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[U] Commonwealth v. Ray

Superior Court of Pennsylvania

February 4, 2014

COMMONWEALTH OF PENNSYLVANIA, Appellant
v.
BRIAN ANTHONY RAY, Appellee

NON-PRECEDENTIAL DECISION

Appeal from the Order entered May 14, 2013, in the Court of Common Pleas of Blair County, Criminal Division, at No(s): CP-07-CR-0001364-2012

BEFORE: BOWES, ALLEN, and MUSMANNO, JJ.

MEMORANDUM

ALLEN, J.

The Commonwealth of Pennsylvania ("Commonwealth") appeals from the trial court order granting the suppression motion filed by Appellee, Brian Anthony Ray ("Ray"). We affirm.

The trial court summarized the pertinent facts as follows:
On May 12, 2012, at around 3:00 A.M., Officer Crist of the Altoona Police Department arrived at the Sheetz gas station on 13th Street in Altoona, Pa in response to a 911 anonymous call complaining of a number of African Americans yelling racial epithets at each other. The 911 caller identified a silver car and blue SUV as belonging to the offending individuals. Officer Crist did not view any unlawful behavior upon arriving at the Sheetz. He did, however, view a silver car and a blue SUV, both legally parked in parking spots. Officer Crist testified that for his own safety, he parked his police cruiser directly behind the silver car and activated his overhead lights. Officer Crist then exited his police cruiser and approached [Ray] in the driver's seat of the silver car. During their brief conversation, Officer Crist testified that [Ray] appeared nervous, rubbing his thighs repeatedly and sticking his hands into his pockets multiple times when asked for identification. Officer Snyder, who appeared soon after Officer Crist made contact with [Ray], testified that he viewed [Ray] breathing heavily through the passenger side window. Based on his knowledge that this particular Sheetz is a high crime area at that time of night and because [Ray] was acting nervous, Officer Crist asked [Ray] to exit the car. He and Officer Snyder then executed a pat down, during which they [retrieved a clear plastic bag of a white substance they believed to be cocaine. Additionally, Officer Snyder observed a bag in the cup holder of Ray's vehicle that was similar to the bag found on Ray's person].

Trial Court Opinion, 5/10/13, at 1-2; N.T., 3/21/13, at 42.

Ray was arrested and subsequently charged with conspiracy, possession of a controlled substance with intent to deliver, possession of a firearm by a prohibited person, receiving stolen property, carrying a firearm without a license, possession of a controlled substance, possession of drug paraphernalia, driving while operating privileges were suspended, driving without a license, and unauthorized use of an automobile. On November 8, 2012, Ray filed a motion to suppress evidence gathered as a result of his encounter with the police. The trial court conducted a hearing on March 21, 2013, and on May 10, 2013, entered an order granting Ray's suppression motion.[1] The Commonwealth filed a notice of appeal on June 6, 2013, certifying that the trial court order would terminate or substantially handicap its prosecution of Ray's case.

The Commonwealth raises the following issues on appeal:
1. Did the Trial Court/Common Pleas Court err in suppressing the evidence found in the rental vehicle when [Ray] had no legitimate expectation of privacy to that vehicle?
2. Did the Trial Court/Common Pleas Court err in suppressing the evidence found on [Ray's] person and in the rental vehicle based on the police stop?
3. Did the Trial Court/Common Pleas Court err in suppressing the evidence found in the rental vehicle as the evidence would have been inevitably discovered by the police?

Commonwealth Brief at 4.

Our standard of review when the Commonwealth appeals from a suppression order is as follows:

[W]here a motion to suppress has been filed, the burden is on the Commonwealth to establish by a preponderance of the evidence that the challenged evidence is admissible. Pa.R.Crim.P. 323(h). In reviewing the ruling of a suppression court, our task is to determine whether the factual findings are supported by the record. If so, we are bound by those findings. Where, as here, it is the Commonwealth who is appealing the decision of the suppression court, we must consider only the evidence of the defendant's witnesses and so much of the evidence for the prosecution as read in the context of the record as a whole remains uncontradicted. Moreover, if the evidence supports the factual findings of the suppression court, this Court will reverse only if there is an error in the legal conclusions drawn from those findings.

