The opinion
J-A23021-22
2022 PA Super 213
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
DWAYNE CUNNINGHAM : No. 86 MDA 2022
Appeal from the Order Entered December 8, 2021
In the Court of Common Pleas of Schuylkill County Criminal Division at
No(s): CP-54-CR-0000856-2021
BEFORE: BOWES, J., McCAFFERY, J., and STEVENS, P.J.E.*
OPINION BY STEVENS, P.J.E.: FILED DECEMBER 13, 2022
The Commonwealth appeals from the December 8, 2021, order entered
in the Court of Common Pleas of Schuylkill County, which granted the pre-trial
omnibus suppression motion filed by Appellee Dwayne Cunningham
(“Cunningham”).1 After a careful review, we reverse the order granting the
suppression motion, and we remand for further proceedings consistent with
this decision.
The relevant facts and procedural history are as follows: On April 6,
2021, a criminal complaint was filed against Cunningham charging him with
____________________________________________
* Former Justice specially assigned to the Superior Court.
1 In its notice of appeal, the Commonwealth certified it took this interlocutory
appeal pursuant to Pa.R.A.P. 311(d), and the suppression court’s ruling
terminates or substantially handicaps its prosecution. See Commonwealth
v. Holston, 211 A.3d 1264, 1268 (Pa.Super. 2019) (en banc).
J-A23021-22
receiving stolen property, 18 Pa.C.S.A. § 3925(a), and firearms not to be
carried without a license, 18 Pa.C.S.A. § 6106(a)(1). On October 12, 2021,
Cunningham filed a counseled omnibus pre-trial suppression motion. Therein,
Cunningham averred the police did not have reasonable suspicion to conduct
a Terry2 stop and frisk. Relevantly, Cunningham specifically argued:
20. In order for [the police] to detain [Cunningham] and conduct
a pat-down frisk of [Cunningham], pursuant to the United States
Supreme Court’s holding in Terry[], [the police] must have a
reasonable suspicion that [Cunningham] was involved with and/or
committing a punishable crime and that [Cunningham] was in
possession of a weapon based on the totality of the circumstances,
respectively.
21. Due to the passage of the Medical Marijuana Act of 2016 in
Pennsylvania and the recent Superior Court decision in
Commonwealth v. Barr, 220 Pa.Super. 236 (2019),[3] the odor
of marijuana alone cannot be used as justification for a
warrantless search of an individual detained during a motor
vehicle stop.
22. As such, the odor of marijuana alone cannot be used as
reasonable suspicion to detain an individual walking in public, in
the open air, pursuant to Terry.
23. Moreover, [the police officer] did not have the requisite
reasonable suspicion that [Cunningham] was carrying a weapon
to satisfy a limited pat-down search pursuant to Terry.
24. Therefore, [the police officer’s] Terry stop and subsequent
frisk of [Cunningham] violated the Fourth Amendment of the
United States Constitution and Article 1, Section 8 of the
Pennsylvania Constitution.
____________________________________________
2 Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868 (1968).
3 We note the citation to Barr provided in Cunningham’s pre-trial motion is
incorrect. The correct citation is Commonwealth v. Barr, 240 A.3d 1263
(Pa.Super. 2019). Moreover, the Supreme Court vacated this Court’s decision
in Barr on December 29, 2021. Commonwealth v. Barr, ___ Pa. ___, 266
A.3d 25 (2021).
-2-
J-A23021-22
25. Accordingly, any evidence found as a result of or subsequent
to the frisk should be found inadmissible at trial[.]
Cunningham’s Omnibus Pre-Trial Suppression Motion, filed 10/12/21, at 4-5
(footnote added).
On October 27, 2021, the suppression court held a suppression hearing
at which Minersville Borough Police Officer Michael Bucek was the sole
testifying witness. Specifically, Officer Bucek testified he was on duty with his
partner during the evening of April 5, 2021, and at approximately 10:30 p.m.,
he was driving slowly with the police vehicle’s windows down. N.T., 10/27/21,
at 4. As he traveled down the 200 block of North Street, which is in a
residential area with vehicles parked on both sides of the road, he detected
an odor of burnt marijuana coming from the area. Id. at 4-5. Officer Bucek
scanned the area and “observed three hooded males on the left side of the
sidewalk” in the middle of the block. Id. at 5. Cunningham was one of the
males in the group. Id. Officer Bucek testified that, as he drove closer to the
three males, “the odor of burnt marijuana grew, grew stronger.” Id.
