J-S30037-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                       IN THE SUPERIOR COURT OF
                                                         PENNSYLVANIA
                            Appellee

                       v.

THOMAS LAMAR JEFCOAT

                            Appellant                  No. 1822 EDA 2015


             Appeal from the Judgment of Sentence April 22, 2015
                In the Court of Common Pleas of Lehigh County
              Criminal Division at No(s): CP-39-CR-0004288-2014

BEFORE: GANTMAN, P.J., FORD ELLIOTT, P.J.E., and JENKINS, J.

MEMORANDUM BY JENKINS, J.:                         FILED SEPTEMBER 16, 2016

        Thomas Jefcoat appeals from the judgment of sentence entered

following his conviction on two counts of possession of a controlled

substance.1 We affirm.

        On July 8, 2014, a police officer stopped Jefcoat for riding his bicycle

at night without a headlamp. Based on evidence obtained during the stop,

the officer arrested Jefcoat, and he was charged with the above possessory

offenses. Jefcoat filed a motion to suppress, which the court denied after an

evidentiary hearing.        Subsequently, a jury found Jefcoat guilty of both

possessory counts.       The court sentenced Jefcoat to a total term of 12-24

months’ imprisonment.         Jefcoat filed timely post-sentence motions, which

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1
    35 P.S. § 780-113(a)(16).


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the court denied, and a timely notice of appeal. Both Jefcoat and the trial

court complied with Pa.R.A.P. 1925.

     Jefcoat raises two issues in this appeal:

     1. The trial court erred in denying [Jefcoat’s] motion to suppress
     because the police officer did not have reasonable suspicion to
     believe [Jefcoat] was armed or dangerous or engaged in criminal
     activity where he was stopped on his bicycle for failing to have a
     headlamp.

     2. The trial court erred in denying [Jefcoat’s] motion to suppress
     where the police did not have either reasonable suspicion or
     probable cause to conduct a canine search on [Jefcoat’s] book
     bag.

Pa.R.A.P. 1925(b) Statement.

     Both of these issues pertain to the trial court’s order denying Jefcoat’s

motion to suppress.   When the defendant challenges a suppression ruling,

our standard of review requires us to determine

     whether the record supports the trial court’s factual findings and
     whether the legal conclusions drawn therefrom are free from
     error. Our scope of review is limited; we 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. Cruz, 71 A.3d 998, 1002-03 (Pa.Super.2013).

     The trial court accurately summarized the evidence adduced during the

hearing on Jefcoat’s motion to suppress:

     On July 8, 2014, at approximately 12:26 a.m., Officer David
     Howells, of the Allentown Police Department, was on routine
     patrol in a neighborhood described as ‘high crime ... high drug

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      area’, when he observed [Jefcoat] riding a mountain bike without
      headlights. He caught up with [Jefcoat] and stopped him in the
      700 block of Liberty Street in the City of Allentown. [Jefcoat]
      reacted to this bicycle stop in a way which Officer Howells found
      ‘odd’. He started crying and through his tears told Officer
      Howells that he did not want to go back to state prison. Officer
      Howells directed [Jefcoat] to interlock his fingers so that he
      could conduct a pat-down for weapons. While the pat-down was
      unfolding, [Jefcoat] was looking around, and attempting to pull
      his hands apart. He told Officer Howells that he was going to
      ‘pass out’ and continued to ask to get off the bike. Officer
      Howells thought [Jefcoat] was going to run.

      [Following the pat-down,] Jefcoat [told Officer Howells that he]
      was on state parole for robbery[.] [Jefcoat] was wearing a book
      bag, which Officer Howells described as ‘very heavy’ and thought
      might contain a digital scale. [Jefcoat], who had consented to a
      search of his person, objected to a search of the book bag, but
      did comment that ‘everything in the bag was his, [but] not the
      bag [itself].’ Officer Howells called for a K-9 trained in drug
      detection. Officer Jonathan Smith arrived with K-9 Django, who
      alerted to the presence of illegal drugs in the book bag. A
      search warrant was then secured for the book bag, and when
      executed, it revealed the eighteen packets of K2 (synthetic
      marijuana) and seven packets of heroin.

Pa.R.A.P. 1925 Opinion, 2/11/15, at 2-3.       In addition, Officer Howells

testified during the suppression hearing that he has made many drug- and

firearm-related arrests in this particular area during his eight years as a

patrol officer. N.T., 12/15/14, at 8, 14-15.

      In his first argument, Jefcoat contends that Officer Howells conducted

an illegal pat-down, because he lacked reasonable suspicion to believe that

Jefcoat was armed or dangerous or engaged in criminal activity at the time

of the bicycle stop.




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      Before addressing this issue, we observe that Officer Howells observed

Jefcoat riding a mountain bike on the streets of Allentown shortly after

midnight in violation of Section 3507(a) of the Vehicle Code. In pertinent

part, that section requires the following:

      (a) Lamps and reflectors. - Every pedalcycle when in use
      between sunset and sunrise shall be equipped on the front with a
      lamp which emits a beam of white light intended to illuminate
      the pedalcycle operator's path and visible from a distance of at
      least 500 feet to the front, a red reflector facing to the rear
      which shall be visible at least 500 feet to the rear, and an amber
      reflector on each side.

75 Pa.C.S. § 3507(a). The purpose of this provision is to protect bicyclists

from collisions with automobiles. Candarelli v. Simon, 27 A.2d 250, 252

(Pa.Super.1942).    Officer Howells had probable cause to stop Jefcoat for

violating section 3507.