Commonwealth v. Powell, 994 A.2d 1096 (2010) citing Commonwealth v. DeWilt, 608 A.2d 1030, 1031 (Pa. 1992) and Commonwealth v. Reddix, 513 A.2d 1041, 1042 (Pa.Super. 1986). Moreover, "[i]t is within the suppression court's sole province as factfinder to pass on the credibility of witnesses and the weight to be given to their testimony. The suppression court is free to believe all, some or none of the evidence presented at the suppression hearing." Commonwealth v. Elmobdy, 823 A.2d 180, 183 (Pa.Super. 2003) (citations omitted).

The Commonwealth's suppression issues are interrelated. In its first issue, the Commonwealth argues that the trial court erred in granting Ray's suppression motion because Ray had no legitimate expectation of privacy in the vehicle to challenge the search of the vehicle. Before we consider whether Ray had an expectation of privacy to challenge the search of the vehicle, however, we must address the Commonwealth's second issue regarding whether Ray was subjected to seizure when approached by the police and if so, whether that seizure was valid. See Brendlin v. Californa, 551 U.S. 249, 254 127 S.Ct. 2400, 2405 (2007) (citations and internal quotations omitted) ("A person is seized by the police and thus entitled to challenge the government's action under the Fourth Amendment when the officer by means of physical force or show of authority terminates or restrains his freedom of movement."); Commonwealth v. Simmons, 17 A.3d 399, 403 (Pa.Super. 2011) ("If either the seizure ... or the search ... is found to be unreasonable, the remedy is to exclude all evidence derived from the illegal government activity.").

Here, the trial court granted suppression on the basis that Officer Crist initially conducted an illegal seizure of Ray's person. Trial Court Opinion, 5/10/13, at 2-7. See Commonwealth v. By, 812 A.2d 1250, 1254-1255 (Pa.Super. 2002) ("If a defendant's initial detention violates the Fourth Amendment, then any evidence seized during that stop must be excluded as fruit of an unlawful detention, absent a demonstration by the government both of a sufficient break in the causal chain between the illegal detention and the seizure of evidence, thus assuring that the search is not an exploitation of the prior illegality, and of voluntariness); Commonwealth v. Wilmington, 729 A.2d 1160, 1174 (Pa.Super. 1999) (An investigative detention constitutes a seizure of a person and thus activates constitutional protections and in the absence of reasonable suspicion, such a seizure requires suppression of all evidence obtained as a result thereof) (citations omitted); Commonwealth v. Mulholland, 794 A.2d 398 (Pa.Super. 2002) (affirming suppression of evidence obtained from an investigative detention unsupported by reasonable suspicion).

The Commonwealth challenges the trial court's determination that Officer Crist's interaction with Ray constituted a seizure, and asserts instead that the interaction was a mere encounter. Commonwealth Brief at 12-15. In Pennsylvania, there are three categories of interaction between the police and members of the public: 1) mere encounters, which are characterized by the fact that the suspect has no official compulsion to stop or respond to the police, and which need not be supported by any level of suspicion; 2) investigative detentions, in which suspects are required to stop and submit to a period of detention, but are not subject to such coercive conditions to qualify as an arrest, and which must be supported by reasonable suspicion; and 3) arrests, or custodial detentions, which must be supported by probable cause. Commonwealth v. Astillero, 39 A.3d 353, 357-358 (Pa.Super. 2012).

To determine whether a mere encounter rises to the level of an investigatory detention, we must discern whether, as a matter of law, the police conducted a seizure of the person involved. To decide whether a seizure has occurred, a court must consider all the circumstances surrounding the encounter to determine whether the demeanor and conduct of the police would have communicated to a reasonable person that he or she was not free to decline the officer's request or otherwise terminate the encounter. Thus, the focal point of our inquiry must be whether, considering the circumstances surrounding the incident, a reasonable person innocent of any crime would have thought he was being restrained had he been in the defendant's shoes.

