J-S80035-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN THE INTEREST OF L.B.-H., A MINOR             IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA




APPEAL OF: L.B.-H., A MINOR

                                                     No. 493 MDA 2016


        Appeal from the Adjudication of Delinquency February 22, 2016
                 in the Court of Common Pleas of Berks County
             Juvenile Division at No(s): CP-06-JV-0000031-2016


BEFORE: LAZARUS, J., STABILE, J., and RANSOM, J.

MEMORANDUM BY RANSOM, J.:                          FILED AUGUST 08, 2017

        L.B.-H., a minor, appeals from the dispositional order of February 22,

2016, following his adjudication of delinquency for possession of a firearm by

a minor, firearms not to be carried without a license, and receiving stolen

property.1     We reverse the dispositional order and remand for further

proceedings.

        On January 28, 2016, at 2:23 p.m., Police Officer Nathan Scott was on

patrol in Exeter Township, Berks County. See Notes of Testimony (N. T.),

2/11/16, at 3-4. Officer Scott observed a car with the front passenger and

rear windows tinted and five passengers inside, including a toddler and an

infant. Id. at 5, 7, 12-13. As Officer Scott observed the windows, a front

____________________________________________


1
    18 Pa.C.S. §§ 6106(a)(1), 6110.1(a), 3925(a), respectively.
J-S80035-16



passenger looked at him, froze, and reached down toward the floorboard of

the car.   N. T. at 5-6.     Officer Scott activated his lights and sirens, but

instead of stopping immediately in a well-lit shopping center nearby, the car

proceeded approximately 300 yards to a secluded area before coming to a

stop. Id. at 7-8, 26.

      On approach, Officer Scott noticed the steering column was broken

and a screwdriver jammed in the ignition.       Id. at 9.   The car smelled of

“fresh” marijuana.      Id. at 9-10.     Officer Scott requested license and

registration, but the driver, I.S., replied that he had no license and no

identification. Id. Officer Scott asked I.S. if there were any guns, drugs, or

weapons inside the vehicle.     Id. at 11.   I.S. replied there was nothing on

him and if there was anything in the car, it was not his. Id. at 11. I.S. gave

consent to search the vehicle and Officer Scott called for backup. Id. at 11.

When Officer Scott ran the tag of the vehicle, the computer indicated the car

was not stolen. Id. at 19.

      Officer Rocco DeCamillo arrived on the scene and formulated a plan to

take all of the adults from the vehicle to frisk each passenger.     Id. at 24.

Officer DeCamillo assisted Officer Scott in removing the passengers,

including a toddler and baby, from the car.      Id. at 12, 23-24.   Appellant,

seated in the back right seat of the car, smoked a cigarette and appeared

nervous and scared.     Id. at 24.   When Officer DeCamillo asked Appellant




                                       -2-
J-S80035-16



why he was smoking in a car with two small children, Appellant did not make

eye contact or respond.2 N. T. at 25.

         Appellant was removed from the car. Id. at 12. Officer Scott began

to frisk the car’s occupants.        Id. at 13-14, 20.    Officer Scott felt a hard

object in Appellant’s right inner thigh, handcuffed Appellant, and asked

Appellant what was in his pants. Id. at 15. Appellant informed the officer it

was a gun.      Id. at 15.     From inside Appellant’s underwear, Officer Scott

recovered a firearm with six live rounds, including one in the chamber. Id.

at 15.

         On February 3, 2016, Appellant filed a motion to suppress all evidence

recovered from the frisk, arguing that the officers did not have reasonable

suspicion to stop the car and that there was no basis for detaining Appellant

or conducting a Terry3 frisk. Appellant’s Motion to Suppress at 4-5. On

February 11, 2016, Appellant argued this motion before the suppression

court, and averred that the police officers did not have individualized,

reasonable suspicion to pat Appellant down.              N. T. at 28-29.    At the

conclusion of testimony and argument, the suppression court held the

matter under advisement and noted that in the event the motion was



____________________________________________


2
  Appellant informed officers that he was seventeen years old, while he was
actually fifteen years old. It is unclear from the testimony at what point
during the stop he told officers this or when they verified his age. Id. at 12.
3
  Terry v. Ohio, 88 S. Ct. 1868 (1968).



