Com. v. Brown, T. ( 2019 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
TYREAKE BROWN
Appellant No. 3908 EDA 2017
Appeal from the Judgment of Sentence imposed November 17, 2017
In the Court of Common Pleas of Philadelphia County
Criminal Division at No: CP-51-CR-0012725-2015
BEFORE: BOWES, J., STABILE, J., and McLAUGHLIN, J.
MEMORANDUM BY STABILE, J.: FILED APRIL 1, 2019
Appellant, Tyreake Brown, appeals from the judgment of sentence
imposed in the Court of Common Pleas of Philadelphia County on November
17, 2017, following his conviction of possession with intent to deliver
(“PWID”), 35 P.S. § 780-113(30). Appellant argues the trial court erred in
denying his motion to suppress because he was improperly detained and
because the arresting officers lacked probable cause to conduct a search that
led to discovery of heroin in his genital region. Upon review, including review
of the issue Appellant presented in an application for reargument en banc, we
affirm.1
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1 Following initial issuance of a memorandum affirming Appellant’s judgment
of sentence, Appellant requested reargument en banc. We granted panel
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Philadelphia Police Officer William Fritz was the sole witness at
Appellant’s suppression hearing. The facts of the case, based on his testimony
from Appellant’s suppression hearing, can be summarized as follows. At
approximately 9:00 p.m. on November 27, 2015, two Philadelphia police
officers on routine patrol, including Officer Fritz, stopped an SUV in the 1500
block of South 18th Street because it was being operated without headlights.
Before stopping the SUV, the officers ran the tag and determined the SUV was
a rental.
As the officers approached the vehicle, they detected the odor of burnt
marijuana. Appellant was a passenger in the front seat of the SUV. Neither
he nor the driver was able to produce identification when requested by the
officers. A backseat passenger did have an identification card. Neither his
identification nor the verbal identification information provided by Appellant
and the driver matched the name on the rental agreement. The officers then
ran the names of the occupants and determined that none had a driver’s
license. Consequently, the officers had the occupants exit the SUV so they
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reconsideration to assess Appellant’s challenge to our determination that he
failed to preserve a challenge to an inventory search. As will be discussed
herein, the record confirms that Appellant failed to preserve the challenge for
appellate review.
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“could conduct a safe live stop inventory.”2 Notes of Testimony (“N.T.”),
Suppression Hearing, 4/20/17, at 11.
Two additional officers, including Officer Ngo, had arrived at the scene
by that time. One of them frisked the driver while one of the two original
officers frisked Appellant and the other frisked the backseat passenger. The
frisks yielded “bricks” of currency totaling $2550 in cash from the driver,
$1165 from the backseat passenger, and nothing from Appellant. Id. at 11-
13. As Officer Fritz explained, “We were going to inventory the vehicle
[because they were going to live stop it and tow it away], and since there
[were] three people, we were going to put them in the back of our vehicle in
the meantime. So we had to frisk them for that reason.” Id. at 12-13. Each
occupant was placed in a separate vehicle while the officers began to inventory
the SUV and discovered a “brown box of new and unused wax inserts,
commonly used for packaging heroin” on the floor of the front passenger-side
seat where Appellant was seated. Id. at 14. The officers also located a scale
in the cargo area of the SUV. Id. at 16.
Upon discovering the wax inserts, the officers called for the K-9 unit,
rolled up the windows, and waited for the K-9 unit to arrive. Upon arrival of
the unit at 9:45 p.m., the “K-9 hit on both front doors and the rear of the
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2 “The City of Philadelphia’s ‘Live Stop’ program involves the immediate
immobilization in place or towing to a different location of vehicles found to
be operated in violation of certain state motor vehicle statutes.” Trial Court
Rule 1925(a) Opinion, 2/21/18, at 1 n.2.
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vehicle.” Id. at 15. “Once the dog hit, we then started pulling each person
out and did a thorough search [] incident to arrest.” Id. The officer who
searched Appellant “recovered a sandwich bag containing two smaller
sandwich bags of bulk heroin” from Appellant’s “genital region.” Id. at 16-
17. The officers also recovered cellphones from each occupant.
With regard to the search of Appellant, Officer Fritz testified that it was
not a strip search and that Appellant’s pants were not pulled down during the
search. Id. at 27. As the officer conducting the search “reached the region
of his groin, [Appellant] was clenched tightly with his legs[.]” Id. at 28. “[The
officer] had to spread [Appellant’s] legs, and then he conducted a frisk of the
area between his genitals and his ass” and “recovered the sandwich bag
containing the two sandwich bags of heroin from that area.” Id. at 29.
