Commonwealth of Pennsylvania v. Dimico D. Davenport, Sr.,

 

Criminal Action-Constitutional Law-Search and Seizure-Items in Bag and on Person-Fourth Amendment-Fifth Amendment-Omnibus Pretrial Motion-Suppression of Evidence-Investigative Detention-Reasonable Suspicion of Criminal Activity-Custodial Detention-Probable Cause-Totality of the Circumstances-Right Against Self-Incrimination

 

Dimico D. Davenport, Sr., (“Defendant”) was charged with one (1) count of Possession of Drug Paraphernalia after law enforcement responded to a call from Nichole Harkins regarding a domestic dispute reported between Defendant who leased another apartment where Harkins lived and Harkin’s boyfriend.  After Defendant, who referenced having “stuff,” left the scene on a bicycle with permission of the responding law enforcement officer, the officer minutes later approached Defendant at a Turkey Hill store and asked Defendant to speak with him, questioning him about what he meant by “stuff,” which Defendant identified as money.  Defendant denied the law enforcement officer’s request to look in his bag and stated he was going to leave.  The law enforcement officer indicated that Defendant became agitated and appeared under the influence, after which time Defendant was placed in the patrol vehicle. Following issuance of a search warrant for the bag, drug paraphernalia was located within the bag.  Defendant filed an Omnibus Pretrial Motion to Suppress Evidence on the basis that the searches infringed upon his constitutional rights.

 

1. Pa.R.Crim.P. Rule 581(A) provides that a defendant may motion to suppress any evidence alleged to have been obtained in violation of the United States or Pennsylvania Constitutions.

 

2. A defendant seeking suppression of evidence has the initial burden of proving a legitimate expectation of privacy in the area search and the evidence seized.

 

3. The Commonwealth then bears the burden of establishing by a preponderance of the evidence that the challenged evidence was not obtained in violation of the defendant’s rights.

 

4. The United States and Pennsylvania Constitutions protect citizens from unreasonable searches and seizures.

 

5. Courts in Pennsylvania require law enforcement officers to demonstrate ascending levels of suspicion to justify interactions with citizens.

 

6. A mere encounter exists when a person is free to decline to interact with the police and to leave at any time.

 

7. An investigative detention must be supported by reasonable and articulable suspicion that the person seized is engaged in criminal activity and may continue only as long as it is necessary to confirm or to dispel such suspicion.

 

8. In determining reasonable suspicion of criminal activity, the question is whether a reasonable person would have believed that he or she was free to leave in view of all the surrounding circumstances.
9. An arrest or custodial detention must be supported by probable cause to believe the person is engaging in criminal activity.

 

10. The totality of the circumstances must be considered in determining the existence of reasonable suspicion and/or probable cause.

 

11. A seizure occurred in the instant case, as the record establishes that a reasonable person would not have believed he or she was free to leave when the law enforcement officer approached Defendant at the Turkey Hill store after Defendant had left the scene of the initial report with permission of the officer, the officer continued to attempt to engage Defendant at the Turkey Hill store and ultimately placed Defendant in a patrol vehicle.

 

12. Regardless of whether the interaction at Turkey Hill constituted investigatory or custodial detention, the law enforcement officer lacked reasonable suspicion of criminal activity justifying the encounter at the Turkey Hill store when the record including body camera footage of the interaction did not establish that Defendant acted suspiciously or intoxicated at the Turkey Hill store and the law enforcement officer did not smell an odor from Defendant’s bag until he already had handcuffed Defendant and had placed Defendant in the patrol vehicle.

 

13. The Fifth Amendment to the United States Constitution provides that no person shall be compelled in any criminal case to be a witness against himself or herself.

 

14. A law enforcement officer must administer warnings required by Miranda v. Arizona, 384 U.S. 436 (1966), prior to engaging in custodial interrogation.

 

15. Where Defendant was questioned regarding criminal activity, was not permitted to leave the Turkey Hill store when he expressed desire to do so, was searched, handcuffed and placed in the patrol vehicle and was detained for thirty (30) minutes before formal arrest and without having been notified of his rights under Miranda, any statements made were in violation of the Fifth Amendment.

 

L.C.C.C.P. No. CP-38-CR-0000437-2022, Opinion by Charles T. Jones, Jr., Judge, October 31, 2022.

 

 

IN THE COURT OF COMMON PLEAS

OF LEBANON COUNTY, PENNSYLVANIA

 

CRIMINAL DIVISION

 

COMMONWEALTH OF                          :

PENNSYLVANIA                                     :

                                                                   :

1. :                  CP-38-CR-437-2022

                                                                   :

DIMICO D.                                                :

DAVENPORT, SR.,                                  :

Defendant.                                                 :

 

ORDER

AND NOW, this 31^st day of October, 2022, after careful consideration of the record, the Omnibus Pretrial Motion to Suppress Evidence is GRANTED.

 

 

                                                                   BY THE COURT:

 

                                                                                                                   , J.

                                                                   CHARLES T. JONES, JR.

 

 

 

 

 

 

 

CTJ/adj

cc:     Daniel O. Linares-Herrador, Esquire

          Shannon S. Pascal, Esquire

Court Administration

          Anthony D. Juliani, Law Clerk

IN THE COURT OF COMMON PLEAS

OF LEBANON COUNTY, PENNSYLVANIA

 

CRIMINAL DIVISION

 

COMMONWEALTH OF                          :

PENNSYLVANIA                                     :

                                                                   :

1. :                  CP-38-CR-437-2022

                                                                   :

DIMICO D.                                                :

DAVENPORT, SR.,                                  :

Defendant.                                                 :

 

APPEARANCES

Daniel O. Linares-Herrador, Esquire                           For the Commonwealth

Shannon S. Pascal, Esquire                                           For Defendant

 

OPINION BY JONES, JR., J.

