Commonwealth v. Reppert

Pennsylvania, COMMONWEALTH

Appellee,

Benjamin REPPERT, Appellant. R. Pennsylvania.

Superior Court

Argued Sept. 10, 2002.

Filed Dec.

H97 Beaver, Finn, Timothy appellant. A. for Aziz, District Attor- Ahmed Assistant Com., Beaver, appellee. ney, McEWEN, P.J.E., JOHNSON, Before: HUDOCK, ELLIOTT, FORD ORIE KLEIN, BOWES, MELVIN, TODD, GRACI, JJ.

JOHNSON, in the interior of his police signal lights J. over. Mor- directing Morgan pull ¶ 1 In case we determine whether a gan complied approached and Hovanec police officer’s of head and observation rear, at the driver- stopping car from the pas- shoulder movements of the rear seat question Morgan about side window to vehicle, in a motor senger coupled with Morgan informed the stickers. during officer’s conclusion a routine traffic him stopped that another officer had chief passenger “very, appeared him five days three before and allowed nervous,” very provides sufficient reason inspected. to have the car days which for the officer to detain search that accepted Morgan’s explanation Hovanec passenger. Following suppression hear- and did not issue a citation. ing, the trial court concluded that the offi- cer’s observations were indeed sufficient. with During Hovanec’s discussion Benjamin Reppert appeals Defendant R. Morgan, Reppert, he continued to observe ruling, contending the court’s that the offi- in the back seat of who remained seated failed to a rea- cer’s observations create holding lap the car on his sandwich in suspicion sonable of his involvement The eating prior stop. he had been to the activity. criminal agree Rep- We with Reppert, recalled that a nineteen- Chief pert’s accordingly assertion and conclude student, year-old college appeared “antsy” him illegally. that the officer detained Ac- nervous,” on “very, very with a “look and cordingly, we Reppert’s judgment reverse Reppert, recognize his face.” He did not of sentence. however, name. Al- and did not ask his

¶ 2 in suppression though Reppert’s plain The record of the hear- hands remained encounter, by ing throughout conducted the trial court reveals the view Chief him out the car based following April step uncontested evidence. On to of 6, 2000, of head and shoulder Reppert riding passenger as on his prior stop in the back of a to the and his ner- operat- seat car owned and movements friend, by during stop. When Morgan. appearance ed his Justin Mor- vous car, car, bulg- Hovanec saw gan’s Dodge, expired Reppert a 1987 exited the displayed pants in his and inspection registration pockets and stickers. Driv- es the front of pockets. in him Hova- ing Borough empty down Fifth Street of directed Beaver, Morgan passed Borough bulges previously. nec had not seen the Police with the Anthony driving Reppert comply Hovanec an un- at first did not Chief him and Hovanec ordered police opposite marked car in the direction. Chiefs direction safety pockets your his “for police spotted Morgan’s expired again empty chief “I am Reppert responded, and car mine.” stickers and turned followed the and screwed,” emptied pockets, then couple for “a hundred feet” with the inten- but cash, forty-one grams conducting revealing tion of a traffic on the $51 multiple smaller marijuana baggie, in a expired During basis of the stickers. scale. Hovanec then baggies, and a small Morgan’s brief time that he followed arrest, under handcuffed placed Reppert and Reppert Hovanec saw the backseat him, him in a second his and seated observed the movement of head Upon shoulders, back-up. had called as Hova- cruiser he but not his hands. Chief car, Hovanec Morgan’s sug- returning as search nec later described the movement and the wrapper discovered sandwich stuffing some- gestive had been sandwich remains of the thing pockets into his or between seat stop. eating prior to the of the car. Hovanec activated cushions dence of and so much of charged Rep- prosecution 4 The Commonwealth defense as remains evidence for the pert of a Controlled with Possession Sub- when read in the context of Deliver, uncontradicted stance, Possession with Intent to the record a whole.” Commonwealth v. as Drug Paraphernalia. Possession Maxon, (Pa.Super.2002). (re- 780-113(a)(16), (32) (30), § See 85 P.S. supports findings “Where the record filed spectively). an Omnibus court, suppression are we bound requesting Pre-trial Motion may those reverse if the only facts and during both the evidence physical seized reaching legal court its conclu erred foregoing stop inculpatory McClease, the facts.” upon sions based court, statements. The trial The Honor- In the (quoting 750 A.2d at 323-24 Interest P.J., Reed, able Robert C. denied D.M., 422, Pa. 2001, of and, pert’s January on motion (1999)). a bench trial the Com- convened which case, monwealth introduced taint- trial court allegedly did trial, record; ed At the enter of Fact on the nor Findings evidence. conclusion of and, findings did it state its court at the Judge Reppert guilty Reed found Ac- 12, 2001, suppression hearing. conclusion of the imposed February a sentence cordingly, we are constrained focus our years’ plus and costs. probation three fines Judge review on Reed’s Memorandum appeal raising the fol- Reppert filed 20, 2001, filed in Opinion April accor- of lowing question for our review: of Pennsylvania Appellate dance with Rule Where, the of a following conclusion rou- 1925(a). Opinion, In that Procedure was stop, investiga- tine traffic there an court recounted the occurrences detailed passenger detention of a back seat tive above also cited evidence that when and “nervous,” “antsy” who and appeared issue, conducted the Chief Hovanec by the arresting who was observed offi- Reppert investigation under for “nar- making move- cer to have been furtive Borough. cotics in Beaver distribution” prior stop, back ments seat to the 4/20/01, at Opinion, Trial Court suppress the motion to evidence should court concluded that because Beaver arresting since granted have been involvement, suspected of such Reppert sup- could not articulate facts to officer on proceed pre- Chief Hovanec'could port suspicion a reasonable that criminal armed, and sumption lawfully he was that activity afoot? a prelude could out of the car as order him Brief for at 3. Appellant Trial Terry Opinion, to search. Court question Reppert’s raises 5 (citing at 4-6 trial whether the court erred issue of 17, Patterson, Pa.Super. 591 A.2d 405 suppress denying his motion to evidence (1991)) Ohio, 1075, (citing Terry v. 1078 him after Hovanec 1868, obtained Chief 20 L.Ed.2d 889 392 U.S. 88 S.Ct. Morgan’s (1968)). to the backseat alight from of that The court concluded further car. of of a denial “Our standard review when exited the Chief Hova- Reppert sup of record sight is whether the on the of his justifiably nec relied ports findings prior court’s factual bulging pockets augment the trial to observa- legal conclusions drawn there nervous demeanor. whether the tions of the defendant’s 4/20/02, at Al- Opinion, from from error.” Trial Court 6-8. are free Common McClease, though court’s discussion does not wealth scope expressly is state when the Chiefs interac- (Pa.Super.2000). Our of review limited; investigatory an evi- tion with became may “only we consider detention, ap- the court’s 8 The Fourth Amendment reliance on pearance suggests pockets and Article the United States Constitution that it did not consider seized I, Pennsylvania Constitu Section until exited the after he car. citizens from “unreasonable protect tion seizures, those en including searches Reppert faults court’s rationale tailing only brief detention.” Common bases, on contending two first Strickler, 47, 757 A.2d wealth misinterpreted court the evidence at the (2000). suppression hearing it See also Commonwealth and second Morris, recognize controlling failed to apply Appellant sup- (1992).

