J-S80035-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN THE INTEREST OF L.B.-H., A MINOR            IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA


                   v.

APPEAL OF L.B.-H., A MINOR

                                                   No. 493 MDA 2016


      Appeal from the Adjudication of Delinquency February 22, 2016
              In the Court of Common Pleas of Berks County
             Juvenile Division at No: CP-06-JV-0000031-2016


BEFORE: LAZARUS, STABILE, and RANSOM, JJ.

DISSENTING MEMORANDUM BY STABILE, J.:            FILED AUGUST 08, 2017

     I respectfully dissent because I believe the Majority incorrectly

concludes that Officer Scott did not have reasonable suspicion to conduct a

pat-down search of the Appellant’s person for weapons.

     In Terry v. Ohio, 392 U.S. 1 (1968), the United States Supreme

Court created an exception to the probable cause requirement prefatory to

conducting the search of a person, that permits “a police officer to briefly

detain a citizen for investigatory purposes if the officer observes unusual

conduct which leads him to reasonably conclude, in light of his experience,

that criminal activity may be afoot.”   In Interest of N.L., 739 A.2d 564,

566 (Pa. Super. 1999) (quoting Commonwealth v. Fitzpatrick, 666 A.2d

323, 325 (Pa. Super. 1995) (citation omitted)); see generally Terry, 392

U.S. 1.   Specifically, “for a stop and frisk to be reasonable, the police
J-S80035-16



conduct must meet two separate and distinct standards[;]” he “must have a

‘reasonable, articulable suspicion’ that criminal activity may be afoot, and

that the suspect may be armed and dangerous.” Id. at 567. The level of

suspicion necessary to justify a stop and frisk “is a suspicion less than a

preponderance of the evidence, but more than a hunch.”             Id.     (quoting

Coommonwealth v. Shelly, 499 A.2d 499, 503 (Pa. Super. 1997)).                   In

deciding whether reasonable suspicion is present, we must take into account

the totality of the circumstances that must be viewed through the eyes of a

trained officer, not an ordinary citizen. Id.

      As the Majority recounts in the matter sub judice, Officer Scott

testified that he observed a car with the front passenger and rear windows

tinted with five passengers inside, including a toddler and an infant. As he

observed the windows, a front passenger looked at him, froze, and reached

down towards the floorboard of the car.         Officer Scott activated his lights

and sirens, but the driver, instead of stopping immediately in a nearby well-

lit shopping center, proceeded approximately 300 yards to a secluded area

before coming to a stop. After stopping and approaching the vehicle, Officer

Scott observed a broken steering column, a screwdriver in the ignition, and

he smelled marijuana. Upon asking the driver “if there is any guns, drugs or

weapons inside of the vehicle,” the driver gave Officer Scott consent to

search the vehicle and stated that “there is nothing on me.              If there is

anything inside here it is not mine.” N.T. Suppression Hearing, 2/11/16 at

11-12. At that point, the driver gave consent to search the vehicle and the

                                      -2-
J-S80035-16



officer called for backup. When Officer Scott ran the tag of the vehicle, the

computer indicated the car was not stolen.        When backup arrived, a plan

was formulated to take all the adults out of the vehicle to frisk each

passenger.     Appellant, seated in the back right seat of the car, smoked a

cigarette and appeared nervous and scared. When Appellant was asked why

he was smoking in a car with two small children, he did not make eye

contact or respond. Appellant then was removed from the car and Officer

Scott began to frisk the car’s occupants. When the Appellant was frisked,

Officer Scott felt a hard object in Appellant’s right inner thigh, handcuffed

Appellant, and asked what was in his pants. Appellant informed the officer it

was a gun.      Officer Scott then recovered a firearm with six live rounds,

including one in the chamber, from Appellant’s underwear.

       Under the totality of these circumstances, I would conclude that Officer

Scott was in possession of reasonable facts, less than a preponderance but

more than a hunch, to believe that a frisk of the Appellant was necessary for

the officer’s safety.1     Before stopping the vehicle, a front passenger froze

and reached towards the floorboard of his car which reasonably might

suggest that something like a weapon was being concealed. The driver of


____________________________________________


1
  It is not necessary to examine whether the officer reasonably believed
criminal activity was afoot prior to conducting a stop and frisk of the
Appellant, since the legality of the traffic stop is not at issue in this case.
See N.L., 739 A.2d at 568 (the first prong of the "stop and frisk" test is a
nullity in cases involving companions of arrestees).



                                           -3-
J-S80035-16



the vehicle could have stopped the vehicle in a well-lit shopping center, but

instead proceeded 300 yards to a secluded area before coming to a stop, an

important fact not considered by the Majority.      At this point in time, the

officer was certainly justified in proceeding more cautiously with this stop

where the investigatory detention would have to occur in a secluded area.

Upon approaching the vehicle, the possibility of criminal activity was

certainly present when the officer noticed the steering column broken, a

screwdriver jammed in the ignition, and he smelled the odor of fresh

marijuana.   Adding to this mounting suspicion was the additional fact that

the driver had no license and no identification. Finally, when the driver was

asked whether there were any guns, drugs, or weapons inside the vehicle,

the driver’s reply was anything but certain.     His response that there was

nothing on him, but if there was anything in the car, it was not his, certainly

left open the reasonable possibility that one of his passengers might be

armed.   The consequences of the officer not proceeding to ascertain with

certainty whether he might be exposed to harm from one of the passengers

could be grave. Under these circumstances, the officer should not have to

equivocate or gamble on his safety when a minimally intrusive stop and frisk

might provide certainty that he was not at risk of a weapons assault. The

auspices of potential criminal activity and the possibility of a firearm

concealed on one of the vehicles passengers in this secluded location

constitute reasonable facts, less than a preponderance but more than a

hunch, to justify the stop and frisk of the Appellant.

                                      -4-
J-S80035-16



      In my opinion, the Majority ignores a totality of the circumstances

analysis, and focuses almost exclusively on the conduct of the Appellant as a

passenger in the vehicle.        While the Majority is correct that mere

nervousness alone is insufficient to support a particularized suspicion, it does

not consider the Appellant’s conduct within the context of the entire stop

setting, and in particular, in light of the driver’s suggestion that someone in

the vehicle might be armed.

      Nor do I believe it was necessary for the Majority to analyze the

“automatic companion rule” which was held unconstitutional by this Court in

Commonwealth v. Graham, 685 A.2d 132 (Pa. Super. 1996), overruled on

other grounds, 721 A.2d 1075 (Pa. 1998). The automatic companion rule

permitted a pat-down of an arrestee’s companions in the immediate vicinity

of an arrestee regardless of whether there was any justification for the

search of any companions.      Subsequent to Graham, this Court held that

regardless of whether reasonable suspicion exists that a companion is

involved in criminal activity, an officer still must possess a reasonable belief

that a companion is armed and dangerous prior to conducting a stop and

frisk for weapons.     N.L., 739 A.2d at 568.         As detailed above, the

Commonwealth did not and had no need to resort to the automatic

companion rule in this case, because the totality of the circumstances

provided the officer with reasonable, articulable suspicion to pat-down the

Appellant.




                                     -5-
J-S80035-16



     I would affirm the trial court’s February 22, 2016 adjudication of

delinquency.




                                 -6-