      Having established that the initial stop was valid, we now address

Jefcoat’s argument that Officer Howells lacked reasonable suspicion to pat

him down.     During a valid stop, if an officer has a reasonable suspicion,

based on specific and articulable facts, that the detained individual may be

armed and dangerous,

      the officer may then conduct a frisk of the individual’s outer
      garments for weapons. Since the sole justification for a [frisk] is
      the protection of the officer or others nearby, such a protective
      search must be strictly limited to that which is necessary for the
      discovery of weapons which might be used to harm the officer or
      others nearby. Thus, the purpose of this limited search is not to
      discover evidence, but to allow the officer to pursue his
      investigation without fear of violence.




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Commonwealth v. Scarborough, 89 A.3d 679, 683 (Pa.Super.2014). To

assess whether the officer has a reasonable belief that the individual is

armed and dangerous, we give consideration to specific reasonable

inferences that the officer can draw from the facts in the light of his

experience, but we give no consideration to his unparticularized suspicions

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

      Here, the totality of the circumstances gave Officer Howells reasonable

suspicion to believe that Jefcoat was armed and dangerous. The stop was

late at night in a high crime neighborhood. Moreover, the trial court aptly

reasoned that

      [Jefcoat]’s reaction to the bicycle stop was out of the ordinary.
      Most people do not start crying when they are stopped for a
      motor code violation. Generally, crying is the shedding of tears
      in response to an emotional state, not the angst from a potential
      ticket. It is also doubtful that [Jefcoat] believed he was returning
      to a state prison for such a minor offense. Instead, [Jefcoat]’s
      expression of fear that he would be returned to state prison
      suggests that he was not out for a moonlight serenade on his
      bicycle.

Pa.R.A.P. Opinion, at 5. Accordingly, Jefcoat’s first argument lacks merit.

      In his second argument, Jefcoat contends that the police lacked

probable cause or reasonable suspicion to conduct a canine sniff of his

bookbag. We disagree.

      The use of trained dogs to sniff for the presence of drugs does

constitute   a search under     Article   I, section 8   of the   Pennsylvania

Constitution.   Commonwealth v. Johnston, 530 A.2d 74, 78 (Pa.1987).


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Police officers only need reasonable suspicion to conduct a canine sniff of a

place. Id. at 80 (reasonable suspicion necessary for canine sniff of storage

locker). On the other hand, police must have probable cause to conduct a

canine sniff of a person or of satchels that the person is carrying at the time

of the stop.    Commonwealth v. Martin, 626 A.2d 556, 560 (Pa.1993)

(probable cause needed for canine sniff of satchel that defendant was

carrying when police officers stopped him in parking lot outside restaurant;

“because the search in this case involved Martin’s person, we believe that in

addition to being lawfully in place at the time of the search, the police must

have probable cause to believe that a canine search of a person will produce

contraband or evidence of a crime”). Like the defendant in Martin, Jefcoat

was carrying a container (more specifically, a bookbag) at the time of the

bicycle stop.   Thus, under Martin, probable cause was necessary for the

canine search of the bookbag.

      “[A] determination of probable cause requires only that the totality of

the circumstances demonstrates a fair probability that contraband or

evidence of a crime will be found in a particular place.” Commonwealth v.

Brown, 924 A.2d 1283, 1286 (Pa.Super.2007).           “Probable cause exists

where the facts and circumstances within the officers' knowledge are

sufficient to warrant a person of reasonable caution in the belief that an

offense has been or is being committed.”       Commonwealth v. Luv, 735

A.2d 87, 90 (Pa.1999). Additionally, a police officer’s experience may be a


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relevant factor in determining probable cause to arrest. Commonwealth v.

Thompson, 985 A.2d 928, 935 (Pa.2009). An officer’s information with

respect to prior drug dealing in the same vicinity is highly relevant to the

determination of probable cause.               Commonwealth v. Colon, 777 A.2d

1097, 1101 (Pa.Super.2001). Courts recognize that “suspicious conduct or

behavior following a lawful stop of a suspect may establish probable cause

for   arrest    …”      Commonwealth             v.   Legg,   392   A.2d   801,   803

(Pa.Super.1978); see also United States v. Yokshan, 658 F.Supp.2d 654,

667 (E.D.Pa.2009) (collecting cases).

       Several factors, viewed collectively, furnished probable cause for the

canine sniff of Jefcoat’s bookbag: (1) his emotional outburst that he did not

want to return to state prison, (2) his nervous demeanor during Officer

Howell’s pat-down (looking around, attempting to pull his hands apart,

stating he was going to “pass out” and repeatedly asking permission to get

off the bike); (3) his objection to a search of the bookbag; (4) his strange

claim that the bookbag did not belong to him, but everything inside the

bookbag did; (5) the heavy weight of the bookbag, which led Officer Howells

to believe that it contained a digital scale;2 (6) the lateness of the hour and

high-crime nature of the neighborhood, and (7) Officer Howells’ experience

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2
 Some might consider this more of a hunch than a reasonable inference, but
even if we consider it a mere hunch, the remaining factors are sufficient to
provide probable cause.



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in patrolling the area and in making numerous drug- and firearm-related

arrests there.   For these reasons, the trial court properly denied Jefcoat’s

motion to suppress.

     Judgment of sentence affirmed.

     President Judge Gantman concurs in the result.

     President Judge Emeritus Ford Elliott files a Concurring/Dissenting

Memorandum Statement.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/16/2016




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