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J. S65035/01
2002 PA Super 30
COMMONWEALTH OF PENNSYLVANIA,
: IN THE SUPERIOR COURT
Appellee
:
OF PENNSYLVANIA
:
v.
:
:
HECTOR LUIS AYALA,
:
Appellant
:
No. 1026 MDA 2001
Appeal from the Judgment of Sentence entered April 30, 2001
In the Court of Common Pleas of York County
Criminal Division No. 4457 CA 2000
BEFORE: DEL SOLE, P.J., JOHNSON, J., and CERCONE, P.J.E.
OPINION PER CURIAM:
Filed: February 6, 2002
¶1
Appellant, Hector Luis Ayala, appeals from his judgment of sentence
entered following his conviction for possession of a controlled substance
(cocaine).1 After review, we vacate the judgment of sentence and remand
for a new trial.
¶2
The facts of the case, which are not in dispute, as they have been
gleaned from the trial court's opinion and the certified record in this matter
are as follows: On July 14, 2000, at 7:56 a.m. in the City of York, Officer
Blymire of the York City Police Department received a call from his
dispatcher which related that an anonymous individual, who identified

1 35 P.S. 780-113(a)(16).

J. S65035/01
himself as a resident of 39 East College Avenue, had telephoned and
indicated that there were two Hispanic men, one of whom was carrying a
handgun, in a red Honda coupe parked in front of 39 East College Avenue.
N.T. Suppression Hearing, 11/27/2000, at 6, 14. The anonymous caller
had specifically stated that the driver of the car was the man holding or
possessing the gun. The caller described this individual as a Hispanic male
wearing a white t-shirt, glasses and having a short haircut. Id. at 6, 16.
The caller described the passenger of the Honda as a Hispanic male with
bushy black hair, but the caller did not indicate that the passenger was in
possession of a gun. Id. at 16. The caller also gave the license plate
number of the red Honda. Id. at 7. The address of 39 East College Avenue
was an apartment building "close to" the south side of York City. Id. at 6-7.
Officer Blymire testified that the south side of York City was an area in which
there was "a significant amount of drug activity." Id. at 6.
¶3
When Officer Blymire arrived at 39 East College Avenue, he observed a
red Honda parked across the street from the apartment building. He
testified that he approached the car from behind and observed that the
license plate number matched the one reported by the anonymous caller.
Id. at 7. Officer Blymire testified that he saw the Hispanic male, who
matched the description of the individual alleged to be in possession of the
handgun, standing next to the parked vehicle. Id. Officer Blymire did not
see that individual in possession of a handgun. Id. at 9. The individual
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J. S65035/01
standing outside the vehicle looked at the officer and then ran across the
street towards the apartment building located at 39 East College Avenue.
Id. at 7. The passenger in the vehicle, later identified as Appellant,
appeared to Officer Blymire to be Hispanic and appeared to have bushy
black hair, thereby matching the description of the passenger provided by
the anonymous caller. Id. Appellant remained seated in the vehicle as
Officer Blymire drove by. Id.
¶4
Officer Blymire continued around the block and called for back-up
officers to come to the scene. Id. at 8. When Officer Blymire came around
the block the second time, the man who had been standing outside the
vehicle was seen by Officer Blymire entering the apartment building located
at 39 East College Avenue. Id. Appellant remained in a reclining position
in the passenger seat. Id.
¶5
Three (3) other officers arrived on the scene and positioned
themselves outside of the apartment building across the street. As Officer
Blymire approached the red Honda, Appellant did not move from his
reclining position in the vehicle. Id. at 9, 17. Officer Blymire testified that
at that point he felt that Appellant "could have been a possible threat to [the
police officers'] safety or an unknown [threat]." Id. at 9. Officer Blymire
instructed Appellant to step out of the vehicle, and Appellant complied.