law. Brief for 8. In right To secure citizens find- port challenge of his the court’s intrusions, courts free from such be ings, Reppert argues that the erred court require offi Pennsylvania law enforcement in treating pendency drug aof investi- ascending levels of cers to demonstrate gation contributing as a factor Chief justify their interactions with decision to him. Brief Hovanec’s detain those citizens to extent interactions at 7. Appellant contends liberty. individual See Com compromise at the suppression evidence adduced hear- Beasley, monwealth v. ing that the established did not sus- Chief (Pa.Super.2000). purpose, For this our pect him selling drugs and did not has forms Court defined three Supreme rely knowledge of a drug investigation interaction: a mere encoun police-citizen in determining whether him. to detain ter, detention, investigatory an and a cus Appellant Brief for at 7. support of his todial detention. See Commonwealth v. conclusions, challenge to the court’s legal Boswell, Pa. Reppert argues that court failed to (1998). A mere between encounter recognize point at which his encounter and a citizen an police during which officer with Hovanec arising orig- Chief out of the merely questions without sug the citizen inal stop investigatory traffic became an coercion, carries no official com gestion Appellant detention. Brief for at 8. part stop on the citizen to pulsion pert that his began, contends detention and, need not respond consequently, to be suggested, as the court after Hova- Chief any supported by suspicion. level of See nec him to empty pockets, ordered but If, however, at 761 A.2d Beasley, 624. at the moment when the Chief intrusive, too a police presence becomes him of the car. Brief at Appellant out 8. regarded as may mere encounter be an reasons accordingly Chief See investigatory detention or seizure. id. merely Hovanec conducted his detention the basis of “furtive” movements a 9 To determine whether mere and nervous demeanor he had observed to investiga to an rises the level of encounter and, therefore, illegally. that point acted detention, whether, tory we must discern Following scrutiny of certified record law, conducted a police matter of as a law, agree. we conclude that We person See Com seizure of involved. assessing the trial court erred both in Mendenhall, 484, Pa. monwealth suppression hearing evidence at the (1998). 1117, To decide 715 A.2d 1119-20 appellate to follow deci- failing controlling occurred, a a court whether seizure has at a prescribe point sions that which all circumstances sur must consider suspi- seizure commences the level of rounding the encounter determine necessary cion to meet mus- Constitutional and conduct ter. whether the demeanor police would have communicated authority may rea his show of constitute an person sonable investigatory subject that he or she was not free a re- detention to decline the request showing suspicion. officer’s or other newed of reasonable Donaldson, (con- wise terminate the See n. 4 encounter. See Max 786 A.2d on, “Thus, cluding “request” following that officer’s point 798 A.2d the focal whether, conclusion of traffic exit inquiry stop, of our must be driver consider vehicle, could not ing the be viewed as discretion- surrounding circumstances the in ary cident, and therefore constituted investigatory [person] innocent of detention). wpuld crime, any have thought he was being restrained had he been the defen ¶ 11 The matter of when a traffic Beasley, dant’s shoes.” at 625 stop given way has concluded or otherwise Matos, (citing Commonwealth 543 Pa. to a new interaction does not lend itself to 449, (1996) 769, 672 A.2d (quoting Thus, “brightline” definition. in Free Jones, 364, Commonwealth v. 474 Pa. 378 man, Supreme multiple our Court defined 835, (1977))). relevant circumstances on basis of may recognize which we end traf of a occasions, multiple 10 On our fic and the commencement of another applied Courts have this standard in the interaction. See 757 A.2d at 906-07. The context of stops during motor vehicle following Court enumerated the circum police which have ordered a motorist or his stances: passengers to disembark. See Common any prior existence and nature of Freeman, wealth v. 563 Pa. 757 A.2d seizure; whether was a there clear and (2000); 906-07 Commonwealth v. Si expressed endpoint any prior such erra, (1999) 723 A.2d detention; police pres- the character of (plurality opinion); Commonwealth v. ence and conduct in the encounter under Donaldson, (Pa.Su 786 A.2d 285-86 (for example—the review number of offi- per.2001); Commonwealth Lopez, cers, uniformed, they whether were (1992); Pa.Super. 181-82 subjects, whether isolated physi- Elliott, cally touched them or directed their (1988). Our Su movement, the content or manner of preme recognized expressly Court has statements, interrogatories or “ex- and an officer conducting stop a valid traffic cesses” [sic] factors stressed may occupants order the of a vehicle to Court); Supreme geo- United States alight to assure own safety. his See Free graphic, temporal and environmental el- man, 757 A.2d at n. 4 (citing Pennsyl encounter; ements associated with the Mimms, 106, 111, vania v. 434 U.S. presence and the or absence of express (1977) S.Ct. 54 L.Ed.2d 331 and Ma citizen-subject that the was free .advice Wilson, ryland 519 U.S. to request decline the for consent to (1997)). S.Ct. 137 L.Ed.2d 41 Once search. concluded, primary traffic stop has Id. however, the authority officer’s to order occupant

either driver or from the ear 12 Upon is consideration of these Sierra, extinguished. See 723 A.2d at 647 circumstances as documented the record Parker, 738) (citing (limiting suppression hearing, 619 A.2d at of the we conclude police authority following a stop). prior stop gave traffic that the traffic this case Thus, if subsequently the officer or a way directs to new interaction when Chief Hova- vehicle,