Commonwealth v. Collins, 950 A.2d 1041, 1046-1047 (Pa.Super. 2008) quoting Commonwealth v. Reppert, 814 A.2d 1196, 1201–1202 (Pa.Super. 2002). See also Commonwealth v. Au, 42 A.3d 1002, 1004 (Pa. 2012).

The trial court determined that Officer Crist subjected Ray to a seizure, explaining that "[Ray's] movements were indeed restrained when Officer Crist parked his car directly behind [Ray's] legally parked car." Trial Court Opinion, 5/10/13, at 3. Because "Officer Crist both activated his overhead lights and he positioned his vehicle so as to block the car that [Ray] was seated in from exiting the parking lot", the trial court concluded that the interaction with Ray constituted "something more than a mere encounter." Id. at 4 (internal quotations omitted).

The record supports the trial court's determination that Officer Crist effectuated a seizure when he blocked Ray's parked car, and utilized the lights and sirens on his police vehicle. At the suppression hearing, Officer Crist testified that he parked his police cruiser behind Ray's vehicle in a manner that prevented Ray from driving away. N.T., 3/21/13, at 39, 45. Accordingly, the record reflects that Ray was not free to terminate the encounter and depart, and as such, was subjected to a seizure. Moreover, Officer Crist's use of his lights and siren further indicate that Ray was not free to leave. See Commonwealth v. DeHart, 745 A.2d 633 (Pa.Super. 1999) (where, without reasonable suspicion, police officers approached a vehicle, blocking its egress, and exited the police vehicle to confer with the occupants, the occupants were subject to an invalid investigatory detention, and the trial court properly suppressed evidence discovered as a result of the interaction); Commonwealth v. Krisko, 884 A.2d 296, 299-300 (Pa.Super. 2005) ("[a]ctivation of overhead lights are a strong indication of an investigative detention"). Based on the foregoing, we agree with the trial court that Officer Crist subjected Ray to an investigative detention which required reasonable suspicion to be valid.

Having determined that Ray was subjected to seizure, the trial court concluded that Officer Crist lacked the requisite reasonable suspicion to effectuate the seizure. The trial court explained:

A police officer may detain a suspect if the officer 'observes unusual conduct which leads him to reasonably conclude, in light of his experience, that criminal activity may be afoot.' 'Such an investigatory stop is justified only if the detaining officer can point to specific and articulable facts which, in conjunction with rational inference[s] derived from those facts, give rise to a reasonable suspicion of criminal activity and therefore warrant an intrusion.'
An anonymous phone call accurately describing an individual at a certain place and alleging criminal activity does not present 'specific and articulable facts' upon which a police officer may conduct an investigative detention as '[s]omething more is needed to corroborate the caller's allegations of criminal conduct.'
Here, there were no 'specific and articulable facts' that suggested criminality was afoot and Officer Crist did not observe anything that would corroborate the anonymous caller's allegations.

Trial Court Opinion, 5/10/13, at 5-7 (citations and internal quotations omitted).

We agree with the trial court that Officer Crist's interaction with Ray was unsupported by reasonable suspicion. Officer Crist testified that his interaction with Ray was based on an anonymous report of a disturbance involving a silver car and blue SUV. Upon arrival at the scene, Officer Crist observed two vehicles matching the descriptions reported, and described the location as a high crime area. We find no error in the trial court's determination that these factors did not provide Officer Crist with reasonable suspicion to effectuate a seizure.

In deciding whether reasonable suspicion exists for an investigatory detention, the fundamental inquiry is an objective one, namely, whether the facts available to the officer at the moment of the intrusion warrant a man of reasonable caution in the belief that the action taken was appropriate. This assessment, like that applicable to the determination of probable cause, requires an evaluation of the totality of the circumstances, with a lesser showing needed to demonstrate reasonable suspicion in terms of both quantity or content and reliability. Among the factors to be considered in establishing a basis for reasonable suspicion are tips, the reliability of the informants, time, location, and suspicious activity, including flight.
While a tip can be a factor, an anonymous tip alone is insufficient as a basis for reasonable suspicion. Such anonymous tips must be treated with particular suspicion. Likewise, flight alone does not form the basis for reasonable suspicion. A combination of these factors may, however, be sufficient.

