July 22, 2013
COMMONWEALTH OF PENNSYLVANIA, Appellee
DENNIS PATTON, Appellant
Appeal from the Judgment of Sentence May 30, 2012 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0000691-2010
BEFORE: LAZARUS, J., OLSON, J., and FITZGERALD, J. [*]
Dennis Patton appeals from the judgment of sentence entered in the Court of Common Pleas of Philadelphia County after he was convicted, following a non-jury trial, of possession with intent to deliver a controlled substance (PWID) and possession of a controlled substance. Upon review, we affirm.
The Honorable Adam Beloff set forth the facts of the case as follows:
At a suppression hearing, the Commonwealth presented the testimony of Officer Hagan of the Philadelphia Police Department. Officer Hagan was assigned to the 'tactical unit' of the 17th police district in Philadelphia on January 5, 2011. In the 17th district, it is the responsibility of the tactical unit to 'address all high violent crimes in the area.' On the night at issue, Officer Hagan and his partner were instructed by their captain to patrol the '21st and Dickinson corridor' due to the fact that there had been a shooting earlier in the day and the prior night. The two shootings in the area occurred in less than a 24 hour period.
At approximately 9 p.m., Officer Hagan saw Defendant on the corner of 21st and Dickinson Streets standing in a large group of men. As Officer Hagan and his partner approached the group, in uniform and a marked police vehicle, the crowd immediately dispersed upon seeing the officers. As Defendant walked away from the group, he reached into his jacket pocket and repeatedly adjusted an object. The officer described, and demonstrated, the motion made by Defendant as a repeated movement of his hand grasping an object near Defendant's belt on the right side of Defendant's body. Based upon, inter alia, the time of night, the location, the prior shootings, the behavior of Defendant and the men he was with upon seeing police, and the hand movements of Defendant, Officer Hagan and his partner suspected that Defendant may have been carrying a gun in the area he repeatedly adjusted.
During his seven years as a police officer, Officer Hagan made more than 60 arrests for possession of a firearm. In addition to carrying a firearm as part of his duties, Officer Hagan received extensive training from the ATF relating to 'weapons carrying.' His training and experience informed the officer that 90 per cent of weapons are carried by people at their waist. With respect to the block that Defendant was arrested on, Officer Hagan arrests four to five people each week for narcotics violations, and has arrested two or three men for possessing guns on that block.
Based upon his belief that Defendant was armed, Officer Hagan stopped Defendant and performed a patdown of Defendant's waist area. Officer Hagan testified that 'As soon as I felt the waistline, I felt a package which had — consistent with narcotics in his right jacket pocket.' The 'jacket' worn by Defendant was not 'puffy' and was described by the officer as 'a sweatshirt.' The package proved to be 80 individual packets of heroin 'bundled' together with rubber bands. Officer Hagan received training in the recognition of drugs, drug trafficking, and drug sales. In addition, Officer Hagan was assigned to the Narcotic Enforcement Team in the 17th district for two-and-a-half years prior to the date in question. Officer Hagan testified that, when banded together in the same manner as Defendant's heroin, bundled heroin has a 'distinctive' feel. The officer testified that as a result of his experience he knew that the bundle of 80 packets of heroin was narcotics as soon as he put his hand on it. Finally, Officer Hagan testified that he immediately removed the object which he recognized to be heroin.
After recovering the heroin from Defendant, Officer Hagan also recovered $509 in cash.
Trial Court Opinion, 7/12/2012, at 1-3 (citations omitted).
On July 13, 2012, Patton moved to suppress the heroin seized by Officer Hagan. Judge Beloff denied the motion. Patton proceeded to trial, and Judge McDermott found him guilty. On May 30, 2012, Judge McDermott sentenced Patton to 2 to 4 years' incarceration to be followed by 2 years' probation on the PWID charge, with no further penalty on the possession charge. This timely appeal followed.
