J-S68009-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                   IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                          Appellant

                     v.

SAMIR AKINES,

                          Appellee                   No. 2470 EDA 2013


                   Appeal from the Order entered July 29, 2013,
              in the Court of Common Pleas of Philadelphia County,
              Criminal Division, at No(s): CP-51-CR-0004612-2011


BEFORE: ALLEN, JENKINS, and MUSMANNO, JJ.

MEMORANDUM BY ALLEN, J.:                        FILED NOVEMBER 12, 2014

      The Commonwealth appeals from the trial court’s order granting the

suppression motion of Appellee, Samir Akines, (“Akines”), on the basis that

the evidence at issue would have been inevitably discovered. We agree with

the Commonwealth and therefore reverse the trial court’s grant of

suppression.

      The trial court recounted the testimony from the suppression hearing

as follows:

            [] Officer Robert Wilson, a police officer for six and a half
      years, testified that on February 5, 2012, his tour of duty took
      him and his partner Officer Rivera to a unisex hair salon located
      at 1419 West Girard Avenue in the city and county of
      Philadelphia which the officer described as a high crime area.
      The officers went to that location after they received information
      over their radio for a person with a gun and a report of a
      shooting. The description of the person with a gun was a black
      male, wearing all black clothing. Officer Wilson testified that
      when they arrived at the location, there were multiple police
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     vehicles there and he observed the front door of the salon on the
     ground from being shot out, with glass broken from the entry
     door and there was also a plate glass broken out. The officer
     testified that he then walked into the salon to see if anybody was
     injured. There were casings inside the salon and there were
     about ten people inside. The officers talked to the people inside
     asking them what they saw and if anybody was injured. Officer
     Wilson testified that many of the people said that they had heard
     gunshots and they got down to the ground but no one saw or
     could give a description of the shooter.

            Officer Wilson testified that initially when he entered the
     salon, none of the people inside matched the description they
     had received over their radio. However, approximately five
     minutes later, while the officers were getting information from
     the people inside, [Akines] exited the bathroom [at] the rear of
     the salon with his two-year-old son. He was wearing a black
     hoodie, black cargo pants, and black boots which matched the
     earlier description of a shooter. Officer Wilson testified that he
     approached [Akines] and asked him for his ID. [Akines] told him
     that he had one but it was not on him and he told him his name
     was Jamir White date of birth 3/10/84. Then, while Officer
     Wilson was trying to write the information down, he asked
     [Akines] to repeat his name. [Akines] said that he would give
     him his real name and date of birth. Officer Wilson testified that
     his suspicions were raised because of [Akines] matching the
     flash description and [Akines] lying about his actual name and
     date of birth. Officer Wilson frisked [Akines] for weapons for his
     own safety. While patting him down, he felt something hard in
     his right hoodie pocket. The officer testified he felt something
     that felt like Blistex and removed it to see what it was. What
     Officer Wilson recovered from [Akines’] pocket was not Blistex
     but a small clear plastic jar which contained a leafy substance
     [that appeared to be] marijuana. At that point, Officer Wilson
     placed [Akines] into custody and escorted him into the patrol
     wagon. Also recovered from [Akines] was his ID with his correct
     biographical information.

           While [Akines] was in the patrol wagon, the two-year-old
     child started to cry inside the salon, so Officer Wilson’s partner
     asked [Akines] if he had any baby bags or supplies for the child.
     Officer Wilson testified that his partner then came back inside
     the salon and told him that [Akines] said that there was a red,
     black, and gray supply bag in there for the baby. Officer Wilson
     then began looking for the bag and found it at the bottom of the

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        steps in the basement of the salon. Officer Wilson testified that
        it looked like a small book bag which was zipped shut and it had
        a strong smell of fresh marijuana coming from it. The officers
        opened the bag and found twenty small clear plastic jars of a
        green leafy substance that had the same consistency, size, and
        shape, as the jar that was recovered from [Akines]. After the
        officer removed the jars of marijuana, he immediately saw a
        black handgun in the bag. It was a Glock 27, .40 caliber serial
        number VYG-412 which was placed on a property receipt.