Appellant was charged with PWID and criminal use of a communication
facility.3 Appellant filed an omnibus pre-trial motion on January 21, 2016.
After numerous continuances, the Honorable Jeffrey P. Minehart conducted a
suppression hearing on April 20, 2017. By order entered the same day, Judge
Minehart denied Appellant’s motion. Trial did not immediately follow the ruling
because Appellant’s counsel requested a continuance to secure an expert.
The case proceeded to a bench trial before the Honorable William
Mazzola on November 21, 2017. The parties incorporated the transcript of
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3 18 Pa.C.S.A. § 7512.
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the suppression hearing and stipulated that the items retrieved from Appellant
were heroin and were of a quantity consistent with heroin possessed with
intent to deliver. No additional testimony was presented. Judge Mazzola
found Appellant guilty of PWID but not guilty of criminal use of a
communication facility. Sentencing was deferred until November 17, 2017, at
which time Judge Mazzola imposed a sentence of time served to twenty-three
months’ incarceration followed by four years’ probation. He also ordered that
Appellant be immediately paroled.
Appellant did not file post-sentence motions but did file a timely appeal
from his judgment of sentence. Both Appellant and Judge Mazzola complied
with Pa.R.A.P. 1925.4
Appellant presents the following two-part issue for our consideration:
Did not the lower court err as a matter of law by denying
appellant’s motion to suppress physical evidence—namely, bags
of heroin seized from appellant’s genital region—where police
violated appellant’s state and federal constitutional rights
a. because appellant was unconstitutionally detained in the
back of a police vehicle during an unlawful inventory search
of a car in which he was a passenger; and
b. because police lacked probable cause to arrest appellant
and/or search his genital region?
Appellant’s Brief at 3.
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4In his Rule 1925(a) Opinion, Judge Mazzola provides a more detailed factual
summary than that provided above. Rule 1925(a) Opinion, 2/21/18, at 2-4.
We find that his factual summary is supported by the record.
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In Commonwealth v. Smith, 164 A.3d 1255 (Pa. Super. 2017), we
reiterated:
An appellate court’s standard of review in addressing a challenge
to the denial of a suppression motion is 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 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, the appellate court is bound by those
findings and may reverse only if the court’s legal conclusions are
erroneous.
Where 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 plenary review.
Id. at 1257 (citation and alterations omitted). Because we find Judge
Mazzola’s factual findings are supported by the record, we are bound by them.
Therefore, we must determine if the court properly applied the law to those
facts.
Again, Appellant maintains that the officers involved violated his state
and federal constitutional rights by detaining him during an unlawful inventory
search and by arresting and searching him without probable cause. As our
Supreme Court has recognized:
Article I, § 8 of the Pennsylvania Constitution and the Fourth
Amendment to the United States Constitution both protect the
people from unreasonable searches and seizures.
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Commonwealth v. Smith, 575 Pa. 203, 836 A.2d 5, 10 (2003)
(citation omitted). Jurisprudence arising under both charters has
led to the development of three categories of interactions between
citizens and police. Id. (citations omitted). The first, a “mere
encounter,” does not require any level of suspicion or carry any
official compulsion to stop or respond. The second, an
“investigative detention,” permits the temporary detention of an
individual if supported by reasonable suspicion. The third is an
arrest or custodial detention, which must be supported by
probable cause. Id. (citations omitted).
Commonwealth v. Lyles, 97 A.3d 298, 302 (Pa. 2014).
Appellant first contends that the trial court erred in denying his motion
to suppress because he was wrongly detained during an unlawful inventory
search of the vehicle in which he was a passenger. Before considering the
merits of this issue, we must determine if it has been preserved for appeal.
In an earlier memorandum issued by this panel, we concluded Appellant
had not preserved any issue relating to the inventory search itself. Appellant
filed an application for reargument en banc, asserting that
[t]he panel erred in concluding that petitioner waived his
challenge to the unlawful inventory search of the car in which he
was a passenger, where the omnibus pre-trial motion raised the
claim of an unconstitutional warrantless car search, where the
hearing on the motion to suppress explored the unconstitutionality
of [the] search, and where the trial court addressed the issue in
its opinion.
Application for Reargument at 4 (unnecessary capitalization omitted). We find
Appellant’s assertions unsupported by the record.