requests occupants to exit the nec car. Reppert Morgan’s directed to exit establishes, recognized have that an initially, The that circumstances we record Chief stop alight Hovanec effected the traffic for one to a driver to from officer’s direction stop to the infraction of a purpose; i.e. address after traffic involves a motor vehicle posed by the Motor Code the car’s authority substantially Vehicle of similar display a id.; expired inspection registration and stick prior of auto itself. See stop to N.T., at ers. When the Chief 8. Donaldson, recog- A.2d at 285. We stop Morgan, he questioned effected the authority, of display nized that this second accepted explanation, interacted against pri- of a background measured N.T., 8/31/01, with no at Morgan further. established the existence of stop readily Hence, stop had conclud 9-10. traffic Freeman, 907; A.2d at a seizure. See Although ed. the record does not estab Donaldson, A.2d at same apprised Morgan lish that Hovanec Chief is Hovanec apparent conclusion here. Chief a to the we do not find stop, clear end authority at displayed coercive substantial controlling. discrepancy The Chief stop traffic the commencement for the purpose stop had realized to Morgan’s he car the side when directed had no further reason to detain the driver road, when he subsequently, of the occupants of the vehicle or its under the As alight. we ob- guise original traffic infraction. See Donaldson, be “it would disin- served Freeman, 907 (indicating at person a genuous assert police accomplished once officer pur has felt Appellant’s shoes would have free stop pose a traffic motorist is entitled to had he wished to.” Id. leave the scene leave); Sierra, see also 723 A.2d at 647 is that when a reality of matter “[T]he Parker, (citing Commonwealth do requests officer a citizen to some- (1993)) something simple even as ‘move thing, as (limiting police authority following traffic along’ perceived it is often as com- most stop to issuing warning). citation or Chief unpleasant met with an mand will be subsequent Hovanec’s direction to disobeyed.” if response Commonwealth to exit ear was to any unrelated traffic DeHart, (Pa.Super.2000) infraction necessary and was not a element omitted). (citation Accordingly, we con- N.T., 8/31/00, prior traffic stop. effectively clude that had been (indicating that Chief Hovanec ordered moment Chief Hovanec or- seized Reppert out of the car on the basis Morgan’s him car. We must dered to exit movements). head and preceding shoulder therefore determine whether conclude, Consequently, we based on the sufficient afforded the Chief prior behavior acknowledged limitations of traffic basis for such a seizure. inquiries and the redirection of his Chiefs driver, person other than has Supreme 14 Our Court unrelated to the purposes documented officers, law mandated that enforcement infraction, traffic that the Chiefs direction a to an investi subjecting citizen prior a Reppert to exit the car constituted detention, must harbor least gatory Freeman, new 757 A.2d interaction. See person that the seized suspicion reasonable at 907. activity. in unlawful See engaged is then Polo, 218, Pa. 759 Moreover, 563 Commonwealth circum- the coercive (2000). 372, question of A.2d new our compel stances of this interaction existed at suspicion in whether reasonable had fact been conclusion investigatory detention time of an moment Hovanec or- seized at the Chief by examining the totali- be analogous him from the car. Under must answered dered ty of the circumstances to Reppert’s “very, very appearance determine nervous” (3) whether the officer who initiated stop during stop; bulges in Rep- ” (4) had a “particularized objective and pert’s pockets, pendency basis front suspecting stopped. individual drug by of a in investigation Beaver 1202, Ayala, 791 A.2d allegedly implicated. which was D.M., (Pa.Super.2002) In (quoting re Opinion,-4/20/01, Trial Court at 3. We con- (2001)). 781 A.2d clude, initially, that the court failed to rec- Thus, grounds to establish for reasonable ognize point at which Chief Hovanec’s suspicion, spe- the officer must articulate interaction with Reppert became seizure which, conjunction cific in observations erred, therefore, in considering the with reasonable inferences derived from of appearance Reppert’s pockets as a cir- observations, reasonably those led him cumstance from which the Chief could conclude, light in experience, of his have suspicion drawn reasonable of in- criminal activity was afoot and that volvement in criminal activity. At person stopped he in was involved “moment of the intrusion” at issue in this Cook, activity. See Commonwealth v. 558 case; point i.e. at the when Chief Hovanec (1999). Pa. Zhahir, car, from the see 751 A.2d at he had not seen ¶ 15 Although police officer’s pert’s pockets. Chief Hovanec so acknowl- knowledge length experience weigh N.T., 8/31/00, edged testimony. his own heavily in determining whether reasonable that, acknowledged at 20. The Chief existed, suspicion our Courts remain mind fact, point Reppert’s pockets were ful that the officer’s judgment is necessari visible from outside the car as lap ly by primary colored his or her involve throughout covered with a sandwich ment in competitive “the often enterprise N.T., 8/31/00, stop. traffic at 15. Because D.E.M., of ferreting out crime.” In re rely Chief had not seen and could not (Pa.Super.1999) 578 n. 19 (quot appearance Reppert’s pockets on the 1868). 11-12, ing Terry 392 U.S. at 88 S.Ct. when he ordered him to exit the Therefore, inquiry fundamental of a concluding bulging court erred in that the one, reviewing court objective must be an contributed to the pockets existence “namely, whether ‘the facts available suspicion. reasonable the officer at the moment of the [intrusion] warrant a-man of in the reasonable caution ¶ Moreover, the court erred belief that the action taken appropri finding based on the ” Zhahir, ate.’ Commonwealth v. Pa. reported drug investigation Rep- of which (2000) (quoting pert was an alleged target. This conclu 1868) 21-22, Terry, 392 U.S. at 88 S.Ct. pointedly by sion is contradicted the rec (insertion Zhahir). inquiry This will during ord. The evidence adduced not be an hunch or satisfied officer’s suppression hearing establishes that Chief unparticularized suspicion. See Com Hovanec was not aware of al Arch, monwealth v. 654 leged drugs role in the until after sale (1995). 