Trial Court Opinion, 2/20/14, at 2-4 (citations to notes of testimony

omitted).

        The Commonwealth charged Akines with carrying a firearm without a

license, carrying a firearm on the public streets of Philadelphia, and

possession of marijuana.1         On April 10, 2013, Akines filed a suppression

motion.     The trial court convened suppression hearings on April 10, 2013,

June 20, 2013, and July 29, 2013, ultimately granting Akines’ suppression

motion on July 29, 2013.              This timely appeal followed.2   Both the

Commonwealth and the trial court have complied with Pa.R.A.P. 1925.

        The Commonwealth presents a single issue for our review:

              Did the [trial] court err in suppressing [Akines’] handgun
        and drugs based on a police officer’s exceeding the scope of a
        protective frisk where, in the absence of the violation, the
        evidence still would have been discovered?

Commonwealth Brief at 3.
____________________________________________


1
    18 Pa.C.S.A. §§ 6106, 6108, and 35 P.S. 780-113(a), respectively.
2
  The Commonwealth certified in its notice of appeal that the trial court’s
order would “terminate or substantially handicap the prosecution.” See
Pa.R.A.P. 311(d).


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      Our standard of review when the Commonwealth appeals from a

suppression order is as follows:

      When the Commonwealth appeals from a suppression order, we
      follow a clearly defined standard of review and consider only the
      evidence from the defendant's witnesses together with the
      evidence of the prosecution that, when read in the context of the
      entire record, remains uncontradicted. The suppression court's
      findings of fact bind an appellate court if the record supports
      those findings. The suppression court's conclusions of law,
      however, are not binding on an appellate court, whose duty is to
      determine if the suppression court properly applied the law to
      the facts.


Commonwealth v. Baker, 946 A.2d 691, 693 (Pa. Super. 2008) quoting

Commonwealth v. Barber, 889 A.2d 587, 592 (Pa. Super. 2005). “It is

within the suppression court's sole province as factfinder to pass on the

credibility of witnesses and the weight to be given to their testimony. The

suppression court is free to believe all, some or none of the evidence

presented at the suppression hearing.” Commonwealth v. Elmobdy, 823

A.2d 180, 183 (Pa. Super. 2003) (citations omitted).          However, the

suppression court's conclusions of law, which are not binding on an appellate

court, are subject to plenary review.   Commonwealth v. Johnson, 969

A.2d 565, 567 (Pa. Super. 2009) (citations omitted).

      Here, the trial court granted Akines’ suppression motion on the basis

that Officer Wilson exceeded the scope of a protective frisk when, during the

pat down of Appellant, he “escalated the frisk of [Appellant] into a search.”

Trial Court Opinion, 2/20/14, at 6.     The trial court concluded that the


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warrantless search of the interior of Akines’ pocket was impermissible under

the “plain feel” doctrine and was unsupported by probable cause. 3              In

reaching its determination, the trial court relied on the testimony of Officer

Wilson, who testified about his interaction with Akines as follows:

       Officer Wilson:                    While we were getting information from
                                          people that were inside the salon,
                                          [Akines] exited the bathroom with I
                                          believe a two year-old little boy.    I
                                          believe it was his son.

                                               ***

                                          He had ... a black hoodie, black cargo
                                          pants, and I believe it was black boots.

                                               ***
____________________________________________


       Under the plain feel doctrine, 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. [T]he 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, 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. Pakacki , 901 A.2d 983, 989 (2006) (internal citations
and quotation marks omitted).



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                                    I approached [Akines] and asked him ...
                                    if he had state ID.

                                         ***
                                    [H]e gave me a name of ... Jamir White
                                    ... date of birth 3/10/84.

                                       ***

                                    I asked him to repeat it. He told me he
                                    was going to give me his real name and
                                    date of birth.

                                       ***

                                    It rose my suspicion about him being
                                    that he met the flash and being that he
                                    lied to me about his actual name and
                                    date of birth. Then I frisked him for
                                    weapons or any type of weapons on him
                                    and I recovered from his pocket a small
                                    clear jar, plastic jar containing a green
                                    leafy substance, alleged marijuana. ...

