Com. v. Andino, S. ( 2019 )

J-S19005-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
SAMUEL ANDINO :
:
Appellant : No. 1541 EDA 2018
Appeal from the Judgment of Sentence May 8, 2018
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0003625-2017
BEFORE: LAZARUS, J., KUNSELMAN, J., and STRASSBURGER*, J.
MEMORANDUM BY LAZARUS, J.: FILED MAY 17, 2019
Samuel Andino appeals from the judgment of sentence, entered in the
Court of Common Pleas of Philadelphia County, after he was convicted in a
non-jury trial of various firearms charges.1 On appeal, Andino challenges the
trial court’s denial of his pre-trial motion to suppress, claiming that the police
did not have reasonable suspicion to conduct a “pat-down” where Andino was
not armed and dangerous and that the arresting officer did not have probable
cause to subsequently conduct a search of his vehicle. After careful review,
we vacate Andino’s judgment of sentence and reverse the order denying
suppression.
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1 18 Pa.C.S. §§ 6105(a)(1) (persons not to possess firearms); 6106(a)(1)
(firearms not to be carried without license); 6108 (carrying firearms on public
streets in Philadelphia); and 6106.1 (carrying loaded weapon).
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* Retired Senior Judge assigned to the Superior Court.
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On the evening of April 10, 2017, Philadelphia Police Officers Sharrod
Davis and Timothy Murphy were on routine patrol duty in their marked police
cruiser near North Dover Street in Philadelphia, a high-drug/crime area.
Officer Davis observed a Chevy Malibu, with a Pennsylvania license plate,
double-parked on the 2800 block of Cecil B. Moore Avenue. The officers pulled
their cruiser behind the Malibu; the driver of the vehicle, Andino, drove off,
turning northbound onto the 1700 block of Dover Street without using turn
signals. At that time, Officer Murphy activated the cruiser’s overhead lights
and sirens and followed Andino’s vehicle, which had pulled over and parked
on the sidewalk. Officer Davis conducted a motor vehicle check that revealed
the Malibu’s registration had been suspended. At that time, Officer Davis
exited the cruiser and approached the Malibu. As he neared the Malibu’s
driver’s side window, Officer Davis testified that he smelled an odor of burnt
marijuana.2 At that point, Officer Davis told Andino that he and his vehicle
were going to be searched. Officer Davis then opened the car door and, as
he attempted to pat down Andino, noticed Andino “kind of lean[] over towards
the driver – the steering wheel.” N.T. Suppression Hearing/Waiver Trial,
12/14/17, at 11. Officer Davis then put his hand on Andino, told him to move
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2 Officer Murphy testified that he did not recall an odor of marijuana emanating
from Andino’s vehicle during the encounter. N.T. Suppression Hearing/Waiver
Trial, 12/14/17, at 36.
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back and patted down his right front pants pocket, recovering a firearm
magazine that contained 15 live rounds. Id. at 11-12.
At that point, Officer Davis asked Andino to exit the vehicle, telling him
that he needed to pat him down further because he was not able to reach all
the way down Andino’s pant legs while he was seated in the Malibu. Officer
Davis then handed Andino over to his partner, Officer Murphy, telling him to
perform a full pat-down on Andino. Id. at 14. When Officer Murphy conducted
his pat-down of Andino, he recovered a black 9mm Glock handgun with an
extended magazine loaded with 23 rounds from Andino’s right leg. Id. At the
same time Officer Murphy was patting down Andino, Officer Davis performed
a search of the vehicle. Id. at 28. No contraband was uncovered during the
search of the Malibu. Id. at 29.
Andino filed a pre-trial motion to suppress, arguing that the police
lacked both reasonable suspicion to pat him down and probable cause to
conduct, what amounted to, a search of his person. On December 14, 2017,
the Honorable J. Scott O’Keefe denied the suppression motion, stating,
“[A]fter reviewing my notes, I’m going to deny the motion to suppress.” 3
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3 We remind Judge O’Keefe that pursuant to Pa.R.Crim.P. 581(I), “[a]t the
conclusion of the hearing, the judge shall enter on the record a statement of
findings of fact and conclusions of law as to whether the evidence was
obtained in violation of the defendant's rights, or in violation of these rules or
any statute, and shall make an order granting or denying the relief sought.”
Pa.R.Crim.P. 581(I) (emphasis added).
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Immediately following the suppression ruling, Andino proceeded to a waiver
trial where the parties incorporated all relevant testimony from the
suppression hearing. After admitting exhibits, the parties rested and the court
rendered its guilty verdict.
