Com. v. White, S.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

:

v. :

:

:

SIDNEY WHITE, :

:

Appellant. : No. 3146 EDA 2017

Appeal from the Judgment of Sentence, August 14, 2017,

In the Court of Common Pleas of Delaware County,

Criminal Division at No(s): CP-23-CR-0007275-2016.

BEFORE: GANTMAN, P.J., DUBOW, J., and KUNSELMAN, J.

MEMORANDUM BY KUNSELMAN, J.: FILED AUGUST 24, 2018

Sidney White appeals from the judgment of sentence imposed after a

jury convicted him of possession of a controlled substance and possession of

drug paraphernalia.1 In his sole issue raised on appeal, he challenges the trial

court’s denial of his suppression motion. After careful review, we affirm.

We enumerate the trial court’s factual findings made at the conclusion

of the suppression hearing as follows:

1. Lieutenant Richard Gibney is employed by the Darby

Borough Police as a Lieutenant in the anti-crime unit. He

has been a police officer with Darby Borough since 1987.

2. In the evening of March 29th, 2016 at approximately

11:10 p.m. he received information regarding drug sales

in the area of the Wishing Well bar. The call came from

Officer [Stacey] Rucker, a sworn police officer with the

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1 35 P.S. §§ 780-113(a)(16), and 780-113(a)(32), respectively.

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Borough of Darby, who was working in an undercover

capacity at that time.

3. Officer Rucker informed Lieutenant Gibney that one of

the individuals she had been purchasing drugs from that

evening was leaving the Wishing Well bar. Officer Rucker

gave Lieutenant Gibney a description of that individual as

a black male wearing a black coat with grey sleeves.

4. In response to that information, Lieutenant Gibney

observed a black male fitting that description leaving the

Wishing Well bar parking lot. Lieutenant Gibney waited

until the suspect walked across 6th and Main Streets

where he then pulled his vehicle up beside [the suspect]

and stopped him. The suspect was later identified as

[White]. Lieutenant Gibney was able to identify [White]

as the person Officer Rucker described because he was

the only one in the area that fit Officer Rucker’s

description.

5. Lieutenant Gibney exited his vehicle and approached

[White] from the front. As Lieutenant Gibney walked

over to [White] his badge was clearly visible to [White].

6. [White] began reaching into his pockets and Lieutenant

Gibney told him to stop. Lieutenant Gibney then asked

[White], “are you holding.” In street slang, “are you

holding” means are you in possession of drugs. [White’s]

response to Lieutenant Gibney’s question was “yes,”

indicating he was in possession of drugs.

7. After [White] said he was holding, Lieutenant Gibney

recovered drugs out of his pockets. [White] was then

taken into custody.

Trial Court Opinion, 4/18/17, at 1-3 (citations omitted).

Relevant to the present appeal, another police officer transported White

to the police station. After doing so, that officer checked his transport van

and discovered two clear baggies of cocaine in the backseat where White had

been sitting. The transport van had not had anyone in it prior to White, and,

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as per protocol, the van had been checked earlier that day. At that time, the

officer found nothing was inside it.

On January 5, 2017, White filed a motion to suppress evidence,

including his statements to the police, and the drugs found on his person and

in the police van. Within this motion, White averred that he “was stopped,

detained, and interrogated” by the police “without reasonable suspicion that

[he] was involved in criminal activity and without observation of unusual

conduct.” White further averred the police “searched and transported [him]

subsequent to an unlawful investigation detention [sic].” Omnibus Motion,

1/5/17, at 3-4.

The trial court held an evidentiary hearing on February 24, 2017.

Lieutenant Gibney was the only witness to testify. At the hearing’s conclusion,

the trial court took the matter under advisement. By order and opinion filed

on April 18, 2017, the trial court denied the suppression motion. Thereafter,

the trial court permitted the Commonwealth to consolidate this case with

charges filed against White in connection with his two undercover sales to

Officer Rucker in December 2015.2 Following a two-day trial, the jury

convicted White of the above charges. On August 14, 2017, the trial court

sentenced White to an aggregate term of three years of probation. This appeal

follows. Both the trial court and White have complied with Pa.R.A.P. 1925.

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2 At a separate docket, a jury convicted White for these drug sales. White

also has filed an appeal from the judgment of sentence imposed in that case.

See Commonwealth v. White, No. 3144 EDA 2017.