     Assistant District Attorney:   This jar that you recovered when you
                                    recover it do you just go right into his
                                    pants and pull out a jar?

     Officer Wilson:                No. I just did a quick pat down of him to
                                    make sure there was no wepaons on
                                    him. Then I asked him what was that in
                                    his pocket. It was in his right hoodie
                                    pocket.

                                       ***

     Assistant District Attorney:   What does he say?

     Officer Wilson:                He was just looking like, he didn’t say
                                    anything, just looked down so I removed
                                    it.

                                       ***

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       Assistant District Attorney:       When you first touch it and you feel that
                                          pocket what do you think it is?

       Officer Wilson:                    It could have been Blistex. I removed it
                                          to make sure what it was.

                                               ***
                                          I [then] placed [Akines] in custody and I
                                          escorted him to our patrol wagon.

                                               ***

                                          The child that he had was beginning to
                                          cry. So we asked him for any type of
                                          contact information for the mother of the
                                          child and if there was any baby bags that
                                          he had ... any supplies for the baby. He
                                          said that he did.

                                           ***

                                           [H]e said that there was a supply bag in
                                           there. He gave me a color of the bag.
                                           He said that it was a red, black, and
                                           gray supply bag.

                                           ***
                                           I looked for the bag.4

                                           ***

                                           It was at the bottom of the basement
                                           steps.


                                           ***
____________________________________________


4
  Officer Wilson testified that Akines did not tell him precisely where the bag
was located, and that he independently searched for it, eventually locating it
in the basement, the entrance to which was approximately ten feet from the
front door. N.T., 4/10/13, at 18-19, 34.


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                                   We opened the bag.         There were 20
                                   small plastic clear plastic jars of a green
                                   leafy substance [and] a black handgun.

N.T., 4/10/13, at 14-18.

     After reviewing Officer Wilson’s testimony, the trial court concluded

that Officer Wilson exceeded the scope of a protective Terry frisk when he

conducted a pat down of Akines and reached into his pocket to extract the

vial of what the officer determined was marijuana. The trial court explained:

           Officer Wilson had reasonable suspicion to frisk [Akines]
     where he was investigating a report of a shooting. When Officer
     Wilson arrived on the scene, he saw that the entire salon had
     been blown out with the glass shattered from the front door and
     casings inside the salon. The officer had reasonable suspicion to
     frisk [Akines,] who was inside the salon and matched the
     description he received over the radio for a person with a gun
     and a report of a shooting when [Akines] came out of the
     bathroom.

           However, Officer Wilson’s seizure of the marijuana from
     [Appellant] went beyond the scope of the frisk. Under the plain
     feel exception, “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.”
     Commonwealth v. Stevenson, 744 A.2d 1261, 1265 (Pa.
     2000). Here, the object, a small clear plastic jar containing the
     marijuana, seized from [Akines] did not immediately have an
     incriminating nature of contraband [since] Officer Wilson
     specifically testified that while patting [Akines] down he felt
     something hard in his right hoodie pocket which felt like a Blistex
     container and he had to remove it to see what it was. This does
     not justify the officer escalating the frisk of [Akines] into a
     search. ... Because Officer Wilson did not testify to a belief that
     what he felt was contraband, this case does not fit within the
     paradigm of the plain feel exception.


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Trial Court Opinion, 2/19/14, at 5-6.

         The Commonwealth does not contest the trial court’s determination

that Officer Wilson exceeded the scope of a protective frisk when he

extracted the vial of marijuana from Akines’ pocket. Commonwealth Brief at

13. Rather, the Commonwealth’s argument is that the trial court’s grant of

suppression was erroneous because the police officers would have inevitably

discovered the contraband on the basement steps, notwithstanding the

improper frisk. Commonwealth’s Brief at 10-29. The trial court, however,

concluded      that   the   Commonwealth       failed    to   demonstrate   that     the

contraband found in the basement of the salon would have been inevitably

discovered. The trial court explained:

               The Commonwealth presented no evidence that the bag
         would have been found and [that it would have been] linked to
         [Akines] without the illegal police conduct. The Commonwealth
         presented no evidence as to the specifics of where and how the
         basement could be accessed [or whether it] was separately
         secured[.] [The Commonwealth] presented no evidence that
         police ever executed a Search Warrant in the basement or in the
         salon. ... The marijuana and gun found in the bag would not
         have been recovered if not for [Akines’] statement made as a
         result of his illegal arrest.