In his omnibus pre-trial motion, Appellant asserted his arrest was illegal
because he was arrested without probable cause, because he was subjected
to a stop and frisk on less than reasonable suspicion, because he was arrested
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without a warrant or other legal justification, and because he was searched
without a warrant or probable cause. Omnibus Motion, 1/21/16, at I(B)(1)(a-
c), (B)(3) and (B)(4).5 He did not assert a challenge to the inventory search.
Nothing suggested that the challenge to the search involved anything other
than the search of Appellant’s person. Following Section V of the motion,
“Permission [was] respectfully requested to submit additional reasons in
support of the omnibus motion as shall appear after preparation of the case
is complete.” Id. at 2. Appellant did not submit any additional reasons in
support of the motion.6
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5 Specifically, Appellant checked various boxes on the omnibus motion form
reflecting his contentions that:
(1) the defendant’s arrest was illegal.
(a) he was arrested without probable cause.
(b) he was subjected to a stop and frisk on less than
reasonable suspicion.
(c) he was arrested without a lawfully issued warrant or
other legal justification.
***
(3) the search was without a warrant.
(4) the search was conducted without probable cause.
Omnibus Motion, 1/21/ 16, at 1.
6 Appellant’s counsel suggests the panel’s determination that the inventory
search was not challenged in the motion “negate[s] the efficacy of the motion”
and that the use of the omnibus motion form reflects “a practice that is now
jeopardized by the panel’s holding.” Application for Reargument at 4.
However, the right to advance additional reasons in support of the motion,
such as a challenge to the inventory search, was preserved in the motion.
Appellant simply did not raise any claim relating to the inventory search.
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In Commonwealth v. Freeman, 128 A.3d 1231 (Pa. Super. 2015),
this Court noted:
Although the burden in suppression matters is on the
Commonwealth to establish “that the challenged evidence was not
obtained in violation of the defendant's rights,” Pa.R.Crim.P.
581(D), that burden is triggered only when the defendant
“state[s] specifically and with particularity the evidence sought to
be suppressed, the grounds for suppression, and the facts and
events in support thereof.” Commonwealth v. McDonald, 2005
Pa. Super. 285, 881 A.2d 858, 860 (Pa. Super. 2005). Thus, when
a defendant’s motion to suppress does not assert specifically the
grounds for suppression, he or she cannot later complain that the
Commonwealth failed to address a particular theory never
expressed in that motion. McDonald, 881 A.2d at 860[.]
Id. at 1241-42. In McDonald, we observed:
“Bald statements or boilerplate allegations of illegally obtained
evidence are insufficient to trigger the Commonwealth’s burden of
going forward and proving that a search was legal.”
Commonwealth v. Bradshaw, 324 Pa. Super. 249, 471 A.2d
558, 560 (1984). Recently, this Court clarified that the “thrust”
of Bradshaw is that “when a motion to suppress is not specific in
asserting the evidence believed to have been unlawfully obtained
and/or the basis for the unlawfulness, the defendant cannot
complain if the Commonwealth fails to address the legality of the
evidence the defendant wishes to contest.” Commonwealth v.
Quaid, 871 A.2d 246, 249 (Pa. Super. 2005) (emphasis supplied).
Based upon the above, it is clear that appellant must meet this
threshold requirement before the Commonwealth must bear the
burden imposed by Pa.R.Crim.P. 581(H) “of going forward with
the evidence and of establishing that the challenged evidence was
not obtained in violation of the defendant's rights.”
Id. at 860-61.
As further indication of Appellant’s failure to challenge the inventory
search, we note the opening remarks made by Appellant’s counsel at the
suppression hearing. At that time, counsel explained that she would argue
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the officers “did not have reasonable suspicion to detain [Appellant], did not
have reasonable suspicion to frisk him, and did not have probable cause to
search [Appellant].” N.T., Suppression Hearing, 4/20/17, at 4. Counsel made
no reference to any challenge to the inventory search at that time or during
her closing arguments. Id. at 4; 32-37. Moreover, during her cross-
examination of Officer Fritz, she did not challenge the decision to conduct an
inventory search. The challenges raised, as projected in counsel’s opening
remarks, were limited to the claims involving detaining, frisking and searching
Appellant. Id. at 21-31.
