J-A07038-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                         Appellee

                    v.

RAHSAAN CARTER

                         Appellant                   No. 2031 WDA 2014


         Appeal from the Judgment of Sentence November 18, 2014
             in the Court of Common Pleas of Cambria County
            Criminal Division at No(s): CP-11-CR-0000163-2014


BEFORE: BOWES, J., MUNDY, J., and JENKINS, J.

DISSENTING MEMORANDUM BY JENKINS, J.:                  FILED JULY 21, 2016

      I agree that, upon learning Appellant was not properly licensed and

the vehicle did not belong to him, the police had reasonable suspicion to

conduct a traffic stop/investigatory detention of Appellant, which the police

commenced by asking Appellant to turn off, and alight from, the vehicle.

However, because I disagree with the learned majority that the police had

reasonable suspicion to conduct a pat down search of Appellant’s person, I

respectfully dissent.

      Our Supreme Court has held that, once a police officer has reasonable

suspicion of criminal activity sufficient to conduct an investigative detention,

to conduct a pat down, he must possess a further “justified belief that the

individual, whose suspicious behavior he is investigating at close range, is
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armed      and    presently     dangerous      to   the   officer   or   to   others.”

Commonwealth v. Zhahir, 751 A.2d 1153, 1158 (Pa.2000).

       “In considering the evidence purported to support a Terry[1] frisk, we

are guided by common sense concerns, giving preference to the safety of

the officer during an encounter with a suspect where circumstances indicate

that the suspect may have, or may be reaching for, a weapon.”

Commonwealth v. Cooper, 994 A.2d 589, 592 (Pa.Super.2010) (internal

quotations and citation omitted).

       This Court has stated Pennsylvania’s law on pat-down searches as

follows:

       If, during the course of a valid investigatory stop, an officer
       observes unusual and suspicious conduct on the part of the
       individual which leads him to reasonably believe that the suspect
       may be armed and dangerous, the officer may conduct a pat-
       down of the suspect’s outer garments for weapons. 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.         When assessing the
       validity of a Terry stop, we examine the totality of the
       circumstances, giving due consideration to the reasonable
       inferences that the officer can draw from the facts in light of his
       experience, while disregarding any unparticularized suspicion or
       hunch.



____________________________________________


1
  Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, (1968) (holding search for
weapons in absence of probable cause to arrest must be strictly
circumscribed by exigencies which justify its initiation and must be limited to
that which is necessary for discovery of weapons which might be used to
harm officer or others nearby).



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Commonwealth v. Mack, 953 A.2d 587, 590 (Pa.Super.2008) (quoting

Commonwealth v. Wilson, 927, A.2d 279, 284 (Pa.Super.2007)) (internal

citations omitted); see also Terry, supra; In re N.L., 739 A.2d 564, 567

(Pa.Super.1999)        (“[This   Court]   cannot    evaluate    the   totality    of   the

circumstances through the grudging eyes of hindsight nor in terms of library

analysis,   but   as    understood    by    those    versed    in   the   field   of   law

enforcement.”).

      “The officer need not be absolutely certain that the individual is

armed; the issue is whether a reasonably prudent man in the circumstances

would be warranted in the belief that his safety or the safety of others was

in danger.”   Commonwealth v. Taylor, 771 A.2d 1261, 1269 (Pa.2001)

(quoting Terry, 392 U.S. at 27).                 “[I]f a suspect engages in hand

movements that police know, based on their experience, are associated with

the secreting of a weapon, those movements will buttress the legitimacy of a

protective weapons search of the location where the hand movements

occurred.” Commonwealth v. Foglia, 979 A.2d 357, 361 (Pa.Super.2009).

      In addition to suspecting an individual may be armed and dangerous,

“[i]t is . . . reasonable to subject a suspected intravenous drug user properly

detained at an investigatory stop to a limited pat down for needle possession

to promote the officer’s safety.”         Commonwealth v. Kondash, 808 A.2d

943, 948 (Pa.Super.2002). Accordingly, police may preface a Terry frisk by

asking if the detainee possesses items that may harm the police. See id.

(intravenous needles).

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      Here, the arresting officer explained his reasons for patting Appellant

down as follows:

      A: . . . I needed him to get out of the vehicle because it wasn’t
      matching up, his story.

