Com. v. Brown, N.

J-S32035-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

:

v. :

:

:

NATHANIEL BROWN :

:

Appellant : No. 507 EDA 2019

Appeal from the Judgment of Sentence Entered January 18, 2019,

in the Court of Common Pleas of Philadelphia County,

Criminal Division at No(s): CP-51-CR-0003397-2017.

BEFORE: KUNSELMAN, J., KING, J., and COLINS, J.*

MEMORANDUM BY KUNSELMAN, J.: Filed: October 29, 2020

Nathaniel Brown appeals from the judgment of sentence of time served

to 23 months incarceration and three years of probation, after a trial court

found him guilty of carrying a gun (1) in Philadelphia1 and (2) without a

license.2 Pretrial, Brown moved to suppress the firearm, but the trial court

denied relief. We reverse the denial of suppression and vacate the judgment

of sentence.

At 9:50 p.m., on February 13, 2017, Officers Brent McCauley and Logan

Johnson were in a marked patrol car in the 25th District of Philadelphia. Officer

Johnson performed the frisk at issue. However, he did not testify at the

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* Retired Senior Judge assigned to the Superior Court.

1 18 Pa.C.S.A. § 6108.

2 18 Pa.C.S.A. § 6106.

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suppression hearing. His partner, Officer McCauley, testified instead and said

that the 25th District is a “high crime, high drug, and high guns area.” N.T.,

5/21/18, at 7-8.

As the two officers rode in their patrol car, they saw a white Chevrolet

Impala with three occupants: a driver, a front-seat passenger (Brown), and

a back-seat passenger. The officers stopped the Impala, because they

suspected it was not registered with the Pennsylvania Department of

Transportation (“PennDOT”). They could not read the date on the temporary-

registration tag hanging in the rear window, and their search for the car

returned no record in PennDOT’s database.

Officer McCauley activated his lights and siren, and the driver promptly

pulled over. Officer McCauley approached the driver’s window, and Officer

Johnson approached Brown’s window. Officer McCauley smelled burnt

marijuana wafting from the car.

The officers ordered the driver and Brown to step out of the vehicle.

Both men complied without issue or making any sudden movements. See id.

at 24, 28. Office McCauley saw no weapons in the car or any bulges in the

men’s clothing. See id. at 27-28. When the occupants exited the vehicle,

Officer McCauley immediately patted down the driver, while Officer Johnson

immediately did the same to Brown.

Regarding the frisk of Brown, Officer McCauley testified as follows:

Q: [A]fter [the driver] and [Brown] both exited the

vehicle, what happened at that point?

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A: My partner, at the time stated to me that [Brown] had

a gun. He said “Gun.” I immediately went over to

him, as I was placing the driver in the back of my

patrol car.

Q: And you said or indicated that Officer Johnson said

“Gun.” Did you observe Officer Johnson – is it fair to

say Officer Johnson would have frisked [Brown]?

A: Yes.

Q: And did you observe that?

A: As I was putting the passenger or the driver in my

vehicle, I was walking up to help him when he said,

“Gun.” Immediately when he said “Gun,” I went up

to my partner. I also had to make sure the driver was

secured first, as well as my vehicle, and then I went

and placed [Brown] in handcuffs.

Id. at 15-16.

Next, the prosecutor asked Officer McCauley why he frisked the driver.

He answered, “For the smell of weed throughout the vehicle. And even doing

a search as well.” Id. at 18.

The suppression court interjected, “For your safety?” Id.

“Yes, for my safety,” Officer McCauley responded. But throughout that

testimony, there was never any evidence produced as to Officer Johnson’s

reason for frisking Brown, because Officer Johnson did not testify. Instead,

the prosecutor asked Officer McCauley whether it is routine practice for the

Philadelphia Police to frisk everyone whom they ask to exit a vehicle:

Q: [Y]ou frisking someone when you take them out of the

vehicle, is that something that you typically do?

A: Yes.

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Q: Have you received any training to do so when you

remove someone from a vehicle?

A: Yes, in my police training.

Id. (emphasis added). Thus, according to Officer McCauley, the Philadelphia

police typically frisk anyone whom they “take out of” a vehicle, even in a case

like this, where the suspected offenses are nonregistration with PennDOT and

marijuana use.

