Com. v. McCall-Schrandt, S. ( 2023 )

J-S20028-23 & J-S20029-23
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT OP 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
v. :
:
SHANE MCCALL-SCHRANDT : No. 2717 EDA 2022
Appeal from the Order Entered September 28, 2022,
in the Court of Common Pleas of Philadelphia County,
Criminal Division at No(s): CP-51-CR-0003206-2021.
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
v. :
:
NICHOLAS HUNT : No. 2719 EDA 2022
Appeal from the Order Entered September 28, 2022,
in the Court of Common Pleas of Philadelphia County,
Criminal Division at No(s): CP-51-CR-0003207-2021.
BEFORE: DUBOW, J., KUNSELMAN, J., and COLINS, J.*
MEMORANDUM BY KUNSELMAN, J.: FILED AUGUST 30, 2023
I. Introduction
In these related, interlocutory appeals as of right,1 the Commonwealth
contests an order suppressing two guns that police seized during a routine,
traffic stop: one from Shane McCall-Schrandt and one from Nicholas Hunt.
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* Retired Senior Judge assigned to the Superior Court.
1 See Pennsylvania Rule of Appellate Procedure 311(d). Although we did not
consolidate these two appeals, we dispose of them in the same decision.
J-S20028-23 & J-S20029-23
At the suppression hearing, the Commonwealth did not produce evidence to
justify the arrest and search of McCall-Schrandt, and we affirm the order as
to him. However, the Commonwealth met it burdens of production and
persuasion with regards to the frisk of Hunt. Thus, we reverse the suppression
order as to him and remand his case for trial.
II. Factual & Procedural Background
On March 8, 2021, around 9:45 p.m., Hunt and McCall-Schrandt were
passengers in a sedan driving through Philadelphia. Hunt rode in the front
seat, while McCall-Schrandt was in back. Because the driver ran a stop sign,
Officers Pedro Martin and Anthony Agudo stopped the car. Officer Martin
approached on the driver’s side, and Officer Agudo approached on the
passengers’ side.
The driver “was extremely nervous throughout the encounter.” Trial
Court Opinions, 12/22/22, at 2.2 His “hands were shaking, he was shuffling
in his seat, and he was sweating even though it was cold.” Id. When Officer
Martin asked the driver about the group’s travel plans, he said “they were
coming from ‘The Studio,’ . . . .” Id. Officer Martin knew The Studio was “a
place from which many illegal firearms had been recovered in the past.” Id.
Next, the officers collected identification from the driver and passengers.
Officer Agudo returned to his car, sat in the passenger seat, and entered the
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2 The trial court filed two Rule 1925(a) Opinions, one at each docket number.
At times, the Trial Court Opinions are identical. When they are, we refer to
Opinions, plural. However, when something only appears in one Opinion, we
refer to that Opinion by the Appellee’s name.
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information for the three men into the in-cruiser-computer system. Officer
Martin walked back to the police vehicle, leaned in the driver’s window, and
spoke with Officer Agudo. See Commonwealth Ex. C-1 at 2:44-2:55.3 As the
officer’s bodycam video depicted, Officer Martin asked Officer Agudo whether
he thought the men “brought some props” – i.e., firearms – from The Studio.
Id. at 3:03-3:07; see also N.T., 9/28/22, at 20. After a minute of silence,
Officer Martin asked, “Wanna see if he’ll give me permission [to search the
car]?” Id. at 4:15-4:17. Shortly thereafter, he returned to the stopped
vehicle and asked the driver, “You’re positive there’s nothing [illegal] in this
car?” Id. at 5:10-5:18.
The driver looked down and said, “Sir, this is my car. Umm, nothing of
mine . . . .” Id. at 5:21-5:23.
Officer Martin interrupted him to ask, “You mind if I check?” Id. at 5:23.
“Umm, no I don’t,” the driver initially said but then quickly changed his
mind; he said, “I do, actually.” Id. at 5:24-5:27. The officer asked why he
minded, and the driver became animated and said, “I just feel uncomfortable
right now; I feel like I’m being threatened.” Id. at 5:30-5:31.
Officer Martin replied, “You look like you’re extremely nervous, dude.
But you’re sweating; look at your forehead.” Id. at 5:31-5:37.