                                           -3-
J-S80035-16



denied, the testimony introduced at the hearing would be admitted during

trial. Id. at 33-34.

      On February 17, 2016, the suppression court issued its findings of fact

and conclusions of law. It denied Appellant’s motion, holding that the police

officers did have reasonable suspicion to justify a Terry stop and frisk. The

court adjudicated Appellant delinquent of possession of a firearm by a minor,

firearms not to be carried without a license, and receiving stolen property.

However, the court held that the Commonwealth had failed to prove

Appellant’s involvement with altering a firearm.

      Appellant timely appealed and filed a court-ordered Pa.R.A.P. 1925(b)

statement. The trial court issued a responsive opinion.

      Herein, Appellant presents a single issue for our review:

      Whether the trial court erred by denying [Appellant’s] motion to
      suppress physical evidence where the police did not have
      individualized, reasonable suspicion that [Appellant] was armed
      and dangerous necessary to justify a Terry frisk, in violation of
      [Appellant’s] rights under Article I, Section 8 of the Constitution
      of the Commonwealth of Pennsylvania and the Fourth and
      Fourteenth Amendments to the Constitution of the United States.

Appellant’s Brief at 5 (internal footnote omitted).

      Our standard of review for an appeal denying a motion to suppress is

well settled.

      Our standard of review in addressing a challenge to the denial of
      a suppression motion is limited to determining whether the
      suppression court’s factual findings are supported by the record
      and whether the legal conclusions drawn from those facts are
      correct.  Because the Commonwealth prevailed before the
      suppression court, we may consider only the evidence of the

                                     -4-
J-S80035-16


      Commonwealth 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 suppression court’s factual findings are
      supported by the record, we are bound by these findings and
      may reverse only if the court's legal conclusions are erroneous.
      Where ... the appeal of the determination of the suppression
      court turns on allegations of legal error, the suppression court’s
      legal conclusions are not binding on an appellate court, whose
      duty it is to determine if the suppression court properly applied
      the law to the facts. Thus, the conclusions of law of the courts
      below are subject to our plenary review.

Commonwealth v. Jones, 988 A.2d 649, 654 (Pa. 2010) (citations

omitted).

      There is no dispute that Officer Scott conducted a lawful traffic stop,

based upon a violation of the Motor Vehicle Code, namely, the tinting of the

vehicle’s windows. See 75 Pa.C.S. § 4524(e). Further, “following a lawful

traffic stop, an officer may order both the driver and passengers of a vehicle

to exit until the traffic stop is completed, even absent a reasonable suspicion

that criminal activity is afoot.”   Commonwealth v. Pratt, 930 A.2d 561,

564 (Pa. Super. 2007).       However, in the instant case, the question is

whether or not Officer Scott properly conducted a pat-down search of

Appellant after ordering him from the car. After reviewing the evidence, we

conclude that Officer Scott did not possess a reasonable belief that Appellant

was armed.

      “The Terry ‘stop and frisk’ permits an officer to briefly detain a citizen

for investigatory purposes if the officer observes unusual conduct which

leads him to reasonably conclude, in light of his experience, that criminal


                                      -5-
J-S80035-16


activity may be afoot.”   Commonwealth v. Simmons, 17 A.3d 399, 403

(Pa. Super. 2011) (citing Terry, 88 S.Ct. at 1884).      The Terry totality of

the circumstances test applies to traffic stops or roadside encounters in the

same way that it applies to typical police encounters.     Id.   During such a

stop, if an officer reasonably believes that his safety or the safety of others

is threatened, he may conduct a limited pat-down search, or frisk, to

determine whether the person is carrying a weapon. Id. These principles

apply to all occupants of the stopped vehicle and not merely the driver. Id.

      If either the seizure or the search is found to be unreasonable, the

remedy is to exclude all evidence derived from the illegal government

activity. Commonwealth v. Gibson, 638 A.2d 203, 206-207 (Pa. 1994).

