J-A08036-15


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,             :    IN THE SUPERIOR COURT OF
                                          :          PENNSYLVANIA
                 Appellee                 :
                                          :
                    v.                    :
                                          :
DARYL ANTHONY BAER,                       :
                                          :
                 Appellant                :    No. 729 MDA 2014

      Appeal from the Judgment of Sentence Entered March 13, 2014
               in the Court of Common Pleas of York County,
          Criminal Division, at No(s): CP-67-CR-0006201-2013

BEFORE:     SHOGAN, WECHT, and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.:          FILED JULY 10, 2015

     Daryl Anthony Baer (Appellant) appeals from the March 13, 2014

judgment of sentence of one year of probation imposed following his

conviction for possession of drug paraphernalia.1       On appeal, Appellant

challenges the denial of his pre-trial suppression motion. We affirm.

     The trial court offered the following factual and procedural history of

the case.

           In the early morning hours of April 6, 2013, Officer David
     Kahley was on routine patrol outside of a Turkey Hill gas station
     in West York, Pennsylvania. While on patrol he observed a
     vehicle enter the parking lot of a church, which he knew was
     closed. He observed two people exit the car and head towards
     the adjoining alley. At this point, Officer Kahley drove into the
     alley to see which way the individuals were heading, and he


1
  On March 12, 2014, Appellant also was sentenced to 75 days’ incarceration
at the above docket number for his conviction of the summary offense of
driving while operating privileges were suspended or revoked.

*Retired Senior Judge assigned to the Superior Court.
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        observed them quickly walk into the parking lot of a business,
        which, like the church, was also closed. Without activating his
        emergency lights or shining his spotlight, Officer Kahley
        approached the pair and asked where they were going. They
        responded that they were heading to the female’s apartment,
        which was located on the 1400 block of Market Street, the
        opposite direction of the way the pair was walking.

               Because of the time of night and the area, which Officer
        Kahley knew to be high crime, plus the inconsistency between
        the pair’s conduct and their statements, the officer asked them
        for identification. He was able to identify both individuals; the
        man was identified as Daryl Baer, the Appellant, and the other
        individual, a female, was identified as Alexis Bohr.      Officer
        Kahley discovered that Ms. Bohr had a warrant out for her
        arrest, so he placed her in custody. He also discovered that the
        Appellant’s license was suspended for an earlier DUI. Sometime
        after Officer Kahley began talking to the Appellant, but before
        the Appellant was placed in custody, another officer arrived just
        to assist Officer Kahley if he should need it.

               After placing Ms. Bohr in custody, Officer Kahley testified
        that he performed a pat-down of the Appellant. During the
        suppression hearing, where the stop and subsequent evidence
        were challenged, Officer Kahley stated that the Appellant kept
        putting his hands in his pockets, even after Officer Kahley asked
        him to stop. At this point, Officer Kahley felt it was a safety
        concern, and this is what led to him patting down the Appellant.
        While patting down the Appellant, Officer Kahley stated that he
        felt two objects in the Appellant’s left breast pocket of his coat.
        He testified that he immediately knew the objects were
        hypodermic needles, and that he asked the Appellant if they
        were needles, to which the Appellant responded “I don't know.”
        Officer Kahley asked the Appellant if he could remove the objects
        and the Appellant said yes.       The objects were hypodermic
        needles.

             The Appellant was taken into custody for possession of
        drug paraphernalia and Officer Kahley read the Appellant his
        Miranda[2] rights. The Appellant appeared to understand his

2
    Miranda v. Arizona, 384 U.S. 436 (1966).


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      rights, and according to Officer Kahley, admitted that the
      needles were his, they were used for shooting up heroin, and
      that he had used heroin four days earlier. The Appellant also
      told Officer Kahley that he was the one driving the vehicle that
      he and Ms. Bohr were seen exiting. The Appellant was taken to
      Central Booking and the Appellant’s vehicle was searched and
      towed.     During that search of the vehicle, a purse, which
      contained a small black bag, was found on the passenger seat.
      The black bag contained numerous hypodermic needles, 29 bags
      of heroin, and a packet of Suboxone, which is commonly used in
      treating heroin addicts.

