Com. v. Davenport, B. ( 2021 )

J-A25004-21
2021 PA Super 238COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
BRITTAN L. DAVENPORT :
:
Appellant : No. 161 WDA 2021
Appeal from the Judgment of Sentence Entered January 8, 2021,
in the Court of Common Pleas of Allegheny County,
Criminal Division at No(s): CP-02-CR-0002543-2020.
BEFORE: KUNSELMAN, J., KING, J., and COLINS, J.*
OPINION BY KUNSELMAN, J.: FILED: DECEMBER 8, 2021
Brittan L. Davenport appeals from the judgment of sentence imposed
following his conviction for persons not to possess a firearm.1 We affirm.
The trial court summarized the relevant factual history as follows:
Officer Ilija Tubin of the McKeesport Police Department
testified that on January 12, 2020, he responded to a report of a
male overdose in the area of 2422 Bangkok Street. Office Tubin
testified that he arrived at the scene and spoke with [Davenport’s]
mother, Kayla Linnon, who had contacted the police regarding her
son. Officer Tubin testified that Linnon said her son had smoke[d]
K2 marijuana, and that she had found him unconscious on the
back porch. [K2 is a synthetic cannabinoid known to cause heart
attacks and strokes.] The officer observed [Davenport], face
down on the back porch, breathing but not responding to anyone.
Medics attended to [Davenport] and he began to regain
consciousness. As [Davenport] started to get up, Officer Tubin
observed a heavy bulge in the front pocket of [Davenport’s]
hooded sweatshirt. The officer testified that he knew immediately
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* Retired Senior Judge assigned to the Superior Court.
1 See 18 Pa.C.S.A. § 6105(a)(1).
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it was a firearm. Officer Tubin alerted Lieutenant Alper that
[Davenport] had a firearm, at which point Lieutenant Alper did a
pat-down for safety and recovered the firearm. [Davenport’s]
father observed the retrieval of the firearm and stated, “[t]hat's a
violation.”
Trial Court Opinion, 4/21/21, at 3 (citations to the record omitted).
Davenport was arrested and charged with, inter alia, possession of a
firearm prohibited. Prior to trial, Davenport filed a motion to suppress the gun
found on his person. On September 8, 2020, the trial court entered an order
denying Davenport’s motion to suppress. On January 8, 2021, the matter
proceeded to a non-jury trial at the conclusion of which the trial court found
Davenport guilty of persons not to possess a firearm. The trial court
immediately sentenced Davenport to six to twelve years in prison. Davenport
did not file a post-sentence motion; however, he did file a timely notice of
appeal. Both Davenport and the trial court complied with Pa.R.A.P. 1925.
Davenport raises the following issue for our review:
Did the trial court err by failing to grant suppression in this
case because the officers did not have reasonable suspicion that
criminal activity was afoot? More specifically, once the officers
completed the wellness check and Mr. Davenport’s medical
emergency ended, did officers have the authority to seize
[Davenport] without an additional exigency or was suppression
of the evidence warranted?
Davenport’s Brief at 6.
Our review of an order denying a motion to suppress is limited:
We may consider only the Commonwealth’s evidence and so
much of the evidence for the defense as remains uncontradicted
when read in the context of the [suppression] record as a whole.
Where the [suppression] record supports the factual findings of
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the trial court, we are bound by those facts and may reverse only
if the legal conclusions drawn therefrom are in error.
Commonwealth v. Russo, 934 A.2d 1199, 1203 (Pa. 2007) (citations
omitted). As an appellate court, we are not bound by the suppression court’s
conclusions of law; rather, when reviewing questions of law, our standard of
review is de novo and our scope of review is plenary. Id.Under the Fourth Amendment, “searches and seizures without a warrant
are presumptively unreasonable,” subject only to specifically established
exceptions. See Katz v. United States, 389 U.S. 347, 357 (1967). Certain
of these exceptions arise in the context of law enforcement and are related to
the detection, investigation and prevention of criminal activity, such as the
exigent circumstances exception, the “plain view” exception, searches incident
to arrest, consent searches, automobile searches, and the imminent criminal
activity exception. See Commonwealth v. Wilmer, 194 A.3d 564, 568 (Pa.
