J-S04040-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
                                          :        PENNSYLVANIA
                    Appellant             :
                                          :
                                          :
              v.                          :
                                          :
                                          :
 DRON ADAMS                               :   No. 3559 EDA 2018

             Appeal from the Order Entered November 8, 2018
   In the Court of Common Pleas of Delaware County Criminal Division at
                     No(s): CP-23-CR-0004690-2018


BEFORE: BENDER, P.J.E., STABILE, J., and MURRAY, J.

MEMORANDUM BY MURRAY, J.:                           FILED MARCH 27, 2020

      The Commonwealth of Pennsylvania (Commonwealth) appeals from the

order granting the suppression motion of Appellee, Dron Adams (Adams).

After careful consideration, we affirm.

      The suppression court summarized the evidence presented at the

suppression hearing as follows:

            On March 26th, 2018, at about 6:02pm, Sergeant Matthew
      Goldschmidt [(Sergeant Goldschmidt)] was driving in a fully
      marked police vehicle up the alley between the 300 block of
      Pennell Street and the 300 block of [Lloyd] Street while on routine
      patrol. At the time of this incident, it was daylight. Sergeant
      Goldschmidt patrols this area multiple times in one patrol shift,
      since it is a high drug and crime area. This has been determined
      by the Chester City Police [as] a high crime area because there
      are numerous shootings and homicides a year in this area, as well
      as numerous drug sales and drug use arrests. This alley in
      particular has many abandoned homes where drugs have been
      discovered.
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            As Sergeant Goldschmidt drove up the alley, he noticed a
     gray Nissan parked facing south, next to the garage of 319 Pennell
     Street, a home he believed to be abandoned, which had a history
     of housing illicit objects. Inside the vehicle in the front passenger
     seat was Ahmad Anding, a known drug dealer from the area.
     Sergeant Goldschmidt approached the vehicle, and once he got to
     the side of the vehicle, he noticed [Adams] crouching between the
     abandoned garage and the passenger door.                     Sergeant
     Goldschmidt had encounters with [Adams] previously on several
     drug cases, none of which resulted in a conviction. Sergeant
     Goldschmidt also knew that [Adams had] lived in the area, and
     that it would not be unusual for him to still know people that lived
     there now. When he noticed [Adams], Sergeant Goldschmidt
     turned around, but did not turn his lights and sirens on. Upon
     approach, [Adams] did not flee or provide any false information.
     When he questioned [Adams] as to his behavior, [Adams]
     immediately provided his identification, which confirmed his name
     and personal information. Upon reviewing [Adams’] information,
     it was determined that [Adams] had no outstanding warrants.

             Sergeant Goldschmidt asked [Adams] if he had a weapon
     on him. [Adams] responded no and put his hands up, then
     Sergeant Goldschmidt testified that he gave him consent to search
     him. [] Sergeant Goldschmidt checked [Adams’] groin area and
     believed that he felt something in the inner thigh area. Sergeant
     Goldschmidt took [a] police scanner from [Adams’] pocket, turned
     it off, and placed it on the roof of the car. He then asked [Adams]
     to step to the rear of the vehicle, and for Anding to join him. The
     Sergeant testified that [Adams] gave him no indication that he
     had a weapon, did not threaten him, was not overly nervous, did
     not suggest that he was going to harm him in any way, and was
     entirely cooperative. As to his nerves, the Sergeant specifically
     noted that his nerves were nothing more than a normal interaction
     that he would have with anyone else.

             Officers Taylor and Burger arrived as [] back-up [o]fficers in
     a marked police car, without lights or sirens.             Sergeant
     Goldschmidt alerted Officer Taylor to the possibility of cocaine in
     [Adams’] pants, and he retrieved it. Officer Taylor then placed
     [Adams] into custody and seized the cocaine as evidence. In total,
     a little over $400, a police scanner, and cocaine were seized from
     [Adams].




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Suppression Court Opinion, 8/2/19, at 2-4 (citations to notes of testimony

omitted).

        Adams was charged with possession of a controlled substance,

manufacture or delivery of a controlled substance, and possession of drug

paraphernalia.1     On September 6, 2018, Adams filed a pre-trial motion to

suppress in which he argued that he was subjected to an investigatory

detention unsupported by reasonable suspicion. On October 15, 2018, the

suppression court held a hearing. On November 8, 2018, the suppression

court granted Adams’ motion, concluding that Sergeant Goldschmidt did not

possess the requisite reasonable suspicion to subject Adams to an

investigatory detention.       The Commonwealth timely appealed.2      Both the

suppression court and the Commonwealth have complied with Pennsylvania

Rule of Appellate Procedure 1925.