Our review of the suppression hearing transcript reflects that Appellant’s
bases for suppression were—just as counsel indicated at the beginning of the
hearing—limited to claims that the officers “did not have reasonable suspicion
to detain [Appellant], did not have reasonable suspicion to frisk him, and did
not have probable cause to search [Appellant].” N.T., Suppression Hearing,
4/20/17, at 4. While the Commonwealth clearly has the burden at the
suppression hearing to prove challenged evidence was legally obtained, it does
not have the burden to refute bases for suppression that have not been raised
in the motion to suppress or in the suppression proceedings. Freeman,
supra; McDonald, supra.
We also note that Appellant did not preserve any issue relating to
illegality of the inventory search in his Rule 1925(b) statement. In his
statement, Appellant identified three issues for appeal in support of his claim
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the trial court erred in denying his motion to suppress, first, that “police lacked
any reasonable suspicion or probable cause to detain or arrest appellant, a
passenger in a car, or to search his person and genital region[,]” second, that
“police lacked any reasonable suspicion or probable cause to stop the car in
which appellant was a passenger, or to unreasonably delay the car stop in
order to engage in a fishing expedition,” and third, that “appellant was
unlawfully detained during an improperly conducted ‘Live Stop’ procedure.”
Appellant’s Rule 1925(b) Statement, 2/2/18 at ¶ 7a-c. Again, the challenges
relate to detaining and searching Appellant and to the traffic stop itself.7
Notably, the trial court’s Rule 1925(a) opinion addresses each of these
contentions but does not explore the constitutionality of the inventory search
itself, either in its summary of the suppression hearing evidence or in its legal
analysis of the issues raised in Appellant’s Rule 1925(b) statement. Rule
1925(a) Opinion, at 2-11.
Contrary to Appellant’s assertion in his Application for Reargument, the
constitutionality of the inventory search was not raised in the omnibus motion,
was not explored in the hearing on the motion, and was not addressed in the
trial court’s Rule 1925(a) opinion. Therefore, we conclude Appellant preserved
a challenge to his detention following the stop but has not preserved a
challenge to the inventory search itself. Our analysis of Appellant’s first issue
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7Appellant did not challenge the traffic stop in the course of the suppression
hearing and does not raise the issue in his brief filed with this Court.
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is limited accordingly. See Pa.R.A.P. 302(a) (“Issues not raised in the lower
court are waived and cannot be raised for the first time on appeal.”).
Officer Fritz testified that he and his partner stopped the SUV because
it was being operated at night without headlights. As they approached the
vehicle, the officers detected the odor of burnt marijuana before they even
reached the SUV and its occupants. It was then determined the vehicle was
rented by someone other than the occupants and that none of the occupants
possessed a driver’s license. Therefore, the officers began the process of
impounding the SUV in accordance with the Philadelphia Live Stop program.
The occupants were frisked for the protection of all involved.
Again, Appellant does not challenge the stop of the vehicle. Clearly,
“[a] police officer may conduct a lawful traffic stop if he or she reasonably
believes that a car is in violation of a Motor Vehicle Code equipment provision.”
Commonwealth v. Hynes, 730 A.2d 960, 962 (Pa. Super. 1999). The
provisions of 75 Pa.C.S.A. § 4302 require that “[t]he operator of a vehicle
upon a highway shall display the lighted head lamps and other lamps and
illuminating devices required under this chapter . . . [b]etween sunset and
sunrise.”
Our Supreme Court has noted that “if there is a legitimate stop for a
traffic violation (based on probable cause), additional suspicion may arise
before the initial stop’s purpose has been fulfilled; then, detention may be
permissible to investigate the new suspicions.” Commonwealth v. Chase,
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960 A.2d 108, 115 n. 5 (Pa. 2008) (citation omitted). Further, as that Court
recognized in In Interest of A.A., 195 A.3d 896 (Pa. 2018), “the odor of
marijuana alone, particularly in a moving vehicle, is sufficient to support at
least reasonable suspicion, if not the more stringent requirement of probable
cause” that an individual is involved in criminal activity. Id. at 904.
Here, there was a legitimate stop. Additional suspicions based on the
odor of marijuana were raised even before it was discovered the SUV was
rented by someone other than the occupants and that none of the occupants
possessed a driver’s license. As the trial court explained, “The failure to use
headlights justified the initial detention and the immediate detection of the
use of marijuana justified further investigation which entitled the officers to
have the occupants exit the vehicle and undergo a pat down for the safety of
all concerned while they searched it.” Trial Court Rule 1925(a) Opinion,
2/21/18, at 5.
Under the circumstances, we conclude there was reasonable suspicion
permitting the officers’ temporary detention of Appellant and his cohorts.
