Com. v. Fields, K. ( 2015 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
KENNETH FIELDS
Appellant No. 1926 EDA 2014
Appeal from the Judgment of Sentence entered June 25, 2014
In the Court of Common Pleas of Philadelphia County
Criminal Division at No: CP-51-CR-0011614-2012
BEFORE: FORD ELLIOTT, P.J.E., STABILE, and FITZGERALD,* JJ.
MEMORANDUM BY STABILE, J.: FILED JULY 28, 2015
Appellant Kenneth Fields appeals from the judgment of sentence
entered in the Court of Common Pleas of Philadelphia County (trial court),
after Appellant was convicted of possession with intent to deliver a
controlled substance (PWID), intentional possession of a controlled
substance, and evidence tampering.1 Upon review, we vacate and remand.
The facts underlying this case are undisputed. As summarized by the
trial court:
On the evening of August 28, 2012, a gunman shot a
victim near the intersection of 52nd Street and Girard Avenue in
a high-crime area of Southwest Philadelphia. Fortunately, a
surveillance camera captured video of the gunman as he
committed the shooting. From this video, authorities extracted
____________________________________________
*
Former Justice specially assigned to the Superior Court.
1
35 P.S. § 780-113(a)(30), (16), and 18 Pa.C.S.A. § 4910(1).
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several low-resolution photographs of the gunman, disseminated
those photographs to certain police officers, and instructed those
officers to search and patrol the intersection and its general
vicinity.
Uniformed Philadelphia Police Officer Darnell Jessie and his
partner searched and patrolled the area on August 31, 2012 at
approximately 12:40 a.m. and observed as [Appellant] walked
through a dark field near the intersection where the shooting
occurred. Believing that [Appellant] resembled the gunman in
the photograph, Officer Jessie and his partner approached
[Appellant] and requested his identification.
After [Appellant] produced his identification, Officer Jessie
and his partner returned to their vehicle to determine whether
authorities had issued any arrest warrant for [Appellant]. While
he stood at the vehicle, Officer Jessie observed that [Appellant]
“was trying to reach his hands back into his pocket.” This
sudden movement alarmed Officer Jessie because [Appellant]
already retrieved his identification from his pocket. Fearing that
[Appellant] may retrieve a firearm, Officer Jessie approached
[Appellant] and initiated a brief “safety pat frisk” of [Appellant’s]
outer garments.
Upon commencing the frisk, Officer Jessie felt objects in
the pocket of [Appellant’s] outer garment and immediately
recognized that the objects were consistent with the feel and
texture of packaged crack cocaine. Officer Jessie testified that
his familiarity with this type of packaging was based upon his
prior participation in numerous arrests of persons in possession
of similarly packaged crack cocaine. However, Officer Jessie did
not have the opportunity to conduct a thorough investigation:
immediately after Officer Jessie felt the packaged crack cocaine,
[Appellant] fled on foot.
During the ensuing pursuit, Officer Jessie never lost sight
of [Appellant]. He observed as [Appellant] crossed 52nd Street
and Girard Avenue, stopped at a sewer grate, reached into his
pocket, retrieved “some items” from the pocket, and threw those
items into the sewer. Immediately thereafter, [Appellant] raised
his hands and lay on the ground. [Appellant] volunteered that
he fled because he was on probation and had “weed” in his
possession. Officer Jessie then arrested [Appellant].
After placing [Appellant] in handcuffs, Officer Jessie
returned to the sewer where he had observed [Appellant]
discarding his items. When he peered into the sewer, Officer
Jessie saw a clear plastic bag that contained several packets of
crack cocaine. Officer Jessie retrieved the plastic bag and its
contents, and he placed the packaged crack cocaine on a
property receipt.
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Trial Court Opinion, 10/2/14, at 2-3. Thereafter, Appellant was charged with
PWID, intentional possession of a controlled substance, and evidence
tampering in connection with his possession of crack cocaine. Appellant filed
a motion to suppress the seized crack cocaine. Following a hearing, the trial
court denied Appellant’s suppression motion on March 21, 2014.
On April 25, 2014, the trial court found Appellant guilty of the charged
offenses and on June 25, 2014, the trial court sentenced Appellant to 11½ to
23 months’ imprisonment, followed by five years of reporting probation.
Appellant timely appealed to this Court. Upon the trial court’s direction,
Appellant filed a Pa.R.A.P. 1925(b) statement of errors complained of on
appeal, arguing only that the trial court erred in denying his motion to
suppress. In response, the trial court issued a Pa.R.A.P. 1925(a) opinion,
concluding it did not err in denying Appellant’s suppression motion.