            At the trial, Officer Kahley testified that standard
      procedure regarding testing needles is, because of dangers
      associated with them, to take pictures of the needles and then
      destroy them. Further, all of the labs that Officer Kahley was
      aware of do not even accept needles for testing unless some
      kind of exigent circumstances exist. Officer Kahley did not
      fingerprint the needles, as that is not standard procedure in
      cases such as this. The parties stipulated to the fact that the
      Pennsylvania State Police, Bureau of Forensic Services, received
      the evidence, with the exception of the hypodermic needles,
      found in the purse. The lab found that the residue contained in
      the bags was heroin.

            On cross-examination … Officer Kahley admitted that he
      made some mistakes on the night of April 6, 2013. The officer’s
      Affidavit of Probable Cause did not make mention of finding two
      needles on the Appellant's person. The affidavit also did not
      mention any statements that the Appellant made to the officer.
      Lastly, Officer Kahley admitted that he took pictures of the
      contraband found in the purse, but did not take pictures of the
      needles found on the Appellant. However, on redirect Officer
      Kahley clarified that he does not put every single detail in the
      Affidavit of Probable Cause. Further, his supplemental incident
      report, which was drafted just after the Appellant was taken to
      Central Booking, did state that two needles were found on the
      Appellant, and did mention the Appellant’s incriminating
      statements.

Trial Court Opinion, 7/30/2014, at 2-4 (citations omitted).




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        Prior to trial, Appellant filed an omnibus pre-trial motion in which he

sought to suppress the needles, the evidence of Appellant’s suspended

license, and Appellant’s incriminating statements. After a hearing, the trial

court denied the motion. Appellant proceeded to trial and was convicted and

sentenced as indicated above. Appellant timely filed a post-sentence motion

and a notice of appeal following that motion’s denial. Both Appellant and the

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

        Appellant presents five questions for this Court’s review:

        1.      Did the lower court err when it determined that the initial
        encounter by the police officer was a mere encounter where the
        police officer did not observe any evidence of criminal activity
        and did not have reasonable suspicion to stop or detain the
        Appellant by pulling his marked police cruiser up to the
        Appellant, exiting his marked vehicle and talking to the Appellant
        with a backup unit arriving in less than four (4) minutes after the
        initial encounter thereby surrounding the Appellant in a show of
        force?

        2.    Did the suppression/trial court err in finding that the officer
        possessed reasonable suspicion to effectuate an investigatory
        detention where the officer gave no articulable facts that the
        Appellant was engaging in criminal activity when the officer
        viewed Appellant walking in a parking lot and the Appellant told
        the officer of his destination?

        3.    Did the suppression/trial court err in finding that the officer
        possessed a reasonable belief that the Appellant was presently
        armed and dangerous to justify a “Terry Frisk”[3] of the
        Appellant which occurred after the officer ran Appellant’s license
        and found no outstanding warrants?




3
    Terry v. Ohio, 392 U.S. 1 (1968).


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      4.     Did the suppression/trial court err in refusing to suppress
      the fruits of the investigatory detention where the seizing police
      officer had no reasonable suspicion to detain, nor probable cause
      to arrest Appellant at the instant when the seizing officer took
      Appellant’s license and ran the license for a warrant check?

      5.    Did the suppression/trial court err in refusing to suppress
      the fruits of the “Terry Frisk” where the frisking/seizing officer
      exceeded the scope of the “Terry Frisk” when the contraband
      was immediately apparent to the officer that the contraband was
      not a weapon and the officer preceded [sic] to manipulate/pinch
      the object until he believed it to be contraband?

Appellant’s Brief at 2-3 (suggested and trial court answers omitted).

      We consider Appellant’s questions mindful of the following standard of

review.

      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
      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 court[]
      below are subject to our plenary review.

Commonwealth v. Perel, 107 A.3d 185, 188 (Pa. Super. 2014) (quoting

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




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J-A08036-15


      We begin our examination of Appellant’s claims of error by reiterating

the applicable legal principles.