The fundamental inquiry of a reviewing court must be an objective one,

“namely, whether the facts available to the officer at the moment of the

[intrusion] warrant a man of reasonable caution in the belief that the action

taken was appropriate.” Commonwealth v. Zhahir, 751 A.2d 1153, 1156

(2000) (internal citation omitted). “This inquiry will not be satisfied by an

officer's hunch or unparticularized suspicion.” Commonwealth v. Reppert,

814 A.2d 1196, 1204 (Pa. Super. 2002) (emphasis in original).

      Here, Officer Scott stated that the officers performed a systematic frisk

of every passenger:

      Q: So basically you were systematically going through and
      patting down everybody in the car? Or the police were?

      A: Correct.

                                     -6-
J-S80035-16



        Q: Okay. There wasn’t anything individual about [Appellant]
        that they were patting him down? It was just – you were patting
        down everybody in the car?

        A: Correct.

See N.T., 2/11/16, at 20-21.

        Here, the testimony suggests that the officers conducted something

akin to an automatic companion search.             The “automatic companion rule”

provides that “all companions of [an] arrestee within the immediate vicinity,

capable     of   accomplishing      a    harmful   assault   on    the   officer,   are

constitutionally subjected to the cursory ‘pat-down’ reasonably necessary to

give assurance that they are unarmed.” Commonwealth v. Jackson, 907

A.2d 540, 543–44 (Pa. Super. 2006) (citing United States v. Berryhill,

445 F.2d 1189, 1193 (9th Cir. 1971)). However, this Court has held that

the automatic companion rule is unconstitutional.                 Id. at 544 (citing

Commonwealth v. Graham, 685 A.2d 132, 136 (Pa. Super. 1996)

(overturned on other grounds)).4

        In Jackson, the defendant was seen in a high crime area engaging in

a narcotics transaction prior to leaving officers’ sight. Jackson, 907 A.2d at

541, 545. He was later located standing with a group of other men.                  Id.

Officers lined the group up against a fence to check them for weapons, as

the area was known for “violent reactions to the police.” Id. at 545. During
____________________________________________


4
    The record is silent as to whether the driver was arrested.



                                           -7-
J-S80035-16


that time, the defendant twice attempted to flee, kicking a police officer in

the knee. Id. at 541. He was taken into custody and searched. Id. On

appeal,   Jackson    argued      that   police   officers   did   not    have    specific,

individualized facts that constituted reasonable suspicion or probable cause

to search him.      Id.    The Jackson Court recognized that while a per se

application of the automatic companion rule is unconstitutional, officers were

able to articulate specific facts that allowed them to develop individualized

suspicion that the defendant, a drug transaction suspect in an area known

for violent reactions to police, might have been armed. See Jackson, 907

A.2d at 544-45.

      In this case, according to the line of questioning above, it would

appear that the officers were, indeed, conducting an automatic companion

search.   Here, however, the officer openly admitted in his testimony that

there was nothing individualized about L.B.-H. that led police to search him.

See N.T., 2/11/16, at 20-21.               Accordingly, officers engaged in an

unreasonable search.       Cf. Jacksonson, 907 A.2d 544-45;               Graham, 685

A.2d at 136.

      However, even disregarding the automatic companion rule and the

systematic     search     of   the   passengers,     the    instant     frisk   was   still

unconstitutional. We reiterate the importance of individualized suspicion and

note that in the case of a self-protective search for weapons, “a police officer

must be able to point to particular facts from which he could reasonably infer


                                         -8-
J-S80035-16


that the individual was armed and dangerous.” Commonwealth v. Pinney,

378 A.2d 293, 296 (Pa. 1977).

      Mere nervousness alone is insufficient to develop particularized

suspicion. For example, in Reppert, a police officer observed the defendant

riding in the back seat of a car that displayed expired inspection and

registration stickers. Reppert, 814 A.2d at 1199. While following the car,

the officer observed furtive movements of the defendant’s head and

shoulders.   Id.   After the officer effectuated a traffic stop, the defendant

appeared “very nervous.”       Id.   Based on these facts, the officer then

conducted a search of defendant’s person. Id. A suppression court denied

the defendant’s motion, but on appeal, a panel of this Court reversed,

concluding that an officer’s “assessment of nervous demeanor [is] palpably

insufficient to establish reasonable suspicion of a citizen’s involvement in

criminal activity, even when viewed in combination with other indicia of

potential criminal acts.”    Reppert, 814 A.2d at 1206 (emphasis added);

see also Commonwealth v. Cartagena, 63 A.3d 294 (Pa. Super. 2013)

(holding that, after lawful stop of defendant’s vehicle for illegally tinted

windows, officers did not have reasonable suspicion for a late night

protective   sweep    of    defendant’s   car   despite   defendant’s   extreme

nervousness).

