Com. v. Dilliplane, M.

• Court: Superior Court of Pennsylvania
• Decided: September 25, 2023
• Docket: 1672 MDA 2022
• Status: Unpublished

Opinion

J-S24011-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT OP 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : MATTHEW C DILLIPLANE : : Appellant : No. 1672 MDA 2022

Appeal from the Judgment of Sentence Entered October 31, 2022 In the Court of Common Pleas of Northumberland County Criminal Division at No(s): CP-49-CR-0000043-2020

BEFORE: BENDER, P.J.E., LAZARUS, J., and STEVENS, P.J.E.*

MEMORANDUM BY BENDER, P.J.E.: FILED SEPTEMBER 25, 2023

Matthew C Dilliplane, Appellant, appeals from the judgment of sentence

imposed following his bench trial convictions for, inter alia, possession with

intent to deliver. Appellant challenges the trial court’s denial of his motion to

suppress evidence recovered after a patdown frisk. See Terry v. Ohio, 392

U.S. 1 (1968) (discussing the standards applicable to a “stop-and-frisk” as a

warrantless seizure and search). The Commonwealth concedes that Appellant

is entitled to relief. We agree, as the suppression testimony does not support

the court’s conclusion that the Commonwealth met its burden of establishing

“that the challenged evidence was not obtained in violation of” Appellant’s

rights. Pa.R.Crim.P. 581. We therefore vacate Appellant’s judgment of

sentence and remand for further proceedings.

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* Former Justice specially assigned to the Superior Court. J-S24011-23

At the outset, we do not view the Commonwealth’s confession of error

as dispositive, especially where its reasons for doing so are unexplained.

“Confessions of error are, of course, entitled to and given great weight, but

they do not ‘relieve this Court of the performance of the judicial function.’”

Sibron v. New York, 392 U.S. 40, 58 (1968) (quoting Young v. United

States, 315 U.S. 257, 258 (1942)). See also Commonwealth v. Perrin,

291 A.3d 337, 346 (Pa. 2023) (holding that trial court was not obligated to

accept stipulation to witness credibility in PCRA hearing); Commonwealth v.

Brown, 196 A.3d 130, 143 (Pa. 2018) (declining to vacate death sentence in

collateral proceeding where Commonwealth confessed error; “After the jury …

recommend[ed] a death sentence, the district attorney lost any prosecutorial

discretion to alter that verdict. If the law were otherwise, district attorneys

would have the powers of courts, while courts would be reduced to mere

rubber stamps….”). Unlike Brown, this case does not involve a jury verdict

nor does it involve the Commonwealth’s seeking a “different result based upon

the differing views of the current office holder with respect to the prior exercise

of prosecutorial discretion.” Brown, 196 A.3d at 149. It involves a conclusion

that Appellant was entitled to suppression, presumably due to a reevaluation

of the applicable law. However, those distinctions matter less than the

principle that the Commonwealth cannot bind a court to its interpretation of

the law. Id. at 143 (“[I]f the ‘power’ of a court amounts to nothing more than

the power ‘to do exactly what the parties tell it to do, simply because they

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said so and without any actual merits review, it is not judicial power at all.’”)

(quoting Attorney General’s brief).

We therefore turn to whether we agree with the Commonwealth’s

concession. The suppression hearing transcript reveals the following.

Members of the Northumberland County Adult Probation and Parole

Department wished to speak with Tia Marie Zacek due to her failing a urine

screening the previous day. Agent Matthew Narcavage and several other

probation officers visited her apartment. Upon entry, he saw Zacek in the

living room speaking to her probation officer, Casey Fisher. Appellant was

seated at a kitchen table. Zacek’s son, estimated to be about eighteen years

old, was in the back bedroom.

Agent Narcavage proceeded to Zacek’s bedroom and discovered “a bag

that had what appeared to be drugs and drug paraphernalia inside of it and

that was all in plain view.” N.T. Suppression, 5/14/20, at 9. Due to this

discovery, he requested the presence of City of Shamokin police. The

probation agents then asked Zacek if there was anything else in the home to

be concerned with, and she replied that there were pellet guns inside a bag,

which was underneath a blanket. She pointed out the bag and a third agent,

Dylan Tamecki, retrieved the weapons. At that point, Agent Tamecki called

Agent Narcavage over and showed him the guns, which “appeared to be

realistic.” Id. at 10. The weapons turned out to be Airsoft pistols. Agent

Narcavage then “told everybody for officer safety … ‘I’m going to need to pat

you down. We need to make sure there’s no weapons on anybody.’” Id.

