Com. v. Anderson, S.

• Court: Superior Court of Pennsylvania
• Decided: March 30, 2021
• Docket: 662 MDA 2020
• Status: Unpublished

Opinion

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellant : : : v. : : : SYLVESTER ANDERSON : No. 662 MDA 2020

Appeal from the Suppression Order Entered April 21, 2020 In the Court of Common Pleas of Dauphin County Criminal Division at No(s): CP-22-CR-0004013-2019

BEFORE: MURRAY, J., McLAUGHLIN, J., and McCAFFERY, J.

MEMORANDUM BY McLAUGHLIN, J.: FILED MARCH 30, 2021

The Commonwealth appeals from the order granting Sylvester

Anderson’s suppression motion. It maintains that the trial court erred in

granting the motion because the interaction between Anderson and police was

a mere encounter and Anderson consented to the search. We reverse the

order granting the motion and remand for further proceedings.

Following an encounter in a restaurant parking lot, police arrested

Anderson and charged him with drug-related offenses. He moved to suppress

claiming that the encounter “transformed into an ‘investigative detention’ once

the police officer and his fellow law enforcement officers detained him, ordered

him to drop his food, and coerced a bodily search of his person.” Defendant’s

Motion to Suppress Evidence, filed 11/12/19, at ¶ 30. Anderson argued that

officers lacked reasonable suspicion to conduct the investigative detention and

he did not consent to the search. Id. at ¶¶ 32, 33, 38. J-S51024-20

At a suppression hearing, the prosecution first presented the testimony

of Officer Chad McGowan, who said he was on duty on May 29, 2019, at

approximately 9:30 pm when he saw Anderson in the restaurant parking lot.

N.T., Suppression Hearing, 1/23/20, (“N.T.”) at 5, 6. Officer McGowan was

driving an unmarked police vehicle accompanied by four members of law

enforcement, including Sheriff’s Deputy Maurice Edwards. Id. at 6, 27. Officer

McGowan testified that during his time as an officer he had been involved in

the investigation of a homicide and of firearms offenses in that parking lot,

and had personally made drug arrests there. Id. at 7. Based on his experience,

he considered the parking lot to be a “high-crime/high-drug area.” Id.

Officer McGowan testified that he first noticed Anderson because

Anderson was “on his hands and knees, looked to be crawling on the ground,

next to a red Dodge pickup truck [on the driver’s side of the vehicle].” Id. at

7, 8, 30. He thought this behavior was “unusual.” Id. at 8. Officer McGowan

said it was unclear whether the truck belonged to Anderson and he initially

approached Anderson to “mak[e] sure he was okay.” Id. at 31, 45. Officer

McGowan stated he drove into the parking lot and toward Anderson, and

Anderson, who was “sweating profusely,” “got up, he turned around and

looked at my car.” Id. at 9. The officer testified that while still in his vehicle,

he “asked [Anderson] if he was okay, and [Anderson] said he had dropped

something” and then walked into the restaurant. Id. at 9, 31. Officer McGowan

said the encounter with Anderson was “not very long,” estimating that it was

approximately one to two minutes. Id. at 10. Officer McGowan said he did not

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ask Anderson for his identification before Anderson entered Harrisburg Fried

Chicken, and did not conduct a pat-down search. Id. at 9, 10.

Officer McGowan stated that after Anderson entered the restaurant, the

officer noticed that the truck was “cockeyed . . . . consuming two different

spots.” Id. at 10, 11. He also noticed that the driver’s side window was down.

Id. at 11. Based on these observations, Officer McGowan wondered “if the

individual was possibly, you know, intoxicated or impaired on alcohol or a

controlled substance.” Id.

Officer McGowan stated that Anderson left the restaurant a few minutes

later and looked toward the officers, who were outside their police vehicle,

and then turned and started walking in the opposite direction from the officers.

Id. at 12, 90. Officer McGowan testified that he got out of his vehicle, walked

towards Anderson, asked if he could speak with him, and “[Anderson] obliged.