Officer Bucek testified he drove past the three men in the direction they
were walking, and he parked the police vehicle near the intersection at the
end of the block on the left side, which is the same side of the street on which
the men were walking. Id. He testified that, as he and his partner exited the
police vehicle, he observed the three men, including Cunningham, cross to the
opposite side of the street as though trying to avoid the officers. Id. As the
men continued walking down the right side of the street, Officer Bucek and
-3-
J-A23021-22
his partner walked across the crosswalk at the intersection and met them at
the bottom of the block. Id. at 6, 15.
Officer Bucek testified he said to the whole group, “Hey, man, give me
a second,” and, in response, “they all kind of started yelling at [him].” Id. at
6. He noted the three men were “aggressive” and shouted profanities,
including “Fuck you, Officer,” and “Get the fuck out of here.” Id. at 6, 11. He
testified he “told them to stop at that point,” and he announced his suspicions
that they were smoking marijuana. Id. at 6, 15. He specifically asked them,
“Are you guys smoking?” Id. at 15.
Officer Bucek testified that after he asked the men to stop and
articulated his suspicions about the burnt marijuana, “[the men] were acting
aggressively….It kind of seemed like they were circling around me and my
partner there.” Id. at 8. Officer Bucek testified he attempted to get
identifications from the men. Id. at 6. In response, the men said, “Don’t touch
me. Get away from me. You can’t stop me. Why are you stopping me?” Id.
Officer Bucek noted that, because of the men’s aggression and the fact
they had encircled him and his partner, he was concerned for his safety and
the safety of his partner, who had been on the force for less than a month at
that point. Id. at 7-8. He testified he turned to his partner to ensure he had
the radio, told him to “get [his] back,” and instructed him to contact County
if “something happens here[.]” Id. at 7.
-4-
J-A23021-22
Officer Bucek testified that, believing he and his partner were “in
danger[,]” he decided to frisk the men for weapons. Id. at 8. He testified:
The first [man] ultimately, after arguing over it eventually
gave me his ID. And I patted him down and nothing---I didn’t
find any weapons on him. But the second guy was still being
aggressive. And at that point, I did pat him down; but it seemed
like he was ready to turn around and do something. I’m not sure,
you know—he was still acting aggressive, the second [man]. And
then he still refused to ID himself at that point.
Id.
Officer Bucek testified Cunningham was standing the “farthest away
from [him] and the other officer,” so he approached him last to pat him down.
Id. Officer Bucek indicated that “right before” he turned to pat-down
Cunningham, “he kept moving away from [the officer].” Id. at 7. Officer
Bucek indicated he told Cunningham to put his hands on a pole, and
Cunningham complied; however, when the officer attempted to pat him down,
Cunningham tried to evade him by “scooting around the pole…away from [the
officer].” Id. Officer Bucek told him, “Hey, stop moving.” Id. He testified
that “[e]ventually, he stopped moving[,] [a]nd then [he] ended up patting
him down.” Id.
Officer Bucek testified he immediately felt a handgun in Cunningham’s
sweatshirt front pocket. Id. at 9. He clarified that, based on his training and
experience, he could immediately identify the item as a weapon when he
patted it. Id. Officer Bucek testified he seized the weapon, which was a .380
Ruger. Id. at 10.
-5-
J-A23021-22
On cross-examination, Officer Bucek clarified he was approximately ten
feet from the three men when he first smelled the odor of burnt marijuana.
Id. at 12. He neither observed any of the men smoking any substance nor
observed any “wafting smoke.” Id. During the time he smelled the odor of
marijuana while he was driving, there were no cars behind him, no cars in
front of him, and no cars that passed him. Id. at 13. Officer Bucek noted the
odor of burnt marijuana grew stronger as he drove slowly past the three men.
Id. at 13-14. Officer Bucek clarified he did not ask for the men’s identifications
or seek to pat them down for weapons until they began to circle around the
two officers. Id. at 16.