Further, we find the duration of the detention was reasonable under the
circumstances.
Regarding the duration, Appellant contends he was detained in the back
of a police car for forty-five minutes. The record reflects otherwise. Here, the
initial stop occurred at 9:01 p.m. The officers stopped their patrol car,
approached the SUV (detecting the odor of burnt marijuana in the course of
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doing so), requested a driver’s license from the operator, requested
identification from the operator and the passengers, ran the names provided
through the DMV for licensing information, obtained the rental agreement for
the SUV, removed each of the occupants from the vehicle, frisked each
occupant in light of the impending Live Stop, and initiated the inventory
search, which resulted in locating a box of wax inserts used for packaging
heroin. Upon finding the inserts, the officers called for the K-9 unit, shut the
doors, rolled up the windows, and waited for K-9 to arrive. The K-9 unit
arrived at 9:45, forty-four minutes after the initial stop. Therefore, we reject
Appellant’s assertion that he was unlawfully detained for forty-five minutes in
the back of a patrol car. Based on the testimony, we cannot say that the
amount of time from the initial stop until arrival of the K-9 unit was
unreasonable in duration.
We find no violation of Appellant’s constitutional rights in relation to
being detained or in relation to the duration of the detention. Again, an
investigative detention permits detention of an individual if supported by
reasonable suspicion. Based on the suppression hearing testimony, we find
that reasonable suspicion existed. Therefore, Appellant’s first claim fails for
lack of merit.
Appellant next argues his constitutional rights were violated because the
police lacked probable cause to arrest him and/or search his genital region.
He contends that the arrest and search were based on the wax inserts
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recovered from the SUV and that Appellant was not in constructive possession
of the inserts. He suggests that the officers’ arrest of all three occupants
indicates they did not suspect any one of them of committing a crime but
rather they were determined to arrest all three for the same crime. Appellant’s
Brief at 24-25.
In Commonwealth v. Evans, 685 A.2d 535 (Pa. 1996), our Supreme
Court addressed the probable cause required to support a warrantless arrest.
The Court stated:
To be constitutionally valid, a warrantless arrest must, of course,
be supported by probable cause. Commonwealth v. Barnette,
484 Pa. 211, 398 A.2d 1019 (1979). It is well-settled that in
considering whether probable cause exists to justify a warrantless
arrest, the totality of the circumstances must be considered.
Commonwealth v. Banks, 540 Pa. 453, 658 A.2d 752 (1995),
citing Illinois v. Gates, 462 U.S. 213, 103 S. Ct. 2317, 76
L. Ed. 2d 527 (1983). As this court has held, “probable cause exists
where the facts and circumstances within the officer’s knowledge
are sufficient to warrant a person of reasonable caution in the
belief that an offense has been or is being committed.”
Commonwealth v. Gibson, 536 Pa. 123, 130, 638 A.2d 203,
206 (1994). As we quoted several years ago, probable cause
must be “viewed from the vantage point of a prudent, reasonable,
cautious police officer on the scene at the time of the arrest guided
by his experience and training.” Commonwealth v. Norwood,
456 Pa. 330, 334, 319 A.2d 908, 910 (1974) (citation omitted).
Our case law makes clear, as well, that mere suspicion alone will
not support a finding of probable cause. Commonwealth v.
Kelly, 487 Pa. 174, 409 A.2d 21 (1979) (mere sight of a small
amber-colored prescription vial on the seat of an automobile,
without more, does not suffice to establish the requisite probable
cause for arrest). However, it is also true that, to establish
probable cause to arrest, criminal activity need not be shown to,
in fact, exist, but rather only that it may be reasonably inferred
from the circumstances. Commonwealth v. Weidenmoyer,
518 Pa. 2, 13, 539 A.2d 1291, 1297 (1988).
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Id. at 537 (footnote omitted).
The Commonwealth suggests the officers acquired probable cause for
an arrest in the course of their investigation. First, there was the odor of
marijuana emanating from the SUV. Appellant was sitting in the front
passenger seat and a box of wax inserts—commonly used in packaging
heroin—was located on the floor in front at that seat. Appellant’s cohorts were
carrying large sums of cash. A canine officer “hit” on the front doors of the
SUV, including the front passenger door where Appellant was seated. A scale
was found in the cargo area of the SUV. Under the totality of the
circumstances, the officers could reasonably infer criminal activity, and there
was probable cause to believe Appellant possessed the drug paraphernalia
located on the front passenger-seat floor. Commonwealth’s Brief, at 24. As
the suppression court recognized, the officers properly conducted a live stop
and a frisk of the occupants of a vehicle that was being operated without
headlights and that emanated the odor of marijuana. After finding substantial
amounts of money on two occupants and the wax inserts on the front
passenger-seat floor, the officers called the K-9 unit. The K-9 unit hit on the
front doors and the rear of the SUV. As Judge Minehart concluded:
At this point, [the officers] had reason to detain the defendants
and arrest them. They did the full search, and [Appellant] was
found to have two . . . bags of heroin in his groin area. Based on
all the evidence as I heard it, the motion to suppress is denied.