Patton raises the following issue for our review:
Did not the lower court err in denying [Patton's] motion to suppress in contravention of both the Federal and State Constitutions as the police illegally seized and searched appellant without reasonable suspicion, and the drugs and money subsequently recovered were the fruit of this initial illegality?
Appellant's Brief, at 3.
The Fourth Amendment to the U.S. Constitution provides: "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated. . . ." U.S. Const. amend. IV. Article I, Section 8 of the Pennsylvania Constitution echoes this language. "In deciding whether reasonable suspicion exists for an investigatory stop, our analysis is the same under both Article I, § 8 and the Fourth Amendment." Commonwealth v. Taggart, 997 A.2d 1189, 1193 (Pa. Super. 2010).
Our Supreme Court has explained:
It is well established that a police officer may conduct a brief investigatory stop of an individual if the officer observes unusual conduct which leads him to reasonably conclude, in light of his experience, that criminal activity may be afoot. Terry v. Ohio, 392 U.S. 1 (1968); Commonwealth v. Lewis, 636 A.2d 619, 623 (Pa. 1994). An investigatory stop subjects a person to a stop and a period of detention, but does not involve such coercive conditions as to constitute the functional equivalent of an arrest. Commonwealth v. Ellis, 662 A.2d 1043, 1047 (Pa. 1995). Such an investigatory stop is justified only if the detaining officer can point to specific and articulable facts, which, in conjunction with rational inference derived from those facts, give rise to a reasonable suspicion of criminal activity and therefore warrant the intrusion. Commonwealth v. Murray, 331 A.2d 414, 418 (Pa. 1975).
Commonwealth v. E.M., 735 A.2d 654, 659 (Pa. 1999).
The Supreme Court of the United States has noted that the "central inquiry" of any search and seizure analysis is "the reasonableness . . . of the particular governmental invasion of a citizen's personal security." Terry, 392 U.S. at 19. Reasonableness depends on a balance between the public interest and the accused's right to be free from arbitrary intrusion by police. Id. at 20-21.
When evaluating a suppression order, we must determine whether the factual findings of the suppression court are supported by the record. Commonwealth v. Hernandez, 935 A.2d 1275, 1280 (Pa. 2007). Where the record supports the factual findings of the suppression court, an appellate court may only reverse when the suppression court's legal conclusions are in error. Id.
In the instant case, Patton explicitly adopts Judge Beloff's factual findings, and so we examine this case for legal error only. Appellant's Brief, at 5-6; see Hernandez, id. Based on the uncontested factual record, Officer Hagan knew the following when he stopped Patton: 1) he was in a high crime area where two shootings had occurred in the past 24 hours (N.T. Trial, 7/13/2010, at 10); 2) Patton began walking away from a group of men as Officer Hagan approached (Id. at 8); and, 3) Patton reached into his jacket pocket and repeatedly adjusted an object in a manner Officer Hagan thought indicated he was carrying a gun at his waist (Id.). Officer Hagan had no information about Patton independent of what he observed in the minutes before he initiated the stop and search.
The officer making a Terry stop must be able to articulate something more than an inchoate and unparticularized hunch. Alabama v. White, 496 U.S. 325, 329 (1990) (citation and quotation omitted). However, "reasonable suspicion does not require that the activity in question must be unquestionably criminal before an officer can further investigate." Commonwealth v. Rogers, 849 A.2d 1185 (Pa. 2004) (citation omitted). "The fundamental inquiry [as to reasonable suspicion] is an objective one . . . that requires an evaluation of the totality of the circumstances." Commonwealth v. Zhahir, 751 A.2d 1153, 1156 (Pa. 2000). Facts that taken alone do not establish reasonable suspicion may do so when taken together. Commonwealth v. Cook, 735 A.2d 673 (Pa. 1999).