      Q: When he exited the vehicle, based on the totality of the
      circumstances, what was your inclination as to the situation for
      your safety?

      A: I wanted to make sure that he didn’t possess anything that
      would harm myself or the other officers.

      Q: What factors up to that point gave you pause for your
      safety?

      A: The stories weren’t matching up. They said they didn’t know
      who Alicia was but they knew who Keisha was, and just that
      they are in a high crime area, parked there sitting outside the
      apartment. So I went around the front of the vehicle and I
      asked [Appellant] if there was anything on him that I needed to
      be aware of.

N.T. 5/15/2014, pp. 12-13. The officer later expressly stated that Appellant

was not making any furtive movements. Id. at 16.

      Regarding the propriety of the pat down search, the trial court simply

stated, “Detective Arcurio learned [Appellant] was sitting in the driver’s seat

of a running vehicle registered to another person, without a valid

Pennsylvania driver’s license.”   1925(a) Opinion, p. 6.      Based on these

factual findings, the trial court concluded “[t]hese facts gave Detective

Arcurio reasonable suspicion to ask [Appellant] to exit the vehicle, and to




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perform a pat down search for officer safety.”2      Id.    The Commonwealth

argues that additional facts further supported the propriety of the pat down

search: (1) that this encounter occurred in a high-crime area, (2) outside

the house of the individual police intended to arrest, and (3) Appellant’s

proffered reason for his presence was not credible.        See Commonwealth’s

Brief, p. 6.

       As previously stated, based on his location, his responses to police

inquiries, and his demeanor, the police had reasonable suspicion to conduct

an investigative detention of Appellant.         That investigative detention

effectively transformed into a vehicle stop once the police investigation

revealed Appellant was operating someone else’s vehicle without a license.

Once they learned Appellant was not licensed, the police had probable cause

to cite him for a violation of the Vehicle Code,3 despite the fact they had not

pulled Appellant over in the vehicle he was then controlling. Accordingly, it

was within the police’s prerogative to have Appellant alight from the vehicle

to continue what was now effectively a vehicle stop. See Commonwealth

v. Boyd, 17 A.3d 1274, 1277 (Pa.Super.2011) (“When a police officer

lawfully stops a motorist for a violation of the Pennsylvania Motor Vehicle
____________________________________________


2
  The trial court also stated that the pat down was incident to arrest, a
conclusion discussed infra. See Trial Court 1925(a) Opinion, pp. 6-7.
3
  75 Pa.C.S. § 1543, driving while operating privilege is suspended or
revoked.




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Code, the officer is permitted to ask the driver to step out of the vehicle ‘as

a matter of right.’”).

      However, in my opinion, the police did not articulate during the

suppression hearing sufficient additional specific facts observed from which

they could have reasonably inferred that Appellant was armed and

dangerous prior to conducting the pat down search. They did not observe

furtive movements of hands or other parts of Appellant’s body during the

investigative detention. Appellant did not reach for his waistband, move to

secret anything inside the vehicle, or act in a threatening manner towards

the police. Further, although the stop occurred in a high crime area, it was

effectively a traffic stop, and the stop occurred at noon, not the middle of

the night. In short, the police did not have reasonable suspicion to conduct

a Terry pat down search.

      Even viewing the totality of the circumstances – including Appellant’s

suspect story of why he was there and his presence outside of a house that

was in a high crime area and under surveillance – I do not believe police

observed adequate specific facts that could have justified a reasonable

suspicion and/or inference that Appellant was armed and dangerous.

Further, even if police observed such facts at the scene, they failed to

articulate those facts during the suppression hearing.

      Finally, while I recognize the paramount concern for police officer

safety, under the instant circumstances, I do not feel the police had the

requisite reasonable suspicion to conduct a lawful Terry pat down search

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based on a concern for their safety. Here, the police did not pat down an

individual they observed secreting a weapon, or a drug user who may have

had dirty needles on his person. Instead, they patted down a person who,

during the course of what was effectively a traffic stop, had not engaged in

furtive movements of any sort, and was complying with police directives.

The police had no indication that Appellant was armed, dangerous, or

possessed objects that could injure the police. Accordingly, I feel that the

pat down search of Appellant after the police asked him to alight from the

vehicle was improper.

     Accordingly, I am compelled to dissent.




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