J-A25019-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                       IN THE SUPERIOR COURT OF
                                                         PENNSYLVANIA
                            Appellant

                       v.

JOSE MARTINEZ

                            Appellee                    No. 3258 EDA 2014


                    Appeal from the Order October 21, 2014
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0003211-2014


BEFORE: DONOHUE, J., MUNDY, J., and FITZGERALD, J.*

MEMORANDUM BY MUNDY, J.:                          FILED SEPTEMBER 17, 2015

        The Commonwealth appeals1 from the October 21, 2014 order

granting the motion to suppress filed by Appellee, Jose Martinez. 2         After

careful review, we reverse and remand for further proceedings.

        The trial court summarized the relevant factual and procedural history

of this case as follows.

                    On October 23, 2013, around 11:00 a.m.,
              Philadelphia Police Officer Brian Myers (Officer
              [Myers]) was conducting surveillance of 7221
              Lynford Street, Philadelphia, Pa. Around that time,
____________________________________________
*
    Former Justice specially assigned to the Superior Court.
1
 The Commonwealth has certified in its notice of appeal that the trial court’s
order terminates or substantially handicaps its prosecution pursuant to
Pennsylvania Rule of Appellate Procedure 311(d).
2
    We note that Appellee has elected not to file a brief in this matter.
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          he observed [Appellee], a Hispanic male, exit from
          the rear of 7221 Lynford Street wearing a black-
          hooded sweatshirt and gray sweatpants.       Officer
          [Myers] followed [Appellee] on foot. While walking,
          [Appellee] had a cell phone up to his ear, looking
          and walking in all directions. After about five (5)
          minutes, [Appellee] stopped at the 7200 block of
          Rutland Street, where he met with an unknown
          Hispanic Male. [Appellee] had a brief conversation
          with the Hispanic Male. The Hispanic Male then gave
          [Appellee] money, whereupon [Appellee] handed the
          Hispanic Male an unknown hand-sized object.

                 After this exchange, [Appellee] and the
          Hispanic Male parted ways.           Officer [Myers]
          continued to follow [Appellee] as he walked in circles
          around the area, changed directions several times,
          and continued to look all around, while heading back
          to 7221 Lynford Street. At that time, Officer [Myers]
          notified back-up to come to the area and assist with
          the surveillance. Philadelphia Police Officer Woertz
          (Officer Woertz) set-up surveillance in front of the
          property and Officer [Myers] remained at the back
          exit.

                 A few hours later, Officer Woertz observed
          [Appellee]’s wife, Suleica Martinez, exit the property
          through the front door. She entered a black Lexus
          that was parked in the front of the property and
          drove to a beauty salon a few blocks away, on Knorr
          and Rutland streets. Shortly after, between 3:00-
          4:00 p.m., [Appellee] exited the property through
          the front door, this time wearing a red-hooded
          sweatshirt. Again, [Appellee] had his cell phone up
          to his ear and was looking and walking in all different
          directions.   For about ten (10) to fifteen (15)
          minutes [Appellee] walked up and down Castor
          Avenue, and eventually made his way to the same
          beauty salon his wife was seen entering earlier.
          [Appellee] entered the black Lexus parked in front of
          the salon and drove off.

                  Police Officers continued to follow [Appellee].
          After    following [Appellee] for a few minutes,

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          [Appellee]’s driving techniques changed; [Appellee]
          began to speed up, make quick turns, and drive in
          circles. After about five (5) to ten (10) minutes,
          Philadelphia Police Officer Christopher McCue (Officer
          McCue) pulled [Appellee] over around the 7100 block
          of Lynford Street. Officer McCue testified that … as
          he approached the vehicle he saw [Appellee]
          reaching … towards the glove box; Officer McCue
          immediately informed Officer [Myers] of this
          observation. When Officer [Myers] came to the car
          moments later he opened the glove box and
          observed (2) rectangular shaped objects, wrapped in
          paper, which he recognized as racks of heroin.
          Officer [Myers] testified that at that point he left the
          racks there and closed the car door.