        On appeal, the Commonwealth presents the two issues for review:

        [1.] The sergeant approached [Adams] without activating his
        lights and siren, unholstering his firearm, threatening [Adams], or
        ordering him to move. The sergeant merely approached [Adams]
        and asked him what he was doing and whether he possessed of
        [sic] a weapon. In response, [Adams] provided his identification
        and invited the sergeant to frisk him. Was this a mere encounter?

        [2.] During the consensual frisk and without manipulating the
        item, the sergeant felt what he knew to be cocaine in [Adams’]
____________________________________________


1   35 P.S. §§ 780-113(a)(16), (30) and (32).

2The Commonwealth certified that the suppression court’s November 8, 2018
order would terminate or substantially handicap the prosecution, pursuant to
Rule 311(d) of the Pennsylvania Rules of Appellate Procedure.

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J-S04040-20


      pants. Did the sergeant lawfully seize the cocaine pursuant to the
      “plain feel” doctrine?

Commonwealth Brief at 2.

      Our standard of review when the suppression court grants suppression

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. Vetter, 149 A.3d 71, 75 (Pa. Super. 2016), appeal

denied, 169 A.3d 577 (Pa. 2017) (citations omitted). Importantly, our scope

of review from a suppression ruling is limited to the evidentiary record that

was created at the suppression hearing. In re L.J., 79 A.3d 1073, 1087 (Pa.

2013).

      The   Commonwealth      argues    that   Sergeant   Goldschmidt’s       initial

interaction with Adams was a mere encounter, and the sergeant did not need

reasonable suspicion to frisk Adams when Adams consented to be frisked

during the mere encounter.          See Commonwealth Brief at 7.                The

Commonwealth states that the initial interaction amounted to a mere

encounter “because the sergeant never activated his lights and siren;

brandished his weapon; made an intimidating movement, overwhelming show

of force, threat, or command; or prevented [Appellee] from walking away.”

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Id. In response, Adams argues that the “stop was not a mere encounter as

the [C]ommonwealth intends, but an unconstitutionally impermissible

investigative detention[.]” Adams’ Brief at 11.

       “The Fourth Amendment of the Federal Constitution and Article I,

Section   8   of   the   Pennsylvania    Constitution    protect   individuals   from

unreasonable searches and seizures.” Commonwealth v. Walls, 53 A.3d

889, 892 (Pa. Super. 2012). “To secure the right of citizens to be free from

such   [unreasonable]      intrusions,   courts   in    Pennsylvania   require    law

enforcement officers to demonstrate ascending levels of suspicion to justify

their interactions with citizens as those interactions become more intrusive.”

Commonwealth v. Pratt, 930 A.2d 561, 563 (Pa. Super. 2007). Courts in

this Commonwealth have recognized three types of interactions between the

police and a citizen:     a mere encounter, an investigative detention, and a

custodial detention.

       A mere encounter between police and a citizen need not be
       supported by any level of suspicion, and carr[ies] no official
       compulsion on the part of the citizen to stop or to respond. An
       investigatory stop, which subjects a suspect to a stop and a period
       of detention . . . requires a reasonable suspicion that criminal
       activity is afoot. A custodial search is an arrest and must be
       supported by probable cause.

Commonwealth v. Newsome, 170 A.3d 1151, 1154 (Pa. Super. 2017).

       This Court has explained that when determining whether an interaction

is a mere encounter or an investigative detention,

       the focus of our inquiry is on whether a seizure of the person has
       occurred. Within this context, our courts employ the following

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       objective standard to discern whether a person has been seized:
       [w]hether, under all the circumstances surrounding the incident
       at issue, a reasonable person would believe he was free to leave.
       Thus, a seizure does not occur simply because a police officer
       approaches an individual and asks a few questions.

Commonwealth v. Cooper, 994 A.2d 589, 592 (Pa. Super. 2010) (citations

and ellipses omitted). “The pivotal inquiry is whether, in light of the facts and

circumstances, a reasonable man, innocent of any crime, would have thought

he   was     being   restrained    had    he   been   in    the   defendant’s   shoes.”

Commonwealth v. Hampton, 204 A.3d 452, 458 (Pa. Super. 2019) (citation

omitted).