This Opinion addresses the Omnibus Pretrial Motion to Suppress Evidence filed by the counsel for Dimico D. Davenport, Sr. (“Defendant”).  For the reasons set forth below, the Omnibus Pretrial Motion to Suppress Evidence is granted.

 

1. FACTUAL AND PROCEDURAL HISTORY

Defendant is charged with one count of Possession of Drug Paraphernalia (M) on or about March 17, 2022.  On the night of March 17, 2022, around 11:00PM, Officer Frank Bucsi (“Officer Bucsi”) of the Palmyra Borough Police Department responded to a report of a domestic dispute at an apartment located on North Railroad Street in Palmyra, Pennsylvania.  The alleged domestic dispute was between the caller, Nichole Harkins, and Defendant who was another lessee and Nichole Harkins’ live-in boyfriend.  Officer Bucsi spoke with Nichole Harkins when he arrived at the apartment.  (See generally Exhibit 1).

While at the apartment, Officer Bucsi encountered Defendant.  Officer Bucsi was allegedly familiar with Defendant because Officer Bucsi was aware of several complaints alleging Defendant selling drugs, he had previously arrested a “known drug user” seen in Defendant’s apartment and he had previously conducted a traffic stop involving a second “known drug user” leaving Defendant’s apartment on another occasion.  (Transcript of Suppression Hearing, Docket Number 437-2022, on August 3, 2022 (“Transcript”), page 19); (see generally Exhibit 3).  These incidents involving the alleged known drug users did not occur immediately beforehand; rather, these incidents happened in the prior week.  (Transcript at 35-36).  Officer Bucsi stated that during his conversations with Defendant, Defendant kept referencing his “stuff.”  Id. at 19.  Although Defendant did not tell Officer Bucsi what “stuff” meant at the time, Officer Bucsi believed Defendant’s “stuff” to be drugs.  Id. at 20.

Defendant informed Officer Bucsi that he was leaving the residence.  (Exhibit 1 at 5:19).  Officer Bucsi responded by saying, “Okay.  Sounds good, man.”  Id. at 5:28.  While Defendant was leaving the residence on his bike, Officer Bucsi informed Defendant “If you don’t want to leave you don’t have to, but I think… when you’re going through it, it’s good for you to just leave for the night…  I think it’s the right decision…  It’s probably a good idea to leave for the night.”  Id. at 10:00-10:53.  Defendant further informed Officer Bucsi that he was getting picked up by his mother and that he would be going somewhere else to be picked up.  Id. at 11:03-11:10.  As Defendant is riding away, Officer Bucsi says, “Have a good one.”  Id. at 11:10.  Officer Bucsi then returned to speak with Nichole Harkins further.  (See generally Exhibit 1).

Minutes later after clearing the scene, Officer Bucsi found Defendant outside the Turkey Hill on 100 West Main Street in Palmyra.  Defendant was standing on the walkway on the far side of the storefront with a cigarette in his mouth when Officer Bucsi approached him and asked, “Dimico, can you just talk to me for a second?”  (Exhibit 2 at 0:38).  Officer Bucsi stated that Defendant was not yelling, blocking the door to the Turkey Hill, stumbling around, or being a nuisance when he found him.  (Transcript at 31).

During this second encounter, Officer Bucsi believed Defendant to be in possession of drugs and/or drug paraphernalia.  Id. at 20.  Officer Bucsi begins questioning Defendant about what Defendant meant when he referred to his “stuff.”  Defendant responded, stating that he was talking about his money.  Id. at 21; (Exhibit 2 at 0:50 to 1:08).  Officer Bucsi then asked Defendant if his “stuff” was, in actuality, drugs.  (Exhibit 2 at 1:56).  When Defendant denied this, Officer Bucsi then questioned him about associating with drug users.  Id. at 2:00.

Officer Bucsi next asked if he could look in Defendant’s bag.  Id. at 3:30.  Defendant responded in the negative and told Officer Bucsi that he’s leaving.  Id. at 3:31.  When Defendant started walking back to his bicycle, Officer Bucsi called his name and approached him.  Id. at 3:35.  Officer Bucsi described Defendant as becoming paranoid, agitated, and fidgety.  (Transcript at 22).  Officer Bucsi claimed Defendant was trying to get away.  Id.  Officer Bucsi also stated that Defendant freaked out.  (Exhibit 2 at 3:50).  However, the body camera footage did not show Defendant freaking out.  (See generally Exhibit 2).  Officer Bucsi described Defendant’s behavior as obviously suspicious.  (Transcript at 22).  Officer Bucsi testified that Defendant’s blood pressure was getting elevated, that he starting to talk a mile a minute, that he was repeating phrases, and that he was kind of saying things in code like I know how this is going to go which all raised Officer’s Bucsi’s suspicions.  Id. at 22-23.

Officer Bucsi stated he then got to see Defendant in a better light, and Defendant allegedly appeared to have red eyes which Officer Bucsi believed to be a sign of stimulant and/or alcohol use.  Id. at 23.  Defendant admitted that he had an open bottle of vodka in his bag but when Officer Bucsi advised him that he was not allowed to be walking around with an open container, Defendant began to walk away again.  (Exhibit 2 at 3:50-4:30).  According to the Commonwealth, Officer Bucsi was aware that Defendant was on probation and that Defendant was not allowed to be drinking as a condition of probation; Officer Bucsi did not immediately contact probation due to his active investigation of drug activity.  Officer Bucsi further stated that Defendant’s behavior was a sign of stimulant use.  (Transcript at 23).

