Com. v. Rivera, S. ( 2014 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
SAMUEL RIVERA
Appellant No. 3079 EDA 2013
Appeal from the Judgment of Sentence October 31, 2013
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0006946-2013
BEFORE: BOWES, J., OTT, J., and STRASSBURGER, J.*
MEMORANDUM BY OTT, J.: FILED NOVEMBER 06, 2014
Samuel Rivera appeals from the judgment of sentence imposed
October 31, 2013, in the Philadelphia County Court of Common Pleas. The
trial court imposed a sentence of three years’ reporting probation after
finding Rivera guilty of one count of possession of a controlled substance
(cocaine).1 On appeal, Rivera challenges the trial court’s denial of his
pretrial suppression motion. For the reasons set forth below, we affirm.
The facts underlying Rivera’s arrest and conviction are summarized by
the trial court as follows:
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*
Retired Senior Judge assigned to the Superior Court.
1
35 P.S. § 780-113(a)(16).
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On February 11, 2013, at approximately 10:25 a.m.,
Officer [Christopher] Daukaus and his partner … were traveling
northbound on the 2900 block of North 3rd Street when Officer
Daukaus observed Rivera having a conversation with an
unknown Hispanic male. Rivera then reached into his pocket,
removed his hand, and as he was reaching toward the Hispanic
male, he looked toward Officer Daukaus and immediately put his
hand back into his pocket and began to walk southbound on
North 3rd Street. Believing he had observed a narcotics
transaction, Officer Daukaus exited his vehicle and told Rivera to
stop. In response, Rivera began to run and then hopped on a
nearby bicycle and continued southbound down North 3rd Street.
He went several blocks … and ultimately ended up on North
Philip Street where Officer Daukaus and [his partner] attempted
to apprehend him. As the officers struggled with Rivera, Rivera
stuffed a clear sandwich baggie containing a white substance
into his mouth. After Rivera spit out the baggie, [Officer
Daukaus’s partner] placed him under arrest and Officer Daukaus
recovered the baggie, which contained twelve (12) clear packets
containing a white substance, alleged cocaine. Incident to the
arrest, Officer Daukaus recovered a number of clear packets with
a blue insert containing a white substance, alleged heroin, from
Rivera’s person – one (1) from his left hand, one (1) from his
left jacket pocket, and fourteen (14) from his right inside jacket
pocket. The officer also recovered $114 U.S. currency form
Rivera.
Trial Court Opinion, 1/6/2014, at 2-3.
Rivera was subsequently charged with one count each of possession of
controlled substances and possession with intent to deliver controlled
substances (“PWID”).2 He filed a timely pretrial motion to suppress the
evidence recovered as a result of what he believed to be an unlawful seizure.
A suppression hearing was conducted on October 31, 2013, and at the close
of the testimony, the trial court denied Rivera’s motion to suppress. The
____________________________________________
2
35 P.S. § 780-113(a)(30).
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case proceeded immediately to a non-jury trial, at which time the testimony
from the suppression hearing was incorporated into the record and no
further testimony was presented. Thereafter, the trial court found Rivera
guilty of possession of a controlled substance, but not guilty of PWID.
Rivera was sentenced that same day to a term of three years’ reporting
probation, and this timely appeal followed.3
Rivera’s sole issue on appeal challenges the trial court’s denial of his
pretrial suppression motion. Specifically, Rivera contends Officer Daukaus
lacked reasonable suspicion or probable cause to stop him when the officer
observed Rivera simply “put his hand in his pocket, [take] something out
and put his hand back in his pocket.” Rivera’s Brief at 9. Therefore, he
asserts the drugs the officers recovered following his subsequent flight were
the fruits of the initial unlawful seizure.
Our review of an order denying a pretrial motion to suppress is well-
established.
[We are] limited to determining whether the
suppression court’s factual findings are supported by
the record and whether the legal conclusions drawn
from those facts are correct. Because the
Commonwealth prevailed before the suppression
court, we may consider only the evidence of the
Commonwealth and so much of the evidence for the
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3
On December 11, 2013, the trial court ordered Rivera to file a concise
statement or errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
Rivera complied with the trial court’s directive, and filed a concise statement
on December 31, 2013.
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defense as remains uncontradicted when read in the
context of the record as a whole. Where the
suppression court’s factual findings are supported by
the record, we are bound by these findings and may
reverse only if the court’s legal conclusions are
erroneous. Where, as here, the appeal of the
determination of the suppression court turns on
allegations of legal error, the suppression court’s
legal conclusions are not binding on an appellate
court, whose duty it is to determine if the
suppression court properly applied the law to the
facts. Thus, the conclusions of law of the courts
below are subject to our plenary review.
Commonwealth v. Delvalle, 74 A.3d 1081, 1084 (Pa. Super. 2013)
(citations omitted).