       The    Commonwealth’s         contention   that       Sergeant    Goldschmidt’s

interaction with Adams was not an investigative detention is belied by the

suppression record. Sergeant Goldschmidt testified that upon seeing Adams

crouched between a car and an abandoned garage, he drove to the end of the

block, turned around, drove back, and stopped at Adams’ location.                 N.T.,

10/15/18, at 16-17. Exiting his marked police vehicle in full uniform, Sergeant

Goldschmidt approached Adams and asked him what “he was doing [and] why

he was crouched down behind the vehicle[.]”                Id. at 17.   In response to

Sergeant Goldschmidt’s questioning, Adams produced his driver’s license and

Goldschmidt examined his personal information.3 Id. Sergeant Goldschmidt
____________________________________________


3  Sergeant Goldschmidt testified that although Adams produced his driver’s
license at the beginning of their interaction, see N.T., 10/15/18, at 17, he
waited until after he questioned Adams about whether he possessed any
weapons and additional officers arrived to check Adams’ information to see if
he had outstanding warrants. Id. at 66 (“I didn’t actually run their names



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then directed Appellee to step to the rear of the parked vehicle.4 Id. at 20.

At the same time, Sergeant Goldschmidt also instructed Mr. Anding to exit his

vehicle and move to the rear of the car. Id. at 20.

       Based on the totality of these circumstances, we conclude that a

reasonable person would not have believed he was free to leave. See Walls,

53 A.3d at 893; Cooper, 994 A.2d at 592. The questions asked by Sergeant

Goldschmidt, along with his directives for both Adams and Mr. Anding to move

to the rear of the vehicle, would indicate to a reasonable person that he was

under police control and suspected of criminal activity. See Commonwealth

v. Parker, 161 A.3d 357, 363 (Pa. Super. 2017) (stating that indications that



____________________________________________


until after Officer Taylor showed up.”). Adams argues that the fact that
Sergeant Goldschmidt “never handed back [Adams’] identification is indicia of
a seizure.” Adams’ Brief at 15-16. While the record is unclear as to who
possessed Adams’ driver’s license between the time he handed it to Sergeant
Goldschmidt and the time Sergeant Goldschmidt used it to run a warrant
check, we note our Supreme Court’s recent decision in Commonwealth v.
Cost, --- A.3d ----, 2020 WL 354975, (Pa. 2020), in which the Court held that,
“[c]oupled with other relevant factors in the case, we conclude that the
officer’s or his partner’s retention of Appellant’s identification card to conduct
a warrant check -- as he was asked if there was anything in his backpack that
the officer needed to know about -- was sufficient to signify to a reasonable
person that he was not free to proceed about his business.” Id. at *10.

4 While the suppression court’s opinion states that Sergeant Goldschmidt
asked Adams to move to the back of the vehicle after the weapons frisk was
conducted, this factual finding is not supported by the record, and we are
therefore not bound by it. See Suppression Court Opinion, 8/2/19, at 3;
Vetter, 149 A.3d 71, 75. Conversely, Sergeant Goldschmidt’s testimony
supports a finding that he asked Adams to move to the rear of the vehicle
prior to asking whether he possessed any weapons and searching him. See
N.T., 10/15/18, at 20.

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a defendant is suspected of criminal activity is a factor to consider as to

whether a seizure has occurred).

      Thus, once Sergeant Goldschmidt controlled Adams’ movements by

requesting he step to the back of the vehicle, and indicated that he suspected

Adams of criminal activity, Adams was effectively seized. As we have stated,

“[t]he reality of the matter is that when a police officer requests a citizen to

do something, even something as simple as ‘move along,’ it is most often

perceived as a command that will be met with an unpleasant response if

disobeyed.” Commonwealth v. Reppert, 814 A.2d 1196, 1203 (Pa. Super.

2002) (citation omitted). Therefore, “it would be disingenuous to assert that

a reasonable person in [Adams’] shoes would have felt free to leave the scene

had he wished to.”    Id. (citation omitted).

      Based upon the suppression record, we conclude that Adams was

effectively seized when Sergeant Goldschmidt requested he step to the back

of the vehicle, and agree with the suppression court that Adams was subjected

to an investigative detention. Thus, we must determine whether Sergeant

Goldschmidt possessed the requisite reasonable suspicion to effectuate the

detention.

      “An investigatory detention is justified only if the detaining officer can

point to specific and articulable facts which, in conjunction with rational

inferences derived from those facts, give rise to a reasonable suspicion of

criminal activity and therefore warrant the intrusion. Hampton, 204 A.3d at

459 (citation omitted). “The officer must be able to articulate something more

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than an inchoate and unparticularized suspicion or hunch.”        Id. (citation

omitted). Further, “[t]he determination of whether an officer had reasonable

suspicion that criminality was afoot so as to justify an investigatory detention

is an objective one, which must be considered in light of the totality of the

circumstances.” Commonwealth v. Walls, 53 A.3d 889, 893 (Pa. Super.

2012).