Officer Bucsi then tells Defendant, “Don’t walk away if I’m talking to you.”  (Exhibit 2 at 4:45).  Defendant listened.  Officer Bucsi again asked Defendant if the contents of his bag included drugs; Defendant responded that there were no drugs in his bag because Nichole Harkins stole his drugs.  Id. at 5:02-5:10; (Transcript at 23-24).  Defendant wanted to leave another time, and Officer Bucsi stops him again.  (Exhibit 2 at 5:20).  Defendant asked Officer Bucsi why he was being detained, and Officer Bucsi advised Defendant that he was not free to leave due Officer Bucsi investigating this matter.  Id. at 5:17-5:27.  Officer Bucsi asked Defendant to change his attitude and follow directions.  Id. at 6:05.  Officer Bucsi then stated, “This encounter was going super smooth until we were talking about illegal things in your bag.”  Id. at 6:10.  Defendant appeared frustrated and appeared to give consent for Officer Bucsi to search his bag; Officer Bucsi did not search the bag when given this opportunity.  Id. at 6:15.  Officer Bucsi then asked Defendant to have a seat.  Id. at 6:33.  Defendant replied that he would not sit down upon the dirty parking lot and curb, and Officer Bucsi responds that Defendant needs to sit down because he was “freaking out.”  Id. at 6:42.  However, again, the body camera footage did not show Defendant freaking out.  (See generally Exhibit 2).

Defendant then reached into his pocket.  Id. at 6:50.  When Officer Bucsi told him to not put his hand in his pocket, Defendant responded that he wanted to light his cigarette.  Id. at 6:54.  Officer Bucsi then patted Defendant down.  Id. at 6:55.  Officer Bucsi believed that, because Defendant was wearing a big, bulky jacket, that there apparently were some items on Defendant.  (Transcript at 25).  Officer Bucsi also stated that he reasonably suspected Defendant was armed or dangerous.  Id.  Notably, however, Officer Bucsi did not pat down this suspected armed or dangerous person with a big, bulky jacket until approximately seven minutes into their interaction at the Turkey Hill.  During the pat down, Officer Bucsi felt what he believed could have been a small pistol.  Id. at 25-26.  The item was a torch lighter.  Id. at 26.  Officer Bucsi then handcuffed Defendant.  (Exhibit 2 at 7:45).  Officer Bucsi asked Defendant if he had THC pens in his pocket because that is what an item felt like.  Id. at 8:20.  Officer Bucsi requested a K-9 Officer to respond, and while waiting for the K-9 Officer to arrive, Defendant was then placed in the back of Officer Bucsi’s patrol vehicle by Officer Bucsi who advised Defendant that he was not under arrest.  Id. at 9:40-10:14.

Once Defendant was in the patrol vehicle, Officer Bucsi spoke with another officer who arrived on the scene.  Officer Bucsi stated that Defendant was yelling and making a scene and that Defendant was suspected of crack sales right now.  Id. at 10:26.  Officer Bucsi returned to his patrol vehicle to ask if he could search Defendant’s bag; Defendant appeared to have revoked his consent by declining.  Id. at 11:00-11:45, 13:15.  Officer Bucsi also stated about Defendant to the other law enforcement, “I got a lot of tips the last few weeks about him for crack sales.”  Id. at 12:35.  Officer Bucsi later remarked that he wanted to give Defendant a PBT because he’s “pretty intoxicated.”  Id. at 14:20.  After that, Officer Bucsi also described Defendant as “drunk.”  Id. at 25:20-26:00.

Officer Bucsi asked where Defendant was on probation and suggested the location was likely Dauphin County or Lebanon County.  Id. at 15:00.  Sometime later, Officer Bucsi asked Defendant again in which county he was on probation.  Id. at 26:25.  Officer Bucsi then called dispatch and asked them to contact probation regarding whether they want him to detain Defendant for a violation.  Id. at 28:05.  Probation later advised Officer Bucsi to transport Defendant to central booking on a probation violation detainer.  Id. at 33:24-33:29.  Before driving, Officer Bucsi did a brief check of Defendant’s bag for weapons or bombs, but he could not find anything above what appeared to be a sleeping bag he saw along the bottom of Defendant’s bag without dumping out the bag.  Id. at 41:00.  When Officer Bucsi was transporting the bag into evidence, he noticed a gaseous odor he associates with methamphetamine or crack cocaine.  (Transcript at 28).  The warnings mandated by Miranda v. Arizona (“Miranda”) were not given at any point during the body camera footage.  See Miranda, 384 U.S. 436 (1966).  A search warrant was obtained for the bag on March 18, 2022, and drug paraphernalia was discovered during the subsequent search.  (See generally Exhibit 3).

On March 21, 2022, Officer Bucsi filed a Criminal Complaint charging Defendant with one count of Possession of Drug Paraphernalia (M).  On April 7, 2022, Defendant waived his preliminary hearing before Magisterial District Justice Carl R. Garver.  Defendant’s arraignment was scheduled for May 11, 2022.  Defendant filed a timely Omnibus Pretrial Motion to Suppress Evidence on June 10, 2022.  This Court conducted a suppression hearing on that motion on August 3, 2022.  This Court directed both sides to file briefs of their respective positions.  Defendant filed a brief in support of the Omnibus Pretrial Motion to Suppress Evidence on August 29, 2022.  The Commonwealth filed a brief in opposition on August 29, 2022, as well.  This matter is ripe for disposition.

