J-S62044-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                         IN THE SUPERIOR COURT OF
                                                           PENNSYLVANIA
                            Appellee

                       v.

AARON J. KAUFFMAN

                            Appellant                    No. 522 MDA 2016


            Appeal from the Judgment of Sentence March 23, 2016
              In the Court of Common Pleas of Lebanon County
             Criminal Division at No(s): CP-38-CR-0001152-2015


BEFORE: GANTMAN, P.J., DUBOW, J., and JENKINS, J.

MEMORANDUM BY GANTMAN, P.J.:                        FILED NOVEMBER 23, 2016

        Appellant, Aaron J. Kauffman, appeals from the judgment of sentence

entered in the Lebanon County Court of Common Pleas, following his bench

trial convictions for possession of            a controlled substance and drug

paraphernalia.1 For the following reasons, we affirm in part and reverse in

part the suppression ruling in this case, vacate the judgment of sentence,

and remand for further proceedings.

        The relevant facts and procedural history of this case are as follows.

At approximately 6:30 p.m. on February 13, 2015, Officer David Lear

received a dispatch reporting a robbery at a Domino’s Pizza shop.           The

dispatcher provided Officer Lear with a description of the robbery suspect
____________________________________________


1
    35 P.S. §§ 780-113(a)(16), (a)(32).
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and noted the suspect was wearing a green bandana at the time of the

robbery.   When he received the dispatch, Officer Lear was located three

blocks from the pizza shop. While Officer Lear was driving toward the scene

of the robbery, he saw Appellant walking along the sidewalk. Officer Lear

noticed Appellant met the description of the robbery suspect conveyed over

the police dispatch.   Appellant was not wearing a bandana at the time.

Officer Lear pulled over and stopped Appellant. During a pat-down search of

Appellant, Officer Lear felt a “hard object” in Appellant’s pants pocket, which

the officer believed was a weapon. (N.T. Suppression Hearing, 8/26/15, at

6.)   After removing the object from Appellant’s pocket, Officer Lear

discovered it was a foil pipe. Officer Lear continued the pat-down and felt a

hard lump in Appellant’s other pocket. Officer Lear testified he believed the

hard lump “could have been a bandana rolled up in [Appellant’s] pocket.”

(Id.) He removed the item, which was a packet of synthetic marijuana.

      On August 5, 2015, Appellant filed a motion to suppress the evidence

found in his pockets during Officer Lear’s pat-down search. The court held a

hearing on the motion on August 26, 2015.        At the hearing, Officer Lear

testified he could not recall the specific description in the police dispatch

without the dispatch records, but he recalled that Appellant matched the

description and was in close proximity to the scene of the robbery. Officer

Lear also described the evening as dark and bitterly cold. He stated, “[At]

that time of day and that time of the year there’s not a lot of people walking


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around.”      (Id. at 9.)   Officer Lear testified he performed the pat-down

search because he routinely does a pat-down of suspects for his own safety.

Nevertheless, on cross-examination the officer admitted that, at the time, he

“didn’t believe [Appellant] was armed and dangerous.” (Id. at 10.)

      On October 13, 2015, the court granted in part and denied in part

Appellant’s suppression motion.      In its opinion, the court stated both the

stop and the frisk were supported by: Appellant’s proximity to the location of

the robbery; the cold and bitter temperature that night; Appellant meeting

the description of the robber; and Officer Lear’s lack of back-up officers.

The court then evaluated the items seized in the frisk under the “plain feel”

doctrine.     The court rejected Officer Lear’s contention that the foil pipe

appeared to be a weapon. Instead, the court described the pipe as a two-

inch piece of flexible foil that could not reasonably be mistaken for any

weapon or immediately apparent via touch as contraband. Thus, the court

granted Appellant’s motion to suppress the foil pipe.     The court, however,

denied Appellant’s motion to suppress the marijuana, stating:

            Like the foil “pipe,” we are not aware of any way that the
            [marijuana] could have been confused for a weapon.
            While we understand how the marijuana could be
            perceived as a “lump,” it was neither hard nor stiff as a
            weapon might feel.

            While Officer Lear could not have reasonably confused the
            marijuana package for a weapon, that does not end our
            inquiry. … In this case, Officer Lear was aware that the
            person who robbed the Domino Pizza store was wearing a
            bandana at the time of the robbery. When he felt the
            “hard lump,” he perceived that it could have been the

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          bandana that the robber was described to possess.

(Trial Court Opinion, filed October 13, 2015, at 14).