On April 25, 2018, the trial court sentenced4 Andino to 3½-7 years’
incarceration and two years of probation for his section 6106 conviction, with
two separate concurrent terms of five years of probation for his section 6105
and section 6108 violations.5 Andino filed a timely notice of appeal and court-
ordered Pa.R.A.P. 1925(b) concise statement of errors complained of on
appeal. He presents one issue for our consideration:
Did not the lower court err in denying [Andino’s] motion to
suppress the physical evidence insofar as [Andino] was frisked
without reasonable suspicion that he was armed and dangerous
and assuming arguendo that a frisk was lawful under the
circumstances, the police officer exceeded the scope of the frisk
by performing an admitted search which required probable
cause.[6]
Appellant’s Brief, at 3.
In an appeal from the denial of a motion to suppress, our Court’s role is
to determine whether the record supports the suppression court’s factual
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4 The trial court amended its sentence that originally imposed 4-8 years’
imprisonment on the section 6106(a)(1) offense, a third-degree felony.
5 No further penalty was imposed on Andino’s section 6106.1 conviction.
6Andino does not contest the legal validity of the car stop where he committed
a Motor Vehicle Code violation and the car’s registration had been suspended
due to a returned check. N.T. Suppression Hearing/Waiver Trial, 12/14/17,
at 9.
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findings and the legitimacy of the inferences and legal conclusions drawn from
those findings. Commonwealth v. Turner, 772 A.2d 970 (Pa. Super. 2001).
Moreover,
[s]ince the prosecution prevailed in the suppression court, we may
consider only the evidence of the prosecution 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, we are bound by those facts
and may reverse only if the legal conclusions drawn therefrom are
in error.
Commonwealth v. Bomar, 826 A.2d 831, 842 (Pa. 2003).
Andino argues that neither officer had reasonable suspicion to frisk him
or probable cause to search him where Andino was nothing but cooperative
with the police and there was no evidence to support the claim that Andino’s
movement in the car was “out of the ordinary.” Andino also claims that Officer
Davis did not have “reasonable individualized suspicion” to justify a frisk for
weapons where the officer’s real motive in frisking Andino was to find
marijuana. Finally, Andino claims that even if the frisk were justified, the
scope of the pat-down well exceeded the permissible range under Terry,7
which is “limited to that which is necessary for the discovery of weapons which
might be used to harm the officer or others nearby.” Terry, 392 U.S. at 26.8
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7 Terry v. Ohio, 392 U.S. 1 (1968).
8 Notably, the Commonwealth concedes that Andino is entitled to relief on
appeal. Specifically, the Commonwealth states that although the police
lawfully stopped Andino’s car, “the record does not support the conclusion that
[Andino] appeared to be armed and dangerous.” Commonwealth’s Brief, at
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It is well established that “to proceed from a stop to a frisk, the police
officer must reasonably suspect that the person stopped is armed and
dangerous.” Arizona v. Johnson, 555 U.S. 323, 326-27 (2009). As our
Supreme Court has explained:
[I]f the officer has a reasonable suspicion, based on specific and
articulable facts, that the detained individual may be armed and
dangerous, the officer may then conduct a frisk of the individual’s
outer garments for weapons. Since the sole justification for a
Terry search is the protection of the officer or others nearby, such
a protective search must be strictly limited to that which is
necessary for the discovery of weapons which might be used to
harm the officer or others nearby. Thus, the purpose of this
limited search is not to discover evidence, but to allow the officer
to pursue his investigation without fear of violence.
Commonwealth v. Stevenson, 744 A.2d 1261, 1264-65 (Pa. 2000)
(citations and quotation marks omitted).
Instantly, Officer Davis and Officer Murphy contradicted each other on
two portions of their testimony: (1) whether they smelled an odor of burnt
marijuana emanating from the car during the stop; and (2) whether Andino
had been handcuffed at the time Officer Davis handed him over to Officer
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4. Additionally, the Commonwealth does not find support in the record for the
trial court’s conclusion that Andino made a furtive movement when Andino
leaned toward the steering wheel, but, rather, would find that Andino’s “hands
remained in the officer’s view and all times” and, thus, “the police lacked
reasonable suspicion to frisk [Andino].” Id.-6-
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Murphy.9 Thus, this contradicted testimony from prosecution witnesses shall
not be considered. Turner, supra.With regard to whether Officer Davis had “a reasonable suspicion, based
on specific and articulable facts, that [Andino] may be armed and dangerous,”
Stevenson, supra, we note that Officer Davis testified that in approximately
one-third of the narcotics arrests he has made on the force, he has also
recovered firearms. Therefore, he acknowledged that he had a heightened
concern about the possibility of a firearm being in Andino’s vehicle. Id. at 20.