When Officer Johnson frisked Brown under this protocol, he found an

unlicensed firearm. The officers then arrested Brown.

In his motion to suppress, Brown alleged, among other things, that

Officer Johnson lacked reasonable suspicion under Terry v. Ohio, 392 U.S. I

(1968), and its progeny to frisk him. The suppression court disagreed.

The court observed police may conduct an investigative detention, a.k.a.

a Terry stop, if the officer has reasonable suspicion that a driver or passenger

is armed and dangerous. The court explained that a frisk is only justified if

the police can point to “specific and articulable facts indicating the person they

intend to frisk may be armed and dangerous . . .” Commonwealth v.

Cooper, 994 A.2d 589, 593 (Pa. Super. 2010). Analogizing this matter to

Commonwealth v. Simmons, 17 A.3d 399, 403 (Pa. Super. 2011), the

suppression court reasoned:

the totality of the circumstances led Officer Johnson and

Officer McCauley to reasonably believe that the driver,

[Brown], or the back-seat passenger may have been armed

or may have otherwise posed a risk to the officers’ safety.

First, the underlying incident involved a traffic stop. . . . The

stop occurred around 9:50 p.m., in the 25th District of

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Philadelphia, a “high crime, high drug, and high guns” area.

(N.T. 5/21/18 at 7-8). In fact, Officer McCauley explained

that “the whole entire 25th District is a violent crime area,

high drugs, a lot of guns, thefts. We pretty much lead the

city in most crimes in the city of Philadelphia.” Although

presence in a dangerous neighborhood, alone, is insufficient

to support a finding of reasonable suspicion, it is a relevant

consideration in a Terry analysis. In re D.M., 781 A.2d

1161, 1163-64 (Pa. 2001).

The instant matter is distinguishable from Simmons

in one aspect. In that case, officers observed the defendant

make furtive or suspicious movements. Here, there was no

testimony showing that any of the vehicle’s occupants made

furtive movements.

Id. at 8-9 (some citations and punctuation omitted).

Nonetheless, the suppression court believed additional factors created

reasonable suspicion. The court stated:

Specifically, here, the two officers were outnumbered, as

there were three male occupants in the stopped vehicle.

. . . Additionally, the officers had reason to suspect that the

vehicle’s occupants possessed an illegal substance, as there

was a strong odor of marijuana emanating from the vehicle.

This court recognizes that the smell of marijuana, alone,

does not necessarily support a Terry frisk. However, in

conjunction with the other circumstances, this supported a

finding of reasonable suspicion that the vehicle’s occupants

might be armed and dangerous.

Id. at 10.

After denying suppression, the court convicted Brown and sentenced

him as detailed above. This timely appeal followed.

Brown asks this Court:

Whether the suppression court erred, because Officer

Johnson frisked [him] unlawfully, inasmuch as [Officer

McCauley] provided no specific and articulable facts to

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support a reasonable suspicion that [Brown] was armed and

dangerous, in violation of the federal and state

constitutions?

Brown’s Brief at 3.3

Brown challenges the frisk under both the Fourth Amendment to the

Constitution of the United States and Article I, § 8 of the Constitution of the

Commonwealth of Pennsylvania.4 Brown argues that “no officer provided any

specific and articulable facts to support a reasonable suspicion that [he] was

armed and dangerous.” Id. at 8. Indeed, he asserts that the police gave no

reason for frisking him and emphasizes that the officer who actually frisked

him did not testify to explain why he did so. According to Brown, Officer

McCauley’s general statement that he was worried for his safety, in response

to the suppression court’s question, was generalized and constitutionally

deficient.

In reply, the Commonwealth relies on the analysis of the suppression

court. It notes that an officer who asks a person to exit a vehicle may “conduct

a quick frisk for weapons if [the officer] reasonably fears that the person with

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3 Brown’s other appellate issues involve the constitutionality of the traffic stop

and the scope of the Terry frisk. See Brown’s Brief at 3. We need not address

these claims, in light of our conclusion that the police lacked reasonable

suspicion to frisk Brown.