On redirect examination, Officer Bucek testified that, after he seized the
handgun, he also found a lighter and a large amount of cash totaling
$4,820.00 on Cunningham’s person. Id. at 19. He indicated Cunningham
indicated after the pat down that he had not been smoking marijuana;
however, his “two friends were smoking it and they pitched it out while [the
police] were passing [them].” Id.
At the conclusion of all testimony, by order entered on December 8,
2021, the suppression court granted Cunningham’s pre-trial suppression
motion and specifically directed that “all evidence obtained as a result of the
Terry frisk of the defendant is suppressed.” Suppression Court Order, filed
12/8/21 (unnecessary capitalization omitted).
-6-
J-A23021-22
In its opinion in support of the order, the suppression court held “[t]he
interaction between Officer Bucek and [Cunningham] began as a mere
encounter with [the officer] asking [the men] to give him a second; however,
when he ordered them to stop, it became an investigative detention for which
the officer must possess reasonable suspicion of criminal activity.”
Suppression Court Opinion, filed 12/8/21, at 4. The suppression court also
concluded that, under “[t]he totality of the circumstances…Officer Bucek had
reasonable suspicion of criminal activity to justify an investigative detention.”
Id. at 6.
However, as it pertained to the frisk of Cunningham for weapons, the
suppression court concluded:
Officer Bucek did not state any specific and articulable facts
indicating Cunningham might be armed. Cunningham’s hands
were on the pole when he was frisked. There was no testimony
that he had reached into his pockets or concealed them at any
time during his interaction with the police. Bucek testified that he
felt threatened by the men’s aggression. He and his partner had
weapons if they felt their use was necessary to control the
situation, but they had no justification to frisk them.
Id. at 8.
The Commonwealth filed a notice of appeal on January 7, 2022, and all
Pa.R.A.P. 1925 requirements have been met.
On appeal, the Commonwealth sets forth the following issue in its
“Statement of Question Presented” (verbatim):
Did the trial court err in finding that an illegal Terry frisk occurred,
and thereby suppressing all evidence as a result of said frisk?
-7-
J-A23021-22
Commonwealth’s Brief at 4.
Initially, we note that when this Court reviews a Commonwealth appeal
from an order granting a suppression motion, as we are tasked to do here, we
may consider only the evidence produced at the suppression hearing, and then
only that evidence which comes from the defendant’s witnesses, along with
the Commonwealth’s evidence which remains uncontradicted.
Commonwealth v. Barr, ___ Pa. ___, 266 A.3d 25 (2021). We must
determine, in the first instance, whether the suppression court’s factual
findings are supported by the record, and if they are, we are bound to those
findings. See id. We must always keep in mind that the suppression court,
as the finder of fact, has the exclusive ability to pass on the credibility of
witnesses. See Commonwealth v. Fudge, 213 A.3d 321, 326 (Pa.Super.
2019). Therefore, we will not disturb a suppression court’s credibility
determinations absent a clear and manifest error. Id. at 326-27.
We must also determine whether the legal conclusions the suppression
court drew from its factual findings are correct. See Barr, supra, 266 A.3d
at 39. Unlike the deference we give to the suppression court’s factual findings,
we have de novo review over the suppression court’s legal conclusions. See
Commonwealth v. Brown, 606 Pa. 198, 996 A.2d 473, 476 (2010).
Regarding the relevant substantive law, this Court has explained:
The Fourth Amendment to the United States Constitution and
Article I, Section 8 of the Pennsylvania Constitution protect
citizens from “unreasonable searches and seizures, including
those entailing only a brief detention.” Commonwealth v.
-8-
J-A23021-22
Strickler, 563 Pa. 47, 757 A.2d 884, 888 (2000). Specifically,
police officers may not conduct a warrantless search or seizure
unless one of several recognized exceptions applies. If a
defendant’s detention violates the Fourth Amendment, then any
evidence seized during that stop must be excluded as fruit of an
unlawful detention.
Commonwealth v. Mattis, 252 A.3d 650, 654 (Pa.Super. 2021) (citations
omitted).
