the Pennsylvania State Pol ice on January 2, 2013. Both officers re-approached the vehicle and the driver
was ordered to step outside. When Trooper Bemam opened the passenger door, he testified that he too O·: v. smelled the odor of marijuana. The driver denied smoking marijuana and further denied the presence of 1-:
~··. any marijuana in the car. Trooper Bennett briefly patted down the driver and found no weapons or
contraband. The officers asked the driver if he would consent to a search of the vehicle. The driver
refused, explaining that he was not the vehicle's owner. He was then advised that the vehicle would be
impounded and towed. While this was taking place, the Defendant remained in the front passenger seat of
the vehicle and stayed there as the driver made a phone call to tell someone the car would be impounded.
Eventually, Trooper Bernam asked the Defendant to exit the vehicle. Before exiting the vehicle,
the Defendant reached over and turned off the vehicle's ignition and removed the keys. The trooper
immediately took the keys from the Defendant. Significantly, Trooper Bemam did not pat down or search
the Defendant for weapons when he exited the vehicle's passenger side door. After the trooper took the
keys from the Defendant, he informed the Defend ant and the driver that they were both free to leave. They
also informed the driver that they were going to impound the car and get a warrant to search it because
they smelled marijuana and because the driver would not consent to a vehicle search.
While the Defendant was still standing on the sidewalk, the vehicle's driver quickly grabbed the
car keys out of Trooper Bernam's hands and ran from the scene. Trooper Bernam testified that he was 2
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(7:: .f:: ~~~~~-tt~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~.i- 1· ... shocked. Since York City Police had arrived on the scene, they pursued the fleeing driver. Trooper k. Bernam stayed with the Defendant, who had not moved since the keys were taken from him. At this point,
Trooper Bernam explained that he wanted to detain the Defendant for safety reasons so he ordered the
Defendant to get on the ground. When the Defendant did not comply, both Trooper Bern am and Trooper c: «: Bennett forced the Defendant to the ground and placed him in handcuffs. While on the ground, Trooper
Bernam testified that he patted down the Defendant and felt a bulge that he believed to be drug packaging
inside the Defendant's coat pocket. When the trooper reached into the Defendant's pocket, he found a 0: v. ,,.., glove and a container with crack cocaine. Trooper Bernarn eventually found marijuana and more cocaine
011 the Defendant after a further search of his person.
JI. Motion to Suppress
The Defendant argues that the evidence obtained as a result of the search and seizure should be
suppressed because the officer lacked both probable cause to arrest the Defendant and reasonable
suspicion to stop and frisk him. The Commonwealth argues that the troopers were warranted in their
actions and that the totality of the circumstances gave rise to reasonable suspicion to stop the Defendant,
and pursuant to that stop, conduct a search for weapons.
It has been established through case law that there are three types of encounters between law
enforcement officials and private citizens. A "mere encounter" need not be supported by any level of
suspicion but carries no official compulsion to slop or respond. Commonwealth v. Clinton, 905 A.2d
1026, I 030 (Pa. Super. 2006), appeal denied, 594 Pa. 685, 934 A.2d 71 (2007). An "investigative
detention" must be supported by reasonable suspicion and subjects the suspect to a stop and a period of
detention, but it does not have the coercive conditions that would constuute an arrest. Id The courts
determine whether reasonable suspicion exists by examining the totality of the circumstances. In re D.M, 3
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c: +": ~~~~~-tt~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~.1- ~- . 727 A.2d 556, 559. An arrest, or "custodial detention," must be supported by probable cause. Clinton, ~ . 905 A.2d at 1030.
Under Pennsylvania law, "the Terry exception permits a police officer to briefly detain a citizen
for investigatory purposes if the officer 'observes unusual conduct which leads him to reasonably ('.!: 'J_' conclude, in light of his experience, that criminal activity may be afoot.'" Commonwealth v. Jackson, 907
A.2d 540, 543 (Pa. Super. 2006) (quoting Commonwealth v. Fitzpatrick, 666 A.2d 323, 325 (Pa. Super.