        We conclude that Sergeant Goldschmidt lacked the reasonable suspicion

necessary to subject Adams to an investigative detention because there was

no evidence suggesting Adams was engaging in criminal conduct. Sergeant

Goldschmidt’s testimony focuses on Adams’ location in a high crime area,

Adams’ crouched position in between the vehicle and the abandoned garage

as he drove past, and Sergeant Goldschmidt’s identification of Mr. Anding as

a known drug dealer as reasons for his determination that he had reasonable

suspicion to subject Adams to an investigative detention. N.T., 10/15/18, at

7-12.

        However, Sergeant Goldschmidt testified that he did not witness Adams

doing anything illegal, including conducting drug transactions.      Id. at 31.

Sergeant Goldschmidt stated that he observed Adams during daylight hours,

in an area where he knew Adams used to live and would have known other

individuals.    Id. at 11, 51-52.     Based on that information, Sergeant

Goldschmidt testified that it would not be unusual for Adams to be in the area,

and in fact, he saw Adams in that area frequently. Id. at 52.




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      Sergeant Goldschmidt also testified that after exiting his vehicle and

initiating contact, Adams did not attempt to flee.   N.T., 10/15/18, at 43.

Rather, when the sergeant began to question Adams, Adams responded

appropriately and handed Sergeant Goldschmidt his driver’s license. Id. at

35-36. Sergeant Goldschmidt specifically testified that Adams did not appear

overly nervous, and at no time gave any indication that he possessed a

weapon. Id. at 43, 54. Sergeant Goldschmidt stated that Adams was not

threatening toward him, and was cooperative during the interaction. Id. at

43.

      Based on our careful review, and in light of the totality of the

circumstances, Sergeant Goldschmidt did not have reasonable suspicion to

support his investigative detention of Adams.         Sergeant Goldschmidt

specifically testified that he did not observe Adams and Mr. Anding engaging

in illegal activity   N.T., 10/15/18, at 31.   Sergeant Goldschmidt further

testified that when he drove past Adams and Mr. Anding, he did not “see any

packaging or anything that looked like drugs in plain view.” Id. By his own

admission, Sergeant Goldschmidt did not observe Appellee participating in

any illegal activity. Id. Sergeant Goldschmidt therefore failed to articulate

something more than an unparticularized suspicion or hunch, and we therefore

cannot conclude that he reasonably suspected criminal activity was afoot.

Hampton, 204 A.3d at 459; Newsome, 170 A.3d at 1154.            Accordingly,

Sergeant Goldschmidt lacked reasonable suspicion to subject Adams to an

investigatory detention, such that Adams was unlawfully detained.

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     Finally, the Commonwealth avers that Sergeant Goldschmidt “did not

need reasonable suspicion because [Adams] provided [] valid consent to

search during a mere encounter.” Commonwealth Brief at 7. As we have

determined that Adams was subjected to an unlawful detention, we must

examine whether his consent to search was the product of the unlawful

detention. The Pennsylvania Supreme Court has stated:

     Where . . . a consensual search has been preceded by an unlawful
     seizure, the exclusionary rule requires suppression of the evidence
     obtained absent a demonstration by the government both of a
     sufficient break in the causal chain between the illegality and the
     seizure of evidence, thus assuring that the search is not an
     exploitation of the prior illegality, and of voluntariness.

Commonwealth v. Strickler, 757 A.2d 884, 889 (Pa. 2000) (citations

omitted).    “The three [] relevant factors to be examined in determining

whether an unlawfully detained individual’s consent to search is an

independent act of free will or the product of the illegal detention are the

temporal proximity of the detention and the consent, any intervening

circumstances, and particularly, the purpose and flagrancy of the officer’s

unlawful conduct.”    Commonwealth v. Ayala, 791 A.2d 1202, 1211 (Pa.

Super. 2002) (citation omitted).

     Here,    Adams    gave   Sergeant   Goldschmidt    consent   to   search

contemporaneously with the unlawful detention. See N.T., 10/15/18, at 20.

We therefore cannot conclude that a sufficient break in the causal chain

between the illegality and the seizure of evidence discovered during Sergeant




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Goldschmidt’s Terry5 frisk of Adams exists.        Strickler, 757 A.2d at 889.

While the purpose of Sergeant Goldschmidt’s Terry frisk was to check Adams

for weapons, there were no intervening events between the consent Adams

gave to search his person and the unlawful detention.        Therefore, we are

constrained to conclude that any consent given by Adams was the direct

product of his unlawful detention and the exclusionary rule compels

suppression. See Strickler, 757 A.2d at 889.

        In sum, the suppression court properly granted Adams’ motion to

suppress because he was subjected to an unlawful detention, and Adams’

consent to search was a direct product of the unlawful detention. We therefore

affirm the grant of suppression.

        Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/27/2020




____________________________________________


5   Terry v. Ohio, 392 U.S. 1 (1968).

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