J-A07038-16



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                  IN THE SUPERIOR COURT OF
                                                    PENNSYLVANIA
                        Appellee

                   v.

RAHSAAN CARTER

                        Appellant                 No. 2031 WDA 2014


        Appeal from the Judgment of Sentence November 18, 2014
            In the Court of Common Pleas of Cambria County
           Criminal Division at No(s): CP-11-CR-0000163-2014


BEFORE: BOWES, MUNDY AND JENKINS, JJ.

MEMORANDUM BY BOWES, J.:                             FILED JULY 21, 2016

     Rashaan Carter appeals from the judgment of sentence entered

November 18, 2014, following his bench trial convictions for possession of a

controlled substance with intent to deliver, possession of a controlled

substance, and possession of a small amount of marijuana. We affirm.

     The facts elicited at the suppression hearing are as follows.     Justin

Arcurio, a detective employed by the Cambria County District Attorney’s

Office, testified that at approximately 12:00 p.m. on December 6, 2013, he

was conducting surveillance at 512 Daniel Street, a high-crime area in

Johnstown, to serve a bench warrant for Alicia Morris.    N.T. Suppression,

05/15/14, at 9. He saw a black male, later identified as Thomas King, exit

the surveilled residence and enter a nearby idling vehicle driven by
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Appellant.      Id. at 15.   This vehicle was on the scene when surveillance

began. Id. Officer Arcurio spoke to the two men to determine if they knew

Alicia.     King alternately stated he was “picking up” and “dropping off”

something for a person named Keisha.          Id. at 10.    Appellant’s version of

events was inconsistent with that of King. Appellant told the officer he was

from Philadelphia, and drove from Altoona to give King a ride from

downtown Johnstown to the residence.          Id. at 11.    Thus, Appellant drove

approximately one hour to give King a ride of less than ten minutes. Id. at

21. While the officer was speaking to King and Appellant, Morris exited the

same residence King had left.          Id. at 10.   The detective conducted a

background check and learned Appellant had a suspended driver’s license

and was not the owner of the vehicle. He told Appellant to step out of the

vehicle and informed him a pat-down would occur. He then asked Appellant

if he possessed anything the officer needed to know about, and Appellant

informed him he possessed marijuana.           Id. at 13.     Appellant was then

arrested. A search incident to the arrest yielded heroin, crack cocaine, and

ecstasy pills. Id.

          Appellant raises three claims for our consideration, each pertaining to

the trial court’s July 1, 2014 denial of the motion to suppress all physical

evidence:

   I.       Whether there was reasonable suspicion to believe
            [Appellant] was involved in criminal activity to support an
            investigative detention[?]

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   II.      Whether there was reasonable suspicion to conclude
            [Appellant] was armed and dangerous to justify a pat-down
            search?

   III.     Whether the lawfulness of a pat-down search is immaterial
            where a detainee admits to possessing drugs in response to a
            question for officer safety[?]

Appellant’s brief at 4.

         Our   standard   of   review   when   reviewing   an   order   denying   a

suppression motion is well-settled. We consider

         only the Commonwealth's evidence 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
         factual findings of the trial court, the appellate court is bound by
         those facts and may reverse only if the legal conclusions drawn
         therefrom are in error. However, it is also well settled that the
         appellate court is not bound by the suppression court's
         conclusions of law.

Commonwealth v. Tam Thanh Nguyen, 116 A.3d 657, 663-64 (Pa.Super.

2015) (citations omitted).      Our scope of review is limited to the evidence

presented at the suppression hearing. In re L.J., 79 A.3d 1073, 1080 (Pa.

2013). We may affirm a decision of the trial court on any basis if the record

supports the trial court’s actions.       Commonwealth v. Moser, 999 A.2d

602, 606, n. 5 (Pa.Super. 2010).

         Initially, we note that assessing the lawfulness of an encounter

between police and a citizen first requires a determination of whether or not

the citizen has been seized.            Our law recognizes three categories of




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police/citizen encounters, with graduating levels of suspicion required to

justify the corresponding greater restraints on liberty.

      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) (citing

Commonwealth v.         Phinn,   761    A.2d   176,   181    (Pa.Super.   2000)).

Appellant argues that he was seized throughout the entire encounter.

“There does not appear to be any dispute that, at the very least, [Appellant]

was not free to leave.”     Appellant’s brief at 14.       That restriction is the

hallmark of a seizure. “We adhere to the view that a person is ‘seized’ only

when, by means of physical force or a show of authority, his freedom of

movement is restrained. Only when such restraint is imposed is there any

foundation whatever for invoking constitutional safeguards.” United States

v. Mendenhall, 446 U.S. 544, 553 (1980).