. . .” Id. at 12, 39. Deputy Edwards was with Officer McGowan as he spoke

with Anderson. Id. at 13. Both Deputy Edwards and Officer McGowan were

wearing their Street Crimes Uniforms, which included “tactical attire, sewn-on

badge in the front, marked by police insignia front and back, [and] . . . sleeves

. . . marked with Police and Street Crimes Unit.” Id. at 6. They also were

armed. Id. at 87.

Officer McGowan asked Anderson for his ID and he handed it over. Id.

Officer McGowan also asked Anderson if he was on probation or parole and

Anderson replied that he was on parole. Id. Additionally, Officer McGowan

asked Anderson if he had anything illegal on his person and he replied that he

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did not. Id. at 14. While speaking with Anderson, Officer McGowan did not

notice any odor of alcohol coming from Anderson. Id. at 51. He also described

his interaction with Anderson as “civil.” Id. at 16. Officer McGowan testified

that he did not obstruct Anderson’s ability to leave or tell Anderson that he

was not free to leave. Id. at 14-15.

Officer McGowan said he then asked Anderson if he could search his

person. Id. at 15. Anderson said that he could and raised his arms at his sides

in a “T” shape at a 90-degree angle to his body, “as if allowing [Officer

McGowan] to conduct [the] search a little easier.” Id. at 15-16. Officer

McGowan testified that as he performed the search, his hand “swept over

[Anderson’s] groin region,” and “felt a hard and distinct bulge, which I -- it

was immediately apparent to me [that Anderson] had a substantial amount of

crack cocaine down the front of his pants.” Id. at 18. Officer McGowan said

that when he tried to detain Anderson, Anderson broke free and began

running, but the officers tackled him. Id. at 8, 18. Officer McGowan testified

that he remarked to another officer that he thought he had felt an ounce of

crack cocaine in Anderson’s pants. Id. at 18. The officers recovered from

Anderson’s pants 28.3 grams of crack cocaine, which is approximately one

ounce. Id. at 19. Officer McGowan said that he at no time brandished a

weapon or told Anderson he could not leave. Id. at 14.

The Commonwealth also presented the testimony of Deputy Edwards,

who testified that their initial reason for making contact with Anderson was

that they “were just basically concerned for his health at that point.” Id. at

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78. In contrast to Officer McGowan, Deputy Edwards said that during the

second encounter, he detected an odor of alcohol emanating from Anderson

and noticed that Anderson’s eyes were glassy and red. Id. at 94. Deputy

Edwards testified that during the second encounter, Officer McGowan asked

Anderson if he had anything illegal on him and that he replied no, and when

Officer McGowan asked if he could search him, Anderson said that he could.

Id. at 73.

Anderson testified that on the night of the incident, he was searching

for his phone on the ground and when he got up, Officer McGowan was nearby

on foot and, addressing him as “my boy,” asked what he was “doing on the

ground.” Id. at 98, 99. Anderson testified that he replied that he was picking

his phone up off the ground. Id. at 99. Anderson said that Officer McGowan

then asked for his ID and he handed it over, and after reviewing it, Officer

McGowan told him, “I need to pat you down for my own protection.” Id.

Anderson said that after the officer performed a pat-down search, he let

Anderson leave, and Anderson walked into the restaurant. Id. at 99, 100.

According to Anderson, when he left the restaurant, Officer McGowan

called him by name, said that he needed to speak with him, and told him to

stop. Id. at 101, 103. He testified that Officer McGowan began asking him

questions and then searched his pockets without his consent. Id. at 104.

Anderson also testified that after Officer McGowan searched his pockets, he

again patted him down saying, “I want to see if you have a weapon.” Id. at

105. Anderson testified that Officer McGowan then began “feeling all on [his]

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privates,” and he stepped back because he was uncomfortable, at which point

Officer McGowan “slammed” him to the ground. Id. at 105-106. Anderson said

the crack cocaine was not in the front of his pants but rather in his anal cavity,

and once Officer McGowan slammed him to the ground, Officer McGowan

reached into his pants and removed the crack. Id. at 108, 111.