Officer Blymire then patted down Appellant. Officer Blymire felt a cylindrical
canister in Appellant's right front pocket, and Officer Blymire opined that,
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J. S65035/01
based upon his training and experience, this type of canister was typically
used for illegal drugs. Id. at 10. Office Blymire then asked Appellant what
the object was. Appellant stated it was bubble gum. Id. Officer Blymire
asked if he could look inside the canister, and Appellant consented. Id.
Inside the canister were two bags that each contained a small "white chunky
rock substance." Id. Appellant was arrested and given his Miranda2
warnings. The substance found in the canister was later field-tested positive
for cocaine.
¶6
Appellant was formally arraigned in the York County Court of Common
Pleas on October 20, 2000. On October 25, 2000, Appellant filed a
Suppression Motion to suppress the cocaine seized. A Suppression Hearing
was held before the Honorable John S. Kennedy on November 27, 2000.
Judge Kennedy denied the motion the same day, and a bench trial was held
immediately following the Suppression Hearing. Judge Kennedy found
Appellant guilty of possession of cocaine. On April 30, 2001, Appellant was
sentenced to time served to twelve (12) months, plus costs. Appellant filed
a timely notice of appeal to this Court on May 4, 2001. Judge Kennedy
ordered Appellant to file a concise statement of matters complained of on
appeal, pursuant to Pa.R.A.P. 1925(b), and Appellant complied. This timely
appeal followed.

2 Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
- 4 -

J. S65035/01
¶7
Appellant raises a single issue for this Court to review on appeal:
Did the Trial Court err in denying Appellant's Motion to
Suppress cocaine where an anonymous source, who had not
provided police with trustworthy information in the past,
provided information that Appellant was sitting as a
passenger in a car next to a driver who had a gun was
stopped, detained, and patted down, at which time the police
found a canister consistent with drug paraphernalia,
requested consent to search, search was granted by
Appellant, and cocaine was found in the canister.
Appellant's Brief at 2.
¶8
Appellant argues that he was subjected to an unlawful detention since
the police did not have reasonable and articulable suspicion of his
involvement in criminal activity to subject him to an investigative detention,
nor a reasonable and articulable suspicion that he was armed and dangerous
to justify the pat down search of his person. Appellant additionally contends
that his consent to search the canister recovered from his pocket during the
pat down search was the tainted product of his unlawful detention. He
therefore asserts that the Trial Court erred in denying his motion to suppress
the evidence that was recovered from the canister. After careful review of
the factual circumstances and governing law, we conclude that Appellant is
correct.
¶9
Our standard of review for an appeal from a denial of a motion to
suppress is as follows:
In an appeal from the denial of a motion to suppress, our role
is to determine whether the record supports the suppression
court's factual findings and the legitimacy of the inferences
and legal conclusions drawn from those findings. In making
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J. S65035/01
this determination, we may consider only the evidence of the
prosecution's witnesses and so much of the defense as, fairly
read in the context of the record as a whole, remains
uncontradicted. When the evidence supports the factual
findings of the suppression court, we may reverse only if
there is an error in the legal conclusions drawn from those
factual findings. As a reviewing court, we are therefore not
bound by the legal conclusions of the suppression court and
must reverse that court's determination if the conclusions are
in error or the law is misapplied.
Commonwealth v. Turner, 772 A.2d 970, 972-973 (Pa.Super. 2001) (en
banc).
¶10 "Both the Fourth Amendment of the United States Constitution and
Article 1 Section 8 of the Pennsylvania Constitution protect citizens from
unreasonable searches and seizures." Commonwealth v. Cook, 558 Pa.
50, 53, 735 A.2d 673, 674 (1999). The Fourth Amendment to the United
States Constitution provides that:
The right of the people to be secure in their persons, houses,
papers, and effects, against unreasonable searches and
seizures, shall not be violated, and no warrants shall issue,
but upon probable cause, supported by oath or affirmation,
and particularly describing the place to be searched, and the
persons or things to be seized.