                 Thereafter, [Appellee] was detained and
          [p]olice [o]fficers escorted [Appellee] and his vehicle
          back to 7221 Lynford Street. Fearing that someone
          inside 7221 Lynford Street might destroy evidence,
          Police Officers secured the property while [Appellee]
          was sitting outside in a police vehicle.         Police
          [o]fficers used keys that were on [Appellee]’s person
          to enter the property, [Appellee] did not consent.
          First, the officers knocked on the door; when no one
          answered they entered the property. Upon entering
          the property, the alarm went off and [p]olice
          [o]fficers conducted a cursory sweep to ensure that
          no one else was in the residence. They did not find
          anyone in the property.        At that point, Officer
          [Myers] left the scene to secure a search warrant for
          both the house and [Appellee]’s vehicle while his
          brother officers waited inside the residence for him
          to return with the warrants.

                Upon Officer [Myers]’s return, the search
          warrants for the residence and the vehicle were
          executed at 7:10 p.m. and 7:45 p.m.[,] respectively.
          From the search of the vehicle[,] officers recovered
          the two (2) racks of heroin, a total of 280 packets.
          From the search of the house[,] officers recovered
          over 4,000 packets of heroin found under the kitchen
          sink. Additionally, $255.00 and one (1) key with a
          Donald   Duck     picture  were    recovered    from

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J-A25019-15


              [Appellee]’s person. [Appellee] was not given a
              ticket for any traffic violations resulting from the car
              stop.

Trial Court Opinion, 2/25/15, at 2-4 (internal citations and footnotes

omitted).

       On March 28, 2014, the Commonwealth filed an information, charging

Appellee with one count each of possession with intent to deliver, possession

of a controlled substance, and possession of drug paraphernalia.3 On May

27, 2014, Appellee filed a motion to suppress.             The trial court conducted

suppression hearings on September 29 and October 21, 2014, at which

Officer Myers, Officer McCue, and Sergeant Robert Fril, who is Officer Myers’

supervisor, testified. Appellee called his wife Suleica Martinez to testify. On

October 21, 2014, the trial court entered an order granting Appellee’s

motion to suppress.        On November 20, 2014, the Commonwealth filed a

timely notice of appeal.4

       On appeal, the Commonwealth presents one issue for our review.

              Whether the [trial] court erred in suppressing
              evidence obtained pursuant to a lawful stop and a


____________________________________________
3
   35 P.S. §§        780-113(a)(30),           780-113(a)(16)   and   780-113(a)(32),
respectively.
4
  Concurrently with its notice of appeal, the Commonwealth filed a concise
statement of errors complained of on appeal pursuant to Pennsylvania Rule
of Appellate Procedure 1925(b). The trial court filed its Rule 1925(a) opinion
on February 25, 2015.




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J-A25019-15


              Terry[5] frisk, and by a subsequent lawful search
              with a search warrant, on the ground that the stop
              was supposedly not supported by reasonable
              suspicion?

Commonwealth’s Brief at 4.

        We begin by noting our well-settled standard of review.

                    When the Commonwealth appeals from a
              suppression order, this Court may consider only the
              evidence from the defendant’s witnesses together
              with the evidence of the prosecution that, when read
              in the context of the record as a whole, remains
              uncontradicted. In our review, we are not bound by
              the suppression court’s conclusions of law, and we
              must determine if the suppression court properly
              applied the law to the facts.      We defer to the
              suppression court’s findings of fact because, as the
              finder of fact, it is the suppression court’s
              prerogative to pass on the credibility of the
              witnesses and the weight to be given to their
              testimony.

Commonwealth v. Hudson, 92 A.3d 1235, 1241 (Pa. Super. 2014)

(internal quotation marks and citations omitted), appeal denied, 106 A.3d

724 (Pa. 2014).

                     The Fourth Amendment of the Federal
              Constitution provides, “[t]he right of the people to be
              secure in their persons, houses, papers, and effects,
              against unreasonable searches and seizures, shall
              not be violated ….”        U.S. Const. amend. IV.
              Likewise, Article I, Section 8 of the Pennsylvania
              Constitution states, “[t]he people shall be secure in
              their persons, houses, papers and possessions from
              unreasonable searches and seizures ….” Pa. Const.
              Art. I, § 8. Under Pennsylvania law, there are three
____________________________________________
5
    Terry v. Ohio, 392 U.S. 1 (1968).