Trial Court Opinion, 2/20/14, at 6-7.

         Upon careful review, we agree with the trial court’s determination that

Officer Wilson’s search into Akines’ pocket exceeded the scope of a Terry

frisk.      However,   we    are   persuaded    by      the   Commonwealth    that    it

demonstrated by a preponderance of the evidence that the police officers




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would have inevitably discovered the gun and marijuana in the course of

their investigation.

      The inevitable discovery doctrine provides “[i]f the prosecution can

establish by a preponderance of the evidence that the illegally obtained

evidence ultimately or inevitably would have been discovered by lawful

means, the evidence is admissible. The purpose of the inevitable discovery

rule is to block setting aside convictions that would have been obtained

without police misconduct.” Commonwealth v. Bailey, 986 A.2d 860, 862

(Pa. Super. 2009) (citations omitted). “Suppressing evidence in such cases,

where it ultimately or inevitably would have lawfully been recovered, ‘would

reject logic, experience, and common sense.’”           Commonwealth v.

Gonzalez, 979 A.2d 879, 890 (Pa. Super. 2009) quoting Nix v. Williams,

467 U.S. 431, 104 S.Ct. 2501, 81 L.Ed.2d 377 (1984); Commonwealth v.

Brown, 368 A.2d 626, 631 (Pa. 1977) (citations omitted) (“evidence

secured through the illegality should nevertheless have been admitted where

it was obvious that without the illegality the Commonwealth would have

obtained the information”).

      “The ‘preponderance of the evidence’ is the lowest burden of proof in

the administration of justice, and it is defined as the ‘greater weight of the

evidence, i.e., to tip a scale slightly [in one's favor]’”). Commonwealth v.

A.R., 990 A.2d 1, 4, n.5 (Pa. Super. 2010); see also Carey v.

Pennsylvania Dept. of Corrections, 61 A.3d 367, 374 (Pa. Cmwlth. 2013)


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(“A preponderance of the evidence standard, the lowest evidentiary

standard, is tantamount to ‘a more likely than not’ inquiry.”).     Here, our

review of the record reveals the Commonwealth demonstrated by a

preponderance of the evidence that the contraband would have been

inevitably discovered.    Johnson, 969 A.2d at 567 (Pa. Super. 2009)

(citations omitted) (the suppression court's conclusions of law are not

binding on an appellate court, whose duty it is to determine if the

suppression court properly applied the law to the facts; such conclusions of

law are subject to plenary review).

      The record reveals that Officer Wilson and his partner Officer Rivera

received a radio report of a shooting at a hair salon, and a description of the

shooter as a black male wearing all black clothing.      N.T., 4/10/13, at 8.

When the officers arrived at the hair salon, they immediately confirmed that

it had been the scene of a shooting, observing that the glass on the front

door was shot out, and the front door itself was lying on the ground. N.T.,

4/10/13, at 9. The officers additionally saw numerous bullet casings on the

ground both inside and outside of the hair salon.     Id.   The police officers

observed approximately ten people inside the hair salon, none of whom

matched the description of the shooter. Id. at 13. The officers immediately

took steps to “contain the crime scene”, instructing the occupants of the hair

salon not to disturb any of the debris from the shooting.      Id. at 11.   The

officers then systematically asked for identification from all of the occupants


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of the salon. Officer Wilson testified, “we asked them for their ID’s ... since

they had to get interviewed by the detectives.”      Id. at 10. Approximately

five minutes after the police officers’ arrival, Akines emerged from the

bathroom with a two-year-old child.            Id. at 12-13.     Officer Wilson

immediately recognized that Akines matched the description of the shooter.