1141, 1144 N.T., he conducted the issue. case, the trial court at 16-17. Although Chief was concluded that Chief Hovanec of an ongoing investigation, acted aware and that (1) suspicion reasonable based on: “Reppert” his ob someone named had been a tar Reppert’s servation of get investigation, head and of the he not shoulder aware (2) prior stop; Reppert’s identity movements to the traffic when he ordered him if had N.T., 8/31/01, trooper asked the driver step ingly, at 10. the out of the car. that, fact, id. at 645. illegal he in the car. See point anything The Chief attested any cargo such and the had not known when he conduct- The driver denied car to check stop, photos ed the had not seen to his own trooper returned pert, not ask name until the vehicle’s Reppert’s and did license and docu- the driver’s N.T., car, him alight. Returning after he directed to the mentation. See id. 8/31/01, Thus, trial warning at 16-17. the court’s for trooper issued a written the suggestion that Chief Hovanec relied again the driver speeding and then asked Reppert’s alleged profile in a “narcotics” in the car. See anything illegal if had he in the investigation support finds no Com- “No, replied, you would id. The driver monwealth’s evidence. look?,” or- whereupon the officer like the car and conduct- dered the men to exit remaining 18 Chief Hovanec’s pat-down weapons. a for See id. ed Reppert’s observations were limited to passenger’s posses- the pat-down revealed “furtive” head and shoulder movements sion of an unlicensed firearm. See id. On through observed the back window of Mor review, determined Supreme Court car, gan’s moving nervous stop the traffic had conclud- that because “antsy” appearance during the traffic ed, subsequent could conduct a trooper stop. N.T. at 18. Our courts only upon his observations of the detention determined, occasions, have on several occupants of the car unrelat- contents and that neither furtive movements nor exces traffic stop. ed to the reasons for the See sive provide nervousness sufficient basis Accordingly, id. at 647. the Court consid- upon investigatory which to conduct an nervousness of the vehi- ered excessive Sierra, 647; detention. 723 A.2d at See unlikely appearance occupants, cle’s DeWitt, plates presence dealer on the and the McClease, (1992); trooper be- motorcycle parts 326; DeHart, 745 A.2d at 637. lieved to be stolen. See id. The Court Sierra, In Supreme our ad- Court that, conclusion, “[n]one reached a forceful legality dressed the of a motor vehicle demonstrate, of the officer’s observations where, following search a valid traffic activity.” Id. Cit- suggest, illegal or even here, detaining premised as officer DeHart, Sierra, ing we enunciated search on observations he made had dur- that the oc- “a officer’s assessment Sierra, ing stop. A.2d at 647. See appear a vehicle nervous does cupants of incident, In the underlying Pennsylvania an provided for Trooper had stopped State a vehicle DeHart, investigative detention.” speeding shortly midnight. after See id. A.2d at 637. During stop, trooper at 645. ob- DeWitt, ad- Supreme Court served that the car carried dealer license premised part scenario plates motorcycle and contained boxes of dressed another oc- of vehicle trooper id. on the “furtive movements” parts. See When asked documentation, together with other appropriate cupants, the driver for considered suspicious circumstances. See allegedly noted that the driver’s license had ex- he case, DeWitt, In that under A.2d at 1032. pired, gang the driver had tattoo parked in a the defendant had been seated eye, his left and that the driver and police ap- car with others when passenger “appeared to be more nervous car, ostensibly investigate proached a rou- people during than most would be occupants potential Accord- involvement stop.” tine traffic Id. suspicion rise to reasonable of reported gether, give in in that area. activity criminal vehicle, A obser- police activity. police See id. As the neared criminal officer’s they occupants making observed the inside and vation a citizen’s nervous demeanor of suspicious and move- movements, more, “furtive movements furtive without estab- they trying as if were to hide some- ments “hunch,” em- nothing lishés more than thing.” See id. When the officers about the citizen’s mo- ploying speculation attempted reached the the defendant place in the of fact. Were we to tive gave chase. id. to flee and the officers See open we would practice, validate such a captured When the officers and searched vehicle in this every occupant of a motor defendant, they per- on his discovered law enforcement offi- Commonwealth to marijuana, son other controlled sub- subjective wholly interpretation cers’ stances, drug paraphernalia. and See id. conduct, and undermine our inoffensive review, our held that Supreme On Court time-honored insistence Supreme Court’s even the combined-circumstances of furtive may stop our citizens officers movements, night, previous late time objective criteria. See only on the basis area, in the reports activity of criminal Sierra, DeWitt, 647; A.2d at flight, adequate did not establish an basis This we cannot do. we will at 1034. This suspicion. See id. at 1034. not do. Accordingly, suppres- Court ¶ accordingly We conclude of the evidence of seized sion contraband in Benjamin Reppert seizure of issue person. from the defendant’s See id. Cit- erred illegal. case was The trial court this DeWitt, McClease, ing we concluded in illegality failing recognize on the that motorist’s furtive movements physical failing to order in an approach police, night even late at incriminating statements it evidence and reported activity, area of criminal did Rep- reverse produced. Consequently, we establish reasonable for an inves- judgment of sentence and order pert’s McClease, tigatory detention. See suppressed. foregoing evidence A.2d at 326. ¶ ¶ in this RE- Upon comparing Judgment the facts sentence cases, foregoing to those in the we case REMANDED for fur- Case VERSED. no to demon find circumstances sufficient Opin- proceedings ther consistent with suspicion. RELINQUISHED. strate reasonable Sierra ion. Jurisdiction DeHart, an offi pronounced our Courts pal of nervous demeanor