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J-A25019-15


              levels of encounter that aid courts in conducting
              search and seizure analyses.

                     The first of these is a “mere encounter” (or
                     request for information) which need not be
                     supported by any level of suspicion, but carries
                     no official compulsion to stop or respond. The
                     second, an “investigative detention” must be
                     supported by reasonable suspicion; it subjects
                     a suspect to a stop and period of detention,
                     but does not involve such coercive conditions
                     as to constitute the functional equivalent of
                     arrest.      Finally, an arrest or “custodial
                     detention” must be supported by probable
                     cause.

              Commonwealth v. Williams, 73 A.3d 609, 613
              (Pa. Super. 2013) (citation omitted), appeal denied,
              87 A.3d 320 (Pa. 2014).[6]

                                               …

                     “The   Fourth    Amendment        permits   brief
              investigative stops … when a law enforcement officer
              has a particularized and objective basis for
              suspecting the particular person stopped of criminal
              activity.” Navarette v. California, 134 S. Ct. 1683,
              1687 (2014).      It is axiomatic that to establish
              reasonable suspicion, an 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). Unlike the
              other     amendments       pertaining      to   criminal
              proceedings, the Fourth Amendment is unique as it
              has standards built into its text, i.e., reasonableness
              and probable cause. See generally U.S. Const.
____________________________________________
6
   We note that the Commonwealth and Appellee agreed that the initial
encounter here was an investigative detention and that reasonable suspicion
is the correct standard. Commonwealth’s Brief at 16; Appellee’s Motion to
Suppress, 5/27/14, at 2.



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J-A25019-15


            amend. IV. However, as the Supreme Court has
            long recognized, Terry v. Ohio, 392 U.S. 1 (1968) is
            an exception to the textual standard of probable
            cause. Florida v. Royer, 460 U.S. 491, 498 (1983).
            A suppression court is required to “take[] into
            account the totality of the circumstances—the whole
            picture.”   Navarette, supra (internal quotation
            marks and citation omitted). When conducting a
            Terry analysis, it is incumbent on the suppression
            court to inquire, based on all of the circumstances
            known to the officer ex ante, whether an objective
            basis for the seizure was present.        Adams v.
            Williams, 407 U.S. 143, 146 (1972).

Commonwealth v. Carter, 105 A.3d 765, 768-769 (Pa. Super. 2014) (en

banc), appeal denied, 117 A.3d 295 (Pa. 2015).

      In this case, Officer Myers testified that on October 23, 2013, at about

11:00 a.m., he was conducting surveillance on 7221 Lynford Street when he

observed Appellee emerging from said residence. N.T., 9/29/14, at 23-24.

Officer Myers followed Appellee, noticing that he was looking in every

direction while on his cell phone and constantly changing directions. Id. at

25. After five minutes, Officer Myers followed Appellee to the 7200 block of

Rutland Street where he saw Appellee meet another male.          Id.   Officer

Myers observed the male hand Appellee cash, and in exchange Appellee

handed the male an object.     Id.   The two departed in different directions

after this exchange.   Id.   Officer Myers continued to follow Appellee, who

again walked in circles, constantly looking around and changing directions.

Id.   Officer Myers observed Appellee walk back to 7221 Lynford Street,

using a key to enter the front door. Id.


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J-A25019-15


      A few hours later, Appellee again left the residence on his cell phone,

looking in all directions.   Id. at 26.   Appellee walked up and down Castor

Avenue, looking in all directions for approximately ten to fifteen minutes.

Id. at 27. Eventually, Appellee walked to a beauty salon on Castor Avenue

where his wife had been seen driving to in a black Lexus earlier. Id. at 26,

27. Appellee got into said black Lexus and left the salon area. Id. at 28.

Officer Myers followed Appellee and observed Appellee “speed up and make

quick turns[]” for about five to ten minutes.      Id.   Officer Myers directed

other officers ahead of him to stop Appellee’s vehicle, which they did. Id. at

29. Officer McCue told Officer Myers that upon stopping Appellee’s vehicle,

he observed Appellee reach towards the glove compartment.          Id.   Officer

Myers went to the vehicle, opened the glove box, and found two rectangular,

paper-wrapped objects, which he believed to be racks of heroin. Id.