 

1. STANDARD OF REVIEW AND DISCUSSION

The Pennsylvania Rules of Criminal Procedure allow a defendant or the defendant’s attorney to make a motion to the court to suppress any evidence alleged to have been obtained in violation of the defendant’s rights under the Constitution of the United States or the Constitution of Pennsylvania.  Pa.R.Crim.P. 581(A).  A defendant seeking suppression of seized evidence has the initial burden of establishing standing and a legitimate expectation of privacy in the area searched the items seized by: (1) his presence on the premises at the time of the search and seizure; (2) a possessory interest in the evidence improperly seized; (3) that the offense charged includes as an essential element of the prosecution’s case, the element of possession at the time of the contested search and seizure; or (4) a proprietary or possessory interest in the searched premises.  Commonwealth v. Hawkins, 718 A.2d 265, 267 (1998).  Afterwards on a motion to suppress, the Commonwealth bears the burden to establish by a preponderance of the evidence that the challenged evidence was not obtained in violation of the defendant’s rights and is therefore admissible.  Pa.R.Crim.P. 581(H); Commonwealth v. Ruey, 892 A.2d 802, 807 (Pa. 2006).  The suppression of evidence is only appropriate where a violation upon which the motion to suppress is based touches upon fundamental, constitutional concerns, was conducted in bad faith, or has substantially prejudiced the defendant.  Commonwealth v. Gentile, 632 A.2d 573, 576 (Pa. Super. 1993).  Questions of credibility and the weight to be accorded to witness testimony are issues within the sound discretion of the trial court.  In re R.P., 918 A.2d 115, 117 (Pa. Super. 2007).

Here, Defendant was allowed to file his Omnibus Pretrial Motion to Suppress Evidence because he wants to suppress evidence he believes was gathered in violation of his rights.  Pa.R.Crim.P. 581(A).  Defendant had a legitimate expectation of privacy for the contents of his bag on his person and a legitimate expectation to not have his Fifth Amendment rights against self-incrimination violated.  Commonwealth v. Hawkins at 267.  These are fundamental constitutional concerns and have substantially prejudiced Defendant.  Commonwealth v. Gentile at 576.  Additionally, Officer Bucsi did not give Defendant his Miranda warnings.  Id.; see Miranda; (see generally Exhibit 1); (see generally Exhibit 2). Therefore, the Commonwealth now bears the burden to establish by a preponderance of the evidence that the challenged evidence was not obtained in violation of Defendant’s rights and is therefore admissible.  Pa.R.Crim.P. 581(H); Commonwealth v. Ruey at 807.

This Court further considered multiple issues when reviewing the Omnibus Pretrial Motion to Suppress Evidence.  Below is this Court’s analysis on each issue in turn.

 

1. Whether this Court will consider the statements from Nichole

                   Harkins and the tips when determining in the totality of these

                   circumstances whether Officer Bucsi had reasonable suspicion that

                   Defendant was engaged in criminal activity?

The admission of evidence is a matter vested within the sound discretion of the trial court.  Commonwealth v. Weakley, 972 A.2d 1182, 1188 (Pa. Super. 2009).  In determining whether evidence should be admitted, the trial court must weigh the relevant and probative value of the evidence against the prejudicial impact of the evidence.  Id.  Evidence is relevant if it logically tends to establish a material fact in the case or tends to support a reasonable inference regarding a material fact.  Id.  Although a court may find that evidence is relevant, the court may nevertheless conclude that such evidence is inadmissible on account of its prejudicial impact.  Id.; Commonwealth v. Underwood, 500 A.2d 820, 823 (Pa. Super. 1985).

Hearsay is an out-of-court statement offered to prove the truth of the matter asserted.  Commonwealth v. Underwood at 822; Pa.R.E. 801(c).  Hearsay is generally inadmissible as evidence because the competency and veracity of the original speaker are not subject to examination.  Commonwealth v. Underwood at 822.  However, certain out-of-court statements offered to explain a course of police conduct are admissible.  Commonwealth v. Palsa, 555 A.2d 808, 810 (Pa. 1989); Commonwealth v. Cruz, 414 A.2d 1032, 1035 (Pa. 1980); Commonwealth v. Sampson, 311 A.2d 624, 626 (Pa. 1973); Commonwealth v. Underwood at 822.  Such statements do not constitute hearsay because these statements are not offered for the truth of the matters asserted; rather, these statements are offered merely to show the information upon which police acted.  Commonwealth v. Palsa at 810; Commonwealth v. Underwood at 822.  The Superior Court of Pennsylvania has repeatedly upheld the introduction of out-of-court statements for the purpose of showing that based on information contained in the statements, the police followed a certain course of conduct that led to the defendant’s arrest.  Commonwealth v. Palsa at 810; Commonwealth v. Underwood at 822.  The rules of evidence normally applicable in criminal trials do not operate with full force at hearings before the judge to determine the admissibility of evidence.  United States v. Matlock, 415 U.S. 164, 172–73 (1974).  There should be no automatic rule against the reception of hearsay evidence in such proceedings.  Id. at 175.  A trial court may admit hearsay testimony at a suppression hearing.  Commonwealth v. Seltzer, 437 A.2d 988, 991 (Pa. Super. 1981); Commonwealth v. Bunch, 477 A.2d 1372, 1376 (Pa. Super. 1978).  Probable cause may properly be based on hearsay.  Commonwealth v. Seltzer at 991; Commonwealth v. Bunch at 1376.