       Appellant proceeded to a bench trial on January 29, 2016, and the

court convicted him of possession of a controlled substance and drug

paraphernalia.2 On March 23, 2016, the court sentenced Appellant to sixty

(60) days to eighteen (18) months’ incarceration for the possession offense,

and a concurrent term of one (1) month to one (1) year of imprisonment for

the drug paraphernalia offense.          Appellant timely filed a notice of appeal.

On March 24, 2016, the court ordered Appellant to file a concise statement

of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b); Appellant

complied on the same day.

       Appellant raises two questions for our review:

          DID THE TRIAL COURT ERR IN FAILING TO SUPPRESS
          PHYSICAL EVIDENCE IN THAT THERE WAS NO
          REASONABLE SUSPICION TO JUSTIFY AN INVESTIGATIVE
          DETENTION?

          DID THE TRIAL COURT ERR IN FAILING TO SUPPRESS
          PHYSICAL EVIDENCE IN THAT THERE WAS NO BASIS FOR
          A SEARCH WHEN THE POLICE DID NOT BELIEVE THAT
          APPELLANT WAS ARMED AND DANGEROUS AND, IN FACT,
          EXPRESSLY TESTIFIED THAT THEY DID NOT BELIEVE
          APPELLANT TO BE ARMED AND DANGEROUS?

(Appellant’s Brief at 5).

       We review the denial of a suppression motion subject to the following
____________________________________________


2
  The paraphernalia conviction stemmed from the packaging of the
marijuana taken from Appellant’s pocket.



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principles:

         Our standard of review in addressing a challenge to a trial
         court’s denial of a suppression motion is limited to
         determining whether the factual findings are supported by
         the record and whether the legal conclusions drawn from
         those facts are correct.

              [W]e may consider only the evidence of the
              prosecution 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 record
              supports the findings of the suppression court, we
              are bound by those facts and may reverse only if the
              court erred in reaching its legal conclusions based
              upon the facts.

Commonwealth v. Williams, 941 A.2d 14, 26-27 (Pa.Super. 2008) (en

banc) (internal citations and quotation marks omitted).

      In his first issue, Appellant argues the police dispatch description was

too limited to justify the kind of investigative detention Officer Lear

conducted. Appellant asserts the Commonwealth failed to show Officer Lear

had reasonable suspicion to stop Appellant for questioning, based on the

officer’s testimony that he was unable to recall whether the dispatch

description included the suspect’s race or sex. Appellant maintains he was

several blocks away from the robbery scene when Officer Lear stopped him.

Appellant challenges the court’s characterization of his walk as “consistent”

with that of a robbery suspect, because the record does not support that

finding. Appellant concedes the evening was cold and bitter, but he denies it

was unusual to be outside walking at 6:30 p.m. Appellant concludes Officer

Lear lacked reasonable suspicion to conduct an investigative detention of

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Appellant. We disagree.

      Contacts between the police and citizenry fall within three general

classifications:

           The first [level of interaction] is a “mere encounter” (or
           request for information) which need not be supported by
           any level of suspicion, but carries no official compulsion to
           stop or to respond.        The second, an “investigative
           detention” must be supported by a reasonable suspicion; it
           subjects a suspect to a stop and a period of detention, but
           does not involve such coercive conditions as to constitute
           the functional equivalent of an arrest. Finally an arrest or
           “custodial detention” must be supported by probable
           cause.

Commonwealth v. Goldsborough, 31 A.3d 299, 305 (Pa.Super. 2011),

appeal denied, 616 Pa. 651, 49 A.3d 442 (2012) (quoting Commonwealth

v. Bryant, 866 A.2d 1143, 1146 (Pa.Super. 2005), appeal denied, 583 Pa.

668, 876 A.2d 392 (2005)).

      “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.” Commonwealth v. Jones, 874 A.2d 108,

116 (Pa.Super. 2005) (quoting Commonwealth v. DeHart, 745 A.2d 633,

636 (Pa.Super. 2000)).

           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.

                                    *    *    *

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        An investigative detention, unlike a mere encounter,
        constitutes a seizure of a person and thus activates the
        protections of Article 1, Section 8 of the Pennsylvania
        Constitution. To institute an investigative detention, an
        officer must have at least a reasonable suspicion that
        criminal activity is afoot.

                                 *    *    *

        Reasonable suspicion exists only where the officer is able
        to articulate specific observations which, in conjunction
        with    reasonable     inferences  derived    from    those
        observations, led him reasonably to conclude, in light of
        his experience, that criminal activity was afoot and that
        the person he stopped was involved in that activity.
        Therefore, the fundamental inquiry of a reviewing court
        must be an objective one, namely, whether the facts
        available to the officer at the moment of intrusion warrant
        a [person] of reasonable caution in the belief that the
        action taken was appropriate.