cer’s assessment ¶ KLEIN, Concurring Opinion by J. to establish reasonable pably insufficient GRACI, J., by Concurring Opinion in crim suspicion of a citizen’s involvement joins. Judge in which ORIE MELVIN activity, even when viewed combina inal criminal potential tion with other indicia of in the Judge concurs HUDOCK 647; Sierra, A.2d at De acts. See result. Hart, at 637. We have found similarly deficient even movements furtive KLEIN, J., Concurring. crime environ they high when occur in the result reached 1 I concur night. in the late hours of the See ments join majority’s in the majority, do not but

DeWitt, 1034; McClease, 750 A.2d at reasoning. Thus, we find no basis to - ¶ 2 if were con- investigation Even nervousness and conclude that excessive movements, Hovanec ordered tinuing to- when Chief furtive even considered car before out of the Reppert car, reason- dered and there were out of the pert is con- Reppert was dealing who him of after he realized grounds suspect to able determine whether tradictory, Hovanec could we cannot drugs, at most Chief illegal Terry stop.1 a With proper. have conducted were acts Chiefs pos- Hovanec of Chief level ¶ that he or- testified Hovanec 5 Chief sessed, improp- it have been just as would of the car because Reppert out of dered and Terry a frisk go beyond for him to er that he the fact and early observations his himself, im- equally it was Reppert search (N.T. at very nervous” “acting was 8/31/00 empty to Reppert order proper to 15a) not know his that he did RR and accomplish The officer cannot pockets. (N.T. of the car he was out name until In means. by indirect illegal search 26d-27a). According 16-17, RR at 8/31/00 Judge I with Graci. respect, agree this expired- testimony, own to Chiefs disposed not be appeal 3 If the could by the time was over investigation sticker basis, I believe we would have on this car. N.T. out of the he ordered findings the trial court for clear remand to at RR 19a. 8/31/00 record, of the fact. Based on the state know whether the investi- we do not contradiction, the driver In6 direct expired ongoing sticker was gation for right that car, testified Morgan, Justin concluded. it is true or had While al- that he had explained Morgan after denying an a motion reviewing when order inspection ready stopped been “may only we consider suppress inwas sticker, asked who Hovanec Chief and the defen- Commonwealth’s evidence answered, “Ben the back seat. that remains uncontradict- dant’s evidence (N.T. 8/31/01, 35-36, RR 45d- Reppert” Nobalez, ed,” Commonwealth 46d). father Reppert’s knew The Chief (Pa.Super.2002), that standard investiga- drug a Ben was under and knew authority to give not does Court testi- Reppert also Defendant Ben tion. Rather, by facts. that is the standard find he gave his name fied that he before findings of judge we the trial court’s which Hova- after Chief ordered out fully of law. More fact conclusions under put anything had if he nec asked stated, is, reviewing the standard “When (N.T. name. him his and asked seat suppress denying an order a motion 51a-52a). 41-42, RR evidence, we must determine whether ¶7 the factual supports of record evidence If Hovanec Chief making this findings the trial court. was under realizing Reppert out before determination, may only consid- investiga- this court further drug investigation, and the evidence er the Commonwealth’s the car was out of get tion and order uncon- evidence that remains defendant’s provides The case law improper. omitted). (citations In the Id. tradicted.” do acting nervous “antsy” movements find facts. appeal, an we cannot context of justify Terry of themselves not Pa. Boyer, 455 stop. Commonwealth case, judge the trial 4 In this because (1974). However, cer- findings record his on the did state ask violation to tainly it was no required law as and conclusions of fact have would the Chief point, At that name. 581(i), ques- fact material Pa.R.Crim.P. under passenger realized the testi- unresolved. Since remain tions fact, combined That investigation. drug or- Hovanec whether Chief mony about (1968). Ohio, L.Ed.2d Terry U.S. 88 S.Ct. factors, with the other would per.2000). have ren- Normally, that means the un- dered him contradicted ordering proper. out of the car evidence for the defense that goes Here, against the Commonwealth. ¶ 8 But we cannot resolve that conflict. there is contradicted defense evidence that court, That function lies with the trial the Commonwealth: that the Chief favors presents which an interesting circum- did not order out of the car until stance. If the judge trial believes the after he out found his name and remem- witness, Commonwealth’s the further in- bered he a drug suspect. was vestigation improper. On the other ¶ 10 The sensible interpretation of the hand, if judge the trial believes the testi- rule reviewing is that when the denial of a mony and the other defense motion to suppress, we look at all of the witness, investigation further light evidence in the most favorable to the proper. Commonwealth and determine whether notes, 9 majority As the courts often supports suppression record say that in reviewing sup- the denial of a findings court’s of fact. We then review motion, pression appellate may courts legal admissibility conclusion of de consider “only the evidence of prosecu- novo. This par- restatement of the rule is tion and so much of the evidence for the ticularly apt since boilerplate remark defense as remains uncontradicted when reminds courts to consider the evidence read in the context of the record as a “in the context of the record as a whole.” See, whole.” e.g., Commonwealth v. supported This view is by weight McClease, (Pa.Su- 320, 323 authority from other American courts.2 Although using phraseology, by different giving most fact appropriate trial court and jurisdictions suppression examine the court's to apparently deference the inferences drawn findings by referring officers, of fact to the whole from those facts law enforcement suppression warrants, seeing record and if the evidence the court that the search issued ” supports (citation suppression findings. omitted)); court's the trial court' United See, e.g., Chavez-Miranda, 973, Twomey, United States v. 884 F.2d States v. 306 F.3d 977 46, (1st Cir.1989) (9th Cir.2002) (reviewing findings 51-52 (reviewing findings of fact for error); error), Reyes, McKissick, of fact for clear United States clear United States v. 204 446, (2d Cir.2002) 1282, (10th ("When (reviewing Cir.2000) 283 F.3d 450 F.3d 1296 re error, findings construing of fact viewing for clear a district court’s denial aof motion to light evidence govern suppress, most totality favorable to we consider the of the cir ment); 251, Myers, United States v. 308 F.3d light cumstances and view the evidence in a (2002) ("We 255 construe the in the government.”); record most to the favorable United light 1331, government.”); (11th most Holloway, favorable to the States v. 290 F.3d 1334 Seidman, 542, Cir.2002) United States v. 156 F.3d (reviewing findings 547 of fact for clear (4th Cir.1998) ("[I]n Davis, error), reviewing the denial of a U.S.App. United States v. 344 212, 584, suppress, (D.C.Cir.2000) motion to we review the evidence in D.C. 235 F.3d 586 light government.”); error); most (reviewing findings favorable to the of fact for clear 336, Joubert, Santiago, (Alaska United States v. 310 F.3d 339- State v. 20 P.3d (2002) 2001) (reviewing light (reviewing evidence in most denial of mo government); light favorable to upholding United States v. tion in most favorable to trial Johnson, (6th Cir.2001) decision; reversing F.3d findings court's of fact for State, (viewing light likely evidence only); "in the most error clear Ilo v. 350 Ark. decision."); support (2002) the district court's (reviewing Unit 85 S.W.3d 546-47 evi Lomeli, (7th ed States v. 76 F.3d suppress light dence in denial of motion Cir.1996) error); state); Shaw, (reviewing for People clear United most favorable Smith, (8th States v. Cal.App.4th Cal.Rptr.2d 266 F.3d Cir. 2001) ("We (2002) review de (reviewing suppression findings novo the trial court’s court's ruling suppress, ‘evaluating standard); on a motion to of fact under substantial evidence error, however, Jackson, only any findings for clear Conn.App. State v. out of the order properly as trier could suppression judge, 11 The fact, testimony empty of defense him to can believe he could not order witnesses, reason, disbelieve Commonwealth’s is in reversal For pockets. witnesses, testimony if the defense order, I and concur. admission,