In criminal cases, an arresting or investigating officer should not be put in the false position of seeming just to have happened upon the scene; he should be allowed some explanation of his presence and conduct.  Commonwealth v. Palsa at 810; Commonwealth v. Underwood at 823.  However, the officer’s testimony that he acted “upon information received,” or words to that effect, should be sufficient.  Commonwealth v. Palsa at 810-11; Commonwealth v. Underwood at 823.  Nevertheless, cases abound in which the officer is allowed to relate historical aspects of the case, replete with hearsay statements in the form of complaints and reports, on the ground that he was entitled to give the information upon which he acted.  Commonwealth v. Palsa at 811; Commonwealth v. Underwood at 823.  The need for the evidence is slight, the likelihood of misuse great.  Commonwealth v. Palsa at 811; Commonwealth v. Underwood at 823.

There is need for a balance to be struck between avoiding the dangers of hearsay testimony and the need for evidence that explains why police pursued a given course of action.  Commonwealth v. Palsa at 811; Commonwealth v. Underwood at 823.  This balancing process regarding the admission and exclusion of evidence is governed by the sound discretion of the trial court.  Commonwealth v. Palsa at 811; Commonwealth v. Underwood at 823.  In weighing the prejudice to the defense versus the prosecution’s need for the challenged statements, the ambit of the trial court’s discretion is to be preserved.  Commonwealth v. Palsa at 811.

Lastly, to have reasonable suspicion to justify a search or seizure, police officers need not personally observe the illegal or suspicious conduct but may rely upon the information of third parties, including tips from citizens.  29 Standard Pennsylvania Practice 2d § 139:37.  However, in order for police to act on an anonymous tip, a requirement of reasonable suspicion of criminal activity must be satisfied and must be independent of the telephone tip itself.  Id.  In a typical anonymous caller situation, the police will need an independent basis to establish the requisite reasonable suspicion.  Id.; Commonwealth v. Wimbush, 750 A.2d 807, 811 (Pa. 2000).  In order for an anonymous tip, in and of itself, to give rise to reasonable suspicion of criminal activity, it must be of sufficient quality that it may be found reliable.  29 Standard Pennsylvania Practice 2d § 139:37.  The credibility of an unnamed informant and the reliability of information provided may be established through either the assertion that the informant has given reliable information in the past or through independent police corroboration of the tip in determining whether a warrantless search was supported by probable cause.  Id.  Quantity and quality of information are considered when assessing the totality of the circumstances.  Commonwealth v. Wimbush at 811.  If information has a low degree of reliability, then more information is required to establish reasonable suspicion.  Id.

Here, this Court begins by noting that this Court told the Commonwealth the statements from Nichole Harkins would not be admitted and that this Court has the discretion to decide what evidence is admitted.  Commonwealth v. Palsa at 811; Commonwealth v. Weakley at 1188.  While this Court is able to admit the statements by Nichole Harkins for the purpose of supporting Officer Bucsi’s reasonable suspicion, this Court is not persuaded that the evidence is credible or reliable.  Commonwealth v. Palsa at 810; Commonwealth v. Wimbush at 811; Commonwealth v. Underwood at 822.  For example, Nichole Harkins was just in a domestic dispute with Defendant.  (See generally Exhibit 1); (Transcript at 15).  Additionally, this Court notes that the tips Officer Bucsi and the Commonwealth offered are also not persuasive because there were three tips given in the last two or three months and the incidents involving the known drug users were in the prior week rather than the night of March 17, 2022.  Commonwealth v. Palsa at 810; Commonwealth v. Wimbush at 811; Commonwealth v. Underwood at 822.  (Transcript at 19, 35-36); (see generally Exhibit 3).  There were no current tips presented that alleged that Defendant possessed drugs on his person on March 17, 2022.  Overall, this Court finds that the statements from Nichole Harkins and the tips were not sufficiently credible to support Officer Bucsi having reasonable suspicion of Defendant being engaged in criminal activity.  Instead, Officer Bucsi appears to have been acting on a hunch.  (Transcript 41-43).  Whether Officer Bucsi had reasonable suspicion in the totality of these circumstances will be discussed more thoroughly in the next section.  Commonwealth v. Raglin, 178 A.3d 868, 872 (Pa. Super. 2018); Commonwealth v. Washington, 63 A.3d 797, 802-03 (Pa. Super. 2013).  Therefore, this Court will not consider or admit the statements from Nichole Harkins and the tips when determining in the totality of these circumstances whether Officer Bucsi had reasonable suspicion that Defendant was engaged in criminal activity.

 

1. Whether Officer Bucsi had at least the requisite reasonable

                   suspicion to conduct an investigatory detention without violating

                   Defendant’s rights against unreasonable searches and seizures?

The United States Constitution protects citizens from unreasonable searches and seizures, including those that entail a brief detention.  Commonwealth v. Strickler, 757 A.2d 884, 888 (Pa. 2000).  However, the Fourth Amendment is not a guarantee against all searches and seizure but only against unreasonable searches and seizures.  United States v. Sharpe, 470 U.S. 675, 682 (1985).  The Pennsylvania Constitution provides similar protections.  Commonwealth v. Rodriquez, 614 A.2d 1378, 1382 (Pa. 1992).  To secure the right of citizens to be free from unreasonable search and seizure, courts in Pennsylvania require law enforcement officers to demonstrate ascending levels of suspicion to justify their interactions with citizens to the extent those interactions compromise individual liberty.  Commonwealth v. Hampton, 204 A.3d 452, 456 (Pa. Super. 2019).  For this purpose, courts in Pennsylvania have defined three types of police interaction: a mere encounter, an investigative detention, and a custodial detention.  Id. at 456; Commonwealth v. Raglin at 871.

A mere encounter is characterized by limited police presence as well as police conduct and questions that are not suggestive of coercion.  Commonwealth v. Hampton at 456.  Such encounters do not obligate the citizen to stop or respond and, consequently, need not be supported by any level of suspicion.  Id.; Commonwealth v. Raglin at 871-72.  Thus, the hallmark of a mere encounter is that the subject is free to decline to interact with the police or to answer questions, and the subject is also free to leave at any time.  Commonwealth v. Hampton at 456.