U.S. Const. Amend. IV. The Pennsylvania Constitution provides:
The people shall be secure in their persons, houses, papers
and possessions from unreasonable searches and seizures,
and no warrant to search any place or to seize any person or
things shall issue without describing them as nearly as may
be, nor without probable cause, supported by oath or
affirmation subscribed to by the affiant.
Pa. Const. Art. I, § 8. Warrantless searches and seizures are therefore
unreasonable per se, unless conducted pursuant to a specifically established
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J. S65035/01
and well-delineated exception to the warrant requirement. In the Interest
of N.L., 739 A.2d 564, 566 (Pa.Super. 1999), appeal denied, 562 Pa. 672,
753 A.2d 819 (2000) (citing Katz v. United States, 389 U.S. 347, 357, 19
L. Ed. 2d 576, 88 S. Ct. 507 (1967)).
¶11 As our Court has further reminded:
The Pennsylvania Supreme Court has been vigilant in the
protection of the right to privacy guaranteed by Article I,
Section 8 of our state Constitution. On repeated occasions,
the Court has admonished that:
The seriousness of criminal activity under
investigation, whether it is the sale of drugs
or the commission of a violent crime, can
never be used as justification for ignoring or
abandoning the constitutional right of every
individual in this Commonwealth to be free
from intrusions upon his or her personal
liberty absent probable case.
Commonwealth v. Polo, [563 Pa. 218, 226], 759 A.2d 372,
[376] (quoting Commonwealth v. Matos, 543 Pa. 449, 672
A.2d 769, 775-76 (Pa. 1996)).
Commonwealth v. Beasley, 761 A.2d 621, 624 (Pa.Super. 2000), appeal
denied, 565 Pa. 662, 775 A.2d 801 (2001). "To secure the right of citizens
to be free from such intrusions, courts in Pennsylvania require law
enforcement officers to demonstrate ascending levels of suspicion to justify
their interactions with citizens as those interactions become more intrusive."
Id.
The first of these [interactions] is a "mere encounter" (or
request for information) which need not be supported by any
level of suspicion, but carries no official compulsion to stop or
respond. The second, an "investigative detention" must be
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J. S65035/01
supported by reasonable suspicion; it subjects a suspect to a
stop and period of detention, but does not involve such
coercive conditions as to constitute the functional equivalent
of arrest. Finally, an arrest or "custodial detention" must be
supported by probable cause.
Commonwealth v. Phinn, 761 A.2d 176, 181 (Pa.Super. 2000), appeal
denied, ___ Pa. ___, ___ A.2d ____ (5/3/2001) (quoting Commonwealth
v. Ellis, 541 Pa. 285, 293-94, 662 A.2d 1043, 1047-48 (1995)).
¶12 All parties and the Trial Court correctly agree that when Officer Blymire
ordered Appellant to step from the vehicle, he was, at that point in time,
subjected to an investigative detention by Officer Blymire. If a reasonable
person does not feel free to terminate an encounter with the police and
leave the scene, then a seizure of that person has occurred.
Commonwealth v. McClease, 750 A.2d 320, 325 (Pa.Super. 2000). When
Officer Blymire ordered Appellant from the car, we have little difficulty in
concluding that a reasonable person in Appellant's position would not have
felt free to terminate the encounter with Officer Blymire at that point and
leave the scene. See also Commonwealth v. DeHart, 745 A.2d 633, 637
(Pa.Super. 2000) (when officers ordered driver and passenger to get out of
the vehicle, encounter had attained the status of an investigative detention).