Jones, supra at 116 (internal citations omitted).

     “[T]he question of whether reasonable suspicion existed at the time of

an investigatory detention must be answered by examining the totality of

the circumstances to determine whether there was a particularized and

objective basis for suspecting the individual stopped of criminal activity.”

Commonwealth v. Cottman, 764 A.2d 595, 598-99 (Pa.Super. 2000)

(quoting Commonwealth v. Beasley, 761 A.2d 621, 625-26 (Pa.Super.

2000), appeal denied, 565 Pa. 662, 775 A.2d 801 (2001)).

        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, even a
        combination of innocent facts, when taken together, may
        warrant further investigation by the police officer.


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Commonwealth v. Young, 904 A.2d 947, 957 (Pa.Super. 2006), appeal

denied, 591 Pa. 664, 916 A.2d 633 (2006) (quoting Commonwealth v.

Conrad, 892 A.2d 826, 829 (Pa.Super. 2006), appeal denied, 588 Pa. 747,

902 A.2d 1239 (2006)) (internal citations and quotation marks omitted).

      Instantly, Officer Lear received a police radio dispatch reporting a

robbery at a nearby Domino’s Pizza shop.         While responding to the call,

Officer Lear noticed Appellant walking down a street near the scene of the

robbery. Officer Lear observed Appellant matched the dispatch description

of the robbery suspect and noted few people were out walking due to the

bitterly cold temperature that evening. Officer Lear then pulled his vehicle

over and stopped Appellant.

      The Commonwealth concedes the stop was an investigative detention.

Given the circumstances, Appellant was not free to walk away from the

encounter.     See Jones, supra.           Nevertheless, the totality of the

circumstances indicates Officer Lear possessed sufficient information to stop

Appellant, because Appellant was walking in close proximity to the scene of

a robbery immediately after it had occurred and the night was cold and

bitter, with no one else on the street.         Further, Officer Lear testified

Appellant fit the dispatch description of the suspect.    See Young, supra.

Given the court’s credibility decisions regarding the facts leading to the stop,

this evidence supports the investigative detention.     See Williams, supra.

Therefore, Appellant’s first issue merits no relief.


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      In his second issue, Appellant asserts that, even if the circumstances

supported the initial investigative detention, Officer Lear’s frisk of Appellant

was unjustified. Appellant indicates Officer Lear admitted he did not think

Appellant was armed and dangerous.          Appellant maintains Officer Lear

searched him primarily for evidence of a crime rather than weapons.

Appellant contends Officer Lear removed the small marijuana packet from

Appellant’s pocket knowing it was not a weapon. Because the search was

not for weapons and the bandana was not immediately apparent contraband,

Appellant avers the search and seizure was unwarranted, even if Officer Lear

believed the object in Appellant’s pocket might have been the bandana

reportedly worn by the robber.       Appellant concludes Officer Lear lacked

justification to search him for evidence of the robbery and seize the

marijuana packet because he thought it was a bandana used in the robbery,

and the court should also have suppressed the marijuana. We agree.

      “If, during the course of a valid investigatory stop, an officer observes

unusual and suspicious conduct on the part of the individual which leads [the

officer] 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.”      Commonwealth v. Preacher, 827 A.2d 1235,

1239 (Pa.Super. 2003).

         In order to justify a frisk under [Terry v. Ohio, 392 U.S.
         1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)] the officer
         must be able to point to particular facts from which
         he reasonably inferred that the individual was armed

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        and dangerous.      Such a frisk, permitted without a
        warrant and on the basis of reasonable suspicion less than
        probable cause, must always be strictly limited to that
        which is necessary for the discovery of weapons which
        might be used to harm the officer or others nearby.

Id. (quoting Commonwealth v. E.M., 558 Pa. 16, 25-26, 735 A.2d 654,

659 (1999)) (emphasis in original) (internal quotation marks omitted). “The

existence of reasonable suspicion to frisk an individual must be judged in

light of the totality of the circumstances confronting the police officer.”

Commonwealth v. Cooper, 994 A.2d 589, 592-93 (Pa.Super. 2010),

appeal denied, 608 Pa. 660, 13 A.3d 474 (2010) (quoting Commonwealth

v. Taylor, 565 Pa. 140, 153, 771 A.2d 1261, 1269 (2001)).

     “Weapons found as a result of [a Terry] pat-down may be seized.

Nonthreatening contraband may be seized only if it is discovered in

compliance with the plain feel doctrine.”    Commonwealth v. Thompson,

939 A.2d 371, 376 (Pa.Super. 2007), appeal denied, 598 Pa. 766, 956 A.2d

434 (2008).

