epps, 608 A.2d
1095, 1096 (Pa. Super. 1992).




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clear plastic bag in the particular location where it was observed led him to

believe that Johnson was engaged in drug-related activity:

      Over my experience as an officer, I’ve encountered narcotics
      jobs where in vehicles there’s compartments that are
      manipulated to hold narcotics.

      And I believe in this vehicle with the clear plastic bag – Ziploc
      baggy sticking out from where it was sticking, I believe it may
      have been a package for narcotics at that time.

N.T., 9/10/13, at 11. Under our prevailing legal standard, which emphasizes

the totality of the circumstances, this testimony was sufficient to establish

the requisite reasonable suspicion.

      The trial court, however, opined that Officer Feeney’s observation of

the “tip of a baggy, nothing more” failed to demonstrate reasonable

suspicion. This assessment is legally flawed. First, the trial court viewed the

officer’s observations in isolation, and not in the context of the totality of the

circumstances, which included the location where the baggy was observed

as well as the officer’s experience.     Secondly, the trial court appears to

overlook that Officer Feeney’s testimony established a reasonable suspicion

of criminal activity based upon objective and observable facts; he did not

need to establish his suspicions to a level of certainty, or even a fair

probability.   Lastly, we find the instant case easily distinguishable from

Commonwealth v. Lopez, 609 A.2d 177 (Pa. Super. 1992), on which the

trial court relied.   In Lopez, the investigating trooper testified that he

prolonged the traffic stop based on his “policeman’s intuition.”         Here, in


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contrast, Officer Feeney pointed to specific factors that supported his belief

that criminal activity was afoot.     Thus, Lopez does not support the

conclusion that reasonable suspicion was absent in this case.

      In sum, Officer Feeney articulated a particularized suspicion, based on

objective physical evidence and a trained officer's reasonable inferences,

that Johnson was engaged in drug-related activity. We therefore conclude

that Officer Feeney’s observations furnished reasonable suspicion to suspect

that criminal activity was afoot.     Because the officer was justified in

detaining Johnson until a canine sniff could be conducted, suppression of the

seized evidence was improper.

      Suppression order vacated.    Case remanded for further proceedings.

Jurisdiction relinquished.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/2/2015




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