J-A14019-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    TAYLOR JEFFERSON,                          :
                                               :
                       Appellant.              :   No. 1119 WDA 2018


        Appeal from the Judgment of Sentence Entered, June 12, 2018,
             in the Court of Common Pleas of Allegheny County,
            Criminal Division at No(s): CP-02-CR-0007306-2017.


BEFORE: OTT, J., KUNSELMAN, J., and MUSMANNO, J.

MEMORANDUM BY KUNSELMAN, J.:                           FILED AUGUST 02, 2019

        Taylor Jefferson appeals from the judgment of sentence imposed

following his conviction of firearms not to be carried without a license. 1 We

vacate the judgment of sentence, reverse the order denying suppression, and

remand for further proceedings consistent with this memorandum.

        The trial court, in disposing of Jefferson’s motion to suppress, set forth

the following factual history:

              On April 25, 2017, around 11:00 p.m., Officers Alexandria
        Taylor and Nathan Detting with the Pittsburgh Bureau of Police
        were patrolling the Homewood area of Pittsburgh. As part of their
        routine patrol, the officers ran license plate numbers of various
        vehicles through their computer system to check for stolen
        vehicles and any vehicle code violations.



____________________________________________


1   18 Pa.C.S.A. § 6106(a)(1).
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            When the officers ran the license plate of a vehicle that was
     being driven by [Jefferson], the officers learned that there was a
     “full extradition warrant out of Pennsylvania” for an individual
     named Taylor Jefferson. The officers also learned that Taylor
     Jefferson was the registered owner of the vehicle. The [National
     Crime Information Center (“NCIC”)] system that the officers used
     to run the license plate did not provide the officers with a picture
     of Mr. Jefferson, and the officers were not otherwise familiar with
     [him] or his name.

           As the officers were attempting to validate the warrant, and
     before the officers had made any contact with [Jefferson’s]
     vehicle, [Jefferson] pulled over to the side of the road and lawfully
     parked the vehicle. Officers Taylor and Detting pulled over behind
     [Jefferon’s] vehicle and activated a spotlight. The officers’ vehicle
     did not block [Jefferson] from being able to leave the parking
     space. The officers pulled over behind [Jefferson’s] vehicle in
     order to identify the driver and to investigate whether he was the
     registered owner of the vehicle, and thus the person for whom
     there was an arrest warrant.

            Officer Detting and Officer Taylor simultaneously
     approached the vehicle, with Officer Detting approaching the
     driver’s side and Officer Taylor approaching the passenger side.
     [Jefferson] was about to exit the vehicle, with one foot already on
     the ground, when the officers approached the car. Officer Netting
     told [Jefferson] to remain in the vehicle and asked for his
     identification. [Jefferson] informed Officer Detting that he had left
     his ID at home, but he provided his full name to the officer.

           As Officer Detting was speaking to [Jefferson], Officer Taylor
     observed [Jefferson] “slowly and deliberately reach into his right
     sweat pants pocket” with his right hand. She was able to notice
     this movement because the officers had illuminated the inside of
     the vehicle with a spotlight. Officer Taylor was about to tell
     [Jeferson] to remove his hand from his pocket when she saw him
     “start to pull his hand out of his pocket.” As he pulled his hand
     out of his pocket, Officer Taylor saw that [Jefferson] had a “good
     grip” on a firearm. Upon seeing the firearm, Officer Taylor drew
     her weapon and yelled “gun, gun, gun.” Officer Detting drew his
     weapon, and [Jefferson] promptly handed the firearm to Officer
     Detting. Officer Detting retrieved [Jefferson’s] weapon and asked
     [Jefferson] to exit the vehicle. [Jefferson] was handcuffed, and
     the officers ultimately determined that [he] did not have a license

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        to carry a concealed firearm.          [Jefferson] was then taken into
        custody.

Trial Court Opinion, 2/8/18, at 1-3 (numbering and formatting omitted).

        Jefferson was subsequently charged with one count each of firearms not

to be carried without a license, persons not to possess firearms,2 and of

possession of a firearm with an altered manufacturer’s number. 3 After the

preliminary hearing, the trial court dismissed the charge of possession of a

firearm with an altered manufacturer’s number, but held the remaining

charges for trial.

        Jefferson filed a motion to suppress the firearm. Following a hearing,

the trial court denied the motion. The case proceeded to a non-jury trial. The

charge of persons not to possess firearms was nolle prossed, and the trial

court convicted Jefferson of firearms not to be carried without a license. On

June 12, 2018, the trial court sentenced Jefferson to three and one-half to

seven years of incarceration.          Jefferson filed a post-sentence motion to

reconsider the sentence, which the trial court denied. Jefferson filed a timely

notice of appeal. Both Jefferson and the trial court complied with Pa.R.A.P.

1925.