In determining whether a police officer’s interaction with a citizen was
proper, we are guided by the following:
Our Supreme Court has explained the three types of
interactions between law enforcement and private citizens as
follows:
The first is a mere encounter, sometimes referred to as a
consensual encounter, which does not require the officer to have
any suspicion that the citizen is or has been engaged in criminal
activity. This interaction also does not compel the citizen to stop
or respond to the officer. A mere encounter does not constitute a
seizure, as the citizen is free to choose whether to engage with
the officer and comply with any requests made or, conversely, to
ignore the officer and continue on his or her way. The second
type of interaction, an investigative detention, is a temporary
detention of a citizen. This interaction constitutes a seizure of a
person, and to be constitutionally valid[,] police must have a
reasonable suspicion that criminal activity is afoot. The third, a
custodial detention, is the functional equivalent of an arrest and
must be supported by probable cause. A custodial detention also
constitutes a seizure.
No bright lines separate these types of encounters, but the
United States Supreme Court has established an objective test by
which courts may ascertain whether a seizure has occurred to
elevate the interaction beyond a mere encounter. The test, often
referred to as the “free to leave test,” requires the court to
determine whether, taking into account all of the circumstances
surrounding the encounter, the police would have communicated
to a reasonable person that he was not at liberty to ignore the
police presence and go about his business. Whenever a police
-9-
J-A23021-22
officer accosts an individual and restrains his freedom to walk
away, he has seized that person.
Commonwealth v. Adams, 651 Pa. 440, 205 A.3d 1195, 1199-1200 (2019)
(citations, brackets, and some quotation marks omitted).
Further, in considering whether a seizure occurred, or whether a
reasonable person would feel free to leave, courts may examine the following:
[T]he number of officers present during the interaction; whether
the officer informs the citizen they are suspected of criminal
activity; the officer’s demeanor and tone of voice; the location and
timing of the interaction; the visible presence of weapons on the
officer; and the questions asked. Otherwise inoffensive contact
between a member of the public and the police cannot, as a matter
of law, amount to a seizure of that person.
Commonwealth v. Beasley, 761 A.2d 621, 624-25 (Pa.Super. 2000)
(citation omitted). Further, “[w]ith respect to the show of authority needed
for a detention, the circumstances must present some level of coercion,
beyond the officer’s mere employment, that conveys a demand for compliance
or threat of tangible consequences from refusal.” Commonwealth v. Luczki,
212 A.3d 530, 544 (Pa.Super. 2019). See Commonwealth v. Jones, 266
A.3d 1090, 1094-95 (Pa.Super. 2021).
In the case sub judice, we agree with the suppression court that “[t]he
interaction between Officer Bucek and [Cunningham] began as a mere
encounter with [Officer] Bucek asking [the men] to give him a second[.]”
Suppression Court Opinion, filed 12/8/21, 4. That is, taking into account the
circumstances of the encounter, at this point the police would have
communicated to a reasonable person that he was at liberty to ignore the
- 10 -
J-A23021-22
police presence and go about his business. See Adams, supra; Beasley,
supra.
Moreover, we agree with the suppression court that, after Officer Bucek
told the men, including Cunningham, “to stop” and announced his suspicions
that they were smoking marijuana, an investigative detention occurred. See
Beasley, supra. Accordingly, we must determine whether the police had
reasonable suspicion supporting the investigative detention.4
“In determining whether police had reasonable suspicion to initiate an
investigative detention, ‘the fundamental inquiry is an objective one, namely,
whether the facts available to police at the moment of the intrusion warrant a
[person] of reasonable caution in the belief that the action taken was
appropriate.’” Commonwealth v. Jefferson, 256 A.3d 1242, 1248
(Pa.Super. 2021) (en banc) (quotation omitted).
[This Court has recognized] [r]easonable suspicion exists
only where the officer is able to articulate specific observations
which, in conjunction with reasonable inferences derived from
those observations, led him reasonably to conclude, in light of his
experience, that criminal activity was afoot and that the person
he stopped was involved in that activity.
Commonwealth v. Jones, 874 A.2d 108, 116 (Pa.Super. 2005) (citations
omitted). To demonstrate reasonable suspicion, the detaining officer must
“articulate something more than an inchoate and unparticularized suspicion
____________________________________________
4 We note the suppression court’s holding that the officer had the necessary
reasonable suspicion is based, in part, on this Court’s decision in Barr, supra,
which our Supreme Court subsequently vacated.