On appeal, Appellant raises five issues for our review:
I. Whether Appellant’s interactions with police rose from a mere
encounter to an investigatory detention when [p]olice retained
Appellant’s identification for the purpose of a warrant search?
II. Whether there was a reasonable suspicion to stop [A]ppellant
based on alleged resemblance to a suspected shooter?
III. Whether Appellant’s furtive movements alone supported a
finding of reasonable suspicion to frisk for weapons?
IV. Whether the search of Appellant went beyond the bounds of
a frisk for weapons?
V. Whether any contraband recovered by police[] was the
product of forced abandonment, and was the fruit of a seizure,
not supported by probable cause, and should be suppressed?
Appellant’s Brief at 3.
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In reviewing appeals from an order denying suppression, our standard
of review is limited to determining
whether [the trial court’s] factual findings are supported by the
record and whether [its] legal conclusions drawn from those
facts are correct. When reviewing the rulings of a [trial] court,
the appellate court considers only the evidence of the
prosecution and so much of the evidence for the defense as
remains uncontradicted when read in the context of the record
as a whole. When the record supports the findings of the [trial]
court, we are bound by those facts and may reverse only if the
legal conclusions drawn therefrom are in error.
Commonwealth v. Griffin, 2015 PA Super 117, __ A.3d __, 2015 WL
2193891, at *2 (filed May 12, 2015). Our scope of review is limited to the
evidence presented at the suppression hearing. In the interest of L.J., 79
A.3d 1073, 1088-89 (Pa. 2013).
Appellant first argues the trial court erred in concluding that his
interaction with Officer Jessie escalated from mere encounter to
investigatory detention when Officer Jessie took Appellant’s identification to
the police cruiser for purposes of checking for outstanding warrants. We
agree.
Article I, Section 8 of the Pennsylvania Constitution and the Fourth
Amendment to the United States Constitution protect the people from
unreasonable searches and seizures. Commonwealth v. Lyles, 97 A.3d
298, 302 (Pa. 2014) (citation omitted). The Lyles Court explained:
Jurisprudence arising under both charters has led to the
development of three categories of interactions between citizens
and police. The first, a “mere encounter,” does not require any
level of suspicion or carry any official compulsion to stop and
respond. The second, an “investigatory 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.
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In evaluating the level of interaction, courts conduct an
objective examination of the totality of the surrounding
circumstances. . . . The totality-of-the-circumstances test is
ultimately centered on whether the suspect has in some way
been restrained by physical force or show of coercive authority.
Under this test, no single factor controls the ultimate conclusion
as to whether a seizure occurred—to guide the inquiry, the
United States Supreme Court and [our Supreme] Court have
employed an objective test entailing a determination of whether
a reasonable person would have felt free to leave or otherwise
terminate the encounter. What constitutes a restraint on liberty
prompting a person to conclude that he is not free to leave will
vary, not only with the particular police conduct at issue, but
also with the setting in which the conduct occurs.
[Our Supreme] Court and the United States Supreme
Court have repeatedly held a seizure does not occur where
officers merely approach a person in public and question the
individual or request to see identification. Officers may request
identification or question an individual so long as the officers do
not convey a message that compliance with their requests is
required. Although police may request a person’s identification,
such individual still maintains the right to ignore the police and
go about his business.
Id. at 302-03 (internal citations and quotation marks omitted). The Court
further explained that “a request for identification does not in and of itself
elevate what would otherwise be a mere encounter into an investigative
detention.” Id. at 304 (emphasis in original). Despite this general principle,
however, “an encounter involving a request could rise to a detention when
coupled with circumstances of restraint of liberty, physical force, show of
authority, or some level of coercion beyond the officer’s mere employment,
conveying a demand for compliance or that there will be tangible
consequences from a refusal.” Id. A mere encounter escalates to
investigatory detention when a police officer takes and maintains possession
of an individual’s identification card to check whether the individual has any
outstanding warrants. Commonwealth v. Hudson, 995 A.2d 1253, 1258-
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59 (Pa. Super. 2010); see also Lyles, 97 A.3d at 306 (noting that the
police officer’s interaction with appellant did not rise to investigatory
detention where “[t]he officer did not question appellant further while he
was holding the identification, and he did not use appellant’s
information to run a background check”) (emphasis added).