Patton was present, at night, in a high crime area where Office Hagan had made arrests for firearms and narcotics offenses. Two shootings had recently taken place there, one earlier that day. The officer's knowledge of these circumstances supported his suspicion that criminal activity might be afoot. Illinois v. Wardlow, 528 U.S. 119 (2000) (occurrence of stop in high crime area supports existence of reasonable suspicion). See also Commonwealth v. Foglia, 979 A.2d 357, 361 (Pa. Super. 2009) (en banc).
Upon seeing police, Patton and the individuals he was speaking with ended their conversation and scattered. This reaction also supported a finding of reasonable suspicion. See Wardlow, 528 U.S. at 124 ("nervous, evasive behavior is a pertinent factor in determining reasonable suspicion."). See also Commonwealth v. Smith, 979 A.2d 913, 920 (Pa. Super. 2009) (walking away when police arrived was factor supporting conclusion that criminal activity was afoot).
Additionally, as Patton left the area, he grabbed an item concealed in his jacket pocket near his waist. In light of the officer's training and experience that a significant percentage of people who carry firearms carry them on their waist, Patton's conduct provided an additional basis for the officer to believe that Patton possessed a weapon. See Foglia, supra (where officer was aware, based on experience, that weapons are often concealed in a person's waistband, observation of individual patting his waistband supported reasonable suspicion that he was armed).
Accordingly, the totality of the circumstances provided an objectively reasonable basis for Officer Hagan to suspect that Patton was engaged in criminal activity.
Patton next argues that even if Officer Hagan had reasonable suspicion to stop him and investigate, he lacked sufficient grounds to frisk him. We disagree. It is well settled that an officer conducting an investigatory stop may frisk a suspect for weapons where "he has reason to believe that he is dealing with an armed and dangerous individual." Terry, 392 U.S. at 27. In assessing the propriety of a protective frisk, a reviewing court "must be guided by common sense concerns that give priority to the safety of the police officer during an encounter with a suspect where circumstances indicate that the suspect may have, or may be reaching for, a weapon." Commonwealth v. Stevenson, 894 A.2d 759, 772 (Pa. Super. 2006). In light of the evidence that Patton grabbed at a concealed item near his waistband, the officer was justified in frisking Patton before continuing his investigation. See Zhahir, supra (frisk proper where officer was investigating suspected drug dealer, at 8:00 pm, in an area known for drug activity, and defendant had a hand in his pocket). See also Foglia, supra (frisk proper where officer investigating suspected possession of a weapon, saw defendant pat his waistband).
While frisking Patton, Officer Hagan felt a package that he recognized as narcotics. Under the plain feel doctrine, an officer "may properly seize non-threatening contraband detected through the sense of touch during a protective frisk for weapons." Zhahir, supra at 1158. The doctrine applies to items "immediately apparent" as contraband, a term "coextensive with probable cause." Id. at 1163. Probable cause exits if the facts available to the officer would warrant a person of reasonable caution in the belief that an object may be contraband or evidence of a crime. Commonwealth v. Kendrick, 490 A.2d 923, 927 (Pa. Super. 1985) (citation omitted). Probable cause will be found when criminality is one reasonable inference; it need not be the only, or even the most likely inference." Commonwealth v. Romero, 673 A.2d 374, 377 (Pa. Super. 1996).
As Officer Hagan patted down Patton's waist, he immediately felt a plastic bag with smaller bunches inside it, wrapped in a distinctive manner used to package heroin. The officer's impressions of the bag were sufficient to give an experienced officer probable cause to believe that Patton possessed illegal drugs. See Zhahir, supra (plain feel seizure proper where officer felt numerous vials of cocaine in a type of container he knew from previous narcotics cases). See also Commonwealth v. Parker, 957 A.2d 311 (Pa. Super. 2008) (plain feel seizure proper where, based on experience, officer recognized plastic bags in suspect's pockets containing hard rigid objects consistent with packaged crack cocaine).
Accordingly, the suppression court did not err in concluding that Officer Hagan had reasonable suspicion to stop and frisk Patton and that he properly seized the contraband.
Judgment of sentence affirmed.