- 11 -
J-A23021-22
or hunch.” Jefferson, 256 A.3d at 1248 (citation omitted). To determine
whether reasonable suspicion exists, we examine the totality of the
circumstances through the eyes of a trained officer and not an ordinary citizen.
See Commonwealth v. Riley, 715 A.2d 1131 (Pa.Super. 1998).
Historically, Pennsylvania courts have held the smell of marijuana alone
was sufficient to establish a reasonable suspicion of criminal activity. However,
after the passage of the Medical Marijuana Act (“MMA”)5 and legalization of
medical marijuana in the Commonwealth, our Supreme Court revisited this
issue.
In Commonwealth v. Hicks, 652 Pa. 353, 208 A.3d 916 (2019), our
Supreme Court held that “conduct in which hundreds of thousands of
Pennsylvanians are licensed to engage lawfully” is, on its own, “an insufficient
basis for reasonable suspicion that criminal activity is afoot.” Hicks, supra,
208 A.3d at 945.
Further, in Barr, supra, our Supreme Court recognized that although
“the MMA makes abundantly clear that marijuana no longer is per se illegal in
this Commonwealth[,]” the possession of marijuana is still illegal under the
Controlled Substance, Drug, Device and Cosmetic Act6 “for those not qualified
under the MMA.” Barr, supra, 266 A.3d at 41. Accordingly, the Supreme
____________________________________________
5 35 P.S. § 10231.101 et seq.
6 35 P.S. §§ 780-101-144.
- 12 -
J-A23021-22
Court held in Barr that “the odor of marijuana may be a factor, but not a
stand-alone one, in evaluating the totality of the circumstances for purposes
of determining whether police had probable cause to conduct a warrantless
search.” Id. In so holding, the Supreme Court explained:
We emphasize that the realization that a particular factor
contributing to probable cause may involve legal conduct does not
render consideration of the factor per se impermissible, so long as
the factor is considered along with other factors that, in
combination, suggest that criminal activity is afoot. [T]he totality-
of-the-circumstances analysis encompasses the consideration of
factors that may arguably be innocent in nature.
Id. at 41-42.
This Court has had the opportunity to apply the Hicks and Barr
decisions to various cases. In Commonwealth v. Dabney, 274 A.3d 1283,
129 (Pa.Super. 2022), we assumed, arguendo, that Barr applies to a
determination of reasonable suspicion for an investigative detention, and we
held that the officer could consider the odor of raw marijuana, as well as other
factors, in making that determination. In Commonwealth v. Lomax, No.
470 MDA 2021 (Pa.Super. filed Feb. 14, 2022) (unpublished memorandum),7
we held the smell of fresh marijuana cannot objectively suggest anything more
than possession of a substance that many Pennsylvanians can legally possess.
____________________________________________
7 We note that Pa.R.A.P. 126(b), amended effective, May 1, 2019, provides
that non-precedential decisions of this Court filed after May 1, 2019, may be
cited for their persuasive value.
- 13 -
J-A23021-22
Therefore, we concluded that it cannot, on its own, establish the reasonable
suspicion necessary to initiate an investigative detention.
More recently, in Commonwealth v. Felder, No. 1082 MDA 2021
(Pa.Super. filed Aug. 9, 2022) (unpublished memorandum), we recognized
the MMA does not permit the smoking of marijuana; therefore, the police’s
knowledge that the defendant had paraphernalia for smoking marijuana gave
the officer reason to believe the marijuana was being used illegally. Also, in
Commonwealth v. Mercedes, No. 1275 MDA 2021 (Pa.Super. filed Sept.
23, 2022) (unpublished memorandum), we again recognized the MMA does
not permit the smoking of marijuana. See 35 P.S. § 10231.304(b) (“It is
unlawful to: (1) Smoke medical marijuana”).8 Accordingly, we held the police
had reasonable suspicion that marijuana was being illegally smoked when they
smelled burnt marijuana and observed the defendant or his companion
smoking a cigarillo. See Mercedes, supra.
In the case sub judice, viewing the totality of the circumstances, and
applying our Supreme Court’s holdings in Barr, supra, and its progeny, we
conclude Officer Bucek had a reasonable suspicion that criminal activity was
afoot when he subjected Cunningham to the investigative detention.