N.T., Suppression Hearing, 4/20/17, at 39-40.
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As the trial court explained in its Rule 1925(a) opinion,
The odor of marijuana reasonably led to the discovery of the
money and drug packaging which reasonably led to the discovery
of the scale and justified the dog sniff which reasonably led to the
discovery of heroin on [Appellant’s] person. Each step in the
process provided the police with a reasonable belief that crimes
were being or had been committed and to finally conclude they
had enough probable cause to justify arrests which in turn justified
more intensive searches, by a K-9 unit and themselves. . . . In
this case every step of the officers’ investigation was justified.
Trial Court Rule 1925(a) Opinion, 2/21/18, at 10-11. We agree there was
probable cause to arrest Appellant and search him incident to that arrest.
Regarding the search itself, in Commonwealth v. Taylor, 771 A.2d
1261, 1271 (Pa. 2001), our Supreme Court explained that the scope of a
proper search incident to arrest extends to the arrestee’s person and those
things within the arrestee’s immediate control. Here, the search was limited
to Appellant’s person and yielded heroin and a cellphone.
As reflected above, after the K-9 hit on the doors and rear of the SUV,
the officers placed Appellant and his cohorts under arrest and searched them
incident to the arrest for paraphernalia. While Appellant suggests that the
officers strip-searched him, see Appellant’s Brief at 8 (“Appellant was
consequently strip searched” and “the invasive strip search of [A]ppellant was
conducted incident to arrest”), that statement is refuted by Officer Fritz’s
testimony in the following exchanges:
Appellant’s Counsel: And at this point, it was a strip search, right?
Officer Fritz: No.
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N.T., 4/20/17, at 27. Further:
Appellant’s Counsel: Now, Officer Fritz, this was a strip search,
right?
Officer Fritz: No. I answered your question.
Appellant’s Counsel: Okay. So, his pants were not pulled down?
Officer Fritz: Not during the search, no.
Id. Officer Fritz did not conduct the search but witnessed the search, which
was performed by Officer Ngo. Id. at 37-38.
Officer Fritz explained that the usual search of a person goes from head
to toe. In this case, when Officer Ngo “reached the region of [Appellant’s]
groin, [Appellant] was clenched tightly with his legs, his legs were tight.” N.T.,
Suppression Hearing, 4/20/17, at 28. It was apparent to Officer Fritz that
Appellant had “something between his legs.” Id. at 29. As a result Officer
Ngo “had to spread [Appellant’s] legs, and then he conducted a frisk” of the
area, leading to the recovery of bulk heroin. Id.
Our United States Supreme Court has explained:
The test of reasonableness under the Fourth Amendment is not
capable of precise definition or mechanical application. In each
case it requires a balancing of the need for the particular search
against the invasion of personal rights that the search entails.
Courts must consider the scope of the particular intrusion, the
manner in which it is conducted, the justification for initiating it,
and the place in which it is conducted.
Bell v. Wolfish, 441 U.S. 520, 559 (1979). Balancing the need for a
particular search in the instant case, we cannot find that the scope of the
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intrusion, the manner in which the search was conducted, the justification for
initiating it, or the place where it was conducted, constitutes an
unconstitutional invasion of personal rights. Appellant’s second claim does
not provide any basis for relief.
We find no error in the trial court’s legal conclusions with regard
Appellant’s detention and arrest. Although the trial court did not separately
address the issue of the actual search in its Rule 1925(a) opinion, we find no
violation of Appellant’s constitutional rights in the conduct of the search. 8
Finding no error in the denial of Appellant’s suppression motion, we affirm
Appellant’s judgment of sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/1/19
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8"It is well-settled that an appellate court may affirm the decision of the trial
court if there is any basis on the record to support the trial court’s action.”
See Commonwealth v. Harper, 611 A.2d 1211, 1213 n.1 (Pa. Super. 1992).
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