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Commonwealth v. Butler

Superior Court of Pennsylvania

August 1, 2018


          Appeal from the Judgment of Sentence Entered August 1, 2017 In the Court of Common Pleas of Bucks County Criminal Division at No(s): CP-09-CR-0002288-2017

          BEFORE: OTT, J., McLAUGHLIN, J., and STEVENS [*] , P.J.E.


          McLAUGHLIN, J.

         Louis Butler appeals from the judgment of sentence entered on August 1, 2017, after the trial court found him guilty of conspiracy, possession with intent to deliver ("PWID"), possession of a controlled substance, and possession of drug paraphernalia.[1] Butler contends that the trial court erred in denying his motion to suppress because there was no reasonable suspicion to conduct an investigative detention. We affirm.

         On July 31, 2017, Butler filed a suppression motion with the trial court, arguing that Officer Ronald Rosenberg lacked "a reasonable cause, probable cause, reasonable suspicion, or necessary legal authority" to stop his vehicle. N.T., Suppression Hearing, 7/31/17, at 4. The following testimony was adduced at the Suppression Hearing.

         On July 18, 2016, Officer Rosenberg was on patrol with the Richland Township Police Department. Id. at 7. At the time, Officer Rosenberg had been with the department for 11 years and had been a narcotics officer for 6 years. Id. at 8. In order to obtain this position, he attended Bucks County Narcotics School, where he learned about subjects such as drug investigation, confidential informants, and undercover work. Id. at 7. Officer Rosenberg has made approximately 50 arrests involving possession with intent to deliver. Id. at 8.

         Officer Rosenberg received a phone call on the day in question, July 18, 2016, from Gary Bulicki. Id. Officer Rosenberg did not know Bulicki personally but generally knew that Bulicki was in the police department "system." Id. at 15, 16, 20. Officer Rosenberg did not know whether Bulicki was known to the system as a victim or a defendant. Id. at 20. Officer Rosenberg said he looked into Bulicki's status with the department "after it was done," but did not state the information (if any) that he found. Id.

         Bulicki told Officer Rosenberg that he was going to drive his son, Vincent Bulicki, to the area of the Walmart on Sunshine Drive in Quakertown, Bucks County, to purchase heroin from two black males known as "Pops" and "Old Head." Id. at 9, 18. He stated that the males would be in a black Tahoe. Id. at 9. Bulicki gave Officer Rosenberg a physical description of his son as well as of what his son would be wearing. Id. at 10, 18, 19. Bulicki told Officer Rosenberg that he had received the information about the individuals, the vehicle, and the narcotics transaction from his son, Vincent. Id. at 17. He also said that he previously had driven his son to buy narcotics from the males but he did not say how many times. Id.

         Bulicki stayed in touch with Officer Rosenberg for two hours. Id. at 19. At around 12 p.m. the same day, Bulicki dropped Vincent off near the Walmart. Id. at 10. An undercover officer nearby relayed to Officer Rosenberg that Vincent entered a black Tahoe. Id. at 23. Based on his observations, the information he received, and his experience, Officer Rosenberg believed that a narcotics transaction was occurring in the Tahoe. Id. at 11. Officer Rosenberg went to the area of Sunshine Drive where he activated his vehicle's overhead lights, pulled up behind the Tahoe, and approached the driver's side of the Tahoe. Id. While approaching the vehicle, he observed Butler in the front passenger seat bending down and reaching between his legs as though he was either grabbing or hiding something. Id. at 11-12. Vincent was in the back seat, behind Butler. Id. at 12. Officer Rosenberg directed his partner, Officer Zachary Herb, to remove Butler from the vehicle. Id. Officer Rosenberg then patted Butler down, recovering three Percocets in a little plastic bag in the small pocket of his pants. Id. at 14-15, 25.

         After hearing the testimony, the trial court denied the suppression motion. On August 1, 2017, after a bench trial, the court found Butler guilty of the above-referenced crimes and sentenced him to two and one half to five years' incarceration for PWID and no further penalty for the remaining charges. Butler filed a post-sentence motion, which the trial court denied. This timely appeal followed.

         Butler raises one issue for this Court to review: "Was there sufficient evidence that the vehicle was involved in criminal activity to justify an investigative detention?" Butler's Br. at 4.[2]

         Our standard of review for a challenge to the denial of a suppression motion is "limited to determining whether the suppression court's factual findings are supported by the record and whether the legal conclusions drawn from those facts are correct." Commonwealth v. Jones, 988 A.2d 649, 654 (Pa. 2010). Since the Commonwealth prevailed at the suppression motion hearing "we may consider only the evidence of the Commonwealth and so much of the evidence for the defense as remains uncontradicted when read in the context of the record as a whole." Id. Because Butler's challenge to the denial of his suppression motion raises a question of law, our scope of review is plenary. Id.

         The parties here agree that the vehicle stop constituted an investigative detention, which requires reasonable suspicion that criminal activity is afoot. Commonwealth v. Jones, 874 A.2d 108, 116 (Pa.Super. 2005). "Reasonable suspicion is a less demanding standard than probable cause . . . in the sense that reasonable suspicion can arise from information that is less reliable than that required to show probable cause." Commonwealth v. Moore, 805 A.2d 616, 620 (Pa.Super. 2002)(citation omitted). An investigative detention is justified where "a police officer [is] able to point to 'specific and articulable facts' leading him to suspect criminal activity is afoot." Commonwealth v. Brown, 996 A.2d 473, 477 (Pa. 2010) (citations omitted). In assessing whether the officer had reasonable suspicion, we take into account the totality of the circumstances and give due weight "to the specific, reasonable inferences drawn from the facts in light of the officer's experience." Id.

         Where an informant "identifies [him-] or herself to police, there is a degree of reliability attached to the tip, because the informant has placed [him-] or herself at risk for prosecution for giving false information to the police if the tip is untrue." See Commonwealth v. Hayward, 756 A.2d 23, 34 (Pa.Super. 2000)(citation omitted). In contrast, the word of an anonymous informer who has never previously cooperated with the police or "who does not disclose his or her identity to the police" lacks such indicia of reliability. Id. at 35 (emphasis added). Information from a known source that police have ...

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