2018).
In addition to these crime-related exceptions, courts have recognized
that law enforcement officers legitimately perform community caretaking
activities that also necessitate exceptions to the warrant requirement. Id.The community caretaking doctrine has been characterized as encompassing
three specific exceptions to the warrant requirement: the emergency aid
exception, the public servant exception, and the automobile
impoundment/inventory exception. See id. at 585. Each of the exceptions
contemplates that police officers engage in a wide variety of activities relating
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to the health and safety of citizens unrelated to the detection, investigation
and prevention of criminal activity. Id. Nevertheless, community caretaking
activities must be performed in strict accordance with the Fourth Amendment.
Id. at 586.
At issue in this case is the emergency aid exception which permits police
officers to make warrantless entries and searches when they reasonably
believe that a person is in need of immediate aid. Id. at 570-71. As with all
of the community caretaking exceptions, actions by police pursuant to the
emergency aid exception must be independent from the detection,
investigation, and acquisition of criminal evidence. Commonwealth v.
Livingstone, 174 A.3d 609, 635 (Pa. 2017). Additionally, a warrantless
intrusion pursuant to the emergency aid exception must be commensurate
with, and limited to, the perceived need to provide immediate assistance.
Wilmer, 194 A.3d at 571. In other words, once the emergency that permitted
the police officers to act without a warrant has ceased, their right to enter and
search under the emergency aid exception has also ceased. Id. at 592
(explaining that once the emergency had ended and the troopers left the
premises, their subsequent re-entry of the residence to conduct a search
required a warrant).
Here, Davenport concedes that the police were lawfully at his residence
pursuant to the emergency aid exception. However, Davenport maintains that
when he regained consciousness and began to get up from the porch floor to
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go to the hospital with medical personnel, the reason for the officers’ presence
in the home ended and the officers were required to leave. According to
Davenport, once medical assistance had been administered, the officers had
no authority to conduct a pat-down without an additional finding of either
probable cause or a reasonable suspicion that criminal activity was afoot.
Davenport claims that the search was premised solely upon the officers
viewing the outline of a gun in his sweatshirt front pocket. Davenport insists
that the mere possession of a gun, particularly in one’s own home, does not
create reasonable suspicion that criminal activity is afoot. Davenport contends
that, because the seizure was not supported by either reasonable suspicion or
probable cause, all evidence flowing from that seizure should have been
suppressed.2
Even if we were to accept Davenport’s argument that the emergency,
which permitted the officers to lawfully enter the home to render aid to him,
ceased when he began to regain consciousness, we cannot accept Davenport’s
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2 Davenport also argues that “an unconstitutional seizure occurred when his
freedom of movement was restricted by the officers who prevented him from
going to the hospital for treatment.” Davenport’s Brief at 24. However,
Davenport did not raise this issue before the suppression court. In his motion
to suppress, Davenport challenged only the search of his person and argued
that “[a]t the time of the search, the [o]fficers lacked probable cause to
believe that [Davenport] was in possession of illegal items or engaged in
criminal activity.” Omnibus Pretrial Motion, 8/14/20, at unnumbered 2, ¶ 3.
Nor did Davenport claim that he was unlawfully detained at the suppression
hearing. See N.T., 9/8/20. 1-31. Thus, he failed to preserve this issue for
our review. See Pa.R.A.P. 302(a) (providing that issues not raised in the
lower court are waived and cannot be raised for the first time on appeal).
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implied argument that the officers were, at that same moment, dispossessed
of any right to consider their own safety without formulating probable cause
or a reasonable suspicion that criminal activity was afoot.
As the United States Supreme Court has explained:
We are now concerned with more than the governmental
interest in investigating crime; in addition, there is the more
immediate interest of the police officer in taking steps to assure
himself that the person with whom he is dealing is not armed with
a weapon that could unexpectedly and fatally be used against
him. Certainly it would be unreasonable to require that police
officers take unnecessary risks in the performance of their duties.