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3 At the suppression hearing, the prosecutor played Ex. C-1 from 0:00 until
6:42. See N.T., 11/28/22, at 12-14. No one played the additional 15 minutes
of bodycam footage on this file at the suppression hearing.
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The driver said, “Yeah, yeah, I do, because I - - I don’t like - - I don’t
like to be around police, sir. I just came from the gym, literally.” Id. at 5:33-
5:39.
The officer then asked, “Have you ever been - - Have you ever been,
ah . . . .” Id. at 5:30-5:41.
“No, I never been stopped. Nothing.” Id. at 5:42-5:43. Thereafter,
the officer ordered the driver to place his keys on the car’s roof and to exit
the vehicle. See id. at 5:45-6:42; see also N.T., 9/28/22, at 15. Officer
Martin immediately frisked him, but the search of the driver revealed nothing.
Officer Martin then moved to the rear of the vehicle and waited while
Officer Agudo removed Hunt from the front-passenger seat. See id. at 14-
15. Officer Agudo directed Hunt to go and see Officer Martin. See id. at 35.
“Officer Martin then noticed a heavy object weighing down the right side of
[Hunt’s] jacket and immediately frisked him.” Hunt Trial Court Opinion,
12/22/22, at 2. The officer felt and removed a semiautomatic firearm from
Hunt’s pocket and arrested him. See id.
Meanwhile, Officer Agudo spoke with McCall-Schrandt, who sat calmly
in the backseat. Ultimately, Officer Agudo ordered McCall-Schrandt out of the
vehicle. Other officers eventually retrieved a gun from McCall-Schrandt.
Police charged both Hunt and McCall-Schrandt with (1) Carrying a
Firearm without a License and (2) Carrying a Firearm on the Public Streets of
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Philadelphia.4 The co-Defendants moved to suppress the seized firearms on
the grounds that the searches of their persons were unreasonable in violation
of Fourth Amendment to the Constitution of the United States and Article I, §
8 of the Constitution of the Commonwealth of Pennsylvania. See N.T.,
9/28/22, at 2-4. Only Officers Martin and Agudo testified at the hearing.
Of particular importance to this appeal, while cross examining Officer
Agudo, McCall-Schrandt’s counsel only played a few seconds of video from
Commonwealth Ex. D-1, a file with over 20 minutes of footage. No one
identified the file times when defense counsel started and stopped the video.
See N.T., 9/28/22, at 41. However, based on the transcript, we infer that the
portion of Commonwealth Ex. D-1 that counsel played was approximately
between 1:35 and 1:45, where the video matches Officer Agudo’s testimony
of what defense counsel played at the hearing.
In those ten seconds, Officer Agudo shined his flashlight onto McCall-
Schrandt, who sat very still in the back of the car, with his hands folded in his
lap. The officer asked, “Any weapons on you, sir?” Commonwealth Ex. D-1.
at 1:40.
McCall-Schrandt shook his head side to side, said “No,” and turned his
head away from the officer. Id. at 1:41-1:42.
“There was a brief redirect following the cross examination . . .” McCall-
Schrandt Trial Court Opinion, 12/22/22, at 3. “However, the Commonwealth
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4 See 18 Pa.C.S.A. §§ 6106(a)(1) and 6108.
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provided no additional evidence which disputed the evidence provided by the
bodycam.” Id. “Further, the Commonwealth did not seek to provide any
additional review of the bodycam footage for clarification of the inconsistent
statements made by the officer.” Id. The Commonwealth also failed to offer
any evidence concerning the search or arrest of McCall-Schrandt. See id.
Next, the suppression court heard oral argument and issued its findings
of fact and conclusions of law from the bench. See N.T., 9/28/22, at 45-53.
The suppression court found that “Officer Agudo provided incomplete and
inconsistent testimony” regarding that interaction. McCall-Schrandt Trial
Court Opinion, 12/22/22, at 2. Rejecting Officer Agudo’s testimony, the court
found that the video evidence directly contradicted his version of events:
On direct examination, [Officer Agudo] testified [that,]
before [McCall-Schrandt] exited the vehicle, he inquired if
there were any firearms or weapons within the vehicle. [The
officer] testified [that McCall-Schrandt] answered there was
a firearm on his person, in his name, and he was not
licensed to carry it. However, during cross examination,
defense counsel introduced Officer Agudo’s bodycam
footage from the night in question. [See Commonwealth
Ex. D-1.] When asked the same question regarding
additional weapons in the vehicle on the video, [McCall-
Schrandt] can be observed saying, “No,” while shaking his
head.