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White presents the following issue for our review:

1. Whether the court erred in failing to suppress the cocaine

and paraphernalia that was seized from the police van

and used to convict [White] in this matter since the

recovery of the contraband was the direct result of the

police detaining [White] without probable cause or

reasonable suspicion which led to his arrest and presence

in the van.

White’s Brief at 7 (excess capitalization omitted).

Our scope of review limited to the testimony and other evidence

presented at the suppression hearing. See generally, In re L.J., 79 A.3d

1073 (Pa. 2013). Because the Commonwealth prevailed on this issue in the

suppression court, we consider “only the evidence of the prosecution and so

much of the evidence for the defense as remains uncontradicted when read in

the context of the record as a whole. When the record supports the findings

of the suppression court, we are bound by those facts and may reverse only

if the legal conclusions drawn therefrom are in error.” Commonwealth v.

Johnson, 33 A.3d 122, 124 (Pa. Super. 2011).

Our review of the suppression-hearing transcript supports the trial

court’s factual findings.3 Thus, we must next determine whether the trial

court’s legal conclusions are correct. The trial court explained:

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3 We note that, contrary to the trial court’s finding, on cross-examination,

Lieutenant Gibney testified that he did not recall Officer Rucker stating that

she observed White sell drugs in the bar that night. Rather, she stated that

she had bought drugs from him twice in December 2015, while working

undercover, but did not know his identity. See N.T., 2/27/17, at 24.

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[White] alleges there was no reasonable suspicion or

probable cause for Lieutenant Gibney to stop him. . . .

The record in this case confirms that the contact between

Lieutenant Gibney and [White] began as a mere encounter.

A person is not seized when the police approach him or even

ask him questions; that is a mere encounter which does not

require any level of suspicion. Commonwealth v. Smith,

836 A.2d 5, 11 (Pa 2003) (mere approach of police followed

by questioning is not a seizure); In re D.M., 781 A.2d 1161,

1164 (Pa. 2001) (police may approach anyone in a public

place to talk to him without any level of suspicion).

As the officers approached[4], [White] began reaching

into his pockets. Lieutenant Gibney told him to stop [doing

so]. Lieutenant Gibney then asked [White], “are you

holding.” In street slang, “are you holding” means are you

in possession of drugs. [White’s] response to Lieutenant

Gibney’s question was “yes,” indicating that he was in

possession of drugs. At this point the encounter became a

lawful investigative detention, or Terry stop[.] Under the

totality of the circumstances as viewed through the eyes of

Lieutenant Gibney, a trained and credible police officer,

Lieutenant Gibney, had a reasonable suspicion to continue

his investigation.

A police officer may conduct a brief investigatory stop if

he has a reasonable, articulable suspicion that criminal

activity is afoot, Terry v. Ohio, 392 U.S. 1 (1968); he need

not merely shrug his shoulders and allow a criminal to

escape. Adams v. Williams, 407 U.S. 143, 145-46 (1972).

Reasonable suspicion exists when, under the totality of the

circumstances, an officer is “able to articulate something

more than an ‘inchoate and unparticularized hunch’” that

criminal activity is afoot. Alabama v. White, 496 U.S. 325,

329 (1990), quoting Terry v. Ohio, supra. See In the

Interest of N.L., 739 A.2d 564, 567 (Pa. Super. 1999)

(citation omitted) (reasonable suspicion is “less than a

preponderance of the evidence but more than a hunch”).

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4Lieutenant Gibney approached White accompanied by his partner, Lieutenant

Joseph Gabe, who was similarly dressed in plain clothes and exhibiting only a

police badge. See N.T., 2/24/17 at 8-10.

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Based on [White’s] admission he was in possession of

drugs, Lieutenant Gibney had probable cause to place

[White] under arrest. Probable cause exists if “the facts and

circumstances within the knowledge of the police officer at

the time of the arrest are sufficient to justify a person of

reasonable caution in believing the suspect had committed

or is a committing a crime.” Commonwealth v. Colon,

777 A.2d 1097, 1100 (Pa. Super. 2001). When determining

whether probable cause exists, a court must view the

circumstances in their totality “as they appeared to the

arresting officer” rather than in isolation or through the eyes

of “an average citizen.” Commonwealth v. Dennis, 612

A.2d 1014, 1016 (Pa. Super. 1992). Moments later

Lieutenant Gibney recovered drugs from [White’s] pocket.

Once a valid arrest was made, the arresting officers,

without a warrant, were permitted to search [White]

incident to his arrest. The fact of a lawful arrest, standing

alone, authorizes such a search. Commonwealth v.

Ventura, [975 A.2d 1128, 11 (Pa. Super. 2009)].