____________________________________________
8 The Supreme Court in Barr noted the MMA permits marijuana to be
consumed by way of vaporization; however, it remains illegal to smoke this
substance. See Barr, supra.
- 14 -
J-A23021-22
In addition to the smell of burnt marijuana, which Officer Bucek testified
grew stronger as he approached the group of men, Officer Bucek testified the
men crossed the street after he parked his police vehicle in an effort to evade
him. See Commonwealth v. Foglia, 979 A.2d 357, 361 (Pa.Super. 2009)
(en banc) (holding “[e]vasive behavior” is a relevant consideration in
determining whether an officer has reasonable suspicion to conduct an
investigatory detention). Further, Officer Bucek testified that, as soon as he
approached the men and asked for them to give him a second, the three men
became aggressive towards the officers, yelled at them, and shouted
profanities.
Given the totality of the circumstances, the facts available to the officers
gave them reason to believe that criminal activity was afoot. Thus, we agree
with the suppression court that Officer Bucek and his partner had reasonable
suspicion to support the investigative detention.
Next, we consider the Commonwealth’s argument the suppression court
erred in holding that, although Officer Bucek had reasonable suspicion that
criminal activity was afoot to support the investigative detention, the officer
“had no justification to frisk” Cunningham. In this vein, the Commonwealth
notes the suppression court recognized “[Officer] Bucek testified that he felt
threatened by the men’s aggression.” Suppression Court Opinion, filed
12/8/21, at 8. However, the Commonwealth notes the suppression court then
erroneously held that, instead of frisking the three men, “[the officers] had
- 15 -
J-A23021-22
weapons if they felt their use was necessary to control the situation.” Id. at
8.
This Court has explained:
It is well settled that an officer may pat-down an individual whose
suspicious behavior he is investigating on the basis of a
reasonable belief that the individual is presently armed and
dangerous to the officer or others. To validate a Terry frisk, the
police officer must be able to articulate specific facts from which
he reasonably inferred that the individual was armed and
dangerous. In determining whether a Terry frisk was supported
by a sufficient articulable basis, we examine the totality of the
circumstances.
Commonwealth v. Gray, 896 A.2d 601, 605-06 (Pa.Super. 2006).
Under that standard then, police may conduct a limited pat-down of a
person’s outer clothing “in an attempt to discover the presence of weapons
which may be used to endanger the safety of police or others.”
Commonwealth v. Wilson, 927 A.2d 279, 285 (Pa.Super. 2007) (quotation
and quotation marks omitted). In making this determination of whether there
was reasonable suspicion,
we must give due weight…to the specific reasonable inferences
the police officer is entitled to draw from the facts in light of his
experience. Also, the totality of the circumstances test does not
limit our inquiry to an examination of only those facts that clearly
indicate criminal conduct. Rather, even a combination of innocent
facts, when taken together, may warrant further investigation by
the police officer.
Commonwealth v. Young, 904 A.2d 947, 957 (Pa.Super. 2006) (citations,
quotation, and quotation marks omitted).
- 16 -
J-A23021-22
As this Court has recognized, “[a]n overt threat by the suspect or clear
showing of a weapon is not required for a frisk.” Commonwealth v. Mack,
953 A.2d 587, 591 (Pa.Super. 2008). Indeed, “[t]he officer need not be
absolutely certain that the individual is armed; the issue is whether a
reasonably prudent man in the circumstances would be warranted in the belief
that his safety or the safety of others was in danger.” Commonwealth v.
Cooper, 994 A.2d 589, 592 (Pa.Super. 2010) (citation omitted).
The purpose of a Terry frisk is to allow an officer to continue an
investigation without fearing for the safety of the officer or others nearby.
See Commonwealth v. Scarborough, 89 A.3d 679, 683 (Pa.Super. 2014).
Moreover, in considering whether evidence supports a Terry frisk, we are
“guided by common sense concerns, giving preference to the safety of the
officer during an encounter with a suspect where circumstances indicate that
the suspect may have, or may be reaching for a weapon.” Mack, 953 A.2d
at 590.
With these principles in mind, we agree with the Commonwealth that
the suppression court erred in concluding Officer Bucek did not have
reasonable suspicion to conduct a pat-down search of Cunningham. Indeed,
there were several circumstances that, while not dispositive on their own or
individually applicable to Cunningham, combined to support reasonable
suspicion for the pat-down search. See Young, supra.