4 Brown does not assert greater protections under the state constitution. See

Commonwealth v. Edmunds, 586 A.2d 887 (Pa. 1991) (articulating a four-

part test for litigants to argue and for courts to analyze when facing state

constitutional questions as being separate and distinct issues from those in

the federal charter). We therefore deem Brown’s state and federal

constitutional claims to be coextensive and consider them together.

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whom [the officer] is dealing may be armed and dangerous.”

Commonwealth’s Brief at 9-10 (quoting In re D.M., 727 A.2d 556, 557 (Pa.

1999)). “As the [suppression] court determined . . . the officers reasonably

sought to protect their safety under the totality of the circumstances while

conducting a car stop, at night, while outnumbered, in an area known for a

high-crime rate with lots of guns.” Commonwealth’s Brief at 5.

We begin with our scope and standard of review. When, as in this case,

there is a warrantless search, “determinations of reasonable suspicion and

probable cause should be reviewed de novo on appeal.” Ornelas v. United

States, 517 U.S. 690, 699, (1996). Thus, when police perform a warrantless

search, including a Terry frisk, their actions are subject to the highest degree

of appellate scrutiny. We accept the suppression court’s factual findings, if

competent evidence of record from the hearing supports them. See

Commonwealth v. Bradley, 636 A.2d 619, 621 (Pa. 1994); see also In re

L.J., 79 A.3d 1073 (Pa. 2013). The “reviewing court should take care both to

review findings of historical fact only for clear error and to give due weight to

inferences drawn from those facts by resident judges and local law

enforcement officers.” Ornelas at 699.

Both the state and federal constitutions protect people from intrusions

by the police into their privacy. The Constitution of the United States dictates

that “The 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. amnd. IV. Similarly, “The people shall be secure in their

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persons, houses, papers, and possessions from unreasonable searches . . . .”

Pa. Const. art. I, § 8. Thus, “warrantless search or seizure of evidence is . . .

presumptively unreasonable under the Fourth Amendment and Article I, § 8,

subject to a few specifically established, well-delineated exceptions.”

Commonwealth v. Luczki, 212 A.3d 530, 546 (Pa. Super. 2019).

One exception is a constitutionally executed Terry frisk. To perform a

permissible Terry frisk, an officer must possess reasonable suspicion that the

person the officer is frisking is armed and dangerous. To rebut the

presumption that the warrantless frisk of Brown was unreasonable, the

Commonwealth needed to prove that “a reasonably prudent man in the

circumstances [of Officer Johnson] would be warranted in the belief that his

safety or that of others was in danger.” Terry, 392 U.S. at 20. The

Commonwealth’s suppression-hearing evidence failed to make that showing.

By way of example, we turn to a case that the Commonwealth cites in

its brief, In re D.M., supra. See Commonwealth’s Brief at 10. In that case,

a Philadelphia police officer received a radio report of an armed robbery in his

vicinity. He arrived near the crime scene about one to two minutes later. The

officer saw four men fitting the eyewitness’s description of the robbers moving

in a hurried fashion. When they saw the officer, they changed directions to

avoid him. The officer caught up to and detained them. A Terry frisk ensued.

The Supreme Court of Pennsylvania held that the officer could, on those

facts, detain the men to investigate whether they were involved in the

robbery. The High Court then considered the separate issue of whether the

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officer could pat them down. Affirming this Court and the suppression’s

rulings, the Supreme Court upheld the Terry frisk as constitutional.

Chief Justice Castille explained that “The officer’s investigation could not

have been safely pursued had he not patted the group down for weapons since

the radio call alerted police to a gunpoint robbery.” In re D.M., 727 A.2d

556, 558 (emphasis added). “In light of the report that the robbery had been

committed with a gun, ‘a reasonably prudent man under the circumstances

would be warranted in the belief that his safety or that of others was in

danger.’” Id. (quoting Terry at 20). Thus, all three courts that reviewed the

police actions in D.M. concluded the officer’s concern for his safety was

reasonable.

Here, unlike D.M., police had no report of a violent crime or eyewitness

identification of Brown to tie him to a violent act. Officers McCauley and

Johnson stopped a vehicle to investigate its PennDOT registration. Officer

McCauley testified to nothing particular about any of these three men – and

especially not Brown – that would lead a reasonably prudent person to think

that they were armed or dangerous. No danger arises from a temporary-

registration tag being only partially taped to a rear window.