American criminals have a long tradition of armed violence, and
every year in this country many law enforcement officers are
killed in the line of duty, and thousands more are wounded.
Virtually all of these deaths and a substantial portion of the
injuries are inflicted with guns and knives.
In view of these facts, we cannot blind ourselves to the need
for law enforcement officers to protect themselves and other
prospective victims of violence in situations where they may lack
probable cause for an arrest. When an officer is justified in
believing that the individual whose suspicious behavior he is
investigating at close range is armed and presently dangerous to
the officer or to others, it would appear to be clearly unreasonable
to deny the officer the power to take necessary measures to
determine whether the person is in fact carrying a weapon and to
neutralize the threat of physical harm.
Terry v. Ohio, 392 U.S. 1, 23-24 (1968).
In the cases that have followed Terry over the last fifty years, the High
Court has emphasized that considerations of officer safety must be preceded
by a finding that the individual was lawfully subjected to an investigative
detention, i.e., that the officer had reasonable suspicion that criminal activity
was afoot. However, these cases have generally dealt with officer safety
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concerns in the context of investigating and preventing criminal activity rather
than performing community caretaking functions, such as rendering
emergency aid. And while the High Court has addressed the emergency aid
exception, it has, to date, provided little guidance regarding officer safety
considerations when performing emergency aid activities. See Mincey v.
Arizona, 437 U.S. 385 (1978) (holding that when police enter the scene of a
homicide they may make a prompt warrantless search of the area to see if
there are other victims or if a killer is still on the premises).
Nevertheless, this Court has considered officer safety in the context of
rendering emergency help and assistance and has determined the
circumstances under which police may perform a protective pat-down for
weapons:
In today’s complex society, police are “charged with the
protection of constitutional rights, the maintenance of order, the
control of pedestrian and vehicular traffic, the mediation of
domestic and other non-criminal conflicts, and supplying
emergency help and assistance.” La Fave, Street Encounters and
the Constitution; Terry, Sibron, Peters and Beyond, 67 Michigan
L. Rev. 40, 61-62 (1968). Accord Cady v. Dombrowski, 413
U.S. 433, 93 S. Ct. 2523, 37 L.Ed.2d 706 (1973) (police engage
in community caretaking functions). If during the execution
of these tasks an officer determines that “[a] reasonably
prudent man in the circumstances would be warranted in
the belief that his safety or that of others was in danger,”
the officer may conduct a protective pat-down search.
Terry, 392 U.S. at 27, 88 S. Ct. at 1883. The officer is
empowered to neutralize the danger posed by the party with
whom he is dealing. The search must be limited to the
accomplishment of the goal which justified its commencement,
namely, protection of the officer. The officer’s action must be
confined to a pat-down search for the discovery of weapons.
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Sibron v. New York, 392 U.S. 40, 88 S. Ct. 1889, 20 L. Ed.2d
917 (1968).
Commonwealth v. Rehmeyer, 502 A.2d 1332, 1336 (Pa. Super. 1985),
appeal denied, 531 A.2d 780 (Pa. 1987) (emphasis added).
In Rehmeyer, a police officer lawfully conducted a traffic stop and, upon
investigation, determined that there was probable cause to believe that
appellee was driving under the influence of alcohol. However, as the officer
felt that the case was borderline, he decided not to arrest appellee and instead
offered appellee the option to either get a ride home from a family member
or accept a ride home from the officer in his patrol car. The appellee accepted
the latter option. The officer then executed a limited pat-down search of
appellee for the purpose of discovering any concealed weapons to ensure that
appellee would pose no danger to the officer during the trip to appellee’s
home. During the search, the officer discovered a .22 caliber pistol. The
appellee was subsequently charged with a firearm offense. However, the
suppression court granted appellee’s motion to suppress the gun, reasoning
that, because appellee was not placed under arrest, the officer was required
to form a reasonable belief that appellee was armed and dangerous before
conducting the pat-down search.