             Interaction between citizens and police officers, under
      search and seizure law, is varied and requires different levels of
      justification depending upon the nature of the interaction and
      whether or not the citizen is detained. The three levels of
      interaction are mere encounter, investigative detention, and
      custodial detention. A mere encounter can be any formal or
      informal interaction between an officer and a citizen, but will
      normally be an inquiry by the officer of a citizen. A mere
      encounter does not carry any official compulsion to stop or
      respond to police, and as a result, does not need to be supported
      by any level of suspicion. In contrast, an investigative detention
      carries an official compulsion to stop and respond.           The
      detention is temporary, but it must be supported by specific and
      articulable facts creating a reasonable suspicion that the suspect
      is engaged in criminal activity. The test for reasonable suspicion
      is an objective one: … whether the officer’s action was justified
      at its inception, and whether it was reasonably related in scope
      to the circumstances which justified the interference in the first
      place. Regarding the stop, a police officer may, short of an
      arrest, conduct an investigative detention if he has a reasonable
      suspicion, based upon specific and articulable facts, that
      criminality is afoot. The assessment of reasonable suspicion, like
      that applicable to the determination of probable cause, requires
      an evaluation of the totality of the circumstances, with a lesser
      showing needed to demonstrate reasonable suspicion in terms of
      both quantity or content and reliability. Finally, an arrest or
      custodial detention must be supported by probable cause.

            To determine if an interaction rises to the level of an
      investigative detention, i.e., a Terry stop, the court must
      examine all the circumstances and determine whether police
      action would have made a reasonable person believe he was not
      free to go and was subject to the officer’s orders. To guide this
      crucial analysis, the United States Supreme Court has devised an
      objective test entailing whether, in view of all surrounding
      circumstances, a reasonable person would believe he was free to
      leave. In evaluating the circumstances, the focus is directed
      toward whether, by means of physical force or show of authority,



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J-A08036-15


      the citizen-subject’s movement has in some way been
      restrained. No single factor should control this determination,
      and courts must examine the totality of the circumstances when
      reaching a conclusion as to whether a seizure occurred.

Commonwealth v. Guzman, 44 A.3d 688, 692-93 (Pa. Super. 2012)

(internal citations and quotation marks omitted).

      Although Appellant’s brief poses five separate questions, he makes

only two arguments: (1) that Officer Kahley’s interaction with Appellant

constituted an investigative detention unsupported by reasonable suspicion,

and (2) that the Terry frisk was unjustified and exceeded the scope of an

acceptable frisk.   Appellant’s Brief at 12, 24.    We will address Appellant’s

arguments in a corresponding fashion.

      Appellant first argues that his interaction with the police was, from the

start, an investigative detention:

      in light of the totality of the circumstances, Officer Kahley’s
      conduct of pulling behind [Appellant] and his companion in the
      early morning hours, shining his headlights on them then exiting
      his vehicle in full police uniform and calling in a person stop
      thereby having a second officer pull up in his marked police
      cruiser, is more than a mere encounter and shows that
      [Appellant’s] liberty was restrained.

Appellant’s Brief at 18. Appellant further argues that Officer Kahley lacked

reasonable suspicion to detain Appellant, because he “never witnessed

[Appellant] engage in any activity that would be characterized as criminal.”

Id. at 22.




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J-A08036-15


      The trial court4 determined that Officer Kahley’s questioning of

Appellant and request for his identification was a mere encounter, largely on

the basis of our Supreme Court’s opinion in Commonwealth v. Au, 42 A.3d

1002 (Pa. 2012). In that case, the police officer initiating the encounter did

not “activate the emergency lights on his vehicle; position his vehicle so as

to block the car that [Au] was seated in from exiting the parking lot;

brandish his weapon; make an intimidating movement or overwhelming

show of force; make a threat or a command; or speak in an authoritative

tone.” Id. at 1008. Although the officer in Au used his headlights and a

flashlight, “this was in furtherance of the officer’s safety, and we conclude it

was within the ambit of acceptable, non-escalatory factors.” Id. Under the

circumstances present, “a request for identification is not to be regarded as

escalatory in terms of the coercive aspects of a police-citizen encounter.”

Id. at 1007. Accordingly, the Court held that “the arresting officer’s request

for identification did not transform his encounter with [Au] into an

unconstitutional investigatory detention.” Id. at 1009.

      As in Au, Officer Kahley did not activate the emergency lights on his

vehicle when initially approaching Appellant; nor did he block Appellant’s

movements, brandish his weapon, or make any threats or commands.