Officer Davis also testified that he was concerned for his safety when, as he
attempted to pat Andino down, Andino “kind of leaned over towards . . . the
steering wheel.” Id. at 11.
An officer need not be absolutely certain that an individual is armed; the
issue is whether a reasonably prudent man in the circumstances would be
warranted in the belief that his safety or the safety of others was in danger.
Commonwealth v. Taylor, 771 A.2d 1261 (Pa. 2001). Here, the trial judge,
as the fact finder, chose to believe Officer Davis when he testified that he was
concerned for his safety. However, Judge O’Keefe ultimately concluded that
the officers had probable cause to search the Malibu due to “the officer’s
detection of the odor of marijuana” and that once probable cause was
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9 Compare N.T. Suppression Hearing/Waiver Trial, 12/14/17, at 13 (Officer
Davis testified that as Andino exited the vehicle he “believed the defendant
was going to become a little hostile[, so he] handcuffed him . . . for my safety
and his safety.”) with id. at 35-36 (Q”: And was he in handcuffs at that time
[Officer Davis passed him off to you]. A: No.”).
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established “the officers possessed the requisite authority to require the driver
to exit the vehicle and had a reasonable basis to conduct a protective pat[-
]down for their safety.” Trial Court Opinion, 8/21/18, at 5. Because Officer
Murphy testified that he did not remember smelling marijuana coming from
Andino’s car and there are no facts to support Officer Davis’s testimony that
he smelled an odor of marijuana emanating from the car, we conclude that
the trial court erroneously relied on this fact to conclude that there was
probable cause and conduct a protective pat-down. Commonwealth v.
Trenge, 451 A.2d 701 (Pa. Super. 1982) (collecting cases standing for
proposition that odor of marijuana, without more, usually will not provide
probable cause). Here, the only other fact that Officer Davis had prior to
conducting his pat-down was that Andino’s vehicle registration was suspended
for failure to pay. This fact, alone, does not create probable cause.
Commonwealth v. Bailey, 545 A.2d 942, 947 (Pa. Super. 1988) (to justify
a search of movable vehicle, officer must have independent probable cause to
believe: felony has been committed by occupants of vehicle, that it has been
used in furtherance of commission of felony, or officer must have basis for
believing evidence of a crime is concealed within vehicle, or that there are
weapons within vehicle accessible to occupants).
Moreover, because Officer Davis had already commenced patting Andino
down at the time he observed Andino lean toward the steering wheel, he
cannot rely on that subsequent fact to justify the pat-down. See Stevenson,
supra (“[I]f the officer has a reasonable suspicion, based on specific and
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articulable facts, that the detained individual may be armed and dangerous,
the officer may then conduct a frisk of the individual’s outer garments for
weapons.”). Simply put, an officer’s reasonable suspicion is a condition
precedent to a lawful Terry frisk.
Now that we have taken the alleged “furtive” movement out of the
equation, we are left with the following facts to support Officer Davis’
justification for the pat-down: the stop occurred in a high-crime area at night
and Officer Davis had a heightened concern that there may be a firearm in the
Malibu where, in his experience, 33% of narcotics arrests also result in the
recovery of firearms.10 These facts do not justify a Terry pat-down. See
Commonwealth v. Brown, 904 A.2d 925 (Pa. Super. 2006) (absence of
flight in high crime area negates presence of reasonable suspicion and
invalidates police’s Terry stop of defendant); see also Commonwealth v.
Grahame, 7 A.3d 810 (Pa. 2010) (where officer conducted protective search
based on generalization that firearms commonly found in close proximity to
illegal drugs, and where there were no facts supporting objectively reasonable
belief that defendant was armed and dangerous, officer lacked reasonable
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10 While we recognize that officers may draw specific, reasonable inferences
from facts in light of their training and experience, here Officer Davis’ concern
that weapons may have been present on Andino’s person or in his vehicle is
predicated on the disputed testimony that there was an odor of marijuana
emanating from the car. Again, this finding is not supported in the record.
Turner, supra.-9-
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suspicion to conduct Terry search).11 Thus, under the specific facts of this
case, we conclude that Officer Davis did not have a particularized, objective
basis for his pat-down of Andino and any further search of the Malibu was
unlawful. Stevenson, supra.
Judgment of sentence vacated. Order denying motion to suppress
reversed. Case remanded for further proceedings consistent with this
memorandum. Jurisdiction relinquished.
Judge Kunselman joins this Memorandum.
Judge Strassburger files a Dissenting Memorandum.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/17/19
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11While Andino initially “t[oo]k off” after the officers pulled up behind the
Malibu when it was double-parked on Cecil B. Moore Avenue, neither officer
characterized the action as “flight.”
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