Trial Court Opinion, 4/18/17, at 6-9. Our review supports the trial court’s

legal conclusions.

In arguing to the contrary, White first challenges the trial court’s

determination that his initial interaction with Lieutenant Gibney constituted a

mere encounter. He avers that, “the Commonwealth failed to establish the

necessary probable cause to effect the initial stop that led directly to his arrest

and placement in the van.” White’s Brief at 12. White further argues that

Lieutenant Gibney’s initial interaction with him cannot be characterized as a

“mere encounter” because they “detained” him “based upon the specific

directive of the undercover agent, Officer Stacey Rucker[,]” to whom he had

allegedly made two drug sales in December 2015. Id. According to White,

because the Commonwealth did not call Officer Rucker to identify him at the

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suppression hearing, “the essential link necessary to support the prosecution’s

theory of probable cause to detain [White] on the night of March 29, 201[6]

was utterly absent from the record.” Id. at 13. We disagree.

“The Fourth Amendment of the Federal Constitution and Article I,

Section 8 of the Pennsylvania Constitution protect individuals from

unreasonable searches and seizures.” Commonwealth v. Walls, 53 A.3d

889, 892 (Pa. Super. 2012). Once a criminal defendant files a motion to

suppress evidence, it is the Commonwealth’s burden to prove, by a

preponderance of the evidence, that the challenged evidence was not obtained

in violation of the defendant’s rights. Commonwealth v. Simonson, 148

A.3d 792, 796 (Pa. Super. 2016).

Appellate courts in Pennsylvania “have long recognized that there are

three levels of intrusion involved in interaction between members of the public

and police.” Walls, 53 A.3d at 892. This Court has compared and contrasted

these levels of interaction as follows:

A mere encounter can be any formal or informal interaction

between an officer and a citizen, but will normally be an

inquiry by the officer of the citizen. The hallmark of this

interaction is that it carries no official compulsion to stop or

respond.

In contrast, an investigative detention, by implication,

carries an official compulsion to stop and respond, but the

detention is temporary, unless it results in the formation of

probable cause for arrest, and does not possess the coercive

conditions consistent with a formal arrest. Since this

interaction has elements of compulsion it requires

reasonable suspicion of unlawful activity. In further

contrast, a custodial detention occurs when the nature,

duration and conditions of an investigative detention

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become so coercive as to be, practically speaking, the

functional equivalent of an arrest.

Commonwealth v. Coleman, 19 A.3d 1111, 1115-16 (Pa. Super. 2011)

(citations omitted).

We begin our review with an initial inquiry focusing on whether White

was “seized” during the initial interaction with Lieutenant Gibney. In

determining whether a valid seizure has occurred, we evaluate all of the

surrounding circumstances through an objective lens to ascertain whether a

reasonable person would feel that he was free to leave. Commonwealth v.

Strickler, 757 A.2d 884, 889 (Pa. 2000).

In evaluating the circumstances, the focus is directed

toward whether, by means of physical force or show of

authority, the citizen-subject's movement has in some way

been restrained. In making this determination, courts must

apply the totality-of-the-circumstances approach, with no

single factor dictating the ultimate conclusion as to whether

a seizure has occurred.

Id. at 890 (citation and footnote omitted).

Our review of the record refutes White’s contention that that the initial

approach and questioning by the police was more than a mere encounter. As

found by the trial court, Lieutenant Gibney’s approach and questioning of

White did not constitute any sort of restraint of White’s physical movement.

“Both the United States and Pennsylvania Supreme Courts have held that the

approach of a police officer followed by questioning does not constitute a

seizure.” Coleman, 19 A.3d at 1116 (citations omitted).

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As in this case, in Coleman, this Court considered whether a street

encounter between officers and a citizen was a mere encounter or an

investigatory detention. In that case, police responded to a radio call of a

robbery in progress, which included a description of the suspect. Upon arrival,

the officers observed a man that fit the description in the report. The officer

asked the defendant if he had a gun, to which the suspect responded “no,”

but at the same time put his hand in his pocket and began fumbling with an

object. The defendant refused the officers' request to take his hand out of his

pocket and a struggle ensued. The officers subsequently recovered two knives

and arrested the defendant.

In Coleman’s appeal, he argued, “that the initial approach and

questioning by the police was an investigative detention that was not

supported by reasonable suspicion.” Coleman, 19 A.3d at 1116. Our Court

held that the officer’s approach qualified as a mere encounter and that the

officer’s request for Coleman to remove his hand from his pocket did not

elevate the encounter to an investigative detention. Coleman, 19 A.3d at

1116–17. Thus, this Court concluded that the initial police-citizen interaction

in Coleman, was a mere encounter. Id. at 1116-17.