        Jefferson raises one issue on appeal: “Whether the trial court erred in

denying [his] motion to suppress because, although the trial court correctly

concluded that the police officers subjected [him] to an investigative
____________________________________________


2   18 Pa.C.S.A. 6105(a)(1).

3   18 Pa.C.S.A. 6110.2(a).


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detention, the police officers did not possess reasonable suspicion to justify

that seizure?” Jefferson’s Brief at 4.

      On appeal from the denial of a suppression motion,

      Our standard of review . . . is 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. Galendez, 27 A.3d 1042, 1045 (Pa. Super. 2011) (en

banc) (citation omitted).     Additionally, “appellate courts are limited to

reviewing only the evidence presented at the suppression hearing when

examining a ruling on a pretrial motion to suppress.”     Commonwealth v.

Bush, 166 3.Ad 1278, 1281-82 (Pa. Super 2017) (citation omitted).

      Here, the parties do not dispute that the trial court correctly determined

that Jefferson “was subjected to an investigatory detention at the time the

officers approached his vehicle and instructed him to remain inside of the

vehicle.” Trial Court Opinion, 2/8/18, at 4. We discern no abuse of discretion

in that ruling. See Commonwealth v. Hicks, 208 A.3d 916, 926–27 (Pa.

2019) (finding that “[f]or purposes of the Fourth Amendment, a person is

seized when, in view of all the circumstances surrounding the incident, a

reasonable person would have believed that he was not free to leave”)

(internal quotations and citations omitted).   Accordingly, the sole question



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presented for review is whether the officers had the requisite level of suspicion

to justify the detention.

      When reviewing the legality of a vehicle stop based upon suspected

criminal   activity,   as   herein   occurred,   we   adhere   to   the   following

considerations:

      The United States Supreme Court in [Terry v. Ohio, 392 U.S. 1
       . . . (1968),] and in Adams v. Williams, 407 U.S. 143 . . .
      (1972), has suggested that even in the absence of probable cause
      there may be, under certain circumstances, justification for a
      limited intrusion upon the privacy of an individual. Under these
      decisions the Court has suggested that a brief stop of a suspicious
      individual, in order to determine his identity or to maintain the
      status quo momentarily while obtaining additional information
      may in fact be reasonable although the officer at that time did not
      possess probable cause that would justify an arrest. In the Terry,
      supra and Adams, supra decisions, the Court was required to
      struggle with the balancing of the right of society and the right of
      an individual in street encounters. Because a motorist’s extreme
      mobility may otherwise allow him to avoid police confrontation,
      the State has an equally strong interest in these cases in stopping
      a moving vehicle to freeze momentarily a situation of suspected
      criminality. However, these decisions have made it clear that to
      justify the intrusion the police officer must be able to point to
      specific and articulable facts which taken together with rational
      inferences from those facts reasonably warranted the intrusion.
      See Adams v. [Williams ], supra; Terry v. Ohio, supra. Thus,
      it is also clear that an investigative stop of a moving vehicle[,] to
      be valid[,] must be based upon objective facts creating a
      reasonable suspicion that the detained motorist is presently
      involved in criminal activity.

Commonwealth v. Feczko, 10 A.3d 1285, 1288 (Pa. Super. 2010) (en banc)

(quoting Commonwealth v. Murray, 331 A.2d 414, 418 (Pa. 1975) (some

brackets in original)).




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      In determining whether police had reasonable suspicion to initiate an

investigative detention, “the fundamental inquiry is an objective one, namely,

whether the facts available to police at the moment of the intrusion warrant a

man of reasonable caution in the belief that the action taken was appropriate.”

Commonwealth v. Gray, 784 A.2d 137, 142 (Pa. Super. 2001). Reasonable

suspicion is dependent on both the quantity and quality of the information

police possess prior to detaining an individual. Alabama v. White, 496 U.S.

325, 330, (1990); see also Commonwealth v. Wiley, 858 A.2d 1191, 1197

(Pa. Super. 2004) (holding that reasonable suspicion is measured by what the

police knew prior to conducting a search or seizure). In order to assess the

facts available to police, we must consider the totality of the circumstances.

Id.   While reasonable suspicion is a less stringent standard than probable

cause, the detaining officer “must be able to articulate something more than

an inchoate and unparticularized suspicion or hunch.”       United States v.

Sokolow, 490 U.S. 1, 7 (1989) (internal quotation marks and citation

omitted).