1995)); see also Terry v. Ohio, 392 U.S. I (1968). When discussing this very narrow exception, o, <,;., >--·: Pennsylvania courts have further elaborated: v· Jn order for a stop to be reasonable under Terry [ J, the police officer's reasonable and articulable belief that criminal activity was afoot must be linked with his observation of suspicious or irregular behavior on the part of the particular defendant stopped. Mere presence near a high crime area ... or in the vicinity of a recently reported crime ... does not justify a stop under Terry. Conversely, an officer's observation of irregular behavior without a concurrent belief that crime is afoot also renders a stop unreasonable.
Commonwealth v, Ayala, 191 A.2d 1202, 1209 (Pa. Super. 2002) (citations omitted). It is important to
note that Pennsylvania "caselaw is quite emphatic that an individual's mere presence in a high crime area
is manifestly insufficient to justify a Terry stop. Id. at 1210 (citing 111 re D.M, supra).
The Pennsylvania courts have adopted a test to determine whether an officer's Terry stop is
reasonable. In order for an officer's stop and frisk under Terry to be reasonable, "the police conduct must
meet two separate and distinct standards." Jackson, 907 A.2d at 543. First, "the police officer must have a
'reasonable and articulable suspicion' that criminal activity may be afoot." Id. (citing Commonwealth v.
Shelly, 103 A.2d 499, 503 (Pa. Super. 1997)). Second, the police must believe "that the suspect may be
armed and dangerous." Id The officer's level of suspicion can be less than a preponderance of the
evidence but must be more than just a hunch. Shelly, 703 A.2d at 503. 4
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v. '!: ~·~~~~~,t~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~J_. t.,. Pennsylvania courts have also addressed the constitutionality of the automatic companion rule. In t·- •. Commonwealth v. Graham, the "court rejected aper se rule that a companion of an arrestee is subject to a
"pat-down" regardless of the justification for such search." Jackson, 901 A.2d at 544. The courts have
further held that "in cases involving the frisk of an arrestee's companion, the sole question becomes
whether the police officer had a reasonable belief that the companion was armed and dangerous." Id c o· (citing Commonwealth v. Graham, 685 A,2d 132, 137 (Pa. Super. 1996)).
0: C.,., k: A. Defendant's arrest and custodial detention was without probable cause.
When the defendant was forcibly taken to the ground, handcuffed and then searched by the police
officers, he was under arrest. Immediately prior to the arrest, the defendant had complied with a request to
exit the vehicle. Furthermore, the police officers advised him that he was free to leave the scene after
exiting the vehicle. When his companion grabbed the keys to the automobile from Trooper Bemam, the
Defendant continued to remain at the scene. He made no furtive or suspicious movements, and in fact, he
made no moves at all. At that time, the troopers ordered him to the ground, and when he failed to comply,
both officers physically forced him onto the ground, where he was restrained, handcuffed and searched.
These facts create a scenario far more intrusive than the limited attention envisioned by Terry and
amounts to a full-blown arrest, "An arrest is defined as 'any act that indicates an intention to take the
person into custody and subjects him to the actual control and will of the person making the arrest."
Commonwealth v. Woodson, 493 A.2d 78, 79 (Pa. Super. Ct. 1985). The test "is an objective one, i.e.,
viewed in the light of the reasonable impression conveyed to the person subjected to the seizure rather than
the strictly subjective view of the officers or the persons being seized." Commonwealth v. Douglass, 539
A.2d 412, 419 (Pa. Super. Ct. 1988) (quoting Commonwealth v. Haggerty, 435 A.2d 174, 175 (Pa. 1981)). 5
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+:: -tt------------------------------------1-- ,~. Several factors are generally considered in determining whether a detention is investigative or custodial, 1-..... including: the basis for the detention ( crime suspected and grounds for suspicion); duration of detention;
location of detention (public or private); whether the suspect was transported against his will (how far and
why); the method of detention: whether there was a show, threat, or use of force; and the investigative <:o: <.f.: methods used to confirm or dispel suspicions. Id. at 421. As mentioned above, an arrest, or custodial
detention, must be supported by probable cause. See Clinton, supra.
