J-A22006-15



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                             IN THE SUPERIOR COURT OF
                                                                PENNSYLVANIA
                                Appellant

                       v.

RAHIEM CARDEL FANT,

                                Appellee                       No. 1793 MDA 2014


               Appeal from the Order Entered October 14, 2014
                In the Court of Common Pleas of Clinton County
              Criminal Division at No(s): CP-18-CR-0000273-2014


BEFORE: BOWES, JENKINS, AND PLATT,* JJ.

MEMORANDUM BY BOWES, J.:                                   FILED OCTOBER 09, 2015

       The Commonwealth appeals from the order entered October 14, 2014,

granting Rahiem Cardel Fant’s motion to suppress.1 After careful review, we

reverse.

       Appellee    was      a    rear   passenger    in   an   automobile   stopped   by

Pennsylvania State Troopers Kenneth Riggle and his partner Trooper Andrew

Mincer.      The    officers observed the           vehicle, a green Mitsubishi, at

approximately 11:40 p.m. on May 4, 2014, traveling without operating tail

lights. After pulling over the vehicle, Trooper Mincer exited and approached

____________________________________________


1
   We have jurisdiction to consider this appeal pursuant to Commonwealth
v. Dugger, 486 A.2d 382, 386 (Pa. 1985), and Pa.R.A.P. 311(d).

*
    Retired Senior Judge assigned to the Superior Court.
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the passenger side of the Mitsubishi. As he walked toward the car, Trooper

Mincer saw Appellee make movements that looked like he placed several

items into his pockets and hid items in between the rear seats.

      After Appellee failed to heed his commands to keep his hands out of

his pockets, Trooper Mincer directed the three occupants of the car to exit.

Trooper Mincer knew the front seat passenger, who had threatened to shoot

state police in one prior encounter. He conducted a frisk of the front seat

passenger and driver before turning his attention to Appellee.         Trooper

Mincer also knew Appellee from prior contacts and was aware that Appellee

had carried a four-inch pocketknife on at least two other occasions.

      Appellee was breathing heavily, sweating, and appeared nervous even

before Trooper Mincer asked him to exit the car.        When Trooper Mincer

attempted to pat down Appellee, Appellee turned away and put his body

against the car to prevent the trooper from searching him. Trooper Mincer,

along with another officer, Brian Burger of the Lock Haven Police, restrained

Appellee and the trooper searched him.       Trooper Mincer felt a bulge in

Appellee’s left front pocket and located $816 in cash. In addition, Trooper

Mincer felt a cylinder-like object in Appellee’s groin region and found a clear

bottle of PCP.

      The Commonwealth charged Appellee with possession with intent to

deliver (“PWID”) and possession of a controlled substance. Appellee filed a

bill of particulars and, on August 25, 2014, a suppression motion. Appellee

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contended that the search violated his Fourth Amendment and Article I, § 8

rights against unreasonable searches.            The suppression court conducted a

suppression hearing and took the matter under advisement. Thereafter, it

granted Appellee’s motion to suppress, finding that Trooper Mincer did not

have reasonable suspicion to conduct the Terry2 frisk. The Commonwealth

timely appealed and the suppression court directed it to file and serve a

Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal. The

Commonwealth complied, and the suppression court indicated that the

reasons for its decision could be found in its earlier opinion in support of its

suppression order.         The matter is now ready for our review.            The

Commonwealth presents two questions for this Court’s consideration.

       I.     Did the court err in finding that the trooper did not have
              the authority to order the defendant to exit the vehicle?

       II.    Did the court err in finding that the trooper did not have
              requisite cause necessary to conduct a “Terry” frisk of the
              defendant?

Commonwealth’s brief at 4.

       This Court evaluates the grant of a suppression motion under well-

established principles. We consider the evidence of the defendant, as the

prevailing party below, and any evidence of the prosecution that is

uncontradicted when examined in the context of the suppression record.

____________________________________________


2
    Terry v. Ohio, 392 U.S. 1 (1968).



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Commonwealth v. Peterson, 17 A.3d 935, 937 (Pa.Super. 2012). This

Court is bound by the factual findings of the suppression court where the

record supports those findings and may only reverse when the legal

conclusions drawn from those facts are in error. Id. Importantly, we are

not bound by the legal conclusions of the suppression court. In re T.B., 11

A.3d 500, 505 (Pa.Super. 2010).

      We begin by noting that to conduct a Terry frisk, police must have

reasonable    suspicion   that   the   individual   is   armed   and   dangerous.

Commonwealth v. Pakacki, 901 A.2d 983 (Pa. 2006). “[A] police officer

may frisk the individual to search for weapons if ‘a reasonably prudent man

in the circumstances would be warranted in the belief that his safety or that

of others was in danger.’” Commonwealth v. Espada, 528 A.2d 968, 969

(Pa.Super. 1987) (quoting Terry, supra).

      It is well-settled that “even a combination of innocent facts, when

taken together, may warrant further investigation[.]”        Commonwealth v.

Kemp, 961 A.2d 1247, 1255 (Pa.Super. 2008) (en banc); see also

Commonwealth v. Cook, 735 A.2d 673, 676 (Pa. 1999).                As this Court

cogently stated in Commonwealth v. Riley, 715 A.2d 1131, 1135

(Pa.Super. 1998), “Merely because a suspect's activity may be consistent

with innocent behavior does not alone make detention and limited

investigation illegal. . . .   Rather, we view the circumstances through the

eyes of a trained officer, not an ordinary citizen.”