However, if a police presence becomes too intrusive, the interaction must be deemed an investigative detention or seizure.  Id. at 456-57.  An investigative detention, by implication, carries an official compulsion to stop and respond.  Id. at 457.  Because this interaction has elements of official compulsion, an investigative detention must be supported by a reasonable and articulable suspicion that the person seized is engaged in criminal activity and may continue only so long as is necessary to confirm or dispel such suspicion.  Commonwealth v. Strickler at 889; Commonwealth v. Hampton at 457; Commonwealth v. Raglin at 872; Commonwealth v. Washington at 803.  To determine whether the police officer had reasonable suspicion, the totality of the circumstances must be considered.  Commonwealth v. Raglin at 872; Commonwealth v. Washington at 802-03.  Among the factors to be considered in establishing a basis for reasonable suspicion are tips, the reliability of the informants, time, location, and suspicious activity, including flight.  Commonwealth v. Gray, 784 A.2d 137, 142 (Pa. Super. 2001).  In making this determination, courts must give due weigh to the specific reasonable inferences the police officer is entitled to draw from the facts in light of his experience.  Commonwealth v. Raglin at 872.  Notably an individual’s act of merely walking away from police officers in a high crime area is manifestly insufficient to justify an investigative detention of that individual.  Commonwealth v. Key, 789 A.2d 282, 290 (Pa. Super. 2001).  An investigatory detention subjects a suspect to a stop and a period of detention, but an investigatory detention does not involve such coercive conditions as to constitute the functional equivalent of an arrest.  Commonwealth v. Raglin at 872.  Finally, an arrest or custodial detention must be supported by probable cause to believe the person is engaged in criminal activity.  Commonwealth v. Strickler at 889; Commonwealth v. Hampton at 457; Commonwealth v. Raglin at 872.  In determining whether probable cause exists to issue a search warrant, the totality of the circumstances must be considered. Commonwealth v. Gray at 142.

Consequently, in assessing the lawfulness of citizen/police encounters, a central, threshold issue is whether the citizen-subject has been seized.  Commonwealth v. Strickler at 889.  To guide the crucial inquiry as to whether a seizure has been effected, the United States Supreme Court has devised an objective test entailing a determination of whether a reasonable person would have believed that he was free to leave in view of all surrounding circumstances.  Id.; Commonwealth v. Hampton at 457.  In evaluating the circumstances, the focus is directed toward whether, by means of physical force or show of authority, the citizen-subject’s movement has in some way been restrained.  Commonwealth v. Strickler at 890; Commonwealth v. Hampton at 457.  In making this determination, courts must apply the totality-of-the-circumstances approach, with no single factor dictating the ultimate conclusion as to whether a seizure has occurred.  Commonwealth v. Strickler at 890.  The factors a court utilizes to determine, under the totality of the circumstances, whether a detention has become so coercive as to constitute the functional equivalent of arrest include: the basis for the detention; its length; its location; whether the suspect was transported against his or her will, how far, and why; whether restraints were used; whether the law enforcement officer showed, threatened or used force; and the investigative methods employed to confirm or dispel suspicions.  Commonwealth v. Schwing, 964 A.2d 8, 12 (Pa. Super. 2008).  Moreover, the test for custodial interrogation that necessitates Miranda warnings does not depend upon the subjective intent of the law enforcement officer-interrogator, but upon whether the suspect is physically deprived of his freedom of action in any significant way or is placed in a situation in which he reasonably believes that his freedom of action or movement is restricted by such interrogation.  Commonwealth v. O’Shea, 318 A.2d 713, 715 (Pa. 1974); Commonwealth v. Schwing at 11.

Here, this Court must determine whether a seizure occurred, if so, to what extent, and then whether there was a sufficient justification for that police interaction.  Commonwealth v. Strickler at 889; Commonwealth v. Hampton at 456; Commonwealth v. Raglin at 871.  First, this Court finds that a seizure indeed occurred because of the following.  A reasonable person would not believe he was free to leave in view of all the surrounding circumstances in Defendant’s case.  Commonwealth v. Strickler at 889; Commonwealth v. Hampton at 457.  Defendant seemed to know that he did not have to stay and talk to the police if the situation was a mere encounter; Defendant left Officer Bucsi at the apartment.  Commonwealth v. Hampton at 456; (Exhibit 1 at 11:10).  Defendant was waiting for the ride from his mother and tried to walk away from Officer Bucsi at the Turkey Hill.  (Exhibit 2 at 3:31, 3:50-4:30, 4:45, 5:20, 11:03-11:10).  Officer Bucsi did not let Defendant leave.  Id. at 3:35, 4:45, 5:17-5:27.  Officer Bucsi even handcuffed and placed Defendant in his patrol car.  Id. at 7:45, 9:40-10:14.  Therefore, this Court finds that at least some sort of seizure occurred here.