To assert reasonable suspicion that the three men were armed and

dangerous, the Commonwealth and the suppression court relied upon five

facts, none of which were particular as to Brown. Those general facts were:

(1) geographical profiling (police have dubbed their 25th District of Philadelphia

a “high crime” and “high drug” area); (2) the time of day (i.e., 9:50 p.m.);

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(3) the traffic stop itself; (4) the officers-to-suspects ratio; and (5) the smell

of marijuana emanating from the vehicle. The suppression court deemed

these five facts to be “the totality of the circumstances.” Trial Court Opinion,

12/17/19, at 9. We disagree.

Additional facts comprised the totality of the circumstances that night,

but the suppression court ignored them. It therefore erroneously failed to

weigh those additional facts against the Commonwealth’s claim that frisking

Brown was based upon a particularized, reasonable belief that Brown, himself,

was armed and dangerous.

First, as mentioned above regarding In re D.M., there was no evidence

or eyewitness report linking Brown to a crime of violence, such as a recent

armed robbery. Indeed, the only crimes that the officers believed were afoot

when they pulled the vehicle over was that the car may not have been properly

registered with PennDOT because the temporary registration in the rear

window was coming untaped.5 See N.T., 5/21/18, at 11. Granted, Officer

McCauley also testified that he observed the man in the rear seat rolling a

blunt before the police began following the car, but (a) that is not a crime of

violence, and (b) it was in no way linked to Brown or the degree of danger he

presented to the police or others. See id. at 10-11. Brown was the front-

seat passenger. Thus, when the officers directed Brown to exit the car, as far

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5 A temporary registration permit “shall be affixed to the extreme lower left-

hand (diver side) inside corner of the rear window of a vehicle with the printed

information visible from the outside.” 75 Pa.C.S.A. § 1310.1(c).

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as they knew, his greatest “offense” was riding in a vehicle with an improperly

taped temporary registration tag. There was no indication that any violent

crime was afoot.

Also, the Commonwealth provided no evidence or testimony as to why

Officer Johnson frisked Brown. As previously indicated, Officer Johnson did

not testify. Officer McCauley, who frisked the driver, saw no furtive

movements by anyone in the car as the two police approached the vehicle.

He reported no other facts that would warrant a reasonable person to believe

that a weapon was present. Police saw no visibly apparent firearms or any

bulges in the men’s clothing that might give rise to an inference that they

were carrying concealed guns.

Instead of identifying a particular risk that Brown presented, Officer

McCauley explained that Officer Johnson patted him because that is what

Philadelphia Police “typically do” during a traffic stop. N.T., 5/21/18, at 18.

According to Officer McCauley, he received “training to do so when [police]

remove someone from a vehicle.” Id. Indeed, the Commonwealth relied

solely on this testimony to justify the search of Brown. The assistant district

attorney explained at the close of the suppression hearing that Officer

McCauley “received training in the Philadelphia Police Academy, if you’re going

to take an individual out of a car, you can frisk . . . .” Id. at 47.

This is incorrect. The police may not frisk an individual, simply because

they take him out of his car. This practice, if used as Officer McCauley claimed,

is devoid of any individualized suspicion regarding the person being frisked.

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Granted, under Pennsylvania v. Mimms, 434 U.S. 106 (1977), police

may, as a matter of course and in the interest of their safety, “order the driver

to exit the vehicle despite the lack of an articulable basis to believe that

criminal activity is afoot or that the driver is armed and dangerous.”

Commonwealth v. Brown, 654 A.2d 1096, 1100 (Pa. Super. 1995). In

Mimms, the Supreme Court explained that, once the vehicle is constitutionally

stopped, “police have already lawfully decided that the driver shall be briefly

detained; the only question is whether he shall spend that period sitting in the

driver’s seat of his car or standing alongside it.” Mimms, 434 U.S. at 111.

Standing beside one’s vehicle during a traffic stop is a “mere inconvenience.”

Id.