On appeal, this Court reversed the suppression court’s ruling. In so
doing, it initially held that where probable cause to arrest exists but the officer
does not effectuate the arrest, the officer may nevertheless conduct a
protective pat-down search when he decides to transport the individual in the
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patrol car. Id. at 1335 (holding “that if probable cause to arrest exits, but
the officer does not effectuate an arrest, the officer may nevertheless conduct
a protective pat-down search when he decides to transport the individual in
the patrol car”). The Court additionally held that the officer’s pat-down of
appellee was independently justified under the circumstances. As noted
above, in Rehmeyer, we ruled that “[i]f during the execution of [community
caretaking function] an officer determines that ‘[a] reasonably prudent man
in the circumstances would be warranted in the belief that his safety or that
of others was in danger,’ the officer may conduct a protective pat-down
search.” Id. at 1336.
In this Court’s view, the officer’s offer to give appellee a courtesy ride
home and the officer’s decision to conduct a limited pat-down of appellee prior
to permitting him in his patrol car “fell squarely” within these requirements.
Id. We explained:
Though [appellee] had not shown any signs of violence, [the
officer] acted reasonably in assuming that appellee could possibly
enter the patrol car with a deadly weapon. Once behind the wheel
of the patrol car, [the officer] would be an easy mark. A
reasonably prudent man in the same situation would believe that
his safety was in jeopardy. “It [is] unreasonable to require the
police officers to take unnecessary risks in the performance of
their duties.” [Terry, 392 U.S. at 23].
Id.
In the instant matter, it is undisputed that the officers were supplying
emergency help and assistance to Davenport pursuant to the emergency aid
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exception. Thus, as in Rehmeyer, we employ a “reasonably prudent man”
analysis to Lieutenant Alper’s decision to pat-down Davenport for weapons.3
According to the suppression record, when Officer Tubin responded to
the emergency call from Davenport’s mother, who reported that she had found
Davenport unconscious on her back porch after he had smoked K2 marijuana,
Officer Tubin observed that Davenport was breathing but unresponsive. N.T.,
9/8/20, at 13-14. Officer Tubin indicated that “[o]nce [Davenport] began kind
of coming to a little bit, we had medics there to assist.” Id. However, when
Davenport began to get up, Officer Tubin observed a heavy bulge in the front
pocket of Davenport’s hooded sweatshirt. Id. at 15. According to Officer
Tubin, he “immediately knew it was a firearm.” Id. Officer Tubin alerted
Lieutenant Alper that Davenport had a firearm on him, at which point the
lieutenant conducted a pat-down for officer safety and located the firearm
inside Davenport’s pocket. Id.
Although the officers were present at Davenport’s home to render
emergency assistance, this did not preclude the possibility that they might
encounter an armed and dangerous individual. Under the circumstances, it
was not unreasonable for them to be concerned about their safety when
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3 Davenport does not acknowledge or discuss this Court’s decision in
Rehmeyer. Instead, he relies on numerous cases which are both legally and
factually distinguishable from the case sub judice. See Davenport’s Brief at
15-29.
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rendering assistance to Davenport. Given that the responding officers were
informed that Davenport had overdosed on illegal drugs, they could
reasonably have concluded that he might pose a further threat of harm to
himself and others, including the officers, Davenport’s parents, and the medics
who were attending to Davenport and preparing to transport him to the
hospital. This inference, combined with the officers’ observation of the bulge
in Davenport’s pocket which Officer Tubin immediately recognized was a gun,
amply supported a finding that “a reasonably prudent man in the
circumstances would be warranted in the belief that his safety or that of others
was in danger.” Rehmeyer, 502 A.2d at 1336.
In suspecting that Davenport may have a concealed weapon, the officers
were not acting on an “inchoate [or] unarticularized suspicion or hunch” but
rather on “the specific reasonable inferences which [they were] entitled to
draw from the facts in light of [their] experience.” Id. (citing Terry, 392 U.S.
at 27). Moreover, the officers’ objective was not the prosecution of a crime
but to ensure safety. Id. at 1338. Thus, the officers were authorized to
conduct a protective pat-down search of Davenport in order to protect their
safety as well as the safety of the other individuals who were present.
Based on our review of the suppression record, because the officers
conducted a lawful pat-down of Davenport, we affirm the court’s order denying
suppression of his gun.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/8/2021
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