First, we conclude that this encounter amounted to an arrest, or custodial detention, of the
Defendant. In reaching its conclusion, the Court must analyze the factors mentioned previously. See
Douglass, supra. In this case, the troopers took the Defendant to the ground solely because the driver stole
the car keys from Trooper Bemam and fled the scene. The driver's actions were the sole reason for the
detention of the Defendant according to Trooper Bertram's testimony. After this occurred, the Defendant
did nothing that made either trooper suspect that he was committing a crime. Because they had just
informed the Defendant that he was free to leave, the troopers obviously did not have any grounds for
suspicion at that time. The method of detention and the use of force were extreme as well. The troopers
did not ask, but rather commanded, the Defendant to get on the ground, and after he did not comply, both
troopers forced him to the ground. The officers then handcuffed him while he was still laying facedown
on the ground. Under these circumstances, any reasonable person would believe he was in custody and
under the actual control and will of the troopers. The Court concludes that these facts amount to an arrest.
See Woodson, supra.
Second, we conclude that the troopers lacked probable cause to arrest the Defendant and then to
search him incident to that arrest, Because the troopers informed the Defendant that he was free to leave
the area after exiting the vehicle, it is clear that the troopers lacked probable cause to arrest the Defendant 6
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t·-•. at that point. The Court must then examine whether probable cause arose after the Defendant was t~. informed he was free to leave.
Generally, a police officer "may arrest a suspect without a warrant if the officer has probable
cause" to believe the suspect committed a felony or misdemeanor in his presence. /11 the Interest of R.P.,
918 A.2d 115, 120-21 (Pa. Super. 2007) (citing Commonwealth v. Clark, 735 A.2d 1248, 1251 (Pa. ~: (J' 1999)). Probable cause is determined by the totality of the circumstances. Clark, 735 A.2d at 1252.
Probable cause is governed by an objective standard, and it "must be viewed from the vantage point of a O: V·. ;-, prudent, reasonable, cautious police officer on the scene at the time of'the arrest guided by his experience 0: and training." Id. When probable cause exists and an arrest is made, the officer may conduct a full
custodial search of the suspect's person at that time. In the Interest of R.P., 9 I 8 A.2d at 120.
The troopers lacked the necessary probable cause in this case to arrest the Defendant, and as such,
Trooper Bern am conducted an ii legal search of the Defendant. After the troopers informed the Defendant
that he was free to leave the area, the Defendant's actions (or Jack thereof) did not warrant any reasonable,
prudent officer in believing that a crime was committed. The driver, not the Defendant, snatched the keys
from Trooper Bemam and fled the scene. The driver's actions cannot be used against the Defendant to
establish the requisite probable cause. Simply being in the presence of irregular behavior or the
commission of another's crime does not warrant an arrest.
The only remaining circumstance is that the incident occurred in a high crime area. Under
Pennsylvania law, this fact alone is not sufficient to establish probable cause or even reasonable suspicion.
See Ayala, supra. For these reasons, we conclude that no particularized facts existed to establish probable
cause and to arrest the Defendant. Since the arrest lacked probable cause, we further conclude that the
ensuing search yielding the contraband was improper. As a result, the evidence seized by the troopers 7
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-~· v, (:.: ~'~~~~~~;t-~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~--1-~ must be suppressed as fruit of the illegal search.
k. ,v:·, . . ..... B. Defendant's detention was not supported by reasonable suspicion .
As noted above, this court takes the position that the defendant was placed under arrest by the (;.": u:: police officers and that such arrest lacked probable cause.However, even if we view this incident as a less c: o· intrusive Teny-type stop and frisk, the evidence must still be suppressed.