Therefore, we conclude that Officer Kahley’s initial contact with Appellant

4
  The Rule 1925(a) opinion before us was authored by the trial court, not by
the suppression court.


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J-A08036-15


was a mere encounter, and his request for Appellant’s identification did not

escalate it to an investigatory detention.

      It was not until Officer Kahley retained possession of Appellant’s

identification card that the mere encounter became an investigative

detention.   See Commonwealth v. Hudson, 995 A.2d 1253, 1259 (Pa.

Super. 2010) (“Officer Gonzalez effectuated an investigative detention of

Hudson at the time that Officer Gonzalez took and maintained possession of

Hudson's identification.    In such a situation, no reasonable person would

have felt free to terminate the encounter and depart the scene.”). However,

we agree with the trial court that, by the time Officer Kahley requested

Appellant’s identification, he had the reasonable suspicion necessary to

conduct an investigative detention. See Trial Court Opinion, 7/30/2014, at

9 (“The inconsistency between Appellant’s statements and actions, along

with the time of night and the location, a high crime area, would have given

a reasonable officer reasonable suspicion that criminal activity was afoot.”).

      Appellant claims that Officer Kahley described no criminal activity;

rather, he contends, the actions of Appellant and Ms. Bohr, “namely walking

away from a vehicle and answering questions, are perfectly consistent with

innocent behavior[.]” Appellant’s Brief at 23. Appellant’s argument ignores

the applicable standards:

      In order to determine whether the police officer had reasonable
      suspicion, the totality of the circumstances must be considered.



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J-A08036-15


      … Also, the totality of the circumstances test does not limit our
      inquiry to an examination of only those facts that clearly indicate
      criminal conduct. Rather, even a combination of innocent facts,
      when taken together, may warrant further investigation by the
      police officer.

Commonwealth v. Kemp, 961 A.2d 1247, 1255 (Pa. Super. 2008) (en

banc) (citations and quotation marks omitted).

       Based upon the totality of the circumstances, Officer Kahley had

reasonable suspicion to investigate Appellant and his companion further.

See, e.g., Commonwealth v. Carter, 105 A.3d 765, 774 (Pa. Super.

2014) (en banc) (holding officers had reasonable suspicion when they

observed Carter, in a high-crime area, at night, attempt to conceal from the

officers a bulge in his coat pocket).

      Having determined that Officer Kahley’s initial encounter and later

detention of Appellant were valid, we consider Appellant’s remaining

arguments concerning legitimacy of the subsequent Terry frisk. We begin

with an examination of the relevant legal principles.

             If, during the course of a valid investigatory stop, an
      officer observes unusual and suspicious conduct on the part of
      the individual 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. In order
      to justify a frisk under Terry, the officer must be able to point to
      particular facts from which he reasonably inferred that the
      individual was armed and dangerous. Such a frisk, permitted
      without a warrant and on the basis of reasonable suspicion less
      than probable cause, must always be strictly limited to that
      which is necessary for the discovery of weapons which might be
      used to harm the officer or others nearby.



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Commonwealth v. E.M., 735 A.2d 654, 659 (Pa. 1999) (internal citations

and quotation marks omitted). Additionally,

            In [Minnesota v. Dickerson, 508 U.S. 366, 375 (1993)],
     the U.S. Supreme Court legitimized the seizure of contraband
     discovered during the scope of a Terry frisk where the officer
     feels an object whose contour or mass makes its criminal
     character immediately apparent.     However, noting that the
     officer in Dickerson “determined that the lump was contraband
     only after ‘squeezing, sliding and otherwise manipulating the
     contents of the defendant's pocket’—a pocket which the officer
     already knew contained no weapons,” the Court held that:

             ... the officer’s continued exploration of respondent’s
             pocket after having concluded that it contained no
             weapon was unrelated to “[t]he sole justification of
             the search [under Terry: ] ... the protection of the
             police officer and others nearby.”         It therefore
             amounted to the sort of evidentiary search that
             Terry expressly refused to authorize ...

Commonwealth v. Griffin, --- A.3d ---, 2015 WL 2193891 at *4 (Pa.

Super. filed May 12, 2015) (quoting Commonwealth v. Graham, 721 A.2d

1075, 1081 (Pa. 1998)) (citations omitted).