- 17 -
J-A23021-22
Specifically, the undisputed evidence reveals that, after Officer Bucek
and his partner approached the three men, including Cunningham, the three
men almost immediately became aggressive, cursed at the officers, and
encircled the two officers. As the suppression court found:
The three men moved in a manner that led Officer Bucek to
believe [the three men] were trying to circle him. Their
movements and aggressive tone led him to believe he was in
danger. Officer Bucek’s partner, who had the radio, had been on
the force less than a month. Bucek told his partner to call for help
if anything happened.
Suppression Court Opinion, filed 12/8/21, at 2. It was at this point that Officer
Bucek decided to pat down the three men for weapons.9
Furthermore, the undisputed evidence reveals that Officer Bucek patted
down Cunningham’s companions before he patted down Cunningham. The
officer testified the second man he patted down continued to act aggressively
and “like he was ready to turn around and do something.” N.T., 10/27/21, at
8. This same man refused to provide identification, and at this point, Officer
Bucek turned to pat down Cunningham.
____________________________________________
9 Specifically, Officer Bucek testified on direct examination as follows:
Q: From the point where you requested Mr. Cunningham to stop
based on the odor of burnt marijuana until the point where you
began to ask him to allow you to frisk him, what was going on or
what caused you to make that decision to perform a pat-down on
him?
A: They were acting aggressively and yelling. It kind of seemed
like they were circling around me and my partner there.
Q: What were you thinking at that point?
A: That I’m in danger.
N.T., 10/27/21, at 7-8.
- 18 -
J-A23021-22
Officer Bucek indicated that “right before” he turned to pat-down
Cunningham, “he kept moving away from [the officer].” Id. at 7. Officer
Bucek indicated he told Cunningham to put his hands on a pole, and
Cunningham complied; however, when the officer attempted to pat him down,
Cunningham tried to evade him by “scooting around the pole…away from [the
officer].” Id. Officer Bucek told him, “Hey, stop moving.” Id. He testified
that “[e]ventually, he stopped moving[,] [a]nd then [he] ended up patting
him down. Id.
Based on the aforementioned, we hold the suppression court erred as a
matter of law in granting the suppression motion. “The suppression court
failed to consider the totality of the circumstances and give Officer [Bucek]
the benefit of the inferences he drew from those circumstances.”
Commonwealth v. Davis, 102 A.3d 996, 1000 (Pa.Super. 2014). The record
shows the officer reasonably suspected that criminal activity was afoot and
that Cunningham was armed and potentially dangerous. The totality of
evidence establishes that “a reasonably prudent man in the circumstances
would be warranted in the belief that his safety or the safety of other was in
danger.” Cooper, 994 A.2d at 592 (citation omitted).
Moreover, we specifically disagree with the suppression court’s
suggestion that “[Officer Bucek] and his partner had weapons if they felt their
use was necessary to control the situation, but they had no justification to
frisk them.” Suppression Court Opinion, filed 12/8/21, at 8. The purpose of
- 19 -
J-A23021-22
the Terry frisk is to allow an officer to continue an investigation without
fearing for the safety of officers or others nearby. Commonwealth v.
Scarborough, supra. Common sense concerns give preference to the safety
of officers in such circumstances, and certainly, officers should not have to
rely on drawing and/or otherwise using their own weapons in lieu of frisking
“a suspect where circumstances indicate that the suspect may have, or may
be reaching for a weapon.” Mack, 953 A.2d at 590.10
For all of the foregoing reasons, we reverse the suppression court’s
order and remand for further proceedings consistent with this decision.
Order reversed and case remanded. Jurisdiction relinquished.
Judge Bowes has joined the Opinion
Judge McCaffery files a Dissenting Opinion
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/13/2022
____________________________________________
10 The learned Dissent indicates the officer stated he felt he was in danger
when the men “‘kind of seemed like they were circling’ him” and goes on to
state the officer did not see a weapon until after the search. Dissenting Opinion
at 2. Respectfully, a law enforcement officer should not have to wait until his
or her life is in imminent danger before taking action. Here, the totality of the
circumstances supports the police officer’s justification to frisk Cunningham.
- 20 -