        [The United States Supreme Court in Minnesota v.
        Dickerson, 508 U.S. 366, 113 S.Ct. 2130, 124 L.Ed.2d
        334 (1993)] held that a police officer may seize non-
        threatening contraband detected through the officer’s
        sense of touch during a Terry frisk if the officer is lawfully
        in a position to detect the presence of contraband, the
        incriminating nature of the contraband is immediately
        apparent from its tactile impression and the officer has a
        lawful right of access to the object. As Dickerson makes
        clear, the plain feel doctrine is only applicable where the
        officer conducting the frisk feels an object whose mass or
        contour makes its criminal character immediately
        apparent. Immediately apparent means that the officer
        readily perceives, without further exploration or searching,

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         that what he is feeling is contraband. If, after feeling the
         object, the officer lacks probable cause to believe that the
         object is contraband without conducting some further
         search, the immediately apparent requirement has not
         been met and the plain feel doctrine cannot justify the
         seizure of the object.

Commonwealth v. Stevenson, 560 Pa. 345, 353, 744 A.2d 1261, 1265

(2000) (most citations omitted).

      Instantly, Officer Lear testified on direct examination about the

marijuana he removed from Appellant’s pocket:

         A.       I continued my pat down and I felt like what could
         have been a bandana rolled up in his pocket. Also with
         that being part of the [police dispatch] description, I
         reached in and pulled that out.

         Q.      And that was       what     turned   out   to   be   the
         [marijuana] packet?

         A.       That’s correct.

(N.T. Suppression Hearing at 6.) Officer Lear testified on cross-examination

as follows:

         Q.       When you [patted Appellant] down you were
         looking for weapons; is that right?

         A.       I was [patting] him down for my safety, that’s
         correct.

         Q.       What was it that made you believe                   that
         [Appellant] was armed and dangerous about him?

         A.       I didn’t believe he was armed and
         dangerous. When I have a—when I have a confrontation
         with someone and I stop someone especially after a
         robbery type thing like that, I will [pat] them down for my
         safety when I am going to be sitting there talking to them.


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(Id. at 10) (emphasis added). Officer Lear gave additional testimony about

the search:

         Q.       You were looking for a bandana or green cloth?

         A.       That was part of the description that was given
         out.

         Q.       That was part of the description and you were
         looking for that, correct?

         A.       At that point, yes.

         Q.       I think in your direct testimony you testified that
         that’s the reason you pulled out that object out of
         [Appellant’s] pocket because you thought it might be the
         bandana?

         A.       That’s correct.

         Q.      Not because you thought it might be a weapon
         because you thought it might be the bandana?

         A.       That’s correct.

(Id. at 12.) Based on this testimony, the court found Officer Lear’s frisk of

Appellant was justified, and it suppressed the foil pipe but denied Appellant’s

motion to suppress the marijuana and permitted the prosecution to

introduce the marijuana under the “plain feel” doctrine. In its opinion, the

court stated Officer Lear may have believed the marijuana packet in

Appellant’s pocket was the bandana worn by the robber.

      Here, during the prosecution’s evidence, Officer Lear failed to

articulate specific facts regarding why he believed Appellant was armed and

dangerous. On the contrary, Officer Lear testified he did not think Appellant


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was armed. Officer Lear repeatedly admitted during the suppression hearing

that he removed the marijuana from Appellant’s pocket because he thought

it could have been the bandana associated with the robbery, not because he

thought it was a weapon. Officer Lear’s own testimony shows his Terry frisk

was unsupported by any particularized belief that Appellant was armed and

dangerous. See Preacher, supra.

      Moreover, Officer Lear did not immediately recognize the marijuana

packet in Appellant’s pocket as contraband. Rather, the officer stated it “felt

like what could have been a bandana rolled up.” (N.T. Suppression Hearing

at 6.) By his own admission, Officer Lear’s seizure of the marijuana from

Appellant’s pocket was unjustified under the “plain feel” doctrine.       See

Stevenson, supra.      Absent evidence that Officer Lear thought Appellant

was armed and dangerous or that the marijuana packet felt like contraband,

Officer Lear’s search and seizure of the marijuana exceeded the proper

scope of a Terry pat-down.      Based upon the foregoing, we conclude the

court should have suppressed the marijuana packet as well, because it was

the product of Officer Lear’s unlawful search. Accordingly, we affirm in part

and reverse in part the suppression ruling in this case, vacate the judgment

of sentence, and remand for further proceedings.




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      Judgment     of   sentence   vacated;   case   remanded   for   further

proceedings. Jurisdiction is relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/23/2016




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