      Jefferson contends that the trial court erred in finding that the police

had reasonable suspicion to justify the investigative detention.    Jefferson’s

Brief at 13. Jefferson argues that when the officers stopped him, they had

not observed any violation of the Vehicle Code, nor any suspicious behavior

that suggested criminal activity was afoot. Id.   Jefferson maintains that the

police had no information to suggest that he was the registered owner of the

vehicle, since they were not familiar with the owner, and the NCIC check did

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not provide any photo or physical description of the owner. Id. Jefferson

additionally argues that, at the time of the stop, the officers knew only that

there may have been an outstanding arrest warrant for the owner, but had

not confirmed the validity of the warrant. Id. Thus, Jefferson claims, because

the police initiated the stop based solely upon the assumption, or

unparticularized hunch, that the driver of the vehicle was the registered owner

and that the arrest warrant for the owner was valid, they lacked reasonable

suspicion to justify the stop. Id.

      Jefferson relies on Commonwealth v. Andersen, 753 A.2d 1289 (Pa.

Super. 2000), in support of his argument that the police lacked reasonable

suspicion to stop him. In Andersen, police responded to a call regarding a

domestic disturbance at a local tavern. Upon their arrival, they encountered

the defendant seated in a black Camaro.        Upon investigation, the officers

discovered that it was registered to the defendant and that the defendant’s

driving license was suspended. The officers advised the defendant not to drive

his vehicle, and permitted him to walk to a nearby friend’s house. The next

day, one of the officers noticed a black Camaro driving near the same tavern.

The officer pulled up behind the Camaro and confirmed it bore the same

license plate as the defendant’s vehicle. Although the officer had not identified

the defendant as the driver of the Camaro, he activated his lights and pulled

the Camaro over. After approaching the vehicle, the officer determined that

the driver was in fact the defendant. The officer smelled alcohol and found a

small bag of marijuana. The officer arrested the defendant, and the trial court

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subsequently convicted him of driving with a suspended license, driving under

the influence, and possession of marijuana.      See Andersen, 753 A.2d at

1291–92.

      On review, the Andersen Court held that,

      the knowledge a vehicle is owned by an individual whose driving
      privileges are suspended coupled with the mere assumption that
      the owner is driving the vehicle, does not give rise to articulable
      and reasonable grounds to suspect that a violation of the Vehicle
      Code is occurring every time this vehicle is operated during the
      owner’s suspension.

Id. at 1294 (emphasis in original). The Andersen Court noted that the police

observed no violation of the Vehicle Code and failed to identify the driver as

the defendant before initiating the traffic stop.   Id. That the police were

familiar with the defendant, that his “vehicle was being driven near a location

where the police previously had encountered [him],” and that the license plate

matched the defendant’s vehicle were not enough to justify the investigative

detention. Id. at 1293.

      In so ruling, the Andersen Court reasoned that,

      [h]olding otherwise would subject drivers who lawfully operate
      vehicles owned or previously operated by a person with a
      suspended license to unnecessary traffic stops. The example of
      the family car demonstrates this point. Although a family car may
      be registered in the name of one individual, numerous additional
      drivers may be licensed and insured to operate the same vehicle.
      If we allow the police to stop any vehicle for the mere fact that it
      is owned or once operated by an individual whose operating
      privileges are suspended, then each additionally insured driver of
      the family car could be subject to traffic stops while lawfully
      operating the family car simply because the license of another
      operator of the vehicle is suspended. The lack of articulable and
      reasonable grounds to suspect a violation of the Vehicle Code

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      when such a stop occurs without knowing the identity of the driver
      is patent.

Id.

      Notably, Andersen was decided under the prior version of 75 Pa.C.S.A.

§ 6308(b), which required officers to have “articulable and reasonable

grounds” to justify a vehicle stop.    See Feczko, 10 A.3d at 1287.        The

“articulable and reasonable grounds” standard has been interpreted to be

synonymous with the more stringent standard of “probable cause.” See id.

at 1288.   In 2004, the statute was amended to its current version, which

requires reasonable suspicion for a traffic stop. See 75 Pa.C.S.A. § 6308(b).

Because of this change, the continued validity of Andersen has been

questioned. However, for the reasons set forth below we find that Andersen

guides our analysis.

      While Andersen was decided prior the 2004 amendment, the Court

determined that “the reasonable basis [or articulable and reasonable grounds]

necessary to justify a stop is less stringent than probable cause.” Andersen,

753 A.2d at 1293. Thus, although other courts have equated “articulable and

reasonable grounds” with “probable cause,” the Andersen Court did not do

so, and employed a level of scrutiny akin to reasonable suspicion. Accordingly,

we conclude that Andersen provides persuasive authority in deciding whether

the officers lawfully stopped Jefferson.

      In addition, since the 2004 amendment, on at least three occasions this

Court has addressed the question of what evidence is sufficient under section

6308(b) to establish that police had reasonable suspicion to justify a vehicle

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stop under circumstances substantially similar to those presented in

Andersen. First, in Commonwealth v. Hilliar, 943 A.2d 984 (Pa. Super

2008), a police officer ran the defendant’s license plate and discovered that

the registered owner of the vehicle had a suspended license. Id. at 987. The

officer also obtained information regarding the owner’s age and gender. Id.