      We disagree that the initial encounter between Officer Arcurio and

Appellant was a detention.     See Commonwealth v. Au, 42 A.3d 1002,

1007 (Pa. 2012) (mere fact that police officer requested identification from

occupant in a vehicle did not transform encounter into an investigative

detention); I.N.S. v. Delgado, 466 U.S. 210, 216 (1984) (“[P]olice



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questioning, by itself, is unlikely to result in a Fourth Amendment violation.

While most citizens will respond to a police request, the fact that people do

so, and do so without being told they are free not to respond, hardly

eliminates the consensual nature of the response.”).      Officer Arcurio was

clearly entitled to query the vehicle’s occupants to determine if they knew

anything about Morris. We accordingly find that the initial conversation with

Appellant was a mere encounter.

      However, it is equally apparent that at some point this consensual

encounter transformed into a seizure. Since Appellant argues that he was

detained throughout, he does not draw our attention to any particular action

as transformative. Our Supreme Court has set forth the following standard

for assessing whether an encounter has escalated to an investigatory

detention.

      When assessing whether an interaction escalates from a mere
      encounter to an investigatory detention, we employ the following
      standard.

      To guide the crucial inquiry as to whether or not a seizure has
      been effected, the United States Supreme Court has devised an
      objective test entailing a determination of whether, in view of all
      surrounding circumstances, a reasonable person would have
      believed that he was free to leave. In evaluating the
      circumstances, the focus is directed toward whether, by means
      of physical force or show of authority, the citizen-subject's
      movement has in some way been restrained. In making this
      determination,    courts    must    apply    the  totality-of-the-
      circumstances approach, with no single factor dictating the
      ultimate conclusion as to whether a seizure has occurred.




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Commonwealth v. Roberts, 133 A.3d 759, 771 (Pa. 2016) (quoting

Commonwealth v. McAdoo, 46 A.3d 781, 784 (Pa.Super. 2012).

     We agree with the Commonwealth that Fourth Amendment protections

were triggered when Appellant was told to turn off the ignition and exit the

vehicle. Commonwealth’s brief at 5 (citing N.T., 5/15/14, at 19). At that

moment, a reasonable person would not feel free to leave.                       This

investigative detention needed to be supported by reasonable suspicion.

Terry v. Ohio, 392 U.S. 1 (1968). “To establish reasonable suspicion, the

officer must articulate specific observations which, in conjunction with

reasonable    inferences   derived   from   those   observations,   led   him     to

reasonably conclude, in light of his experience, that criminal activity was

afoot and that the person he stopped was involved in that activity.”

Commonwealth v. Caban, 60 A.3d 120, 128 (Pa.Super. 2012) (citation

omitted).

     We agree with the trial court that this detention was supported by

reasonable suspicion. Upon checking Appellant’s license, police learned he

did not have a valid license and the vehicle did not belong to him. Drivers

are required to possess a valid license.     75 Pa.C.S. § 1543.      These facts

permitted a seizure of Appellant and the order to exit the vehicle.

Commonwealth v. Feczko, 10 A.3d 1285, 1291 (Pa.Super. 2010) (en

banc).




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       Having established Appellant was validly detained, we now address

whether Detective Arcurio could lawfully perform a pat-down for weapons.

We note that we depart here from the trial court’s holding. The court found

that, since Appellant advised the officer he had marijuana in his pocket in

response to the officer’s question, probable cause justified an arrest and a

subsequent search incident to arrest. We disagree.1 However, since we can

affirm on any basis, we analyze whether the announced pat-down search

met the required standard. “[A]n officer may conduct a limited search, i.e.,

a pat-down of the person stopped, if the officer possesses reasonable

suspicion that the person stopped may be armed and dangerous.”

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

(citing United States v. Place, 462 U.S. 696, 702 (1983)).




____________________________________________


1
   The Commonwealth suggests that we adopt the trial court’s holding. This
position is troubling. In the Commonwealth’s view, an officer may always
announce he will pat-down any individual, regardless of whether the pat-
down is proper, ask if there is anything he needs to know about, and
thereby obtain consent if the person acknowledges possession of contraband
or a weapon. If the individual is forthright—believing they must answer
given the officer’s stated intention—then the evidence could never be
suppressed, even if the proposed pat-down was unjustified. On the other
hand, if the pat-down is valid, asking the question is superfluous. See
Florida v. Bostick, 501 U.S. 429 (1991) (police may ask bus passengers
for consent to search luggage but cannot convey a message that compliance
with their request is required). We thus decline to affirm on this basis.