supports find for the Common- review, wealth. On we look at evi- GRACI, J., Concurring. light dence most to the in the favorable disagree I am reluctant While case, In the Penn- Commonwealth. usual majority in the analysis set forth with sylvania’s boilerplate will achieve standard here, presented under the as opinion, facts case, goal. This is the where unusual them, join. I unable to I understand am supported witnesses have defense only I concur in the result. Accordingly, argument. Commonwealth’s ¶ Here, 2 that the question there is no above, 12 find- explained As without R. Benjamin appellant, in which fact, car ings of I do not believe we can resolve (“Reppert”), passenger was a was ordering Reppert pert of the car whether out However, for of the lawfully stopped even if the Chief a violation Mo- proper. 388, 112, 29, (1988) (re (2002) (reversing 534 30 suppression 413 couit's N.Y.S.2d N.E.2d evidence). findings for abuse or for of facts of discretion viewing sufficiency State for of injustice, “every giving presump Carr, 1881158, (Ohio WL at *2 v. 2002 Ct. ruling”); tion in favor of trial court's 16, 2002) ("[W]e to App. Aug. are bound ac State, 1119, v. 807 1123 McAllister A.2d findings they fact if cept the trial court's of suppression (Del.Super.2002) (reversing by competent, credible supported are evi findings only of fact if the result court’s "not 66, dence.”); Ehly, v. Or. 854 P.2d State 317 orderly logical process”); of a deductive 421, (1993) (reviewing suppression 427 State, 730, (2002) 832 So.2d v. 748-49 Chavez sufficiency findings of for of evi court’s fact (deferring suppression questions to court on 253, dence); Hullinger, N.W.2d State v. 649 State, 863, fact); Rogers Ga.App. of v. 253 560 (S.D.2002) (reviewing suppression court’s 256 742, (2002) (construing 743 evidence S.E.2d Levitt, error); findings fact for State v. of clear light to deri most favorable trial court’s 159, (Tenn.Crim.App.2001) 73 S.W.3d 169 sion, reversing only clearly findings if weight findings (reviewing fact under of of 224, Edwards, erroneous); v. State 96 Hawai'i State, standard); v. Carmouche 10 evidence 238, (2001) (reviewing suppres 30 P.3d 245 323, (Tex.Crim.App.2000) S.W.3d 327-28 findings clearly er sion court’s fact under ("When explicit make the trial court does not Doe, standard); roneous State v. 137 Idaho fact, findings we review evi of historical 519, 1014, (2002) (reviewing P.3d 1017 50 light to trial dence in the most favorable findings clear court's of fact for Galvan, DeLuna, 1, ruling.”); 37 error); State v. P.3d court’s People Ill.App.3d v. 334 778, 1197, 581, (Utah (reviewing Ct.App.2001) 267 777 586-87 1198 Ill.Dec. N.E.2d (2002) error); (reversing suppression findings findings court’s for Sheler v. of fact clear 465, against Commonwealth, only weight of the fact if manifest Va.App. 38 566 S.E.2d 648, evidence); State, v. Md. 805 203, (2002) Nathan 370 light (reviewing evidence in 206 1086, (2002) (reviewing findings of Commonwealth), 1093 State v. to most favorable prevailing light fact most favorable to the 313, 641, Hill, P.2d 316 Wash.2d 870 123 Potter, 307, 313 party); v. 72 S.W.3d State (1994) (reviewing findings suppression court's (reviewing findings of fact (Mo.Ct.App.2002) test); Al under substantial evidence of facts Padilla, error), v. for clear State 321 N.J.Su (review State, (Wyo.2002) 43 P.3d v. 551 len 279, 1999) 96, (App.Div. per. 284 error). But findings fact see ing for clear for (reviewing suppression court’s decision State, (Ind.Ct.App. Roehling 961 v. 776 N.E.2d evidence, giving “due defer sufficiency of the 2002) conflicting (stating that considers court judge’s credibility determina trial ence" to state, light to most favorable evidence 364, Romero, tions); 48 N.M. State 132 light in the most evidence and uncontradicted 102, (reviewing findings (App.2002) 104 P.3d defendant.) to favorable standard); of fact under substantial evidence 815, People Velazquez, 73 N.Y.2d At point

tor Vehicle Code.3 Chief Ho- the time he ordered from the Borough vanec of the Beaver Police De- the traffic had otherwise reached a authorized, partment clearly endpoint. under both the articulated See Com Strickler, Pennsylvania and the monwealth v. 563 Pa. United States Con- stitution, (2000); Reppert, to order the car’s driv- A.2d Commonwealth v. er, Freeman, passenger alight and the other from (2000). Mimms, Pennsylvania objective the car. There was no indication any U.S. 54 L.Ed.2d articulation that the driver S.Ct. (1977)(driver); Wilson, Maryland v. 519 vehicle was free to drive off before the L.Ed.2d 41 chief out get U.S. S.Ct. (1997)(extending Mimms car. passengers); appreciable lapse, There was no time record, Rodriguez, ques between chiefs (Pa.Super.1997) (following tioning Rep- Wilson of the driver and order and rejecting argument Pennsylvania They to exit the were of one pert vehicle. provides greater protection part.4 objective totality Constitution An view of the passengers yields inescapable this circumstance as the circumstances “meritless”). initial, When there is a lawful traf- that the lawful traffic conclusion (as here), stop stop Reppert fic was conceded an order had not come to an end when aby police pas- Accordingly, officer for the driver and was ordered from the car. sengers majority, to exit is different from the I conclude the vehicle reasonable justification. and needs no ongoing further Rodri- that “seizure” was from guez, citing stop 695 A.2d at Wilson and the time of the initial vehicle lawful Brown, 439 and included the lawful order exit (1995). 516, 654 A.2d 1096 car.5 Here, My 3 it is clear that Hovanec 4 that stop Chief conclusion was and