Id. at 12.    The officer asked Akines for his identification; Akines initially

provided a false name, but then admitted that he had given a false name,

and provided his real name to the officer, which further aroused the officer’s

suspicions.

       Under the totality of the circumstances, we conclude that the

Commonwealth demonstrated by a preponderance of the evidence that the

officers would have recovered the contraband from the basement steps.

Specifically, Officer Wilson testified that he and Officer Rivera made efforts

to secure and contain the crime scene by preventing the occupants of the

hair salon from disturbing the debris, indicating the officers’ intent to

conduct a further inspection of the premises for evidence. Moreover, Officer

Wilson stated that he collected identification from all of the occupants of the

hair   salon for   the   express purpose      of preparing for   a subsequent

investigation, indicating that further police inquiry and investigation into the

shooting would occur. Contrary to the trial court’s determination that “[t]he

Commonwealth presented no evidence as to the specifics of where and how

the basement could be accessed”, Officer Wilson testified that the entrance


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to the basement was merely ten feet from the front door of the hair salon,

and the record indicates that the officer was able to gain unimpeded entry

into the basement where the book bag containing the contraband was

discovered. Trial Court Opinion, 2/20/14, at 7; N.T., 4/10/13, at 19.

      Given   that   the   police   officers    were    preparing   to   conduct   an

investigation of the premises, that the basement door was in close proximity

to the entrance of the building that had sustained significant gunshot

damage, and that nothing in the record indicates that access to basement

was obstructed in any way, it is reasonable to conclude that the impending

police investigation “more likely than not” would have encompassed the

basement stairwell. See id. at 19.

      Additionally, Officer Wilson testified that when he entered the

basement, he observed mainly boxes, and he saw at the bottom of the steps

a “small book bag” or “little kids backpack.”          Id. at 19-20. Officer Wilson

testified that there were no other book bags in the basement area, and

because the basement mainly contained boxes, the book bag would have

been conspicuous. Id. at 20. Furthermore, the officer testified that as he

neared the book bag, he smelled a “strong” odor of “fresh” marijuana

emanating from it, increasing the likelihood that the officers would have

found the contraband in the bag because it smelled of marijuana. Id.; see

Commonwealth v. Stoner, 710 A.2d 55, 59 (Pa. Super. 1998) (explaining

that “plain smell” is a concept that is analogized to “plain view” to establish


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probable cause); Commonwealth v. Stoner, 344 A.2d 633, 635 (Pa.

Super. 1975) (“[I]t would have been a dereliction of duty for [the arresting

officer] to ignore the obvious aroma of an illegal drug which he was trained

to identify.”). Upon opening the book bag, Officer Wilson recovered twenty

vials of marijuana, a handgun, and “multiple prescribed medication bottles

[that] had [Akines’] name on the[m]”, thus connecting the contraband to

Akines, contrary to the trial court’s determination that the Commonwealth

presented no evidence that the bag could have been “linked” to Akines.

N.T., 4/10/13, at 22; Trial Court Opinion, 2/20/14, at 6-7.      Further, it is

reasonable to conclude that upon discovering the contraband in the book

bag, the police officers would have placed Akines under arrest, and the

contraband in Akines’ pocket would have been recovered from a search

incident to arrest. See Commonwealth v. Walker, 501 A.2d 1143, 1148

(Pa. Super. 1985) (“Incident to a lawful arrest, a police officer may conduct

a warrantless search of the arrestee's person and of the area within the

immediate control of the arrestee[;] [t]he warrantless search acts to protect

the arresting officer from weapons the arrestee may have access to, and

prevents the destruction or concealment of evidence.”).

     Given    the   foregoing,   we     conclude   that   the   Commonwealth

demonstrated by a preponderance of the evidence that the police officers

would have conducted an investigation of the crime scene that would have




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led to the inevitable discovery of the contraband. We therefore reverse the

trial court’s order granting Akines’ suppression motion.

      Order reversed. Case remanded. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/12/2014




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