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      The Commonwealth asks us to consider Appellant’s conduct in addition

to the actions of King and Morris.       Commonwealth’s brief at 8.         The

Appellant, on the other hand, requests that we focus on the facts that

Appellant did not make any furtive movements, nor reach for his waistband,

nor move to secret anything inside the vehicle, or otherwise act in a

threatening manner. Appellant’s brief at 22-23.

      We first address what role, if any, the actions of King and Morris factor

in the totality of the circumstances analysis. It is clear that Officer Arcurio

could not lawfully pat down Appellant absent individualized suspicion. See

Commonwealth v. Grahame, 7 A.3d 810, 814 (Pa. 2010). However, we

do not agree that we must confine the individualized suspicion analysis to

only those behaviors and circumstances the officer observed with respect to

Appellant.    Appellant’s brief at 19-20.      The phrase “totality of the

circumstances” inherently encompasses the notion that we may consider the

actions of others in determining individualized suspicion. The most extreme

application of that logic is the automatic companion rule, which removes the

requirement of individualized suspicion in some circumstances. The leading

case for that rule is United States v. Berryhill, 445 F.2d 1189 (9th Cir.

1971).

    We think that Terry recognizes and common sense dictates that
    the legality of such a limited intrusion into a citizen's personal
    privacy extends to a criminal's companions at the time of arrest. It
    is inconceivable that a peace officer effecting a lawful arrest of an
    occupant of a vehicle must expose himself to a shot in the back

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     from defendant's associate because he cannot, on the spot, make
     the nice distinction between whether the other is a companion in
     crime or a social acquaintance. All companions of the arrestee
     within the immediate vicinity, capable of accomplishing a
     harmful assault on the officer, are constitutionally subjected
     to the cursory ‘pat-down’ reasonably necessary to give
     assurance that they are unarmed.

445 F.2d at 1193 (emphasis added). A plurality of this Court has rejected

Berryhill’s per se rule.          Commonwealth v. Graham, 685 A.2d 132

(Pa.Super. 1996), rev’d on other grounds, 721 A.2d 1075 (Pa. 1998).

Our Supreme Court has not directly addressed whether this rule is

constitutional. In re N.L., 739 A.2d 564, 568 (Pa.Super. 1999).2

       We do not and cannot hold that the officer possessed reasonable

suspicion that Appellant was armed and dangerous solely due to the actions

of his companions.3        However, a safety concern may be present when a

possible cohort is arrested.         Morris’s arrest and King’s statements, and

Appellant’s role in transporting King to the scene, contribute to the totality of



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2
   Our Supreme Court recently granted a petition for allowance of appeal in
Commonwealth v. Mathis, 134 A.3d 51 (Pa. 2016). In the underlying
decision, we discussed the automatic companion rule. One of the questions
in the case is whether reasonable suspicion existed to support a seizure and
subsequent weapons frisk.
3
  Even if the rule could be applied, there is an unclear nexus between
Appellant and the arrestee, and Appellant was probably not in the immediate
vicinity.




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the circumstances analysis when assessing whether Appellant posed a safety

risk to the officer.

      Next, we emphasize that this seizure was tantamount to a traffic stop.

The case law has repeatedly recognized the particular dangers posed to

police officers during a vehicular stop as pertinent to the Terry reasonable

suspicion analysis. In Pennsylvania v. Mimms, 434 U.S. 106 (1977), the

Supreme Court held a police officer can order a driver to exit a lawfully-

stopped vehicle. That demand was permitted even though “the officer had

no reason to suspect foul play from the particular driver at the time of the

stop, there having been nothing unusual or suspicious about his behavior.”

Id. at 109. This concern was grounded in safety. “We think it too plain for

argument that the State’s proffered justification—the safety of the officer—is

both legitimate and weighty.” Id. at 110.

     Subsequently, in Maryland v. Wilson, 519 U.S. 408 (1997), the Court

extended Mimms’s rule to passengers.           The Court again balanced the

personal liberty of passengers against an officer’s safety.

     On the personal liberty side of the balance, the case for the
     passengers is in one sense stronger than that for the driver. There
     is probable cause to believe that the driver has committed a minor
     vehicular offense, but there is no such reason to stop or detain the
     passengers. But as a practical matter, the passengers are already
     stopped by virtue of the stop of the vehicle. The only change in
     their circumstances which will result from ordering them out of the
     car is that they will be outside of, rather than inside of, the stopped
     car. Outside the car, the passengers will be denied access to any
     possible weapon that might be concealed in the interior of the
     passenger compartment. It would seem that the possibility of a

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    violent encounter stems not from the ordinary reaction of a
    motorist stopped for a speeding violation, but from the fact
    that evidence of a more serious crime might be uncovered
    during the stop. And the motivation of a passenger to employ
    violence to prevent apprehension of such a crime is every bit as
    great as that of the driver.