Id.
The suppression court opined, “Commonwealth v. Alexander[, 243
A.3d 177 (Pa. 2020),] states that you must have exigent circumstances in
order to have a warrantless search of a vehicle.” N.T., 9/28/22, at 52.
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Because the court found no “exigent circumstances to retrieve any weapons
from the vehicle,” it granted suppression. Id. at 52-53.
This timely appeal followed, and the court of common pleas ordered the
Commonwealth to file a Concise Statement of Errors Complained of on Appeal.
The Commonwealth complied.
In its 1925(a) Opinions, the court candidly acknowledged that reliance
upon Alexander at the suppression hearing was misplaced. The court opined,
“Alexander discusses warrantless searches of automobiles and does not
elaborate on [reasonable-suspicion frisks] akin to what took place here.” Trial
Court Opinions, 12/22/22, at 5, at 7-9. Nevertheless, the court contended
the police lacked reasonable suspicion to search McCall-Schrandt and Hunt.
Thus, the court opined that its “mention of Alexander [during the hearing]
was nothing more than a harmless error.”5 Id.
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5 The court of common pleas appears to have confused the appellate doctrines
of “harmless error” and “right for any reason.” While similar, the two doctrines
are distinct. Harmless error arises post-sentence and pertains to evidentiary
issues from trial. “It is well-established that an erroneous evidentiary ruling
by a trial court does not require us to grant relief where the error was
harmless.” Commonwealth v. Hicks, 156 A.3d 1114, 1139 (Pa. 2017)
(Bear, J., concurring) (citing Commonwealth v. Young, 748 A.2d 166, 193
(Pa. 1999) (emphasis added). It applies if, among other things, “the properly
admitted and uncontradicted evidence of guilt was so overwhelming that the
prejudicial effect of the error by comparison could not have contributed to the
verdict.” Id. at 1139–40. The right-for-any-reason doctrine, by contrast,
applies to any order or judgment on appeal. Under this doctrine, “where the
result is correct, an appellate court may affirm a lower court’s decision on any
ground without regard to the ground relied upon by the lower court itself.”
Commonwealth v. Lehman, 275 A.3d 513, 520 (Pa. Super. 2022), appeal
denied, 286 A.3d 213 (Pa. 2022). Right for any reason, then, is broader than
(Footnote Continued Next Page)
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III. Analysis
The Commonwealth raises two appellate issues. First, it asks whether
the suppression court “err[ed] in suppressing a firearm seized from [McCall-
Schrandt] during a lawful traffic stop and after he admitted he was in
possession of a gun and was not licensed to carry one?” Commonwealth’s
Brief, 2717 EDA 2022, at 4. Second, the Commonwealth asks whether the
suppression court “err[ed] in suppressing a firearm seized from [Hunt] during
a lawful frisk for weapons?” Commonwealth’s Brief, 2719 EDA 2022, at 4.
We review the search of each Appellee separately.
1. The Search of McCall-Schrandt
Beginning with McCall-Schrandt, the Commonwealth argues that the
police obtained the gun on McCall-Schrandt’s person through a lawful search,
incident to his arrest. According to the Commonwealth, “police seized the gun
from [his] waistband during a traffic stop and after he admitted he had a gun
on his person and was not licensed to possess one.” Commonwealth’s Brief,
2717 EDA 2022, at 16. The Commonwealth believes that McCall-Schrandt
admitted to possessing a firearm without a license. Therefore, it attacks the
suppression order based on its assertion of “probable cause to arrest him for
violating the firearms laws and [officers] could search him incident to his
____________________________________________
harmless error. It is clear from the trial court’s Opinions that it is requesting
that we affirm its suppression order under the right-for-any-reason doctrine.
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arrest.” Id. at 22 (citing Commonwealth v. Valentin, 748 A.2d. 711 (Pa.
Super. 2000)).