In the case sub judice, there is no dispute that, after observing what
he believed to be a drug transaction, Officer Dauhaus attempted to make an
investigatory detention of Rivera by ordering Rivera to stop. Accordingly,
we must determine whether, at that time, Officer Dauhaus had reasonable
suspicion to believe Rivera was engaging in criminal activity. See
Commonwealth v. Zhahir, 751 A.2d 1153, 1156 (Pa. 2000) (“[A] police
officer may, short of an arrest, conduct an investigative detention if he has a
reasonable suspicion, based upon specific and articulable facts, that
criminality is afoot.”).
When determining whether reasonable suspicion exists to justify a
police stop, we must bear in mind the following:
A police officer may detain an individual in order to conduct an
investigation if that officer reasonably suspects that the
individual is engaging in criminal conduct. “This standard, less
stringent than probable cause, is commonly known as
reasonable suspicion.” In order to determine whether the police
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officer had reasonable suspicion, the totality of the
circumstances must be considered. In making this
determination, we must give “due weight to the specific
reasonable inferences the police officer is entitled to draw from
the facts in light of his experience.” Also, the totality of the
circumstances test does not limit our inquiry to an examination
of only those facts that clearly indicate criminal conduct. Rather,
“even a combination of innocent facts, when taken together,
may warrant further investigation by the police officer.”
Commonwealth v. Foglia, 979 A.2d 357, 360 (Pa. Super. 2009) (en banc)
(internal citations and quotation omitted). This Court has held that, in
determining whether a police officer possessed the requisite reasonable
suspicion, “[e]vasive behavior … is relevant[,]” as is an officer’s prior
experience.4 Id. at 361.
Here, the trial court found that Officer Dauhaus had reasonable
suspicion to believe Rivera was engaged in criminal behavior when he
ordered Rivera to “stop.” The court explained:
In the instant case, Officer Daukaus observed Rivera reach into
his pocket, remove his hand and begin to reach toward the
Hispanic male with whom he was standing. Upon seeing Officer
Daukaus, Rivera immediately put his hand back into his pocket
and began to walk away from the area. When told to stop,
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4
With regard to a police officer’s prior experience in the context of a
weapons frisk, the Foglia Court stated:
[I]f a suspect engages in hand movements that police know,
based on their experience, are associated with the secreting of a
weapon, those movements will buttress the legitimacy of a
protective weapons search of the location where the hand
movements occurred.
Foglia, supra, 979 A.2d at 361.
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Rivera began to run from the officer and then hopped on a
nearby bicycle and continued to flee from police. Officer
Daukaus’[s] knowledge of drug sales in the area, for which he
made numerous arrests, taken in conjunction with his
observations of Rivera’s hand movements gave rise to Officer
Daukaus’[s] reasonable suspicion of a narcotics transaction, for
which he was entitled to conduct an investigative detention.
Rivera’s ensuing flight from the officers through the
neighborhood and his ultimately spitting out a baggie containing
a white substance, alleged cocaine, contributed to the totality of
the circumstances providing Officer Daukaus[] with probable
cause to stop and search Rivera.
Trial Court Opinion, 1/6/2014, at 5.
Rivera contends, however, that Officer Daukaus’s observations prior to
the stop were insufficient to justify a reasonable belief that Rivera was
engaged in criminal behavior. He emphasizes that the officer did not
witness an “exchange of money or objects,”5 and, therefore, was operating
under an “unparticularized ‘hunch’” that a narcotics transaction was
occurring. Rivera’s Brief at 11-12. He describes what Officer Daukhaus
observed as follows: “Mr. Rivera merely spoke with another person, during
the day in a residential neighborhood, took something out of his pocket and
put it back.” Id. at 13.
Rivera also argues Officer Daukhaus had “fairly limited experience with
drug arrests[,]” so that his observations were not enhanced by his own
experience. Id. at 13. Furthermore, Rivera asserts that his flight should not
have “play[ed] a role in [the officer’s] decision to stop” him because he fled
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5
Indeed, Officer Daukhaus testified on cross-examination: “I witnessed no
exchange.” N.T., 10/31/2013, at 18.
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only after Officer Daukhaus ordered him to stop. Id. at 14. Accordingly, he
contends because the initial seizure was unconstitutional, the drugs
recovered following the subsequent chase should have been suppressed as
“fruit of the poisonous tree.” Id. at 15.
The decision of the Pennsylvania Supreme Court in Commonwealth
v. Cook, 735 A.2d 673 (Pa. 1999), is instructive. In Cook, two officers, in
an unmarked vehicle, were patrolling a block in the City of Harrisburg
between 8:00 p.m. and 1:00 a.m. They noticed three individuals, one of
whom was the defendant, conversing on a corner. As the officers passed in
their vehicle,
they observed [the defendant] take his left hand out of his front
pocket in a fist position and reach toward one of the other
individuals. The individual reached out toward [the defendant]
and attempted to receive the unidentified item from his hand.