Second, this Court will determine whether this police interaction was a mere encounter, an investigative detention, and a custodial detention.  Commonwealth v. Hampton at 456; Commonwealth v. Raglin at 871.  This Court finds that this situation at the Turkey Hill is at least an investigatory detention when reviewing the totality of the circumstances because of the following reasons.  Commonwealth v. Raglin at 872; Commonwealth v. Washington at 802-03.  This situation at the Turkey Hill was not a mere encounter because Defendant was obligated to stop and respond to Officer Bucsi and Defendant was not free to leave at the Turkey Hill despite him wanting to do so.  Commonwealth v. Hampton at 456; Commonwealth v. Raglin at 871-72; (Exhibit 2 at 3:31, 3:35, 3:50-4:30, 4:45, 5:17-5:27).  Therefore, this situation would be either an investigatory detention or a custodial detention because Defendant was subjected to a stop and period of detention.  Commonwealth v. Hampton at 456; Commonwealth v. Raglin at 871-872.  Counsel for the Commonwealth and Officer Bucsi argued that this situation at the Turkey Hill was an investigatory detention.  (Transcript 9, 13, 39, 43).  However, this situation could also be considered a custodial detention because, while Defendant was subjected to a stop and period of detention present during investigatory detentions, Defendant was also subjected to further coercive conditions that were the functional equivalent of arrest such as being accused of possessing drugs and selling crack, being asked to have his bag on his person searched, having his person searched, being handcuffed, being placed in a police car against his will, having a K-9 unit called to search him and/or his belongings, and being detained for approximately thirty minutes before being formally arrested.  Commonwealth v. Raglin at 872; Commonwealth v. Schwing at 12; (Transcript at 25-26); (Exhibit 2 at 3:30, 6:55, 7:45, 8:20, 9:40-10:14, 10:26).  Therefore, this Court finds that this situation at the Turkey Hill was a custodial detention and/or at the least an investigatory detention.

Third, regardless of whether this situation at the Turkey Hill was an investigatory detention requiring reasonable suspicion or a custodial detention requiring probable cause, this Court finds that Officer Bucsi lacked the lower threshold of reasonable suspicion here and that this was an illegal detention which violated Defendant’s rights.  Commonwealth v. Strickler at 889; Commonwealth v. Hampton at 457; Commonwealth v. Raglin at 872; Commonwealth v. Washington at 803.  This Court analyzed the totality of the circumstances to determine whether Officer Bucsi had reasonable suspicion and/or probable cause.  Commonwealth v. Raglin at 872; Commonwealth v. Washington at 802-03; Commonwealth v. Gray at 142.  As established more thoroughly above in the previous section, this Court overall finds that the statements from Nichole Harkins and the tips were not sufficiently credible to support Officer Bucsi having reasonable suspicion of Defendant being engaged in criminal activity on that date.  Commonwealth v. Gray at 142; (Transcript at 15, 19, 35-36); (see generally Exhibit 1); (see generally Exhibit 3).

Furthermore, this situation occurred around midnight at a Turkey Hill, but this time and place make sense when considering the situation.  Commonwealth v. Gray at 142.  Defendant was in an alleged domestic dispute and left his home for the night to be picked up by his mother.  (Exhibit 1 at 5:19, 5:28, 10:00-10:53, 11:03-11:10).  Defendant then went to one of the few locations that was well lit and open around midnight to wait for his mother who arrived later.  (See generally Exhibit 2).  This Court does not find that this time and place add to Officer Bucsi’s reasonable suspicion especially when Officer Bucsi was aware of the alleged domestic dispute earlier.  Commonwealth v. Gray at 142.  Defendant was not acting suspiciously at the Turkey Hill.  Id.  Defendant was standing on the walkway on the far side of the storefront with a cigarette in his mouth, and Officer Bucsi also stated that Defendant was not yelling, blocking the door to the Turkey Hill, stumbling around, or being a nuisance when he found him.  (Transcript at 31); (Exhibit 2 at 0:38).  Defendant denied that his “stuff” referred to drugs.  (Exhibit 2 at 1:56-2:00).  Defendant wanted to leave after being questioned about whether he committed criminal activity, but Defendant listened to Officer Bucsi, and there was no flight.  Id. at 3:31, 3:35, 3:50-4:30, 4:45, 5:17-5:27.  These factors also weigh against reasonable suspicion.  Commonwealth v. Gray at 142.  Instead, Officer Bucsi appears to have been acting on a hunch because he began by misclassifying Defendant as freaking out, he mistook a lighter for a .22, he thought Defendant had THC pens but Defendant did not, and he thought Defendant had drugs on him but Defendant did not.  (Transcript at 41-43).  Furthermore, Officer Bucsi did not smell anything from Defendant’s bag until late into the detention after he had already handcuffed Defendant.  Id. at 28, 44.  Therefore, this Court finds that Officer Bucsi did not have the requisite reasonable suspicion to detain Defendant and therefore violated Defendant’s rights.

 

1. Whether Officer Bucsi was obligated to give Miranda warnings to

                   Defendant prior to questioning Defendant about his alleged drug

                   possession?

The Fifth Amendment to the United States Constitution provides that no person shall be compelled in any criminal case to be a witness against himself.  U.S. Const. amend. V.  In order to safeguard the constitutional privilege not to be compelled to incriminate oneself, police must apprise a person of his right to remain silent, that anything he says can be used against him, and of his right to have an attorney, whether appointed or retained, present during questioning, before subjecting a person to custodial interrogation.  Miranda at 467-70.  The prosecution may not use statements, whether exculpatory or inculpatory, stemming from interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination.  Id. at 444.  Although Miranda warnings are not required before interviewing all possible witnesses to the crime, the warnings are required whenever an individual is questioned while in custody or while the object of an investigation of which he is the focus.  Commonwealth v. O’Shea at 714.  Furthermore, the Supreme Court of Pennsylvania has held that custody plus simply questioning does not call for Miranda safeguards, but rather custody plus police conduct calculated to, expected to, or likely to, evoke admissions does call for Miranda safeguards.  Id at 715.