This argument necessarily challenges the finding of the suppression
court that Officer Agudo’s testimony about McCall-Schrandt was “inconsistent
with the video evidence.” Id. at 24. Specifically, the Commonwealth
disagrees with the factual finding that the part of Commonwealth’s Ex. D-1,
which played during cross examination of the officer, contradicted the officer’s
direct testimony. The Commonwealth concedes that the portion of the exhibit,
which defense counsel played, “showed that when the officer asked [McCall-
Schrandt] if there were any weapons, he shook his head and answered ‘no.’”
Id.
Even so, it claims that the suppression court “misapprehended Officer
Agudo’s testimony.” Id. According to the Commonwealth, “Officer Agudo
asked [McCall-Schrandt] on two different occasions about the presence of
any weapons” in the vehicle. Id. (emphasis in original). The Commonwealth
asserts that the first questioning occurred during the officers’ initial interaction
with the car’s occupants, i.e., before the police returned to their patrol car to
process the men’s identifications. See id. We are told that the second
questioning of McCall-Schrandt occurred after Officer Martin frisked Hunt and
discovered a gun on him. See id. Based on its view of the factual timeline,
the Commonwealth argues that McCall-Schrandt said “No” to Officer Agudo’s
first question, but he then admitted to possessing a gun without a license
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when Officer Agudo repeated the question several minutes later. Id. at 25
(citing N.T., 9/28/22, at 34-35).
Thus, the Commonwealth believes the suppression court confused the
facts, because, during cross examination of Officer Agudo, “defense counsel
played the portion of the officer’s bodycam video that showed the first time
he asked [McCall-Schrandt] if there were any weapons.” Id. Officer Agudo
told “defense counsel that if he advanced the video ‘probably like a minute or
two more,’ it would show the latter portion of the car stop when [McCall-
Schrandt] was the only person who remained inside the vehicle,” which was
when he “conceded he had a gun.” Id. However, no one played that part of
the video during the suppression hearing.
The full video evidence on Commonwealth’s Ex. D-1 supports the
Commonwealth’s clarification of the facts on appeal. After Officer Martin
recovered Hunt’s firearm and arrested him, Officer Agudo walked back to
McCall-Schrandt, who was still seated in the back of the car. See
Commonwealth’s Ex. D-1 at 7:45-8:16. Officer Agudo requestioned McCall-
Schrandt about whether there was another weapon in the car. See id.
McCall-Schrandt told the officer, “I have another weapon in the car. It’s on
my hip to protect myself.” Id. at 8:22-8:25. He also admitted that he had
no license to carry a firearm. See id. at 8:27-8:28.
The Commonwealth argues, under Valentin, supra, McCall-Schrandt’s
admissions was probable cause to arrest him and then conduct a search of his
person incident to that arrest. We agree. If we were permitted to conduct a
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plenary review of all the evidence from the night of the traffic stop, we would
conclude Officer Agudo did not violate McCall-Schrandt’s rights. However,
our scope of review for a warrantless search is not plenary.
“It is axiomatic that the nature of the record below controls the appellate
court’s scope of review.” In re L.J., 79 A.3d 1073, 1085 (Pa. 2013). When
reviewing a suppression order, our scope of review is confined to the evidence
that was “part of the suppression record, absent a finding that such evidence
was unavailable during the suppression hearing.” Id.Here, the prosecutor neglected to play timeframe 7:45-8:28 from
Officer Agudo’s bodycam at the suppression hearing. As the suppression court
correctly stated, “the Commonwealth did not seek to provide any additional
review of the bodycam footage for clarification of the inconsistent statements
made by the officer.” McCall-Schrandt Trial Court Opinion, 12/22/22, at 3.
Therefore, the suppression court had no opportunity to view the part of the
bodycam footage upon which the Commonwealth relies to rehabilitate Officer
Agudo’s credibility.
As the court of common pleas observes in its 1925(a) Opinion, “in all
cases, the burden of production is upon the Commonwealth.” McCall-
Schrandt Trial Court Opinion, 12/22/22, at 3 (quoting Commonwealth v.
Enmipah, 106 A.3d 695, 697 (Pa. 2014) and Pa.R.Crim.P. 581) (some
punctuation omitted). In fact, “the Commonwealth carries the burden at
suppression and satisfies that burden if it proves to the satisfaction of the
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suppression court that the evidence was properly seized.” In re L.J., 79
A.3d at 1086 (emphasis added).
