Appeal from the Order Entered March 24, 2011 In the Court of Common Pleas of Luzerne County Criminal Division at No(s): CP-40 CR-0001015-2010
The opinion of the court was delivered by: Gantman, J.
BEFORE: STEVENS, P.J., MUSMANNO, J., and GANTMAN, J.
The Commonwealth of Pennsylvania appeals from the order entered in the Luzerne County Court of Common Pleas, granting Appellee's motion to suppress. After review, we hold the court erred when it suppressed the evidence at issue because: (1) the preliminary interaction between Appellee and Officer Wetzel was a mere encounter only; (2) Officer Wetzel's subsequent decision to conduct a frisk for weapons was justified under the circumstances; and (3) Officer Wetzel lawfully seized the drugs inside the SUV as contraband found in plain view. Accordingly, we reverse the order suppressing the evidence and remand for further proceedings.
The relevant facts and procedural history of this case are as follows. Officer Kirk Wetzel of the Hazelton City Police was patrolling in a high crime area*fn1 in Hazelton around 2:30 a.m. on March 10, 2010, when he saw a dark SUV make a right turn from Chestnut Street onto Bennett Street. About a minute later, Officer Wetzel noticed a man walk from the direction where the SUV had turned into an apartment on Bennett Street. Officer Wetzel watched the man enter the building. Officer Wetzel then drove down Bennett Street, where he saw the SUV parked with its headlights on in a private driveway. Officer Wetzel pulled his patrol car behind the SUV and illuminated the car with his spotlight. As Officer Wetzel approached the vehicle, he saw a man in the passenger's seat turn and lean forward. Officer Wetzel was walking alongside the SUV when Appellee suddenly jumped out of the vehicle, leaving the door open and setting off the car alarm. Appellee fumbled in his pockets to find the car key and deactivated the alarm. Officer Wetzel ordered Appellee to keep his hands out of his pockets, but Appellee continued to reach inside his pants and yelled, "I'm not going down for this" and "It's not mine." After his initial non-compliance, Appellee obeyed the officer's commands to calm down and stay still. At this point, Officer Wetzel handcuffed Appellee and patted him down but found no weapons. Officer Wetzel walked back to the open passenger door of the SUV, looked in, and noticed suspected heroin and bags of marijuana on the floor sticking out from beneath the seat. Officer Wetzel described the drugs as small white folded-over wax paper bags in another plastic bag. (N.T. Suppression Hearing, 11/12/10, at 13-15). Based on his training, Officer Wetzel suspected the white substance was heroin because heroin is often packaged in that manner. There were also four bags of suspected marijuana. (Id.)
The substances were later confirmed as heroin and marijuana. Upon Officer Wetzel's discovery, Appellee renewed his objections that he "[was] not going down for this" and claimed "it's not mine"; but he was nevertheless placed under arrest. A search of Appellee incident to arrest produced two cell phones and $1,014.80 in cash.
The Commonwealth charged Appellee with possession with intent to deliver and other drug-related offenses. Appellee filed a motion to suppress the items seized from both his person and the SUV as well as the statements he had made to Officer Wetzel at the time of the incident. On November 12, 2010, the court heard testimony from Officer Wetzel and argument on the motion. Ultimately, the court found Officer Wetzel lacked the necessary justification to pull his car behind the SUV and approach the vehicle, and learned no new facts after Appellee jumped out of the SUV, to authorize a Terry frisk.*fn2 By order dated March 24, 2011, the court suppressed
Appellee's statements and all physical evidence as the product of an illegal detention. On April 8, 2011, the Commonwealth timely filed a notice of appeal.
The Commonwealth raises one issue for our review:
DID THE SUPPRESSION COURT ERR BY SUPPRESSING EVIDENCE OBTAINED FOLLOWING SEARCHES OF APPELLEE AND HIS VEHICLE?
(Commonwealth's Brief at 4).
When the Commonwealth appeals an order suppressing evidence, we may consider on review only the evidence from the defendant's witnesses along with the Commonwealth's evidence that remains uncontroverted. Commonwealth v. Brown, 606 Pa. 198, 203, 996 A.2d 473, 476 (2010). "Our standard of review is restricted to establishing whether the record supports the suppression court's factual findings; however, we maintain de novo review over the suppression court's legal conclusions." Id.
The Commonwealth disagrees with the court's suppression ruling on several grounds. Initially, the Commonwealth argues the preliminary interaction between Officer Wetzel and Appellee was nothing more than a mere encounter, which required no justification. The Commonwealth asserts Officer Wetzel's act of simply walking up to the SUV was consistent with the informal nature of a mere encounter between police and ordinary citizens. Additionally, the Commonwealth avers Officer Wetzel was justified in conducting a pat down search of Appellee based on the facts presented to Officer Wetzel: Appellee jumped out of an SUV in a high crime area and reached into his pockets while simultaneously screaming, "I'm not going down for this." These facts created a reasonable concern for officer safety that justified the limited intrusion of a pat down search. Regarding the drugs found in the front seat of the SUV, the Commonwealth argues Officer Wetzel was justified in seizing those items under the plain view doctrine. Because the SUV door was open, Officer Wetzel was lawfully present at the scene, the items were ...