Commonwealth v. Gray, 784 A.2d 137, 142 (Pa.Super. 2001) (citations omitted). "[I]f police receive unverified information from an unknown person, which consists solely of a generalized description of a person allegedly engaged in criminal activity at a particular location, that information, in and of itself, does not provide the police with the requisite reasonable suspicion to detain and search an individual who merely happens to be at the specified location and who matches the general description given by the informant." Commonwealth v. Hayward, 756 A.2d 23, 29-30 (Pa.Super. 2000) (citations omitted). "Some other independent corroboration of the individual's involvement in criminal activity is required. Mere presence alone of an individual at a particular place, as described by the anonymous informant, does not establish that the individual is engaged in criminal activity." Id. See also In re M.D., 781 A.2d 192, 197 (Pa.Super. 2001) (while a tip can be a factor, an anonymous tip alone is insufficient as a basis for reasonable suspicion and must be treated with particular suspicion; likewise, presence in a high crime area alone or flight alone does not form the basis for reasonable suspicion, but a combination of these factors may be sufficient); Commonwealth v. Hawkins, 692 A.2d 1068, 1070-1071 (Pa. 1997) ("If the police respond to an anonymous call that a particular person at a specified location is engaged in criminal activity, and upon arriving at the location see a person matching the description but nothing more, they have no certain knowledge except that the caller accurately described someone at a particular location[;] [s]omething more is needed to corroborate the caller's allegations of criminal conduct").

Here, Officer Crist arrived at the scene in response to an anonymous report of a disturbance with people yelling racial epithets at each other. The disturbance alone was not indicative of criminal activity. Upon arriving at the scene, Officer Crist did not observe Ray or others engaged in any disturbance, and did not see suspicious activity, an attempt at flight, or anything that would otherwise indicate possible criminal activity. We therefore agree with the trial court that Officer Crist lacked reasonable suspicion that Ray was involved in criminal activity. Thus, the seizure of Ray based solely on the uncorroborated anonymous report of people yelling at each other in a high crime area, was constitutionally impermissible. See Commonwealth v. McClease, 750 A.2d 320 (Pa.Super. 2000) (where McClease was sitting in his legally parked car in area known for crime, making furtive movements, and officers approached in a manner in which he would not have felt free to leave, the officers lacked reasonable suspicion to subject McClease to such an investigatory detention; Commonwealth v. Ayala, 791 A.2d 1202, 1210 (Pa.Super. 2002) ("it is abundantly plain that simply being physically present in a vehicle which is parked near a high crime area cannot provide the requisite reasonable suspicion for an investigative detention"). Because Ray's seizure was unsupported by reasonable suspicion, the evidence obtained as a result of the seizure (i.e., the contraband found on Ray's person and in his car) was properly subject to suppression as the fruit of an unconstitutional detention.

Having concluded that the evidence obtained from Ray's person and car was the suppressible fruit of an illegal detention, we need not reach the Commonwealth's contention that Ray had no reasonable expectation of privacy in the vehicle to challenge Officer Crist's ensuing search of the vehicle. See By, supra ("If a defendant's initial detention violates the Fourth Amendment, then any evidence seized during that stop must be excluded as fruit of an unlawful detention."); Simmons, supra ("If either the seizure ... or the search ... is found to be unreasonable, the remedy is to exclude all evidence derived from the illegal government activity.")

The Commonwealth's further assertion that the contraband in Ray's car was subject to the plain view exception is likewise unavailing. "For the [plain view] exception to be present, initially, the officer must not have violated the Fourth Amendment in arriving at the place from which the evidence could be plainly viewed." Commonwealth v. Harris, 888 A.2d 862, 868 (Pa.Super. 2005). Because Officer Crist's initial detention of Ray was unconstitutional, the plain view exception is inapplicable.