The suppression court, based on the very narrow portion of Officer
Agudo’s bodycam that it viewed, found that the Commonwealth did not meet
its burden of production. We are unable to disturb that factual finding,
because the Commonwealth did not play Commonwealth’s Ex. D-1 at 7:45-
8:28. It did not make that portion of the video file “part of the suppression
record.” In re L.J. at 1085. Further, the Commonwealth never asked the
suppression court to review the entire file of Commonwealth’s Ex. D-1 or the
clip revealing that McCall-Schrandt confessed to possessing a gun without a
license. Nor did it object to the suppression court viewing only the portion of
that exhibit that McCall-Schrandt’s counsel played. Thus, the Commonwealth
has waived any procedural or evidentiary error that the suppression court may
have made by not reviewing the full exhibit. See Pa.R.A.P. 302(a).
As such, the bodycam footage proving that Officer Agudo obtained a
confession from McCall-Schrandt before arresting and searching him is outside
our scope of review. We may not rely upon the video footage from 7:45-8:28
to revisit Officer Agudo’s credibility on appeal.
Moreover where, as here, police conducted a warrantless search and
arrest, and the defendant has won the motion to suppress, our scope of review
is limited to “only the evidence from the defendant’s witnesses together with
the evidence of the prosecution that . . . remains uncontradicted.”
Commonwealth v. Adorno, 291 A.3d 412, 415 (2023) (emphasis added).
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We employ this pro-defendant scope of review where, as here, the arrest and
search incident thereto were warrantless.
The Fourth Amendment dictates, “The right of the people to be secure
in their persons, houses, papers, and effects, against unreasonable searches
and seizures, shall not be violated, and no Warrants shall issue, but upon
probable cause . . . .” U.S. Const. amnd. IV. “The Fourth Amendment, by its
text, has a strong preference for searches conducted pursuant to warrants.”
Commonwealth v. Leed, 186 A.3d 405, 413 (Pa. 2018). Given this
preference, the jurisprudence surrounding searches and seizure favors law
enforcement when police get a warrant. Our scope and standard of review
are different for searches conducted with or without a warrant.
When police respect the constitution’s strong preference for warrants
and seek judicial approval before invading someone’s privacy, our appellate
scope of review is confined to the “affidavits on which warrants are issued”
and may not “move beyond the ‘bare bones’ affidavits.” Illinois v. Gates,
462 U.S. 213, 239, (1983). In such situations, our scope of review is limited
to the officer’s ex parte version of events, as related to a judge during the
investigation. The defendant has no real opportunity to refute facts in the
affidavit.
By contrast, when police choose to act without prior judicial approval
and conduct warrantless searches, the appellate court must defer to the
findings of the suppression court and may “review [them] only for clear error
. . . .” Ornelas v. United States, 517 U.S. 690, 699, (1996). In these
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instances, the suppression court’s findings of fact may turn out to be the
version of events that the defendant presented at the hearing. Hence, by not
seeking a warrant, officers run the risk that the suppression court will reject
their recollection of events as inaccurate.
This case illustrates the point. Based on the evidence of record that the
parties developed at the suppression hearing, the suppression court’s
factual finding that the testimony of Officer Agudo was incredible is far from
“clear error.” Id. The suppression court found that the portion of the video
played during cross examination contradicted Officer Agudo’s testimony that
McCall-Schrandt confessed to possessing a gun without a license. Officer
Agudo was a witness for the prosecution. Our review of the ten seconds of
video evidence that McCall-Schrandt admitted at the suppression hearing
confirms the suppression court’s factual finding that Officer Agudo’s testimony
was incredible.
Accordingly, under Ornelas and Adorno, supra, the Commonwealth’s
reliance upon portions of the video that it did not play during the suppression
hearing is misplaced. The Commonwealth’s revision of the facts (while
historically correct) rests upon evidence outside the record that the parties
developed at the suppression hearing. Simply stated, the Commonwealth
never showed the suppression court the evidence necessary to rehabilitate
Officer Agudo. It may not rehabilitee his credibility in this Court based on
evidence that the suppression court never saw, because our scope of review
is limited to suppression-hearing evidence. See In re L.J., supra.