Here, the officers did not seize White during the first moments of their

initial interaction with him. The suppression-hearing transcript reveals that,

the officers did not approach White in a threatening manner, did not use any

means of physical force, or even utter the word “stop” or “police.” See N.T.,

2/24/17, at 11. They simply approached White and Lieutenant Gibney asked

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him a question, which does not constitute a seizure. Commonwealth v.

Smith, 836 A.2d 5, 11 (Pa. 2003) (holding that a passenger was not seized

“when police merely boarded a bus which was in the midst of a scheduled stop

and posed questions to her”).

Thus, the record in this case supports the trial court’s conclusion that

Lieutenant Gibney’s initial interaction with White was a mere encounter.5

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5 The fact that Officer Rucker did not identify him at the suppression hearing

does not alter our conclusion. Nevertheless, we agree with the

Commonwealth’s alternative argument, which it made at the suppression

hearing, that White’s warrantless arrest was supported by probable cause

under the “collective knowledge” doctrine. Most recently, in Commonwealth

v. Yong, 177 A.3d 876 (Pa. 2018), our Supreme Court addressed the specific

issue of “whether an investigating officer’s knowledge of facts sufficient to

create probable cause to arrest may be imputed to a second officer, who

arrests the suspect, when the two officers are working as a team, but there is

no evidence the investigating officer with probable cause directed the officer

to act.” Yong, 177 A.3d at 876-87. The high court, after discussing the

different approaches employed in Pennsylvania, as well as various federal

courts, answered this issue in the affirmative, based upon “the version of the

collective knowledge doctrine” it discussed and adopted therein. Id. at 877.

It defined this doctrine as follows:

[W]e maintain that Pennsylvania adheres to the vertical

approach of the collective knowledge doctrine, which

instructs that an officer with the requisite level of suspicion

may direct another officer to act in his or her stead.

However, where, as here, the arresting officer does not have

the requisite knowledge and was not directed to act, we hold

the seizure is still constitutional were the investigating

officer with probable cause or reasonable suspicion was

working with the officers and would have inevitably and

imminently ordered that the seizure be effectuated. . . .

[W]e find this modified approach best balances the

important interest of ensuring police efficacy and efficiency

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Finally, the search that Lieutenant Gibney conducted of White was

constitutionally valid. Based on White’s admission that he was carrying drugs,

Lieutenant Gibney had probable cause to place White under arrest. “Probable

cause exists if the facts and circumstances within the knowledge of the police

officer at the time of the arrest are sufficient to justify a person of reasonable

caution in believing the suspect has committed or is committing a crime.”

Commonwealth v. Colon, 777 A.2d 1097, 1100 (Pa. Super. 2001). Our

precedent establishes that when a citizen admits that he is possession of an

illegal drugs during the course of a mere encounter, probable cause arises,

and a search incident to arrest is appropriate. See e.g., In re I.M.S., 124

A.3d 311, 317 (Pa. Super. 2015) (holding that a police officer had probable

cause to arrest juvenile after juvenile admitted to possessing drugs, and thus

the officer was authorized to conduct a search incident to arrest of juvenile’s

backpack).

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with protecting citizens’ rights to be free from

unconstitutional intrusions.

Yong, 177 A.3d at 889-90 (citation omitted).

In the instant case, there is no question that Officer Rucker was working

with Lieutenant Gibney as part of a drug investigation, and that Officer Rucker

possessed probable cause to arrest White based upon two prior drug sales he

had made to her. Moreover, while Officer Rucker only asked Lieutenant

Gibney to obtain White’s identification, rather than order his arrest, the

“collective knowledge” doctrine adopted in Yong holds that White’s seizure

was justified. See id.

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Here, White responded in the affirmative when asked whether he was

in possession of drugs. As such, the police had probable cause to believe that

White was in possession of drugs, authorizing his arrest and search of his

person. Consequently, the drugs seized were properly confiscated and

admitted into evidence.

In sum, we conclude that the initial interaction between Lieutenant

Gibney and White constituted a mere encounter, and probable cause

developed in the course of lawful questioning, thus making the subsequent

arrest and search of White constitutionally valid. Therefore, the trial court did

not err when it allowed the admission of evidence (the drugs and

paraphernalia) left in the police van following White’s arrest.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 8/24/2018

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