The trial court found Officer McGowan’s testimony credible and

concluded that Anderson voluntarily consented to the search. It nonetheless

granted the suppression motion because it concluded that the search

exceeded the scope of Anderson’s consent. See Memorandum Opinion, filed

4/21/20, at 3, at 5-6. The Commonwealth filed this appeal and presents the

following questions before this Court:

I. Whether the lower court erred in granting [Anderson’s] suppression motion where the encounter between [Anderson] and the police officer was a mere encounter and not an investigatory detention?

II. Whether, in the alternative, the lower court erred in granting [Anderson’s] suppression motion where police possessed reasonable suspicion for an investigatory detention?

III. Whether the lower court erred in granting [Anderson’s] motion to suppress evidence where [Anderson] voluntarily consented to the search and the search did not exceed the scope of that consent?

IV. Whether [Anderson] waived his challenge to law enforcement’s alleged exceeding the voluntariness of his consent by not raising it in the lower court?

Commonwealth’s Br. at 4 (suggested answers omitted). Anderson did not file

a brief in this Court.

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When reviewing an appeal from the grant of a suppression motion, this

Court “consider[s] only the evidence from the defendant’s witnesses together

with the evidence of the prosecution that, when read in the context of the

entire record, remains uncontradicted.” Commonwealth v. Korn, 139 A.3d

249, 252 (Pa.Super. 2016) (quoting Commonwealth v. Miller, 56 A.3d

1276, 1278–1279 (Pa.Super. 2012)). “Our standard of review is restricted to

establishing whether the record supports the suppression court’s factual

findings; however, we maintain de novo review over the suppression court’s

legal conclusions.” Commonwealth v. Brown, 996 A.2d 473, 476 (Pa.

2010).

The Commonwealth’s questions are interrelated. It first argues that the

interaction was a mere encounter, and even if it was an investigatory

detention, the police had reasonable suspicion. It also maintains that

Anderson waived any challenge to the scope of the search, and in any event,

the search was within the scope of Anderson’s consent.

For a search by consent to be valid, the consent must be voluntary and

given during a lawful police interaction, and the ensuing search must be within

the scope of the consent. Commonwealth v. Valdivia, 195 A.3d 855, 861-

62 (Pa. 2018). There are three different types of interactions between police

and citizens:

The first, a “mere encounter,” does not require any level of suspicion or carry any official compulsion to stop or respond. The second, an “investigative detention,” permits the temporary detention of an individual if supported by

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reasonable suspicion. The third is an arrest or custodial detention, which must be supported by probable cause.

Commonwealth v. Lyles, 97 A.3d 298, 302 (Pa. 2014) (citations omitted).

We employ an objective test to “ascertain whether a seizure has

occurred to elevate the interaction beyond a mere encounter.”

Commonwealth v. Adams, 205 A.3d 1195, 1200 (Pa. 2019). We ask

“whether, taking into account all of the circumstances surrounding the

encounter, the police conduct would ‘have communicated to a reasonable

person that he was not at liberty to ignore the police presence and go about

his business.’” Id. (quoting Florida v. Bostick, 501 U.S. 429, 437 (1991)).

Both stages of the interaction between Officer McGowan and Anderson

were a mere encounter. During the first stage, Officer McGowan simply asked

Anderson what he was doing, and the totality of the circumstances did not

communicate to Anderson that “he was not at liberty to ignore” Officer

McGowan. The second stage, which began when Anderson left the restaurant,

was likewise a mere encounter. Officer McGowan testified that he asked

Anderson to speak with him and Anderson for his ID and whether he was on

probation or parole, had anything illegal on him, and if he would consent to a

search of his person. Officer McGowan said that Anderson answered all of

these questions and provided his ID, and that their conversation was civil.