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Thus, there is no evidence within our scope of review showing that
McCall-Schrandt confessed to Officer Agudo. As such, the Commonwealth’s
first issue is meritless, and we affirm the order of suppression as to McCall-
Schrandt.
2. The Frisk of Hunt
Next, the Commonwealth contends that Officer Martin had reasonable
suspicion to conduct a frisk of Hunt, and that that constitutional frisk revealed
the firearm he was carrying. Because the search was constitutional, it claims
the suppression court erred in ordering suppression of this gun. We agree.
Unlike the prior issue, where the Commonwealth disputed a finding of
fact, here it challenges a pure question of law – namely, whether the totality
of the circumstances provided Officer Martin with reasonable suspicion that
Hunt could have been armed and dangerous. Here again, the search of Hunt
was warrantless; thus, our standard of review comes from Ornelas, supra.
On appeal, “questions of reasonable suspicion and probable cause to make a
warrantless search [are] reviewed de novo.” Ornelas, 517 U.S. at 691.
The seminal case of Terry v. Ohio, 392 U.S. 1 (1968), governs the legal
standard for a momentary stop and frisk. There, an officer observed three
men casing a store. Suspecting that they might be armed and dangerous, he
frisked all of them. The pat downs revealed that two of the men were carrying
illegal firearms, which they sought to suppress prior to trial. The Supreme
Court of the United States held that it is reasonable to stop a suspect “where
a police officer observes unusual conduct which leads him reasonably to
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conclude in light of his experience that criminal activity may be afoot.” Id. at
30. The High Court also held that, under the Fourth Amendment, police may
frisk the suspect’s outer clothing, so long as the officer has reason to believe
the suspect is “armed and dangerous.” Id.To determine whether there is reasonable suspicion that a suspect is
armed and dangerous, the applicable standard is an objective one. See id.
at 21-22. The High Court opined that police officers “need not be absolutely
certain that the individual is armed;” rather, the appropriate standard is
“whether a reasonably prudent man in the circumstances would be warranted
in the belief that his safety or that of others was in danger.” Id. at 27. Under
this standard, the officer’s frisk of the three men passed constitutional muster,
and the Terry stop and Terry frisk entered our jurisprudence.
Here, the officer preformed a Terry frisk of Hunt after removing him
from the vehicle.6 In its 1925(a) Opinion, the court of common pleas stated
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6 We note Hunt conceded in the suppression court that the stop of the car and
his subsequent removal from it were constitutionally permissible. See N.T.,
9/28/22, at 3. His counsel said, the police “can get [him] out of the car; they
can look . . . but then they pat[ted] him down.” Hunt only challenged the pat
down as “unlawful and unconstitutional.” Id.Similarly, we recognize that neither defendant raised Commonwealth
v. Alexander, 243 A.3d 177 (Pa. 2020), at the suppression hearing. Thus,
the suppression court relied upon that decision, sua sponte, to grant the
motions to suppress. As mentioned above, the court of common pleas
recognized that this was error in its 1925(a) Opinion. The Commonwealth
likewise contends that this was error on appeal. See Commonwealth’s Brief,
2719 EDA 2022, at 22. We agree with the Commonwealth and the court of
common pleas; Alexander is not pertinent to the facts of this case, because
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that the search was improper, “because neither officer articulated specific
facts which demonstrated they had the reasonable suspicion necessary to
search [Hunt].” Trial Court Opinion, 12/22/22, at 3. In explaining why, in its
mind, reasonable suspicion was lacking, the court said:
neither Officer Agudo nor Officer Martin articulated specific
facts or inferences which would have demonstrated [Hunt]
may have been armed, dangerous, or a risk to their safety.
First, both officers admitted only the driver was behaving in
a strange manner, which can be easily explained due to
nervousness he felt in experiencing a traffic stop for the first
time. Then, Officer Martin admitted during testimony he
engaged in a lengthy conference with Officer Agudo
regarding how to coerce the vehicle’s occupants to consent
to a search, showing neither officer harbored reasonable
fears regarding the situation. Lastly, Officer Agudo testified
[Hunt] was cooperatively answering their questions and not
showing much nervousness. Therefore, this court disagrees
with the Commonwealth’s contention that either officer had
the reasonable suspicion necessary to search [Hunt] . . . .
Hunt Trial Court Opinion, 12/22/22, at 4-5.