The Commonwealth argues that the Defendant was the subject of an investigative detention at the
time Troopers Bernam and Bennett ordered him to the ground and searched him. The issue then becomes
whether or not the applicable standard, i.e. reasonable suspicion, was met to allow police to stop and then
frisk the Defendant. Going further, the narrower issues are: 1) whether the troopers had a reasonable and
articulable suspicion, particular to the Defendant, that criminal activity was afoot; and 2) whether the
police believed the Defendant was armed and dangerous. See Jackson, supra. To determine reasonable
suspicion and resolve the narrower issues, the Court must examine the totality of the circumstances
surrounding the particular Defendant.
The Court views this incident as two separate encounters with the Defendant. The first encounter
took place from the time the vehicle was pulled over until the troopers told the Defendant he was free to
leave the area. The second, and more important, encounter took place from the time the Defendant was
free to leave until the troopers forced him to the ground and searched him.
The Court does not deny that Troopers Bernam and Bennett had reasonable suspicion during the
first encounter with the Defendant and the vehicle's driver. The troopers executed a traffic stop because
the vehicle's headlight was out. When the troopers approached the vehicle, Trooper Bennett smelled the
odor of marijuana in the vehicle. Trooper Bernam also noticed this odor when he approached the 8
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<:::: -~,~~~~~-it~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ ~~. passenger side of the vehicle a second time. In light of his experience, Trooper Bemam also knew that the I·-», area of 600 West Princess Street is a high crime area in York city. Under the totality of these
circumstances, the troopers did have reasonable suspicion to order the Defendant from the vehicle.
However, the troopers chose not to detain the Defendant at that time. After asking the Defendant
to exit the passenger side of the vehicle, he did not "frisk" the Defendant for weapons. Jt is telling that by
not frisking the Defendant for weapons> Trooper Bemam demonstrated that he did not believe that the
Defendant was a threat to his or Trooper Bennett's safety. In fact, after having the Defendant exit the ():: <..,,-, vehicle, Trooper Bernam advised him that he was free to leave the area. Once Trooper Bemam advised r ••. <:::: the Defendant of this, the Court finds that the first encounter ended. Since the first encounter ended, the
trooper's original reasonable suspicion to stop the Defendant ended as well.
We must now consider whether the troopers had reasonable suspicion to stop and frisk the
Defendant during the second encounter. As mentioned previously, the Defendant did nothing to create
suspicion after the troopers informed him that he was free to leave the area. The only remaining
circumstance is that the area happened to be a known, high crime area in York city. However, under
Pennsylvania law, this fact alone is not enough to establish the particularized, reasonable suspicion
required for an investigative detention or Terry-type stop and frisk. See Ayala, supra. The Court further
opines that Trooper Bernam's purported frisk of the Defendant was not warranted because he did not
believe that the Defendant was armed and dangerous. See Shelly and Jackson, supra. This conclusion is
clear because Trooper Bernam did not frisk the Defendant for weapons when he first exited the car and
before he was cleared to leave the area. The Defendant cannot automatically become a threat merely
because another person commits a crime nearby. For these reasons, we conclude that no reasonable
suspicion existed to warrant a stop and frisk of the Defendant under these circumstances. 9
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<::::: ~:~~~~~~tt-~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~J.- III. Conclusion
Under the totality of the circumstances, the Court finds that there is insufficient evidence to satisfy
the reasonable suspicion standard and to stop and frisk the Defendant under Terry. Furthermore, the Court
opines that once the troopers ordered and forced the Defendant to the ground he was in custody, which
requires probable cause-an even more stringent standard than reasonable suspicion. Because the troopers
Jacked any basis for either an investigative or custodial detention, the Court must suppress the evidence
found on the Defendant because it resulted from an illegal search and seizure.
For the reasons stated above> the Court hereby GRANTS the Defendant's Motion to
Suppress.
BY THE COURT,
DATED: April il, 2014
JO
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