After the officer observed that the driver of the vehicle was of the same gender

and was approximately the same age as the registered owner, he stopped the

vehicle for suspicion of driving on a suspended license. The Hilliar Court held

that “the officer’s suspicion that the driver of the vehicle was the owner was

a reasonable one because the driver matched the description of the owner as

a middle aged man.” Id. at 990 n.1. Notably, the Hilliar Court distinguished

Andersen on the basis that, in Andersen “there [was] no mention of the

police officer making any observation of the physical characteristics of the

driver.” Id.

      Second, in Commonwealth v. Bailey, 947 A.2d 808 (Pa. Super. 2008),

a police officer received a radio call regarding a black TransAm with an

abnormally loud exhaust system. Id. at 810. The officer was also notified

that the TransAm’s owner likely had a suspended license. Id. Several hours

later, the officer spotted a black TransAm with a loud exhaust system, and

conducted a vehicle stop.    Id. Relying upon Andersen, the Bailey Court

observed that the officer’s “hunch that the TransAm’s driver may have been

[the owner] operating the vehicle with a suspended license was insufficient to

establish reasonable suspicion that would have justified stopping the vehicle.”

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Id. at 812. However, the Bailey Court concluded that reasonable suspicion

to justify the stop was established because the officer also suspected that the

TransAm had a faulty exhaust system.” Id. at 812.

      Third, in Commonwealth v. Farnan, 55 A.3d 113 (Pa. Super. 2012),

a police officer responded to call regarding a custody dispute involving the

defendant and his ex-wife. Based on prior incidents with these individuals,

the officer was familiar with the defendant’s appearance, and that within the

prior thirty days the defendant’s driving privileges had been suspended. Id.

While talking to the defendant’s ex-wife in front of her residence, the officer

observed the defendant driving past. Id. at 114-15. The officer then pursued

the defendant and initiated a vehicle stop. Id. The Farnan Court held that

the officer had reasonable suspicion to initiate the stop because he was

familiar with the defendant’s appearance, he saw the defendant driving, he

suspected the defendant’s license was still suspended, and he needed to

investigate the ex-wife’s complaint. Id.

      Read together, Andersen, Hilliar, Bailey, and Farnan demonstrate

that an officer’s knowledge that a vehicle is owned by an individual whose

driving privileges are suspended, coupled with only an assumption that the

owner is driving the vehicle, does not amount to reasonable suspicion to justify

an investigatory detention. Instead, officers must articulate some additional

evidence supporting their belief that the person driving has a suspended

license or that a problem exists with the vehicle to justify the stop.




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      Although these cases differ in that they primarily involved a suspected

violation of the Vehicle Code, (i.e., suspended driving privileges) rather than

suspicion of other criminal activity (i.e., an arrest warrant), as is the case

here, this difference is irrelevant. For either one of these stops, the requisite

level of suspicion is the same: reasonable suspicion. See Feczko, 10 A.3d at

1288 (holding that “an investigative stop of a moving vehicle . . . must be

based upon objective facts creating a reasonable suspicion that the detained

motorist is presently involved in criminal activity”). While we recognize that

an active arrest warrant presents a serious matter, the nature of the criminal

activity in question does not alter the applicable constitutional standard. See

Commonwealth v. Rodriguez, 614 A.2d 1378, 1383 (holding that “[t]he

seriousness of the criminal activity under investigation” can never be used as

justification for applying a level of suspicion less than that required by the

Constitution).

      Turning to the suppression record in this case, Officer Taylor conceded

that she and Officer Detting had not previously encountered the registered

owner of the vehicle as reported by NCIC, they were not familiar with his

name, and they had no information regarding the registered owner’s age or

appearance.      N.T. Suppression, 12/7/17, at 14.    The officers also did not

observe any violation of the Vehicle Code. Id. Moreover, at the time the

officers stopped Jefferson, they had not confirmed the validity of the warrant

for the registered owner of the vehicle.        Id.   Thus, even viewing the

suppression record in the light most favorable to the Commonwealth, it is clear

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that Officer Taylor and Officer Detting acted solely upon their assumptions

that the arrest warrant was valid and that driver of the vehicle was the

registered owner for whom the warrant had been issued. These assumptions

were insufficient to permit the officers to formulate a reasonable suspicion

that the driver of the vehicle was the owner for whom a warrant had been

issued. See Bailey, 947 A.2d at 812 (clarifying “that a mere assumption is

not synonymous with reasonable suspicion”).

     For these reasons we conclude that the investigatory detention was not

supported by reasonable suspicion and was therefore illegal. Consequently,

we vacate Jefferson’s judgment of sentence, reverse the order denying

suppression, and remand for further proceedings consistent with this

memorandum.

     Judgment of sentence vacated, suppression order reversed, case

remanded for further proceedings. Jurisdiction relinquished.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/02/2019




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