did not invoke the full extent of his author continued to be lawful when Reppert was ity pulled when he first the vehicle I ordered from the car over.. does end conclude, however, by inquiry, am unable to that however.6 While Mimms and its Reppert’s attorney point stop inception, conceded this at here was lawful at its cases argument. provide guidance. oral like no Donaldson argued testimony 6.It could be that a determination that 4. Chief Hovanec's that his interac- inquiry. the seizure was lawful ends our "pretty tion with the driver had come much” Question Reppert's "Statement of Reppert Involved” to an end before he ordered from the N.T., appears invalidity to center on the not alter does this “investigative detention” of after conclusion. stop.” of the "routine He conclusion traffic case, my question 5. Given view of this discussion of frames the in terms of a lack of reasonable, requiring suspicion activity cases a articulable sus- that criminal .“reasonable argues picion activity justify unnec- what he was a that criminal is afoot is was afoot” essary legality subsequent "investigative since those cases deal with the detention.” He as- stop. resulting of the initial In Commonwealth v. Don- serts that the search flowed from aldson, (Pa.Super.2001), illegal investigative A.2d in- 279 detention. Substituted stance, However, Appellant, argues, substantially which is on Brief for at 3. he relied alia, majority, lawfully that were facts to the defendant was not inter there insufficient conclusion, frisk, Accordingly, yield required stopped for a offense. for a that traffic dangerous. stop required justification Id. at initial under Ter- was armed opinion, ry. presented, 15-18. its Pa. R.A.P. On the facts that court con- Rule 1925 court, 1925(a), being identify- illegal cluded that the as not after supported by suspicion. ing Reppert’s appeal Since the first issue on as Johnson, law v. ordering passengers allow wealth progeny cars, also they (Pa.Super.1999)(same), See Common fully stopped vehicles from their Nobalez, A.2d “pat allow a of the wealth do not “frisk” down” cir (assessing totality of Any (Pa.Super.2002) such con person police so ordered. cause probable to determine justification. requires independent duct an cumstances Sierra, arrest, through but layperson, “not as a 555 Pa. Commonwealth officer”). of a trained We (1999)(opinion support eyes n. 6 Mimms, making affirmance)(citing experience the officer’s 434 U.S. consider Nobalez, 830)(“Once 111-12, 805 A.2d at 599 occupants assessment. S.Ct. arresting that officer was (observing alighted, may have the officer conduct experienced” being after weapons “highly if the officer pat-down search for years). the evi occupants may for nine We view concludes be force through eyes of a trained officer dence dangerous.”); armed Commonwealth is notwithstanding the fact the officer Shiflet, (1995)(search competitive in “the enter often passenger’s purse, where involved crime.” In re ferreting was no out prise there reason to believe criminal (Pa.Su D.E.M., n. activity was afoot or that she was armed 11-12, Here, Terry at 88 S.Ct. dangerous, improper).7 per.1999) (quoting 1868). reasonable, articula- in this case leads me Chief Hovanec had record act suspicion might ble that Chief Hovanec was not to believe conclude requi hunch he had dangerous. Accordingly, ing be armed and on a but that justified Reppert.8 in frisk to frisk the chief would have been site ing Reppert. chief, 29-year law enforcement 6 The a 8/31/00, 14, said, veteran, N.T., regularly we at observed “[d]e- 5 As have in the back termining suspicion pert making whether a furtive movements passen- car in he was a requires exists an assessment of the totali seat of the which consistent, ty the The were ger. circumstances. These circum movements experience, are a through eyes stances viewed based on chiefs with id., officer, by trying something, ordinary person trained not an citizen.” to hide Fink, 447, “stuffing something in trousers 449 his Commonwealth v. A.2d either 700 N.L., 564, car.” at 5. the back Id. (Pa.Super.1997); In re 739 A.2d or into seat car was stopped, Reppert After the was (Pa.Super.1999)(same); 567 Common- (reasonable, cjourt’s "stop” separate justification for a [the denial of "[w]hether [Reppert's] suppress activity was motion to evidence is that criminal articulable error,” Opinion, (reasonable, at afoot) Memorandum articula- and for "frisk” 2, spent portion opinion a substantial of its stopped may person be suspicion that ble discussing for a and the the standard "frisk” rec- dangerous). Our cases have armed propriety of circum- a "frisk” under requirements. See In ognized these distinct presented in this Id. at 3-7. stances case. N.L., (Pa.Su- A.2d 564 Interest 739 Commonwealth, court, in its to this brief C.C., 780 per.1999); In the Interest of propriety a "frisk” likewise discusses (Pa.Super.2001). 696 presented under the facts here. Common- Brief, at wealth’s Accord- Substituted 9-14. record, only assessing I consider 8. challenge ingly, propriety to the and the defen evidence Commonwealth's following the been actions has not remains uncontradicted. dant’s evidence that properly waived and before is us. 600, Nobalez, citing at Common 805 A.2d 129, Jackson, Indeed, Ohio, 1, 678 wealth Terry S.Ct. 7. 392 U.S. 798, (1996). 1868, (1968), speaks of a 20 L.Ed.2d 889 itself “very, 5, Id. at very Here, however, nervous.” 18. He the chief exceeded Id. He was “very antsy.” Terry the current and Kondash. moving bounds of Terry around in the allows a pat back seat limited down of during Chief Ho- outer clothing of a detained vanec’s brief individual to interaction with the driver. determine if he or she is armed Id. at 18. He dan properly ordered Reppert Dickerson, Minnesota gerous. 508 U.S. Id. at 5. As out of the car. alighted, he 366, 373, 2130, 113 S.Ct. 124 L.Ed.2d 334 Reppert’s chief saw that pockets front E.M., (1993); Commonwealth v. 558 Pa. Id. at 6. At that point, large bulges.” “had 654, 659, (1999); Com 735 A.2d Id. at 16. told the chief his name. Marconi, monwealth v. 408 Pa.Super. name, When he heard the chief (1991). A Terry 619-620 frisk said: Id. looking you.” “We have been for pat or down is not a search for evidence or at 30.9 The chief open was aware of an Zhahir, contraband. Commonwealth v. drug investigation in department his con- (2000); Id. at cerning Reppert. Upon seeing E.M., 735 A.2d at 661 (citing Adams v. bulges in Reppert’s pockets Chief Ho- Williams, 143, 146, 407 U.S. 92 S.Ct. vanee, based on experience, his became (1972)); Dickerson, 32 L.Ed.2d 612 safety. concerned for his Id. 6.10 2130; 113 S.Ct. U.S. Marconi ¶ 7 totality Based of the circum A.2d at 620-621. Kondash allows safety- stances as seen through eyes of a 29 related questioning in anticipation of a Terry year veteran, police it pat would have down.11 Neither been allows a officer objectively require expose reasonable for detainee to Chief Hovanec E.M., (who contents of his her pockets. See was, frisk explained as Adams, citing above, A.2d at 407 U.S. at subject to a stop). valid vehicle It (officer S.Ct. was not entitled permissible likewise for the chief to Terry under suspect’s pocket to search ask if he had anything contraband). non-threatening Such a com pockets might harm the chief while mand effected an unreasonable search in conducting pat the limited permitted down and, Terry, excess of that my allowed Terry. Kondash, under view, requires suppression of the evidence 309, Super (2002), 2002 808 A.2d 943 PA * thus obtained. citing Bowers, 400 377, Pa.Super. 1165, 583 A.2d 1170 may 9 be that It had Chief Hovanec (1990)(citing Quarles, New York v. 467 actually pat conducted a down of Reppert’s 649, 655-659, U.S. 104 S.Ct. 81 pants weapon for a as he was permitted to (1984)). L.Ed.2d 550 Terry do under progeny, “plain and its the part court, 9. This was of the evidence adduced at 11.The learned trial the Honorable hearing Reed, by Judge Robert C. President the defendant. It is of the Court consid- County, of Common Pleas of Beaver our ered like here because it was not contradicted. Stevens, colleague, the Honorable Corréale supra. See note opinion who authored unanimous in Kon- dash, astutely recognized many drug "that Reppert's 10. He was also concerned for safe- peddlers carry’ dangerous sharp objects, and ty. Id. at 6. This should seem odd to no one. blades, such as needles and razor on their When it suspect is discovered that a has a person. prudent It is for officers such as case, so, weapon, only is officer at risk but Chief Hovanec in this to take added too, suspect. gunfight is If a or other precautions searching suspected drug when ensued, suspect easily altercation could be . injury.” dealers so as to avoid Memorandum injured. Opinion, at 7.