To further investigate this conduct, [the officers] made a U-turn
and drove to the corner where the group was gathered. As soon
as [the defendant] spotted the officers and the car, he placed his
hand back in his pocket and began backing away from the
group. [One officer] exited the car, identified himself as a
Harrisburg police officer, and began walking toward the group.
[The defendant] immediately began to run “in almost a dead
sprint.”
Id. at 674. During the chase, the defendant abandoned a sandwich bag,
which contained crack cocaine, and two pagers. The defendant was
subsequently arrested, and moved to suppress the evidence recovered from
what he described as an illegal seizure. The trial court denied his request,
and this Court affirmed on appeal. The Supreme Court granted review to
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determine whether the police officers “demonstrated reasonable suspicion to
stop” the defendant. Id.
In holding the seizure was supported by reasonable suspicion, the
Supreme Court emphasized the similarities of the facts before it with those
in the seminal decision, Terry v. Ohio, 392 U.S. 1 (1968). In Terry, an
officer, with 30 years’ experience patrolling for shoplifters, observed the
defendant and another man “taking turns pacing down the street and
peering into a nearby store window and then walking back to the corner and
rejoining his companion.” Cook, supra, 735 A.2d at 676. They also spoke
briefly with a third man who then walked away. After the men continued
this routine for 10 to 12 minutes, they walked off together before meeting
up again with the third man. At that point, the officer began to suspect that
the two were “‘casing a job,” and decided to stop them to investigate
further. Id., quoting Terry, supra, 392 U.S. at 6. The officer asked for the
men’s names, and when they mumbled a response, the officer grabbed the
defendant and patted him down, at which time he recovered a firearm.
The Terry Court concluded that the search was based upon reasonable
suspicion. Relying on Terry, the Cook Court explained:
[T]he decision in Terry was based, in part, on the “recognition
that a police officer may in appropriate circumstances and in an
appropriate manner approach a person for purposes of
investigating possibly criminal behavior even though there is no
probable cause to make an arrest.” “It was this legitimate
investigative function [the officer] was discharging when he
decided to approach [Terry] and his companions.” In light of
this recognition, the Court created a test, which balanced the
need to search against the invasion which the search entails. In
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order to justify the search, the police officer must be able to
“point to specific and articulable facts which, taken together with
rational inferences from those facts, reasonably warrant that
intrusion.” Even a combination of innocent facts, when
taken together, may warrant further investigation by the
police officer. Moreover, “in determining whether the officer
acted reasonably in such circumstances, due weight must be
given, not to his inchoate and unparticularized suspicion or
‘hunch,’ but to the specific reasonable inferences he is
entitled to draw from the facts in light of his experience.”
This standard, less stringent than probable cause, is commonly
known as reasonable suspicion.
Cook, supra, 735 A.2d at 676.
With regard to the case before it, the Cook Court noted that both of
the officers involved in the stop had been assigned to the “street level drug
interdiction unit” for two years, and one officer had made “prior drug arrests
in the same area where the instant incident occurred.” Id. at 677. Further,
like the officer in Terry, the officers in Cook “made firsthand observations of
completely innocent conduct--[i.e., the attempted hand-off of an unknown
object]-- … which immediately aroused their suspicions” based upon their
experience in drug investigations. Id. The Court explained:
Similar to the situation that existed in Terry, it is beyond
peradventure that it was part of the legitimate investigative
function of police work for the officers in the instant case to
investigate the situation further. This belief prompted them to
make a U-turn and approach the group on the corner, at which
point appellant withdrew his hand from the other individual and
began to back away. When the police officers went to
investigate, appellant fled. Thus, based on the facts surrounding
the instant case, including the police officers’ training, expertise
and past drug arrests in the same area; the attempted exchange
of an unidentified object in a high crime area, appellant’s
nervous behavior when the police made a U-turn; and
appellant’s flight, the police officers were able to point to specific
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and articulable facts, which in light of their police training and
expertise, supported a finding of reasonable suspicion.
Id. at 677-678.
We find the facts presented in the instant matter to be substantially
similar to those in Cook. Although Officer Daukaus had been a police officer
for only three years, he testified that he had been assigned to the same
district for that entire time. N.T., 10/31/2013, at 10. More importantly, he
stated that he observed “many” narcotics transactions over that three year
period, and made approximately 10 to 15 arrests on that very block, “almost
all” of which were for narcotics. Id. at 10-11. Furthermore, Officer Daukaus
testified the attempted transaction he observed on the day in question was
“extremely similar” to those he had observed in the past. Id. at 11. While
the officer acknowledged he did not witness an actual hand-to-hand
exchange, he stated that he observed Rivera “reaching in, going to hand
[the other man] something, looking back at us and then bringing, closing his
hand up and putting it back into his pocket.” Id. at 18. Officer Daukaus
testified that he saw objects in Rivera’s hand, and although he “couldn’t
make out what they were, … [he] knew they weren’t any type of money or
small coins or anything like that.” Id. at 17. Based on his prior experience,
Officer Daukaus believed he had interrupted a hand-to-hand narcotics
transaction.6 Id. at 20.