      Officer Myers left the racks in the glove compartment, and the police

escorted Appellee and the vehicle back to 7221 Lynford Street. Id. at 35.

At this time, the officers used Appellee’s keys to enter the property and

secure it pending the issuance of search warrants for the house and the

vehicle. Id. at 35-37. Officer Myers returned with search warrants for both

the house and the vehicle. Id. at 39. The search of the vehicle revealed the

two racks that Office Myers had previously observed, containing 280 packets

of heroin. Id. at 42. During their search of the home, the police discovered

over 4,000 packets of heroin. Id. at 144.


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J-A25019-15


          In this case, we conclude that Officer Myers had reasonable suspicion

to stop Appellee. Officer Myers, who had 16 years’ experience in narcotics,

personally observed Appellee engage in a hand-to-hand transaction with

another male for cash, after acting evasive before and after the same. Id.

at 25, 43.     This was objectively sufficient for Officer Myers to reasonably

suspect that criminal activity was afoot. See Commonwealth v. Daniels,

999 A.2d 590, 597 (Pa. Super. 2010) (concluding officer had reasonable

suspicion of drug activity where the officer “witnessed [a male] walk up to

[Daniels’] car, reach through the window, and hand [Daniels] what appeared

to   be    United   States   currency   in   exchange     for   a   small   item[]”);

Commonwealth v. Valentin, 748 A.2d 711, 714-715 (Pa. Super. 2000)

(concluding officer had reasonable suspicion of drug activity where the

officer “observed an exchange of cash for small objects, which appeared to

him, in light of his experience, to be a drug sale[]”).

      The trial court concluded that the initial stop was unconstitutional

because the police did not have “confirmation” that a drug transaction

occurred, particularly because there was nothing in the record to suggest

that the police stopped the other male to see if he had drugs. Trial Court

Opinion, 2/25/15, at 7.       Although such additional evidence would have

strengthened the Commonwealth’s case, it was not constitutionally required.

Reasonable suspicion, by its very nature, does not require confirmation or

corroboration, with few exceptions not relevant here.               See Navarette,


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J-A25019-15


supra (stating, “the level of suspicion the [Terry] standard requires is

considerably less than proof of wrongdoing by a preponderance of the

evidence[]”) (internal quotation marks omitted; emphasis added), quoting

Sokolow, supra.        Based on all of the aforementioned considerations, we

conclude that Appellee’s Fourth Amendment rights were not violated by the

initial stop of his vehicle.

      The Commonwealth next argues that Officer Myers was permitted to

conduct a limited search of the glove compartment of Appellee’s vehicle

during said traffic stop. Commonwealth’s Brief at 24. The trial court did not

address    this   argument,    as   it   concluded   the   initial   stop   was   itself

unconstitutional. However, as Appellee did raise this issue in his motion to

suppress, we address it herein.          The Commonwealth argues that Officer

Myers had reasonable suspicion to conduct a limited search of the glove

compartment for officer safety. Id.

      The Supreme Court has permitted limited searches of vehicles of

vicinities within the defendant’s reach if the police have reasonable suspicion

that a weapon is present.      Michigan v. Long, 463 U.S. 1032, 1049-1050

(1983).

             Our past cases indicate … that protection of police
             and others can justify protective searches when
             police have a reasonable belief that the suspect
             poses a danger, that roadside encounters between
             police and suspects are especially hazardous, and
             that danger may arise from the possible presence of
             weapons in the area surrounding a suspect. These
             principles compel our conclusion that the search of

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J-A25019-15


            the passenger compartment of an automobile,
            limited to those areas in which a weapon may be
            placed or hidden, is permissible if the police officer
            possesses a reasonable belief based on “specific and
            articulable facts which, taken together with the
            rational inferences from those facts, reasonably
            warrant” the officers in believing that the suspect is
            dangerous and the suspect may gain immediate
            control of weapons.      “[T]he issue is whether a
            reasonably prudent man in the circumstances would
            be warranted in the belief that his safety or that of
            others was in danger.” If a suspect is “dangerous,”
            he is no less dangerous simply because he is not
            arrested.