In Hudson, a police officer observed appellant outside of a corner
grocery store with an adult male. The officer drove past the store several
times over the course of an hour and saw appellant go inside the store
whenever appellant noticed the police cruiser. On his third drive-by, the
officer approached appellant as he was walking down a street with another
man. Following a brief conversion, the officer asked the two men whether
they had identification. They did. Appellant and his male companion
provided their Pennsylvania identification cards. Upon receipt, the officer
took their identification cards to the police cruiser to run a warrant and
scofflaw check. Ultimately, it turned out that appellant had a scofflaw
warrant for a summary harassment charge. The officer arrested appellant
and, incident to the arrest, searched appellant’s person and discovered
drugs and cash.
Based on these facts, the Hudson Court concluded the officer
“effectuated an investigative detention at the time that [the officer] took and
maintained possession of [appellant’s] identification.” 995 A.2d at 1259.
The Hudson Court also concluded that the officer did not have reasonable
suspicion to detain appellant for investigation because the officer at best
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“observed [appellant] meeting with three men and walking into and out of a
grocery store, all of which are lawful activities.” Id. Accordingly, the
Hudson Court held that the officer’s investigative detention of appellant was
constitutionally infirm and, as a result, overruled the trial court’s denial of
appellant’s motion to suppress the seized evidence. In so doing, this Court,
inter alia, vacated appellant’s judgment of sentence.
In light of Hudson, we are constrained to agree with Appellant that
his interaction with the police escalated to an investigative detention when
Officer Jessie took Appellant’s identification to the police cruiser to search for
outstanding warrants. At the suppression hearing, Officer Jessie testified, “I
then took that [identification] from [Appellant], walked back to the patrol
vehicle to give my partner [the identification] to see if there are no
outstanding warrants.” N.T. Suppression, 3/21/14, at 11. Accordingly, the
trial court erred in concluding that Appellant’s interaction with the police
amounted to a mere encounter.
Our inquiry, however, does not terminate here. Because the police
detained Appellant for investigatory purposes, we must determine whether
the police had reasonable suspicion for so doing. It is settled that
reasonable suspicion necessary for investigative detentions
is a less demanding standard than probable cause not only in the
sense that reasonable suspicion can be established with
information that is different in quantity or content than that
required to establish probable cause, but also in the sense that
reasonable suspicion can arise from information that is less
reliable than that required to show probable cause.
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Commonwealth v. Davis, 102 A.3d 996, 1000 (Pa. Super. 2014) (citations
omitted). “In order to justify an investigative detention, the police must
have reasonable suspicion that criminal activity is afoot. Reasonable
suspicion must be based on specific and articulable facts, and it must be
assessed based upon the totality of the circumstances viewed through the
eyes of a trained police officer.” Commonwealth v. Williams, 980 A.2d
667, 672 (Pa. Super. 2009) (citation omitted), appeal denied, 990 A.2d
730 (Pa. 2010). Thus, “[t]he determination of whether an officer had
reasonable suspicion that criminality was afoot so as to justify an
investigatory detention is an objective one, which must be considered in
light of the totality of the circumstances.” Commonwealth v. Holmes, 14
A.3d 89, 96 (Pa. 2011) (emphasis added). In assessing the totality of the
circumstances, a court must give weight to the inferences that a police
officer may draw through training and experience. Id. at 95.
In the case sub judice, the facts from the suppression hearing indicate
that the police were searching for a gunman who shot someone near the
intersection of 52nd Street and Girard Avenue, a high-crime neighborhood, in
Southwest Philadelphia on August 28, 2012. Officer Jessie and his partner
were provided a low-resolution picture of the gunman taken from a
surveillance video. N.T. Suppression, 3/21/14, at 8-9. Officer Jessie
testified that, on August 31, 2012, at 12:40 a.m., three days later, in the
dark of the night, he spotted Appellant walking through an unlit field, one
block from the site of the shooting. Id. at 8-9. Officer Jessie further
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testified that, believing Appellant resembled the gunman, he approached
Appellant to investigate. Id. at 10. On cross-examination, however, Officer
Jessie acknowledged that, at the time of arrest, Appellant had “serious male-
pattern balding” and “a very short mustache” and the gunman in the low-
resolution picture had a “full set of hair” and “a large beard.” Id. at 16-18.
Thus, given the totality of the circumstances here, we cannot conclude
Officer Jessie objectively had reasonable suspicion to detain Appellant for
purposes of investigating the shooting. Officer Jessie’s belief that Appellant
resembled the person in the low-resolution photo was not reasonable.
Accordingly, we conclude the trial court erred in denying Appellant’s motion
to suppress the crack cocaine. We vacate Appellant’s judgment of sentence
and remand the matter to the trial court for further proceedings, including a
new trial or discharge of Appellant.2
Judgment of sentence vacated. Case remanded for further
proceedings. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/28/2015
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2
Based on the outcome of this case, we need not address Appellant’s
remaining arguments.
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