Com. v. Snowden, B.

• Court: Superior Court of Pennsylvania
• Decided: February 12, 2024
• Docket: 402 WDA 2023
• Status: Unpublished

Opinion

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : BRANDI SNOWDEN : : Appellant : No. 402 WDA 2023

Appeal from the Judgment of Sentence Entered March 8, 2023 In the Court of Common Pleas of Allegheny County Criminal Division at No(s): CP-02-CR-0005182-2022

BEFORE: BOWES, J., KUNSELMAN, J., and MURRAY, J.

DISSENTING MEMORANDUM BY KUNSELMAN, J.: FILED: February 12, 2024

I agree with the Majority that when a person has a syringe, the totality

of the circumstances can provide probable cause to believe that she is

possessing illegal drug paraphernalia. Majority, at 9–15. I disagree that the

totality of the circumstances in this case met that standard.

A syringe is drug paraphernalia only if it is used or intended for use in

injecting a controlled substance. 35 P.S. § 780-102(b) (definitions). Whether

any object is drug paraphernalia is a question of fact determined by

considering all relevant factors, including circumstantial evidence. Id.; see

Commonwealth v. Coleman, 984 A.2d 998, 1001 (Pa. Super. 2009).

In a similar vein, probable cause to support an arrest is based on the

totality of the facts and circumstances known to a police officer at the time of

the arrest. Commonwealth v. Thompson, 985 A.2d 928, 931 (Pa. 2009).

An officer may thus arrest a person for possessing drug paraphernalia if the J-A03031-24

officer reasonably believes that the person has an item that the person uses

or intends to use with a controlled substance. Commonwealth v.

Bumbarger, 231 A.3d 10, 18–19 (Pa. Super. 2020). Mere possession of an

item that can be legal to possess does not establish probable cause; however,

it is a factor to be considered among the totality of the circumstances. See

Commonwealth v. Barr, 266 A.3d 25, 41–42 (Pa. 2021).

The circumstances in Bumbarger reasonably supported an officer’s

belief that syringes (which can be legal) were being used for an illegal purpose.

Id. at 19. The officer testified that, based on his knowledge and experience,

the syringes he saw were consistent with use as drug paraphernalia. Id. The

officer viewed the syringes unsecured on the floor of a car, which is not

consistent with legitimate medical use. Id. The syringes were located near

the passenger, who appeared to be under the influence of drugs. Id. When

the officer pointed out the syringes to her, she did not indicate that they were

for medical use. Id. And the officer knew the passenger “to use and sell

drugs.” Id. Under the circumstances in Bumbarger, the officer had probable

cause to believe that the syringes were drug paraphernalia. Id.

Here, unlike in Bumbarger, Officer Lawrence had not met Snowden

before June 6, 2022. N.T., Suppression, 2/2/23, at 6. Thus, he had no prior

knowledge of whether Snowden was a drug user. Although Officer Lawrence

at first saw Snowden “nodding off” while waiting for the bus, id. at 5, footage

from his body-worn camera reflects that she alertly obeyed his commands and

readily explained that she was tired from working at the store across the

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street. The Commonwealth presented no testimony that users of illegal drugs

will “nod off” and then immediately recover when confronted. Officer

Lawrence did not ask Snowden about the “normal syringe[] with an orange

cap on top” that she “kind of just tossed . . . to the side of her purse” when

she was responding to his request for identification. Id. at 6–7. Instead, as

soon as he saw the syringe, Officer Lawrence told Snowden to turn around

and placed her under arrest. Id. at 7. Snowden, shocked, asked what she

did wrong. Only then did Officer Lawrence inform her that she was under

arrest for possessing the syringe in her purse. Officer Lawrence did not state

at the suppression hearing whether the syringe was stored consistently with

medical use, but a syringe in a purse is certainly different than one found on

the floor of a car. Cf. Bumbarger, 231 A.3d at 19. Officer Lawrence did not

describe his training or experience, although he did opine that the block where

he saw Snowden was a “high drug area” and that syringes would be used to

inject narcotics, commonly heroin. N.T., Suppression, 2/2/23, at 7.

I would hold that the totality of the circumstances here does not support

probable cause of a crime. Officer Lawrence testified that, when he arrested

her, Snowden had “nodded off” in a “high drug area” and possessed a syringe

in her purse. However, I would conclude that these factors combined still do

not amount to probable cause that Snowden was committing a crime. She

was simply waiting for a bus to go on an errand for her business. There was

nothing to cause a reasonably cautious person to believe that Snowden

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intended to use the syringe to inject a controlled substance. Because I agree

with Snowden that her arrest was unlawful, I respectfully dissent.

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