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At some point during the above, Appellant had been asked to sit on the

living room’s sofa. Agent Narcavagae then “asked [Appellant] to come out.

He was kind of between where there was a coffee table and a sofa. I asked

him to keep his hands up.” Id. at 11. Appellant was wearing a hooded

sweatshirt and “in the front center[,] in the crotch area[,] there was actually

a bulge.” Id. Agent Narcavage then initiated a patdown and discovered that

“there was … something underneath his sweatshirt,” so Agent Narcavage

“raised up his sweatshirt" and “found a bag that was actually stuffed down

into his waistband area in the front crotch region.” Id. The bag was passed

to another officer, who took the bag and Appellant back to the kitchen. Police

Officer Bryan Primerano arrived sometime thereafter and he “made the

decision to open the bag” because it was “large enough to hold a gun, a knife,

a weapon, a syringe, anything [of] that nature.” Id. at 27. Inside this bag

were three more bags, which Officer Primerano opened. He discovered “a

plastic bag containing methamphetamine.” Id. at 28.

Appellant’s motion to suppress the evidence was denied, and he

proceeded to a bench trial. Appellant was convicted of possession with intent

to deliver, possession of controlled substances, and possession of drug

paraphernalia, and sentenced to an aggregate period of 6 to 12 months of

incarceration. Appellant filed a timely notice of appeal and complied with the

trial court’s order to file a concise statement of matters complained of on

appeal. Appellant now raises a challenge to the trial court’s failure to grant

suppression.

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Appellant presents a series of arguments, beginning with an assertion

that probation officers do not have statutory authority to search anyone not

supervised by their office. Appellant recognizes that our Supreme Court held

in Commonwealth v. Mathis, 173 A.3d 699, 711 (Pa. 2017), that parole

agents, while lacking statutory authority, possess “ancillary authority” to frisk

non-parolees “so long as reasonable suspicion supports the agents’ conduct.”

Appellant submits that Mathis should not be extended to the probation officer

context. Appellant also argues that there was no reasonable suspicion to frisk,

no basis to remove the item from Appellant’s person, and, finally, that even if

the bag was lawfully removed, any threat to officer safety did not exist after

the bag was placed in the kitchen. We agree that there was no reasonable

suspicion to frisk Appellant, obviating the need to address the lawfulness of

the subsequent actions.

We will accept without deciding that Mathis extends to probation

officers, as the same principles animating the result there would seem to apply

equally in this domain. See generally id. at 710 (recognizing that “innate to

these common law and statutory authorizations is the power to undertake

constitutionally permissive actions that may preempt resort to the use of

deadly force”) (citation omitted). This principle has a key limitation, however:

the authority to perform a pat down is tethered to the aforementioned

“constitutionally permissive actions,” id., which in this context is the

authorization to perform a Terry frisk for weapons. “It is reasonable under

the Fourth Amendment for the brief stop to also include a frisk of the suspect’s

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outer clothing where the police officer has reason to believe the suspect is

‘armed and dangerous.’” Interest of T.W., 261 A.3d 409, 417 (Pa. 2021)

(quoting Terry, supra at 15).

Turning to reasonable suspicion to frisk Appellant, we note that the

United States Supreme Court has held that authorities may not frisk

individuals based on their mere presence during the execution of a search

warrant for narcotics. In Ybarra v. Illinois, 444 U.S. 85, 87 (1979), the

search warrant application did not establish probable cause “to believe that

any person found on the premises of the Aurora Tap Tavern, aside from ‘Greg,’

would be violating the law.” Id. at 90. The application stated that “Greg” was

a bartender and known to deal drugs, and an informant advised police that

“Greg” would have drugs for sale on a particular day. When authorities

executed the warrant on that date, they “announced their purpose and

advised all those present that they were going to conduct a ‘cursory search

for weapons.’” Id. An officer then patted down Ybarra, who was one of

several patrons who happened to be in the bar at that time. An officer

recovered drugs and Ybarra was ultimately convicted. The High Court

reversed. As the Court explained, the facts did not establish that Ybarra was

anything other than an innocent bystander.