This analysis is erroneous on several grounds. Initially, we observe that
the contentions of the suppression court are based, in part, on its view of the
officer’s subjective lack of fear. Even if the “lengthy conference” that the
officers had “regarding how to coerce the vehicle’s occupations to consent to
a search” proved that the officers’ did not have “reasonable fear,” the officers
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the police did not conduct a warrantless search of the vehicle. They conducted
warrantless searches of persons after they were removed from the car.
Thus, we confine our review to the issue Hunt raised and litigated in the
suppression court – i.e., that Officer Martin conducted an unreasonable Terry
frisk.
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personal fear (or lack thereof) is not part of the constitutional test under
Terry. Id. Instead, the test under Terry is an objective one, regarding
“whether a reasonably prudent man in the circumstances would be warranted
in the belief that his safety or that of others was in danger.” Terry, 392 U.S.
at 27. The level of an officer’s fear or bravery is irrelevant.
The Supreme Court of Pennsylvania has explained, “In order to justify
a frisk under Terry, the officer ‘must be able to point to particular facts from
which he reasonably inferred that the individual was armed and dangerous.’”
Commonwealth v. E.M., 735 A.2d 654, 659 (Pa. 1999) (quoting Sibron v.
New York, 392 U.S. 40, 64, (1968)). Because a warrantless Terry frisk is
permitted with reasonable suspicion, a standard less than probable cause, the
frisk 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.”
Minnesota v. Dickerson, 508 U.S. 366, 373, (1993) (quoting Terry, 392
U.S. at 26).
Additionally, the 1925(a) Opinion fails to consider the totality of the
circumstances. There are two major facts that the suppression court found
that weigh greatly into our analysis of whether Officer Martin had reasonable
suspicion to frisk Hunt, which the suppression court omitted from its analysis.
First, the driver told Officer Martin that they were coming from The
Studio. Due to his seven years’ knowledge of the area, “Officer Martin
immediately recognized ‘The Studio’ as a place from which many illegal
firearms had been recovered in the past.” Hunt Trial Court Opinion,
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J-S20028-23 & J-S20029-23
12/22/22, at 2. This information was the primary reason that this routine
traffic stop elevated to a firearms investigation. If the driver had said, “We’re
coming from Wawa’s,” Officer Martin would likely not have suspected that
illegal guns were in the vehicle, and this case would not exist.
Second, and more importantly, the suppression court found that, when
the police asked Hunt to exit the car, Officer Martin “saw the right side of the
jacket weighed down . . . .” N.T., 9/28/22, at 51. Indeed, Officer Martin
“observed the right side of his jacket weighed down by a heavy object . . . .”
Id. at 10. This made the officer want “to frisk that pocket to make sure it
wasn’t a firearm, because it was a heavy object weighing his jacket down
. . . .” Id.This observation of Hunt’s jacket pocket, when considered with the
totality of the circumstances, renders Officer Martin’s decision to frisk Hunt
eminently reasonable. Officer Martin knew that the men in the car were
leaving a location notorious for trafficking in illegal firearms, the driver was
extremely nervous to the point that he was sweeting on an early March night,
and Hunt had a heavy object visibly weighing down his jacket pocket. A
reasonably prudent person in the Officer Martin’s position might well and
rationally conclude that the heavy object in Hunt’s pocket was one of The
Studio’s illegal firearms.
Finally, the fact that the suppression court found Hunt to be calm and
cooperative with police is irrelevant. It does not render Officer Martin’s
conclusion that Hunt was armed and dangerous any less reasonable. This
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J-S20028-23 & J-S20029-23
Court has held, “cooperation with police does not erase an otherwise valid
belief that a defendant may have access to a gun.” Commonwealth v.
Tuggles, 58 A.3d 840, 844 (Pa. Super. 2012).
Accordingly, we conclude that Officer Martin had reasonable suspicion
to perform a Terry frisk of Hunt. The alternative basis on which the court of
common pleas would have us sustain its erroneous decision to suppress Hunt’s
firearm is unavailing.
The Commonwealth’s second claim of error warrants to appellate relief.
Thus, we reverse the order of suppression as to Hunt and remand his case.
Order at 2717 EDA 2022 affirmed. Order at 2719 EDA 2022 reversed
and remanded for trial.
Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/30/2023
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