Id. (internal citations omitted). This standard applies to Article I, Section 8

of the Pennsylvania Constitution as well. Commonwealth v. Morris, 644

A.2d 721, 724 n.3 (Pa. 1994), cert. denied, Morris v. Pennsylvania, 513

U.S. 1031 (1994); Commonwealth v. Cartagena, 63 A.3d 294, 299 (Pa.

Super. 2013) (en banc), appeal denied, 70 A.3d 808 (Pa. 2013).

      As we have explained above, Officer Myers had reasonable suspicion to

stop Appellee insofar that he suspected criminal activity was afoot regarding

the drug transaction he witnessed. Upon stopping Appellee’s vehicle, Officer

McCue observed Appellee reach for the glove compartment and relayed this

information to Officer Myers.     N.T., 9/29/14, at 29.     In our view, this

supplied Officer Myers with the reasonable suspicion necessary to conduct a

limited search of the glove compartment, the area at which Appellee’s furtive




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J-A25019-15


movement were aimed.7           See Commonwealth v. Foglia, 979 A.2d 357,

361 (Pa. Super. 2009) (en banc) (stating, “if a suspect engages in hand

movements that police know, based on their experience, are associated with

the secreting of a weapon, those movements will buttress the legitimacy of a

protective weapons search of the location where the hand movements

occurred[]”), appeal denied, 990 A.2d 727 (Pa. 2010); Commonwealth v.

Buchert, 68 A.3d 911, 916-917 (Pa. Super. 2013) (concluding a Long

search permissible based on “[Buchert]’s furtive movement of leaning

forward and appearing to conceal something under his seat, along with his

extreme nervousness and the night time stop[]”), appeal denied, 83 A.3d

414 (Pa. 2014). Therefore, Officer Myers’ limited Long search of the glove

compartment, and his subsequent observation of the heroin racks, did not

violate Appellee’s Fourth Amendment rights.

       Next, the Commonwealth avers that the trial court erred in concluding

the police lacked probable cause to obtain the search warrants for Appellee’s

vehicle and residence.       Commonwealth’s Brief at 28-29.   The trial court’s

sole reasoning for this conclusion was that “the search warrants for both the

vehicle and the residence [were] invalid because information obtained from
____________________________________________
7
  We reject the portion of the Commonwealth’s argument suggesting that
because Officer Myers had reasonable suspicion of drug activity specifically
ex ante, that bolstered his reasonable suspicion for the Long search ex post.
See generally Commonwealth’s Brief at 27. Our Supreme Court has
instructed that we may not automatically presume that “guns follow
drugs[.]” Commonwealth v. Grahame, 7 A.3d 810, 811 (Pa. 2010).



                                          - 12 -
J-A25019-15


the illegal car stop was used to secure those warrants.” Trial Court Opinion,

2/25/15, at 10. However, because we have concluded that the initial stop,

and    subsequent       limited    search      of   the   glove   compartment   were

constitutional, we conclude the trial court erred in declaring the search

warrants invalid as well.8

       Based on the foregoing, we conclude the trial court erred when it

granted Appellee’s motion to suppress. See Hudson, supra. Accordingly,

the trial court’s October 21, 2014 order is reversed, and the case is

remanded for further proceedings, consistent with this memorandum.

       Order reversed. Case remanded. Jurisdiction relinquished.

       Judge Donohue joins the memorandum.

       Justice Fitzgerald noted dissent.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/17/2015


____________________________________________
8
  The trial court’s opinion concluded that the initial entry to the residence to
secure it pending the issuance of the search warrant was also
unconstitutional, but it “ha[d] no bearing on the legality of the search
warrant for the house.” Trial Court Opinion, 2/25/15, at 10. Because this
was not essential to the trial court’s order, and Appellee has not filed a brief
arguing to the contrary, we express no opinion on the question.



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