A law enforcement officer must administer Miranda warnings prior to custodial interrogation.  Commonwealth v. Schwing at 11.  The standard for determining whether an encounter with the police is deemed “custodial” or police have initiated a custodial interrogation is an objective one based on a totality of the circumstances, with due consideration given to the reasonable impression conveyed to the person interrogated.  Id.  Custodial interrogation has been defined as questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.  Id.  Interrogation is police conduct calculated to, expected to, or likely to evoke admission.  Id.  When a person’s inculpatory statement is not made in response to custodial interrogation, the statement is classified as gratuitous, and is not subject to suppression for lack of warnings.  Id.  The mere fact that a defendant may have answered some questions or volunteered some statements on his own does not deprive him of the right to refrain from answering any further inquiries until he has consulted with an attorney and thereafter consents to be questioned.  Miranda at 445.

Moreover, the test for custodial interrogation that necessitates Miranda warnings does not depend upon the subjective intent of the law enforcement officer-interrogator, but upon whether the suspect is physically deprived of his freedom of action in any significant way or is placed in a situation in which he reasonably believes that his freedom of action or movement is restricted by such interrogation.  Commonwealth v. O’Shea at 715; Commonwealth v. Schwing at 11.  Said another way, police detentions become custodial when, under the totality of the circumstances, the conditions and/or duration of the detention become so coercive as to constitute the functional equivalent of arrest.  Commonwealth v. Schwing at 11.  The factors a court utilizes to determine, under the totality of the circumstances, whether a detention has become so coercive as to constitute the functional equivalent of arrest include: the basis for the detention; its length; its location; whether the suspect was transported against his or her will, how far, and why; whether restraints were used; whether the law enforcement officer showed, threatened or used force; and the investigative methods employed to confirm or dispel suspicions.  Id. at 12.  The fact that a police investigation has focused on a particular individual does not automatically trigger “custody,” thus requiring Miranda warnings.  Id.

If the initial custodial interrogation is conducted without Miranda warnings in violation of a defendant’s rights against self-incrimination, then that initial custodial interrogation is illegal.  Commonwealth v. O’Shea at 714.  Finally, where a confession that occurs after Miranda warnings stems directly from an initial custodial interrogation conducted without Miranda warnings, that confession will be suppressed because it is impermissibly tainted by the violation.  Id. at 714–15.  Physical evidence recovered as a result of a violation of the right against self-incrimination is also inadmissible.  Commonwealth v. Lukach, 195 A.3d 176, 193 (Pa. 2018).  The Supreme Court of Pennsylvania stated that to allow police to ignore the requirements of Miranda in order to secure physical evidence would render meaningless the rights the Fifth Amendment is meant to protect.  Id.

Here, Officer Bucsi was obligated to give Miranda warnings to Defendant prior to questioning Defendant about his alleged drug possession.  As established above in the previous section, Defendant was subjected to an illegal detention.  While Defendant was subjected to a stop and period of detention present during investigatory detentions, Defendant was also subjected to further coercive conditions that were the functional equivalent of arrest such as being accused of possessing drugs and selling crack, being asked to have his bag on his person searched, having his person searched, being handcuffed, being placed in a police car against his will, having a K-9 unit called to search him and/or his belongings, and being detained for approximately thirty minutes before being formally arrested.  Commonwealth v. Raglin at 872; Commonwealth v. Schwing at 12; (Transcript at 25-26); (Exhibit 2 at 3:30, 6:55, 7:45, 8:20, 9:40-10:14, 10:26).  Defendant was also the focus of an investigation and was questioned while being illegally detained; these questions by Officer Bucsi were police conduct calculated to, expected to, or likely to, evoke admissions because Officer Bucsi was attempting to have Defendant admit to participating in criminal activity and to have the ability to search Defendant’s bag.  Commonwealth v. O’Shea at 714-715; (see generally Exhibit 2).  Officer Bucsi engaged in custodial interrogation of Defendant because Defendant was illegally detained and not allowed to leave Officer Bucsi’s presence, Officer Bucsi lacked reasonable suspicion and probable cause, and Officer Bucsi was questioning Defendant about his alleged criminal activity.  Commonwealth v. Schwing at 11; (see generally Exhibit 2).

This Court finds that this was a custodial interrogation based upon the totality of the circumstances especially when giving due consideration given to reasonable impression conveyed to Defendant rather than looking to the subjective intent of Officer Bucsi.  Commonwealth v. O’Shea at 715; Commonwealth v. Schwing at 11.  Defendant was obligated to stop and respond to Officer Bucsi and Defendant was not free to leave the Turkey Hill despite him wanting to do so.  Commonwealth v. Hampton at 456; Commonwealth v. Raglin at 871-72; (Exhibit 2 at 3:31, 3:35, 3:50-4:30, 4:45, 5:17-5:27).  Because this was a custodial interrogation, Officer Bucsi was required to administer Miranda warnings prior to beginning his custodial interrogation; however, no Miranda warnings were given at any point during the body camera footage which when combined was approximately 1 hour 18 minutes and twenty-four seconds long and was approximately 1 hour long starting from the beginning of the interaction at the Turkey Hill.  Commonwealth v. Schwing at 11.  This custodial interrogation was illegal because it was conducted without providing Miranda warnings to Defendant in violation of his rights.  Commonwealth v. O’Shea at 714.  Counsel for the Commonwealth also agreed that Miranda warnings should have been given in this situation at the Turkey Hill.  (Transcript at 43).  Therefore, any evidence, including Defendant’s pre-Miranda statements and the contents of Defendant’s bag, acquired as a result of the violation of Defendant’s rights here is inadmissible as fruit of the poisonous tree.  Commonwealth v. Lukach at 193.

 

III.    CONCLUSION

Therefore, for the aforementioned reasons, Defendant’s Omnibus Pretrial Motion to Suppress Evidence is granted.