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6
We note that Rivera, relying Commonwealth v. Maxon, 798 A.2d 761
(Pa. Super. 2002), contends that Officer Daukaus simply acted on an
(Footnote Continued Next Page)
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While we agree that we may not consider Rivera’s subsequent flight in
our reasonable suspicion analysis because Rivera fled after the officer
attempted to stop him, we may consider Rivera’s evasive behavior once he
noticed the uniformed officers nearby. Notably, Officer Daukhaus testified
that as Rivera began to hand something to the other man, Rivera “turned in
[the officers’] direction, quickly put his hand back into his pocket, quickly put
his body (sic) away and began to walk” in the opposite direction. 7 Id. at 7-
8. See Foglia, supra, 979 A.2d at 361 (stating “[e]vasive behavior … is
relevant in the reasonable-suspicion mix.”).
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(Footnote Continued)
“unparticularized ‘hunch.’” We disagree. The officers in Maxon, acting on a
tip that the defendant was dealing drugs, conducted surveillance of the
defendant’s vehicle and home. However, the only activity they observed,
before stopping and questioning him, was “Maxon drive to, enter and exit
several buildings … [and] bring a baggie out of his residence but [the
officers] could not see its contents.” Id. at 169. The Court found that
“[a]lthough it was plausible that Maxon was engaged in illegal conduct, there
was nothing irregular or suspicious about his or his passenger’s behavior.”
Id. Here, Officer Daukaus witnessed an attempted hand-to-hand
transaction, followed by Rivera’s evasive behavior when he discovered the
police were nearby. Therefore, we do not find Maxon controlling.
7
We recognize that the defendant in Cook fled as soon as the investigating
officer identified himself. Cook, supra, 735 A.2d at 674. See also Rivera’s
Brief at 14 n.4 (arguing Cook is not “on point” because, in that case, “flight
was a critical factor that contributed to the justification for the stop.”).
However, we do not find that distinction to be dispositive. Here, although
Rivera did not begin running until after Officer Daukaus ordered him to stop,
he did “quickly” end his transaction as soon as he saw the officer, and began
to walk away. N.T., 10/31/2013, at 7. We find these actions sufficient to
constitute “evasive behavior.”
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Therefore, considering the totality of the circumstances before Officer
Daukaus -- including his observations of Rivera in light of the officer’s
experience and Rivera’s evasive behavior -- we detect no basis upon which
to disturb the finding of the trial court that the officer had reasonable
suspicion to conduct an investigatory stop of Rivera.8 Further, we agree that
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8
We note that, contrary to Rivera’s suggestion, there is no minimum set of
circumstances required to support a finding of reasonable suspicion. See
Rivera’s Brief at 14 (noting that additional factors suggesting criminal
activity were not present in this case). As the Cook Court explained,
[C]ircumstances may exist which require a police officer on the
“beat” who has made on the spot observations to take
immediate action or investigate further by stopping and perhaps
frisking the individual involved. Terry v. Ohio, 392 U.S. 1, 20,
88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968).
****
Case law has established that certain facts, taken alone, do not
establish reasonable suspicion. Commonwealth v. Matos,
543 Pa. 449, 672 A.2d 769 (1996) (flight alone does not
constitute reasonable suspicion); Commonwealth v. DeWitt,
530 Pa. 299, 608 A.2d 1030 (1992) (flight alone does not
constitute reasonable suspicion); Commonwealth v. Kearney,
411 Pa.Super. 274, 601 A.2d 346 (1992) (mere presence in a
high crime area does not warrant a stop). However, a
combination of these facts may establish reasonable suspicion.
Terry v. Ohio, 392 U.S. at 22, 88 S. Ct. 1868 (innocent facts,
when taken together, may warrant further investigation);
Commonwealth v. Riley, 715 A.2d 1131, 1135 (Pa. Super.
1998) (“a combination of circumstances, none of which alone
would justify a stop, may be sufficient to achieve a reasonable
suspicion”).
Cook, supra, 735 A.2d at 676, 677. As explained above, here, we find that
Officer Daukaus had reasonable suspicion that Rivera was engaging in
criminal behavior.
(Footnote Continued Next Page)
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Rivera’s subsequent flight and attempt to secrete a baggie containing what
appeared to be narcotics in his mouth, supported the officers’ probable
cause to arrest him. Accordingly, Rivera is entitled to no relief.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/6/2014
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(Footnote Continued)
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