      Here, the police officers identified no specific facts that would lead

them to believe that Appellant was armed and dangerous.          Officers noted


                                      -9-
J-S80035-16


that Appellant appeared nervous, would not make eye contact, and did not

speak to the police. However, the only evidence that could possibly point to

the conclusion that Appellant was armed was the evasive answer of the

driver in response to the question as to whether there were drugs or

weapons in the car.     While this answer is certainly evasive, and may give

rise to the question of some contraband in the car, this information alone

cannot reasonably provide the particularized, individual suspicion that

Appellant was armed and dangerous.               Compare Reppert, 814 A.2d at

1204, with Jackson, 907 A.2d at 545.

       Furthermore, police officers testified that there was a smell of “fresh

marijuana” in the car.       Again, this may give rise to some suspicion of

illegality.   However, a frisk based upon the smell of marijuana alone has

been ruled unconstitutional within this jurisdiction. See In the Interest of

S.J., 713 A.2d 45 (Pa. 1998).         In that case, a police officer drove past a

group of twelve males standing on a street corner and noticed the smell of

marijuana.     Id. at 48. After circling the block a second time, the officer

noticed that several of the group appeared to be smoking marijuana.            Id.

The officer got out of the vehicle and approached the group, which began to

disband after noticing him.     Id.    The defendant, particularly, attempted to

hide himself amongst the group.           Id.      The police officer stopped the

defendant,     noted   the   strong   smell   of   marijuana   coming   from   him

individually, and brought him back to the patrol car. Id. He then conducted


                                        - 10 -
J-S80035-16


a pat-down frisk and discovered crack cocaine.         Id.   Supreme Court

suppressed this evidence, reasoning:

      [Defendant] argues that even if the investigatory stop was
      justified, Officer Kelly lacked the requisite reasonable suspicion
      to justify the subsequent protective frisk. We find [defendant’s]
      argument persuasive.

      If, during the course of a valid investigatory stop, an officer
      observes unusual and suspicious conduct on the part of the
      suspect 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.

      The record herein is devoid of any evidence indicating that
      Officer Kelly had reason to believe [defendant] was armed and
      dangerous. There was no testimony that [defendant’s] clothing
      had any unusual bulges or any testimony that [defendant] made
      any furtive movements giving rise to Officer Kelly’s suspicions
      that [defendant] was armed and dangerous.         The Officer’s
      statement that he patted [defendant] down for his own safety
      does not rise to the level of particularized or reasonable
      suspicion that the [defendant] was armed and dangerous. The
      absence of any specific, articulable facts establishing that
      [defendant] was armed and dangerous renders the frisk
      unlawful.

In the Interest of S.J., 713 A.2d at 47-48.

      In the instant case, Officer DeCamillo pointed to the evasive answer by

the driver to justify his systematic pat-down of every occupant of the

vehicle.   This evasive answer about weapons or drugs, coupled with the

smell of marijuana, could very well give rise to the inference marijuana was

in the vehicle.   However, this does not automatically give rise to an

individualized suspicion that Appellant, a minor in the back seat of the

vehicle who had not spoken to the police nor made any furtive movements,


                                    - 11 -
J-S80035-16


was presently armed and dangerous.            Compare Reppert, 814 A.2d at

1204, with Jackson, 907 A.2d at 545.

      Based upon the above, we cannot conclude that the officer possessed

a reasonable suspicion to search Appellant’s person. Thus, the suppression

court erred in holding that Officer Scott possessed a reasonable belief that

Appellant was armed. The search of his person was illegal, and accordingly,

we reverse. See Gibson, 638 A.2d at 206-07.

      Order     of   disposition   reversed;    case   remanded;   jurisdiction

relinquished.

      Judge Lazarus joins.

      Judge Stabile files a dissenting memorandum.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/8/2017




                                     - 12 -