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      The Commonwealth contends that the suppression court erred in ruling

that “Trooper Mincer conducted an unreasonable search and seizure of

defendant when Trooper Mincer ordered defendant out of the vehicle and

conducted a frisk of defendant’s person under the justification of defendant’s

furtive movements, nervousness and previous possession of a pocketknife.”

Commonwealth’s brief at 12 (quoting Suppression Court Opinion, 10/14/14,

at 12).   It highlights that police are permitted to remove occupants of an

automobile without any suspicion that criminal activity is occurring.     See

Commonwealth v. Brown, 654 A.2d 1096, 1102 (Pa.Super. 1995). Thus,

it maintains that the suppression court incorrectly ruled that Trooper Mincer

did not have reasonable suspicion to ask Appellee to step out of the vehicle.

      Appellee does not defend the suppression court’s reasoning in this

regard.    Instead, he argues that the suppression court’s reliance on

Commonwealth v. Reppert, 814 A.2d 1196 (Pa.Super. 2002) (en banc),

supports its conclusion that the Terry frisk was unlawful.      We disagree.

Reppert was a back seat passenger in a vehicle stopped for a registration

sticker violation. While pursuing the vehicle, police saw Reppert engage in

movements that indicated that he was stuffing items into his pockets or

between the seat. The officer, however, did not remove Reppert from the

car or frisk him after stopping the car.   Instead, he accepted the driver’s

explanation for the expired registration sticker and elected not to issue a

citation. However, after the conclusion of that portion of the stop, he asked

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Reppert to exit the car.    He then saw bulges in Reppert’s pockets and

directed Reppert to empty his pockets.     When Reppert did so, the officer

uncovered drugs, a small scale, and cash. We held that the original lawful

traffic stop had concluded and that Reppert’s furtive movements, without

more, did not justify the additional detention and search.

      The Commonwealth contends that, under the totality of circumstances

presented herein, Trooper Mincer had reasonable suspicion to perform the

pat down search.       We agree.      Instantly, Trooper Mincer had prior

interactions with Appellee. Trooper Mincer knew Appellee carried a four-inch

folding knife on previous occasions.       Appellee was nervous, sweating,

breathing heavily, and would not refrain from moving his hands before

Trooper Mincer asked him to alight from the vehicle. Additionally, Trooper

Mincer saw Appellee make movements that indicated that he was attempting

to hide objects in the rear seat. Thus, Trooper Mincer did point to specific

and articulable facts that Appellee was engaged in criminal activity.

      To the extent the suppression court concluded that Trooper Mincer

could not reasonably believe Appellee was armed since he frisked the front

seat passenger and driver first, it ignored the fact that Trooper Mincer knew

that the front seat passenger had threatened to shoot police.           Simply

choosing to frisk that individual and the driver before Appellee does not ipso

facto mean that he could not articulate specific facts indicating a reasonable

fear that Appellee was also armed.

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      Moreover, the suppression court plainly erred in determining Trooper

Mincer’s removal of Appellee from the car to be a significant factor in

conducting its legal analysis.   See Brown, supra.     An officer may ask a

person to exit his car without suspicion of criminal wrongdoing without

running afoul of the Fourth Amendment or Article I, § 8. Further, while the

Reppert Court held that furtive movements did not provide sufficient

grounds for the second interaction with the defendant therein, this case is

distinguishable and presents additional factors not at issue in Reppert.

Specifically, Trooper Mincer knew Appellee carried a weapon in previous

interactions. The contention by Appellee and the suppression court that the

carrying of a knife is not illegal absent testimony that Appellee used the

knife illegally, see Suppression Court Opinion, supra at 11, ignores the long

settled law that a combination of innocent behaviors may justify an

investigative search.

      This case is more akin to Commonwealth v. Buchert, 68 A.3d 911

(Pa.Super. 2013), than Reppert. In Buchert, police also pulled over a

vehicle for a broken taillight. The stop occurred at night, as here.     The

defendant made furtive movements inside the car by bending forward and

appearing to reach under his front passenger seat. The police directed the

occupants of the car to remain still and keep their hands visible. Unlike the

present case, where Appellee continued to move his hands, Buchert and his

companion complied. Buchert appeared nervous and was breathing heavily.

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After Buchert and the driver were removed from the car and searched, police

searched the immediate vicinity of where Buchert had been sitting. Police

recovered a gun. The court therein suppressed the evidence. We reversed,

distinguishing Reppert.   Quoting Commonwealth v. Simmons, 17 A.3d

399, 405 (Pa.Super. 2011), we set forth:

     When properly understood, Reppert stands for the proposition
     that pre-stop furtive movements, by themselves, may not be
     used to justify an investigative detention and search commenced
     after the conclusion of a valid traffic stop where the totality of
     circumstances has established that the furtive movements did
     not raise immediate concern for the safety of the officer who
     undertook the initial vehicle detention.

Buchert, supra at 914-915. Continuing, the Buchert Court held,

     [t]he combination of Appellee's furtive movement of leaning
     forward and appearing to conceal something under his seat,
     along with his extreme nervousness and the night time stop, was
     sufficient to warrant a reasonable police officer to believe that
     his safety was in danger and that Appellee might gain immediate
     control of a weapon.

Buchert, supra at 916-917; see also Simmons, supra.

     Buchert compels the same result in this case.      The combination of

Trooper Mincer’s previous interactions with Appellee where Appellee carried

a weapon, Appellee’s furtive movements, and extreme nervousness during a

night-time stop rendered the Terry frisk lawful.




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     Order reversed. Case remanded. Jurisdiction relinquished.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/9/2015




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