The Commonwealth also contends that the evidence retrieved following Ray's seizure should not have been suppressed because it would have been "inevitably discovered" by lawful means. Commonwealth Brief at 19-22. Specifically, the Commonwealth argues that the vehicle would have been impounded after the officers discovered, in the routine exercise of their police duties, that Ray did not have a valid license to drive in Pennsylvania, and that the lease for the car was not in Ray's name and had expired. Id. In support of its claim, the Commonwealth relies on the testimony of Officer Merrill, who testified at the suppression hearing as follows:

Assistant District Attorney: [You] testified as to the driver [Ray] being unauthorized to drive ... as well as to the lease, even if illegal substances wouldn't have been found or counterfeit substances wouldn't have been found on [Ray], what would you have done with the vehicle at that time?
Corporal Merrill: In this situation, you know, say that these items weren't found, the driver of the vehicle not only did not possess a current and valid license, we're still dealing with the fact that this vehicle for all intents and purposes is being used unauthorized because of the fact that the rental car – It was supposed to have been returned prior to this and that no other person other than the person who signed the agreement was allowed to be in possession of the vehicle and she wasn't on scene. We would have still had to tow it out of that lot. The only difference is instead of taking it to our impound garage, it would have been taken to whatever tow company secure facility they had, but we would have still had to have done an impound inventory search of the vehicle to document any valuable items.

N.T., 3/21/13, at 19-20.

Based on the foregoing, the Commonwealth argues that even without the seizure, the contraband would have been inevitably discovered and therefore should not have been suppressed.

Pennsylvania courts recognize the inevitable discovery doctrine first described by the United States Supreme Court in Nix v. Williams, 467 U.S. 431, 104 S.Ct. 2501, 81 L.Ed.2d 377 (1984). Commonwealth v. Ingram, [814 A.2d 264 (Pa.Super. 2002); see also Commonwealth v. Jones, 928 A.2d 1054 (Pa.Super. 2007), appeal granted, 597 Pa. 58, 950 A.2d 265 (2008). That doctrine provides that 'evidence which would have been discovered was sufficiently purged of the original illegality to allow admission of the evidence.' Commonwealth v. Ingram, [supra] at 272.... [I]mplicit in this doctrine is the fact that the evidence would have been discovered despite the initial illegality. Jones, supra at 1060–61.

Commonwealth v. Gonzalez, 979 A.2d 879, 890 (Pa.Super. 2009). "If the prosecution can establish by a preponderance of the evidence that the illegally obtained evidence ultimately or inevitably would have been discovered by lawful means, the evidence is admissible." Id.

Here, however, Officer Crist obtained the contraband seized from Ray's person and car by taking advantage of the direct chain of events arising from the initial illegality when he subjected Ray to an unlawful seizure. The officers in this case had no lawful basis upon which to subject Ray to an investigative detention, and the Commonwealth failed to demonstrate that the evidence they subsequently derived was purged of the original illegality to allow its admission. Gonzalez, supra.

In Commonwealth v. Berkheimer, this Court recently addressed the inevitable discovery doctrine in the context of the greater privacy protections afforded by the Pennsylvania Constitution as compared to the United States Constitution. Berkheimer, 57 A.3d 171, 181 (Pa.Super. 2012). We explained in Berkheimer that our Supreme Court in Commonwealth v. Melendez, 676 A.2d 226, 332 (Pa. 1996) "limited the inevitable discovery exception [by the] extension of [an] independent source component to require ... a source of evidence independent of the taint of illegality ...." Id. at 186 (explaining that the "independent source" component, which limits the application of the inevitable discovery exception, must be truly independent from both the tainted evidence and the police or investigative team which engaged in the misconduct by which the tainted evidence was discovered). The Commonwealth in this case failed to demonstrate that it would have inevitably discovered the evidence through a source of evidence "independent" from the illegal seizure of Ray. The Commonwealth's inevitable discovery claim therefore fails.

For the foregoing reasons, we affirm the trial court order.

Order affirmed.

Judgment Entered.


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