 J-A01013-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

     COMMONWEALTH OF PENNSYLVANIA,              :   IN THE SUPERIOR COURT OF
                                                :        PENNSYLVANIA
                        Appellant               :
                                                :
                                                :
                 v.                             :
                                                :
                                                :
     TADARRELL KENY JONES JR.,                  :   No. 1618 EDA 2017
                                                :
                        Appellee                :

                        Appeal from the Order April 28, 2017
      In the Court of Common Pleas of Montgomery County Criminal Division at
                          No(s): CP-46-CR-0004300-2016


 BEFORE:      LAZARUS, J., OTT, J., and PLATT*, J.

 MEMORANDUM BY LAZARUS, J.:                          FILED FEBRUARY 27, 2018

         The Commonwealth of Pennsylvania appeals from the order, entered in

 the Court of Common Pleas of Montgomery County, granting Tadarrell Keny

 Jones Jr.’s (“Jones”) pretrial motion to suppress.        After our review, we

 conclude that Officer Andrew Licwinko did not possess reasonable suspicion,

 based on specific and articulable facts, that Jones was potentially committing

 a crime. Therefore, we affirm the suppression court’s order.

         Jones was arrested on May 12, 2016, and charged with two counts of

 possession with intent to distribute,1 two counts of conspiracy-possession with



 ____________________________________________


 1   35 P.S. § 780-113(a)(30).


 ____________________________________
 * Retired Senior Judge assigned to the Superior Court.
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intent to distribute,2 one count of resisting arrest,3 four counts of possession,4

four counts of conspiracy-possession,5 one count of possession of a small

amount of marijuana,6 one count of conspiracy-possession of a small amount

of marijuana,7 three counts of drug paraphernalia,8 and three counts of

conspiracy-drug paraphernalia.9          These charges arose from the stop of a

vehicle in which Jones was a passenger, and the subsequent search of Jones

where Officer Licwinko uncovered marijuana and drug paraphernalia.

        On April 28, 2017, a hearing was held on Jones’ omnibus pretrial motion.

The suppression court granted Jones’ motion to suppress, concluding there

were no articulable facts that would lead Officer Licwinko to believe a crime

was afoot. The Commonwealth filed a timely notice of appeal on May 22,

2017.



____________________________________________


2   18 Pa.C.S. § 903.

3   18 Pa.C.S. § 5104.

4   35 P.S. § 780-113(a)(16).

5   18 Pa.C.S. § 903.

6   35 P.S. § 780-113(a)(31).

7   18 Pa.C.S. § 903.

8   35 P.S. § 780-113(a)(32).

9   18 Pa.C.S. § 903.



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       On appeal,10 the Commonwealth raises one issue for review:

       Did the suppression court erroneously grant suppression when it
       held that the officer lacked reasonable suspicion to stop a car in
       which he reasonably believed that a drug deal was happening,
       based on his years of drug-enforcement experience in that specific
       area?

Commonwealth’s brief, at 4.

       When reviewing an order granting a motion to suppress we are
       required to determine whether the record supports the
       suppression court’s factual findings and whether the legal
       conclusions drawn by the suppression court from those findings
       are accurate. In conducting our review, we may only examine the
       evidence introduced by appellee along with any evidence
       introduced by the Commonwealth which remains uncontradicted.
       Our scope of review over the suppression courts factual findings
       is limited in that if these findings are supported by the record we
       are bound by them. Our scope of review over the suppression
       court’s legal conclusions, however, is plenary.

Commonwealth v. Gutierrez, 36 A.3d 1104, 1107 (Pa. Super. 2012)

(quoting Commonwealth v. Henry, 943 A.2d 967, 969 (Pa. Super. 2008)).

       Officer Licwinko, a police officer for Pottstown Police Department, was

patrolling in the area of Washington and Chestnut Streets on the evening of

May 12, 2016. At approximately 4:15 p.m., Officer Licwinko observed a dark

blue SUV in an intersection known as a high-crime, high-drug area. N.T.

Suppression Hearing 4/28/17, at 8. He witnessed Jones enter the passenger


____________________________________________


10  Pennsylvania Rule of Appellate Procedure 311(d) permits the
Commonwealth in a criminal case to appeal as of right from an order that does
not end the entire case where the Commonwealth certifies in the notice of
appeal that the order will terminate or substantially handicap the prosecution.
Commonwealth v. Whitlock, 69 A.sd 635, 636 n.2 (Pa. Super. 2013). Here,
the Commonwealth made that certification.

