J-S54024-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    SCOTT M. DEBRUYCKER                        :
                                               :
                       Appellant               :   No. 205 WDA 2018

           Appeal from the Judgment of Sentence January 18, 2018
     In the Court of Common Pleas of McKean County Criminal Division at
                                  No(s):
                          CP-42-CR-0000101-2017


BEFORE: PANELLA, J., LAZARUS, J., and MURRAY, J.

MEMORANDUM BY LAZARUS, J.:                         FILED SEPTEMBER 07, 2018

       Scott M. Debruycker appeals from the judgment of sentence, entered in

the Court of Common Pleas of McKean County, following his conviction of two

counts of possession of a controlled substance and one count of possession of

paraphernalia.1 After review, we affirm.

       On September 1, 2016, Bradford City Police Department Officers,

including Officer Michael P. Ward, responded to a report of an unresponsive

male located behind the Dollar General store in the City of Bradford. When

police arrived, they discovered Debruycker lying unresponsive on a grassy hill

behind the Dollar General’s dumpster. Debruycker’s face and skin were blue

and purple in color and he was breathing shallowly.          Shortly thereafter,

____________________________________________


1 Possession of Controlled Substance, 35 P.S. § 780-113(a)(16), and
Possession of Paraphernalia, 35 P.S. § 780-113(a)(32).
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Emergency Medical Services (“EMS”) arrived to assess Debruycker’s condition.

EMS suspected that Debruycker was suffering an opioid overdose and began

preparing a “Narcan” injection, which counteracts opioid overdoses. Prior to

being administered the Narcan, Debruycker awakened and began flailing his

arms.     Officer Ward observed Debruycker in what he characterized as a

confused and disoriented state; Officer Ward, based on his training, agreed

with EMS’s assessment that he was suffering from an opioid overdose. Under

these circumstances, Officer Ward believed that Debruycker was an imminent

danger and threat to himself.

        EMTs placed Debruycker on a stretcher, but he refused all medical

services.    Police then notified Debruycker that his arrest for public

drunkenness was imminent, after which police commanded him to empty his

pockets. Debruycker removed a knife, a cigarette wrapper, matches and a

small lighter from his front pockets. After Debruycker removed the items from

his pockets, Officer Ward noticed a green plastic straw, the tip of which had

white residue on it, begin to emerge from his pocket.   Officer Ward believed

the straw was paraphernalia often used to snort/ingest narcotics.   Based, in

part, on that observation, Officer Ward searched Debruycker’s other pockets

and recovered a folded paper containing a tannish/white powdery substance.

After police searched Debruycker’s person and informed him he was under

arrest, he agreed to go to the hospital, but after he arrived, he continued to

refuse medical treatment.




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        On December 29, 2016, the Commonwealth charged Debruycker with

one count of possession of a controlled substance (heroin), one count of

possession of paraphernalia, and public drunkenness. On February 15, 2017,

the Commonwealth amended its complaint to add a second count of

possession of a controlled substance (fentanyl).      The trial court held all

charges for trial. On May 17, 2017, Debruycker filed a motion to suppress the

narcotics and paraphernalia recovered by police. On September 19, 2017,

following a hearing, the trial court denied Debruycker’s motion. On December

19, 2017, following a bench trial, the trial court convicted Debruycker of all

the charges. On January 18, 2018, the trial court sentenced Debruycker to

an aggregate sentence of 10 days’ to six months’ imprisonment and a

consecutive term of six months’ probation.

        On February 5, 2018, Debruycker filed a timely notice of appeal. Both

the trial court and Debruycker have complied with Pa.R.A.P. 1925. On appeal,

Debruycker raises one issue for our review: “Whether the trial court erred in

denying [Debruycker’s] motion for suppression of evidence of controlled

substances and paraphernalia found on [his] person as a result of a search

incident to a warrantless arrest for public drunkenness[.]” Brief of Appellant,

at 4.