The suppression court credited Officer McGowan’s testimony, and the

request for identification, even in the context of the other questions and

additional circumstances, did not transform their interaction into an

investigative detention. See Commonwealth v. Au, 42 A.3d 1002, 1003-04,

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1007, 1009 (Pa. 2012) (holding officer’s request for identification did not

transform encounter with appellant into an investigative detention where the

request was made to appellant who was a passenger in a vehicle parked in lot

of business premises). Moreover, the totality of the circumstances did not

reasonably convey to Anderson that he was obligated to talk to Officer

McGowan or that he could not have gone about his business.1 Anderson’s

consent was thus not the product of an illegal detention.

The Commonwealth also maintains that the trial court erred in granting

Anderson’s suppression motion because he “voluntarily consented to the

search and the search did not exceed the scope of that consent.”

Commonwealth’s Br. at 22. It also maintains that Anderson waived any

challenge to the scope of the search by failing to raise any such challenge in

the court below.

Police must obtain a warrant to conduct a search of a person or property,

unless an exception to the warrant requirement applies, such as consent to

search. See Valdivia, 195 A.3d at 861. For consent to search to be valid, the

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1 Even if the second stage constituted an investigative detention, under the facts here, the police had reasonable suspicion. The suppression court believed Officer McGowan’s testimony, including that Anderson was crawling on the ground next to a pickup truck that was parked “cockeyed” across two spaces, was sweating profusely, and that as Anderson left the restaurant, he started walking toward the officers but when he saw they were still there, he turned and walked in the opposite direction. The totality of the circumstances reasonably led Officer McGowan to suspect that Anderson was driving under the influence.

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consent must have been voluntary and the search may not exceed the scope

of consent. Id. at 861-862.

Here, the trial court determined that Anderson voluntarily consented to

a search of his person, but that Officer McGowan exceeded the scope of

Anderson’s consent. See Memorandum Op. at 3. It explained that in its view,

“Officer McGowan searched [Anderson’s] groin region in a public parking lot,

and it was not reasonable for Officer McGowan to believe that [Anderson’s]

consent extended to such an intrusive search of a private area.” Id.

The Commonwealth’s waiver argument lacks merit. Anderson argued

that the search exceeded the scope of his consent during the suppression

hearing. See N.T., Suppression Hearing, at 125.

However, the Commonwealth’s argument that Officer McGowan did not

exceed the scope of Anderson’s consent is meritorious. The Commonwealth

maintains that “a reasonable person in Anderson’s position would have

understood his consent to encompass a search of his pockets and a brief pat-

down of the areas [where] ‘anything illegal’ could be hidden.”

Commonwealth’s Br. at 27.

The scope of consent is measured by a rule of “‘objective

reasonableness.’” Valdivia, 195 A.3d at 862 (quoting Florida v. Jimeno, 500

U.S. 248, 251 (1991)). We do not determine the scope of consent based on

the individual’s subjective belief or on the searching officer’s “understanding

based on his or her training and experience. Rather, we ask ‘what ... the

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typical reasonable person would have understood by the exchange between

the officer and the suspect.’” Id. (quoting Jimeno, 500 U.S. at 251).

Here, a reasonable person in Anderson’s shoes would have understood

from the context of the entire exchange with Officer McGowan that the search

included the groin area. Officer McGowan first asked Anderson if he had

anything illegal on his person, and after Anderson said he did not, only then

did the officer obtain Anderson’s consent to search his “person.” The issue is

whether a reasonable person, having been asked such a question, would have

understood Officer McGowan’s request as including a sweep of the groin area.

We think a reasonable person would have had such an understanding. The

preceding question about whether Anderson had anything illegal on his person

was the obvious trigger for the request to search, such that the first question

informs the permissible scope of the search.

In other words, any reasonable person who was asked such a question

and who very shortly afterward was asked to consent to a search of their

person would understand that the search was intended to uncover contraband

and extended to any reasonable place on the “person” where a person could

secrete contraband, such as the groin. Officer McGowan’s “sweep” of

Anderson’s groin did not exceed the scope of Anderson’s consent. We reverse

the order granting the motion to suppress and remand for further proceedings.

Order reversed. Case remanded. Jurisdiction relinquished.

Judge Murray concurs in the result.

Judge McCaffery files a dissenting memorandum.

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Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 03/30/2021

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