Frisking someone, by contrast, is no “mere inconvenience.” It is a bodily

intrusion against his or her private person and individual liberty; hence, it is

a search. At common law, it could constitute a battery.6 Thus, the courts

have never extended the rationale of Mimms and Brown to the act of frisking

people after asking them to exit their cars, as Officer McCauley and the

Commonwealth seemingly believe.

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6 “The definition of [a] battery [is] set forth in THE RESTATEMENT (SECOND) OF

TORTS, § 18, as well as the battery definition included in Pennsylvania

Suggested Standard Jury Instruction (Civil) 17.20 (providing that ‘a battery is

an act done with the intent to cause a harmful or offensive contact with the

body of another and that directly or indirectly results in the harmful or

offensive contact with the body of another.’” Cooper ex rel. Cooper v.

Lankenau Hosp., 51 A.3d 183, 190 n.6 (Pa. 2012) (some punctuation

omitted).

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Officer Johnson was not frisking Brown based upon a reasonable,

individualized suspicion that Brown was armed or dangerous. At best, this

record only shows that Officer Johnson frisked Brown as part of a typical

practice of frisking everyone police ask to exit a vehicle. Thus, he had no

individualized, reasonable suspicion to frisk Brown. All of the facts upon which

the suppression court relied are part of the general risks police inherently face

every day. However, they remain generally applicable facts that extend to

every member of the public the police encounter. Those facts do not reflect

upon anyone in particular or indicate that Brown, himself, might have been

armed and dangerous.

Being in a “high crime” or “high gun” neighborhood at 9:50 p.m. does

not indelibly brand everyone in that neighborhood as a danger to police or

others. And as the public defender correctly argued in her closing, “if we use

high crime, high drug, we would be frisking every single person that’s in the

City and County of Philadelphia.” N.T., 5/12/18, at 43. Thus, while the

police’s characterization of a neighborhood may enhance suspicion if tied to

some specific conduct by the frisked individual, it does not carry much weight

in and of itself. Also, 9:50 p.m. is not so late to be driving in a major

metropolitan center, such as Philadelphia, that to do so leads to a reasonable

belief that the car’s occupants are armed and dangerous.

Nor is there anything in the record to establish that a passenger riding

in a car with a loosely taped temporary registration tag gives rise to such a

reasonable belief. Furthermore, we disagree with the suppression court’s

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unsubstantiated conclusion that being in a car that smells of burnt marijuana

increases the likelihood that one is armed or dangerous. See

Commonwealth v. Grahame, 7 A.3d 810, 811 (Pa. 2010) (concluding the

Superior Court erred in presuming “guns follow drugs” to justify a protective

search for weapons pursuant to Terry). The Commonwealth offered no

evidence connecting marijuana use to an increased risk of violence. And the

actions of these men, calm and compliant, lessens the chances that they

might have attacked the officers. Driving under the influence of marijuana

would have made the driver unsafe to drive as a matter of law,7 but this driver

had pulled off the road immediately after the police activated their lights,

thereby eliminating that threat by the time police frisked him and Brown.

Thus, that crime no longer threatened anyone.

Lastly, the suppression court’s contention that the police were

outnumbered has some credence. But in light of the other facts of record,

especially the lack of any real sign of danger from any of these three men

or that they were attempting to escape or threaten the police, the police-to-

suspect ratio carries little constitutional weight. The protections of the Fourth

Amendment and Article I, § 8 do not evaporate if the police elect to engage a

group of peaceful men who happen to outnumber law enforcement.

We hold that the frisk Officer Johnson executed on Brown violated both

constitutions. Such police conduct did not conform to the requirements that

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7See 75 Pa.C.S.A. § 3802(d). There is nothing of record to indicate that the

driver was under the influence in this case.

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police possess individualized, reasonable suspicion that the person frisked

may be armed and dangerous. The Commonwealth failed to rebut the

presumption that this warrantless search of Brown was unreasonable by

proving that circumstances to support a Terry frisk existed. See Luczki,

supra. The gun that police discovered and seized during this unconstitutional

search is the fruit of the poisonous tree which the court below should have

suppressed. See Wong Sun v. United States, 371 U.S. 471 (1963).

Judgment of sentence vacated. Order denying suppression reversed.

Case remanded for further proceedings consistent with this decision.

Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 10/29/20

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