Commonwealth v. Reppert

814 A.2d 1196, 2002 Pa. Super. 383, 2002 Pa. Super. LEXIS 3779
CourtSuperior Court of Pennsylvania
DecidedDecember 10, 2002
StatusPublished
Cited by237 cases

This text of 814 A.2d 1196 (Commonwealth v. Reppert) is published on Counsel Stack Legal Research, covering Superior Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commonwealth v. Reppert, 814 A.2d 1196, 2002 Pa. Super. 383, 2002 Pa. Super. LEXIS 3779 (Pa. Ct. App. 2002).

Opinions

[1199]*1199JOHNSON, J.

¶ 1 In this case we determine whether a police officer’s observation of head and shoulder movements of the rear seat passenger in a motor vehicle, coupled with the officer’s conclusion during a routine traffic stop that the passenger appeared “very, very nervous,” provides sufficient reason for the officer to detain and search that passenger. Following a suppression hearing, the trial court concluded that the officer’s observations were indeed sufficient. Defendant Benjamin R. Reppert appeals the court’s ruling, contending that the officer’s observations failed to create a reasonable suspicion of his involvement in criminal activity. We agree with Rep-pert’s assertion and conclude accordingly that the officer detained him illegally. Accordingly, we reverse Reppert’s judgment of sentence.

¶ 2 The record of the suppression hearing conducted by the trial court reveals the following uncontested evidence. On April 6, 2000, Reppert was riding as a passenger in the back seat of a car owned and operated by his friend, Justin Morgan. Morgan’s car, a 1987 Dodge, displayed expired inspection and registration stickers. Driving down Fifth Street in the Borough of Beaver, Morgan passed Borough Police Chief Anthony Hovanec driving an unmarked police car in the opposite direction. The police chief spotted Morgan’s expired stickers and turned and followed the car for “a couple hundred feet” with the intention of conducting a traffic stop on the basis of the expired stickers. During the brief time that he followed Morgan’s car, Hovanec saw Reppert in the backseat and observed the movement of his head and shoulders, but not his hands. Chief Hova-nec later described the movement as suggestive that Reppert was stuffing something into his pockets or between the seat cushions of the car. Hovanec activated police signal lights in the interior of his car, directing Morgan to pull over. Morgan complied and Hovanec approached the car from the rear, stopping at the driver-side window to question Morgan about the stickers. Morgan informed the police chief that another officer had stopped him three days before and allowed him five days in which to have the car inspected. Hovanec accepted Morgan’s explanation and did not issue a citation.

¶ 3 During Hovanec’s discussion with Morgan, he continued to observe Reppert, who remained seated in the back seat of the car holding on his lap a sandwich that he had been eating prior to the stop. The Chief recalled that Reppert, a nineteen-year-old college student, appeared “antsy” and “very, very nervous,” with a “look on his face.” He did not recognize Reppert, however, and did not ask his name. Although Reppert’s hands remained in plain view throughout the encounter, the Chief ordered him to step out of the car based on suspicion of his head and shoulder movements prior to the stop and his nervous appearance during the stop. When Reppert exited the car, Hovanec saw bulges in the front pockets of his pants and directed him to empty the pockets. Hova-nec had not seen the bulges previously. Reppert at first did not comply with the Chiefs direction and Hovanec ordered him again to empty his pockets “for your safety and mine.” Reppert responded, “I am screwed,” but then emptied the pockets, revealing $51 in cash, forty-one grams of marijuana in a baggie, multiple smaller baggies, and a small scale. Hovanec then placed Reppert under arrest, handcuffed him, and seated him in a second police cruiser he had called as back-up. Upon returning to search Morgan’s car, Hovanec discovered a sandwich wrapper and the remains of the sandwich Reppert had been eating prior to the stop.

[1200]*1200¶ 4 The Commonwealth charged Rep-pert with Possession of a Controlled Substance, Possession with Intent to Deliver, and Possession of Drug Paraphernalia. See 85 P.S. § 780-113(a)(16), (30), (32) (respectively). Reppert filed an Omnibus Pre-trial Motion requesting suppression of both the physical evidence seized during the foregoing stop and his inculpatory statements. The trial court, The Honorable Robert C. Reed, P.J., denied Rep-pert’s motion and, on January 4, 2001, convened a bench trial at which the Commonwealth introduced the allegedly tainted evidence. At the conclusion of trial, Judge Reed found Reppert guilty and, on February 12, 2001, imposed a sentence of three years’ probation plus fines and costs. Reppert filed this appeal raising the following question for our review:

Where, following the conclusion of a routine traffic stop, there was an investigative detention of a back seat passenger who appeared “nervous,” “antsy” and who was observed by the arresting officer to have been making furtive movements in the back seat prior to the stop, should the motion to suppress evidence have been granted since the arresting officer could not articulate facts to support a reasonable suspicion that criminal activity was afoot?

Brief for Appellant at 3.

¶ 5 Reppert’s question raises the issue of whether the trial court erred in denying his motion to suppress evidence obtained after Chief Hovanec ordered him to alight from the backseat of Morgan’s car. “Our standard of review of a denial of suppression is whether the record supports the trial court’s factual findings and whether the legal conclusions drawn therefrom are free from error.” Commonwealth v. McClease, 750 A.2d 320, 323 (Pa.Super.2000). Our scope of review is limited; we may consider “only the evidence of the prosecution and so much of the evidence for the defense as remains uncontradicted when read in the context of the record as a whole.” Commonwealth v. Maxon, 798 A.2d 761, 765 (Pa.Super.2002). “Where the record supports the findings of the suppression court, we are bound by those facts and may reverse only if the court erred in reaching its legal conclusions based upon the facts.” McClease, 750 A.2d at 323-24 (quoting In the Interest of D.M., 560 Pa. 166, 743 A.2d 422, 424 (1999)).

¶ 6 In this case, the trial court did not enter Findings of Fact on the record; nor did it state its findings in court at the conclusion of the suppression hearing. Accordingly, we are constrained to focus our review on Judge Reed’s Memorandum Opinion of April 20, 2001, filed in accordance with Pennsylvania Rule of Appellate Procedure 1925(a). In that Opinion, the court recounted the occurrences detailed above and also cited evidence that when Chief Hovanec conducted the stop at issue, Reppert was under investigation for “narcotics distribution” in Beaver Borough. Trial Court Opinion, 4/20/01, at 5. The court concluded that because Beaver police suspected Reppert of such involvement, Chief Hovanec'could proceed on the presumption that he was armed, and lawfully could order him out of the car as a prelude to a Terry search. Trial Court Opinion, 4/20/01, at 4-6 (citing Commonwealth v. Patterson, 405 Pa.Super. 17, 591 A.2d 1075, 1078 (1991)) (citing Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)). The court concluded further that when Reppert exited the car, Chief Hova-nec justifiably relied on the sight of his bulging pockets to augment prior observations of the defendant’s nervous demeanor. Trial Court Opinion, 4/20/02, at 6-8. Although the court’s discussion does not state expressly when the Chiefs interaction with Reppert became an investigatory [1201]*1201detention, the court’s reliance on the appearance of Reppert’s pockets suggests that it did not consider Reppert seized until after he exited the car.

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Bluebook (online)
814 A.2d 1196, 2002 Pa. Super. 383, 2002 Pa. Super. LEXIS 3779, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-reppert-pasuperct-2002.