1213 an addi Terry he did not conduct corollary to view frisk: plain exception feel” vials that the tional search to determine might to the warrant have requirement explaining, Id. In contraband. so were legitimate in a seizure of con- resulted it Zhahir, the facts before the court contrasted tents of See pockets. Dickerson, U.S. 378- from 508 those the suppres- 751 A.2d at 1163. This was con 113 where the Court S.Ct. court’s sion conclusion. Memorandum sliding and by “squeezing, cluded that 4/20/01, at 5-6. Opinion, manipulating the contents otherwise feel” valid “plain 10 A seizure is where ex pocket” the officer the defendant’s lawfully the officer is entitled conduct pat down ceeded the bounds of Tern/ pat down for and where it is weapons additional, improper an constituted immediately apparent to the officer con- Zhahir, 751 1163. See search. A.2d at item ducting pat down that the he Stoner, v. also Commonwealth Zhahir, feels is contraband. 751 A.2d she requirements (Pa.Super.1998)(plain feel inquiry at 1163. This “takes into account Marconi, facts); compare satisfied under totality of the circumstances surround- (requirements 597 A.2d not satis frisk, alia, ing including, inter Fink, facts); v. fied under Commonwealth location, object, nature of the its the con- (same); (Pa.Super.1997) suspect, duct of the the officer’s experi- Stackfield, v. 438 Pa.Su Commonwealth ence, stop.” and the for the Id. reason (1994); A.2d 558 Common per. subjective “[A]n officer’s belief that an E.M., Pa. 735 A.2d 654 wealth item is contraband is not sufficient unless (1999)(same). it objectively light is ¶ 12 determina- Given the fact-intensive facts circumstances attended the require, I find tion which feel” cases “plain frisk.” Id. support suppres- in the record for the no Zhahir, 11 In while the officer was Common- sion court’s conclusion. See conducting pat weap- down for limited McClease, wealth v. Terry, immediately ap- ons under it was (“Where sup- (Pa.Super.2000) the record parent, experience, based that the court, findings ports number of in the large vials defendant’s may those we are facts bound pocket was contraband. their num- Given reaching if only reverse the court erred ber, presence equally “their was not con- facts.”); legal its based on conclusions legitimate with Id. purposes.” Wood, sistent Super PA Commonwealth distinguished court in Zhahir its ear- (2002), citing Commonwealth v. Jack- son, lier decision Commonwealth Steven-

son, (1996)(“[w]hen denying 744 A.2d reviewing an order (2000), evidence, it where it was we must suppress had concluded motion immediately “pill findings that a are apparent bot- the factual determine whether record”).12 a frisk was during supported by tle” detected contra- evidence of Zhahir, Here, or other Finally, testimony 751 A.2d at 1163. was no band. there specula- this explained upon Zhahir court that the offi- evidence which reach of a tive cer did not exceed the bounds lawful conclusion.13 inevitable; evidence (1993)(proper search not cannot be that a search of the 12. It said facts, suppressed). been should have Reppert’s pockets, on these contents Germann, was inevitable. Commonwealth that the described recognize 13. I chief N.T., having bulges, pockets large pert's as ¶ While, circumstances, under the I

do not find Chief Hovanec’s actions unrea- HIV, day hepatitis

sonable Kondash,

see 2002 PA.Super.

943, I am constrained to say they were

constitutionally impermissible. According-

ly, I concur in the result reached

majority in ordering sup- the evidence

pressed. GOLDSTEIN, Appellant,

Heath COMPANY, INC.,

HABAND Operations, L.L.C.,

Haband

Appellees. Goldstein, Appellant,

Heath Pennsylvania

Commonwealth of Lack County,

awanna 45th Judicial Dis

trict, District Court 45-1-2.

Superior Pennsylvania. Court of July

Submitted 2002.

Filed Dec. evidence, and that he described their Id. at 47-49. There is no record upon being however, emptied. contents Id. at 26. I that describes what the contents recognize likewise described the during proper would have pat felt like contents when he testified and that the con- down. tents were observed court.

Case Details

Case Name: Commonwealth v. Reppert

Court Name: Superior Court of Pennsylvania

Date Published: Dec 10, 2002

Citation: 814 A.2d 1196

Court Abbreviation: Pa. Super. Ct.