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seat of the SUV, and the vehicle driving in a circle around the block, through

one-way streets, going in the proper direction, and returning about a block

away from where the vehicle had started.         Officer Licwinko stopped the

vehicle; however, he acknowledged that he witnessed no violations of the

Motor Vehicle Code. Id. at 14-15.

       During the stop, Jones fled from the vehicle.        Once Jones was in

custody, Officer Licwinko conducted a search and found marijuana and drug

paraphernalia on his person.

      Officer Licwinko testified at the suppression hearing:

      Q. Now officer, just so we’re clear, the mere fact that the
      defendant got into the vehicle and [the car then] drove away, was
      that anything that gave you alarm or made you think about it?

      A. No, not at all.

      Q. Okay. What, then, did you ultimately think about as you
      describe how this vehicle drove in a circle?

      A. As being on the Unit, we conduct undercover control buys,
      and it’s very common for a drug dealer to get into the vehicle of
      a drug user and circle the block to not be detected by police.

N.T. Suppression Hearing 4/28/17, at 12.

      Officer Licwinko also testified that he had witnessed this type of behavior

approximately two dozen times in the past, and it led him to believe that

Jones’ entering the vehicle and circling the block was a drug deal.   Id. at 13.

Officer Licwinko also stated that he did not observe a hand-to-hand

transaction or similar behavior before he made the stop. Id. at 16.




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      The Commonwealth argues that the suppression court erred in

concluding that Officer Licwinko lacked reasonable suspicion to stop the

vehicle he believed was part of a drug deal based on his experience as an

officer. We disagree.

      First, we note that the suppression court correctly determined that the

stop of the vehicle was an investigative detention and that to initiate a traffic

stop, the officer required reasonable suspicion of either criminal activity or a

violation of the Motor Vehicle Code. See 75 Pa.C.S. § 6308. To establish

whether Officer Licwinko had reasonable suspicion to stop the vehicle, Officer

Licwinko must be able “to point to specific and articulable facts and reasonable

inferences drawn from those facts in light of the officer’s experience” that

criminality was afoot. Commonwealth v. Cook, 735 A.2d 673, 677 (1999)

(citing Commonwealth v. Jackson, 698 A.2d 571, 537 (1997). See Terry

v. Ohio, 392 U.S. 1, 27 (1968). Furthermore,

      [T]he totality of the circumstances – the whole picture – must be
      taken into account. Based upon that whole picture the detaining
      officers must have a particularized and objective basis for
      suspecting the particular person stopped of criminal activity.

United States v. Cortez, 449 U.S. 411, 417-418 (1981).

      Here, the issue before us is whether Officer Licwinko had reasonable

suspicion to stop the vehicle because of his belief, based on his prior

experience in drug enforcement, that a drug deal was occurring or had

occurred. Although Officer Licwinko had witnessed drug deals in the past that

would take place in a moving vehicle, here there was no other indication, such

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as a hand-to-hand transaction or other suspicious behavior, that a drug deal

had occurred.    See Commonwealth v. Wilson, 655 A.2d 557, 560 (Pa

Super. 1995) (holding where defendant exited vehicle twice in neighborhood

of high drug activity and disappeared from sight both times and where police

did not witness exchange of objects or money, no reasonable suspicion to stop

vehicle; innocent behavior that vehicle exhibited in a high-crime area, before

stop, cannot establish reasonable suspicion).

      Notably, Officer Licwinko testified that there was no other reason to pull

over the vehicle; he testified that he did not pull over the vehicle for the

reckless turn he witnessed or for any other violation of the Motor Vehicle Code.

Nor did he witness any other activity that would lead him to believe a drug

deal was occurring.   Officer Licwinko pulled over the vehicle based on his

experience in drug enforcement and a hunch that criminal activity was

occurring. See Terry, 392 U.S. at 27 (stating that an “unparticularized

suspicion” or a “hunch” is not sufficient to establish that an officer acted

reasonably); Commonwealth v. Bennett, 827 A.2d 469, 478 (Pa. Super.

2003) (mere hunches on part of officer are insufficient to establish reasonable

grounds for suspicion).   See also Commonwealth v. Greber, 385 A.2d

1313, 1316 (Pa. 1978) (where officer assumed criminal conduct was occurring

and conducted stop when he witnessed defendant riding in car, stopping at

bowling alley, and exchanging bag with another person, court held no




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reasonable suspicion; innocent activity in high crime area insufficient to

support reasonable suspicion).

      Under the totality of the circumstances, we conclude that Officer

Licwinko failed to point to specific and articulable facts that would lead to a

reasonable suspicion that a drug deal was occurring. The suppression court,

therefore, properly granted Jones’ motion to suppress.

      Order affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/27/18




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