        Debruycker avers that the trial court erred in denying his motion for

suppression because he “was not, at the time of his arrest, engaged in

‘ongoing conduct that imperil[ed] the personal security of any person or

endangers public or private property.’” Brief of Appellant, at 10. We disagree.

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      Our standard of review from the denial of a suppression motion is well

settled:

      We are limited to determining whether the factual findings are
      supported by the record and whether the legal conclusions drawn
      from those facts are correct. We may consider the evidence of
      the witnesses offered by the prosecution, as verdict winner, and
      only so much of the defense evidence that remains uncontradicted
      as a whole. We are bound by facts supported by the record and
      may reverse only if the legal conclusions reached by the court
      below were erroneous.

Commonwealth v. McAliley, 919 A.2d 272, 275-76 (Pa. Super. 2007)

(internal citations omitted).

      Our Supreme Court has held that “a police officer may search the

arrestee’s person and the area in which the person is detained in order to

prevent the arrestee from obtaining weapons or destroying evidence, but

otherwise, absent an exigency, the arrestee’s privacy interests remain intact

as against a warrantless search.” Commonwealth v. White, 669 A.2d 896,

902 (Pa. 1995). Our Supreme Court further explained:

      It is not a violation of the constitutional guarantee against
      unreasonable search and seizure for officers, when making a
      lawful arrest with or without a search warrant, to discover and
      seize any evidence, articles or fruits of crime found upon the
      prisoner or upon the premises under his control at the time of his
      lawful arrest, if it is directly connected with the offense charged.
      This constitutes merely an incidental seizure of evidence of crime
      in the execution of a lawful arrest and not a wrongful invasion by
      an unwarranted seizure of property.

Commonwealth v. Stallworth, 781 A.2d 110, 116 (Pa. 2001).

      Here, Officer Ward initiated his search of Debruycker’s person after

arresting him for public drunkenness. A person is guilty of public drunkenness

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“if he appears in any public place manifestly under the influence of alcohol or

a controlled substance… to the degree that he may endanger himself or other

persons or property.” 18 Pa.C.S.A. § 5505 (emphasis added). Additionally,

“a police officer shall, upon view, have the right of arrest without warrant upon

probable cause when there is ongoing conduct that imperils the personal

security of any person or endangers public or private property[,]” (e.g., for

public drunkenness). 42 Pa.C.S.A. § 8902(a). Where an officer of the law

has probable cause to arrest a defendant for public drunkenness, the officer

may execute a warrantless search of defendant’s person incident to the arrest.

Commonwealth v. Canning, 587 A.2d 330, 332 (Pa. Super. 1991). A search

of a defendant suspected of public drunkenness is a valid search incident to

arrest where police have probable cause, even if the Commonwealth never

charges or convicts the defendant for public drunkenness. Id.

      Officer Ward observed Debruycker in an impaired state and believed he

was suffering an opiate overdose. Ward believed that Debruycker’s belligerent

refusal of medical services, under the circumstances, presented a threat to

himself.   At Debruycker’s suppression motion, Officer Ward testified as

follows:

      OFFICER WARD: I advised him based off his confused state, his –
      the fact that he was refusing to go to the hospital, that I felt he
      was a danger to himself at this point and I advised him he was
      going to be placed under arrest and was, in fact, under arrest for
      public intoxication whether it be alcohol and/or a controlled
      substance and I advised him he was going to be coming with me.




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N.T. Suppression Hearing, 8/22/17, at 8-9. Having assessed that Debruycker,

who Officer Ward discovered in a public area, was a danger to himself, Officer

Ward placed him under arrest for public drunkenness. See 18 Pa.C.S.A. §

5505; see 42 Pa.C.S.A. § 8902(a). In light of Debruycker’s arrest for public

drunkenness, the trial court did not err in finding that Officer Ward’s

warrantless search of his person was lawful. Canning, supra.

      Based on the foregoing, we find that the trial court did not err in denying

Debruycker’s suppression motion, as Officer Ward had probable cause to

arrest Debruycker for public drunkenness.

      Judgment of sentence affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/7/2018




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