Upon entering the tavern, the police did not recognize Ybarra and had no reason to believe that he had committed, was committing, or was about to commit any offense under state or federal law. Ybarra made no gestures indicative of criminal conduct, made no movements that might suggest an attempt to conceal contraband, and said nothing of a suspicious nature to the police officers. In short, the agents knew nothing in particular about Ybarra, except

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that he was present, along with several other customers, in a public tavern at a time when the police had reason to believe that the bartender would have heroin for sale.

Id. at 90–91.

It was clear that the government could not offer any facts to establish

that the officers reasonably suspected that Ybarra posed a threat to justify a

patdown. “The initial frisk of Ybarra was simply not supported by a reasonable

belief that he was armed and presently dangerous, a belief which this Court

has invariably held must form the predicate to a patdown of a person for

weapon.” Id. at 92-93. The most that the testifying officer could offer “was

that Ybarra was wearing a ¾-length lumber jacket…. In short, the State is

unable to articulate any specific fact that would have justified a police officer

at the scene in even suspecting that Ybarra was armed and dangerous.” Id.

at 93. The exception to the warrant requirement allowing a patdown search

“does not permit a frisk for weapons on less than reasonable belief or suspicion

directed at the person to be frisked, even though that person happens to be

on premises where an authorized narcotics search is taking place.” Id. at 94.

In the absence of the Commonwealth’s advocacy, the only support we

can find for the patdown search is an assumption, similar to the per se rule

rejected by Ybarra, that the mere presence of an individual during a probation

search justifies a frisk of all persons onsite due to officer safety concerns once

a weapon is found in a probationer’s residence. However, Ybarra required an

individualized suspicion to justify a search of Ybarra. We acknowledge that

Ybarra involved a search warrant for narcotics, whereas here the triggering

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event was the discovery of what officers believed to be genuine firearms based

on their appearance (which turned out to be Airsoft pistols). Simultaneously,

this is not a case where officers were serving a search warrant for an individual

known to be armed and dangerous. Cf. Muehler v. Mena, 544 U.S. 93

(2005) (holding that it was reasonable under the Fourth Amendment to detain

resident of home who was not target of search warrant at gunpoint and then

handcuff for over two hours while search is executed; “The governmental

interests in not only detaining, but using handcuffs, are at their maximum

when, as here, a warrant authorizes a search for weapons and a wanted gang

member resides on the premises.”). In short, the reasonable inference that

a third party may be “armed and dangerous” per Terry may well turn on

circumstances such as why the probation officers were visiting the home. We

do not minimize officer safety concerns when dealing with a third party who

happens to be in a place where the probation agents were lawfully authorized

to be. But neither may we minimize the privacy interests of that third party.

“[A] finding in a case that an officer’s warrantless search was not justified by

an exigency does not reflect hostility to his or her actions. It means only that

our constitution places greater emphasis on the violations of privacy

occasioned by an unreasonable search.” Commonwealth v. Alexander, 243

A.3d 177, 204 (Pa. 2020).

On this record, the Commonwealth established only that Zacek, the sole

person over whom the probation agents had any statutory authority, had what

appeared to be firearms in her bedroom. It is clear from the testimony that

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this fact, standing alone, triggered the decision to search the remaining

occupants, as upon seeing the Airsoft weapons Agent Narcavage announced

that all occupants would be subjected to a frisk. There was nothing specific

about Appellant’s behavior that led to the search. Nor, on this record, do we

conclude that the circumstances leading to the agents’ presence inside Zacek’s

apartment justified an inference that Appellant was armed and dangerous.

The testimony at the suppression hearing states that the visit was prompted

due to Zacek failing a drug screening, and they “informed her that we were

going to be coming out to her address[.]” Id. at 6.

Because the patdown search rested on a generalized assertion of fear

and was not based on any type of individualized suspicion, the Terry frisk was

invalid. See Illinois v. Wardlow, 528 U.S. 119, 123–24 (2000) (stating that

“an officer must be able to articulate more than an ‘inchoate and

unparticularized suspicion or hunch of criminal activity’”) (internal quotation

marks omitted). Agent Narcavage did not even articulate a hunch. He

apparently believed that a search was automatically justified once a weapon

was recovered from Zacek’s bedroom. Accordingly, we agree with the

Commonwealth’s concession that all evidence must be suppressed as fruit of

the poisonous tree.

Judgment of sentence vacated. Case remanded for further proceedings.

Jurisdiction relinquished.

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Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 09/25/2023

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