Id. at 413-14 (emphasis added).

      Thus, the applicable precedents recognize that the presence of a

vehicle and the possibility of discovering evidence of a more serious crime

are factors we must consider. These cases do not, of course, stand for the

proposition that an officer may always pat down an individual who has been

in a vehicle; they speak only to the authority to order persons from a

vehicle.   Arizona v. Johnson, 555 U.S. 323, 327 (2009) (“To justify a

patdown of the driver or a passenger during a traffic stop, however, just as

in the case of a pedestrian reasonably suspected of criminal activity, the

police must harbor reasonable suspicion that the person subjected to the

frisk is armed and dangerous.”). However, the underlying rationale of why

our jurisprudence permits officers to interfere with a vehicle occupants’

liberty in the first place is pertinent to our analysis.

      We therefore find that the totality of the circumstances warrants

affirmance.   As this situation developed, it became readily apparent that

both Appellant and King were possibly involved with Morris.         “[I]t is

incumbent upon us to recognize and account for the fluid nature of events as

they were perceived by the officers at the time.” Commonwealth v. Epps,



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608 A.2d 1095, 1097 (Pa.Super. 1992) (citations omitted). Once the officer

determined Appellant would not be permitted to drive the vehicle,

Appellant’s possible connection to King and Morris, combined with the

inconsistent and illogical explanations advanced by King and Appellant, and

the fact this incident occurred in a high-crime area, supported the officer’s

belief Appellant may have posed a risk to his safety. While Officer Arcurio

was joined by other officers during this encounter, he did not know who else

may have been in the residence or what other crimes may be occurring.

        Nor can we ignore the possible danger posed by Appellant’s presence

in a vehicle that he would not be driving from the scene, given that he

lacked a valid driver’s license.     As the Supreme Court has recognized, the

possibility of a violent encounter in a vehicular situation stems “from the fact

that evidence of a more serious crime might be uncovered[.]” Wilson, 519

U.S. at 414. Surely that possibility was multiplied under these facts to the

point    where   Officer   Arcurio   justifiably   feared   for   his    safety.    See

Commonwealth v.            Morris,   644   A.2d    721,     724   (Pa.    1994)    (“Our

constitutional safeguards do not require an officer to gamble with his life.”).

        Finally, we address Appellant’s argument that the officer’s statement

that he “had a gut feeling that this wasn’t adding up” amounted to nothing




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more than a hunch. N.T. 5/15/14, at 21.4 We disagree. The applicable test

is an objective one. As the Supreme Court explained in Terry:

       [I]n justifying the particular intrusion the police officer must be
       able to point to specific and articulable facts which, taken
       together with rational inferences from those facts, reasonably
       warrant that intrusion. The scheme of the Fourth Amendment
       becomes meaningful only when it is assured that at some point
       the conduct of those charged with enforcing the laws can be
       subjected to the more detached, neutral scrutiny of a judge who
       must evaluate the reasonableness of a particular search or
       seizure in light of the particular circumstances. And in making
       that assessment it is imperative that the facts be judged against
       an objective standard: would the facts available to the officer at
       the moment of the seizure or the search ‘warrant a man of
       reasonable caution in the belief’ that the action taken was
       appropriate?

Terry, supra at 21-22. Thus, the categorical dangers posed by vehicular

stops need not be specifically stated by the officer.     This was not a case

where the officer’s suspicions were aroused due to wholly subjective

interpretations of inoffensive conduct.        See Commonwealth v. Reppert,

814 A.2d 1196, 1206 (Pa.Super. 2002) (en banc) (“A police officer's

observation of a citizen's nervous demeanor and furtive movements, without


____________________________________________


4
    Appellant suggests Detective Arcurio was not concerned for his safety
since he “was willing to walk up to the car and begin questioning [Appellant]
and King before either the sheriff’s deputy or Johnstown police officer[s]
arrived.” Appellant’s brief at 27 (emphasis in original). We find this
supports, not negates, a finding of reasonable suspicion. It demonstrates
that the officer accounted for the fluid nature of events and did not
impulsively act on a mere hunch.




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more, establishes nothing more than a ‘hunch,’ employing speculation about

the citizen's motive in the place of fact.”).

      Judgment of sentence affirmed.

      Judge Mundy joins the memorandum.

      Judge Jenkins files a dissenting memorandum.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/21/2016




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