     Appellant claims that Officer Kahley failed to articulate specific facts to

establish that he reasonably inferred that Appellant was armed and

dangerous.    Appellant’s Brief at 27-28.      Even if the frisk was justified,

Appellant continues, Officer Kahley was not justified in seizing the

hypodermic needles because the incriminating nature of the items was not

immediately apparent.      Id. at 28-29.      Therefore, Appellant argues, the




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needles were obtained unlawfully, and the fruits of the search should have

been suppressed. Id. at 30.

      At the suppression hearing, Officer Kahley testified that, after Ms. Bohr

was taken into custody and identified Appellant as the driver of the car, he

noticed that Appellant “was putting his hands in his pockets several times,

which I continued to tell him to remove his hands from his pockets. And it

started -- became a safety concern to me and we patted him down.” N.T.,

11/22/2013, at 10.        See also id. at 18 (noting that he was not initially

concerned, but became increasingly fearful that Appellant had weapons

when Appellant continued to put his hands in his pockets after he told him to

stop doing so).     We agree with the trial court that this testimony was

sufficient to justify a Terry frisk.           See, e.g., Commonwealth v.

Scarborough, 89 A.3d 679, 684 (Pa. Super. 2014) (holding Terry frisk was

justified when Scarborough kept his hand in his pocket after police directed

him to remove it, as such conduct suggested that Scarborough may have

had a weapon on his person).

      Next, Officer Kahley testified that, during the pat down, “I felt two

items in his left chest coat pocket, which I immediately recognized to be

hypodermic needles.” Id. at 10. On cross-examination, he offered greater

detail about the frisk:

      Q:   How could you tell the difference on the outside of a coat
      between a needle and let’s say a pen?



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J-A08036-15



     A:  I could feel the object that was thin enough and had
     bumps on the bottom part that’s not consistent with a pen.

     Q:    Did that require you to manipulate that object to feel and
     tell what it is?

     A:    I think since I felt it, I sort of would have just grabbed it to
     see that it was a thin object and that’s when I felt that it wasn’t
     a pen.

     Q:    Well, so when you felt it all you could feel a thin object
     and you dropped it from there. You didn’t touch the object to
     determine what exactly it was?

     A:    I wasn’t running my hands along it and really wasn’t
     manipulating. I just felt there was an object there and more so
     tried to pinch it to see what kind of object it was. I didn’t
     continue much more than that to determine whether or not it
     could have been something more.

     Q:    But when you felt it at first you knew it wasn’t a weapon
     correct?

     A:    I didn’t believe it was a weapon, such as a knife or firearm.

     Q:   All right. Then after that you pinched it anyhow knowing it
     wasn’t a weapon?

     A:    I wasn’t sure at first.

     Q:    Wasn’t sure what?

     A:      If it could have been a knife or something more. Once I
     felt it was thinner, then I believe[d] it wasn’t a knife and more
     so of drug paraphernalia.

N.T., 11/22/2013, at 19-20.

     Appellant claims that Officer Kahley exceeded the permissible scope of

a Terry frisk when he pinched Appellant’s coat, as his testimony evidences



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J-A08036-15


that it was not immediately apparent during the initial pat down that

Appellant possessed contraband. Appellant’s Brief at 28-29. We disagree.

     “Once the initial pat-down dispels the officer’s suspicion that

the suspect is armed, any further poking, prodding, squeezing, or other

manipulation of any objects discovered during that pat-down is outside the

scope of the search authorized under Terry.” Graham, 721 A.2d at 1082

(emphasis added). Here, viewing the evidence in the light most favorable to

the Commonwealth, Officer Kahley’s pinching of Appellant’s outer garment

occurred before he had confirmed that Appellant was unarmed, and was

done for the specific purpose of ruling out the possibility that it was a

weapon. Therefore, Officer Kahley’s testimony was sufficient to establish a

proper seizure under the plain feel doctrine. See, e.g., Commonwealth v.

Pakacki, 901 A.2d 983, 989 (Pa. 2006) (holding plain feel doctrine

applicable when trooper, during a Terry frisk “felt an object which he knew

from his experience in law enforcement to be a marijuana pipe”).

     Because Officer Kahley was justified in performing a Terry frisk, and

because his seizure of the contraband was permissible under the plain feel

doctrine, the suppression court properly denied Appellant’s motion to

suppress the hypodermic needles.




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     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.

Prothonotary



Date: 7/10/2015




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