¶13 The police are permitted to stop and briefly detain citizens only when
they have reasonable suspicion, based on specific and articulable facts, that
criminal activity may be afoot. Commonwealth v. Zhahir, 561 Pa. 545,
552, 751 A.2d 1153, 1156 (2000) (citing Terry v. Ohio, 392 U.S. 1, 21, 30,
- 8 -

J. S65035/01
88 S.Ct. 1868, 1884 (1968)); Commonwealth v. Melendez, 544 Pa. 323,
328, 676 A.2d 226, 228 (1996); Commonwealth v. Hicks, 434 Pa. 153,
160, 253 A.2d 276, 280 (1969). In determining whether reasonable
suspicion exists for an investigative detention, or as it is also known in the
common legal vernacular, a "Terry stop," the inquiry is the same under both
the Fourth Amendment of the United States Constitution and Article 1, §8 of
the Pennsylvania Constitution. Commonwealth v. Cook, 558 Pa. 50, 57,
735 A.2d 673, 677 (1999); Commonwealth v. Jackson, 548 Pa. 484, 488,
698 A.2d 571, 573 (1997). "The fundamental inquiry is an objective one,
namely, whether `the facts available to the officer at the moment of the
intrusion warrant a man of reasonable caution in the belief that the action
taken was appropriate.'" Zhahir, supra, at 552, 751 A.2d at 1156 (citing
Terry, supra, 392 U.S. at 21-22, 88 S. Ct. at 1880). In order to determine
whether the police had a reasonable suspicion to subject an individual to an
investigative detention, the totality of the factual circumstances which
existed at the time of the investigative detention must be considered. Id.
(citing United States v. Cortez, 449 U.S. 411, 417, 101 S.Ct. 690, 695
(1981)). "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).
- 9 -

J. S65035/01
¶14 This standard is very narrow, however, in that it requires a
"particularized and objective basis for suspecting the particular person
stopped of criminal activity." In re D.M., ___ Pa. ___, 781 A.2d 1161,
1163 (2001) (quoting Cortez, supra) (emphasis supplied). As our Court
has elaborated in a prior case:
[I]n order for a stop to be reasonable under Terry [], 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. Espada, 528 A.2d 968, 970 (Pa.Super. 1987) (citations
omitted); Comonwealth v. Lopez, 609 A.2d 177, 180 (Pa.Super. 1992),
appeal denied, 533 Pa. 598, 617 A.2d 1273 (1992); Commonwealth v.
Kearney, 601 A.2d 346, 348 (Pa.Super. 1992); Commonwealth v.
Wilson, 655 A.2d 557, 560-561 (Pa.Super. 1995); Commonwealth v.
Gayle, 673 A.2d 927, 931 (Pa.Super. 1996).
¶15 Thus, the relevant inquiry in the case at bar is whether the totality of
the factual circumstances gave Officer Blymire reasonable suspicion of
Appellant's involvement in criminal activity in order to justify subjecting
Appellant to an investigative detention. Officer Blymire arrived at 39 East
College Avenue as the result of an anonymous tip that two individuals were
in a red car in front of this particular address. The identity or reliability of
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J. S65035/01
the individual providing the tip was unknown to Officer Blymire. The
anonymous tipster was identified only as a "resident" of the apartment
building at 39 East College Avenue. N.T. Suppression Hearing, supra, at
13-14. The tip specifically described the driver of the car and stated that
this individual was either holding a gun or in possession of a gun. N.T.
Suppression Hearing, supra, at 6. The tipster did not indicate in any way
that the passenger of the vehicle was in possession of a gun.
¶16 Our Supreme Court has made abundantly clear that a radio dispatch
based on information provided from an informant whose identity is
unknown, and which accuses an individual of involvement in criminal
activity, will not, standing alone, provide the requisite basis for an
investigatory detention of a person who happens to match the physical
description of the accused individual provided by the tipster. As our
Supreme Court has emphasized in summarizing its relevant holdings:
Because of its unreliability, an anonymous radio call
alone is insufficient to establish a reasonable suspicion of
criminal activity. [Commonwealth v. Jackson, 548 Pa.
484, 698 A.2d 571 (1997); Commonwealth v. Hawkins,
547 Pa. 652, 692 A.2d 1068 (1997)]. The Court in Jackson
further explained that the fact that the police proceeded to
the designated location and saw a person matching the
description in the call did not corroborate any alleged criminal
activity. Jackson, 548 Pa. at 492, 698 A.2d at 574-75
(quoting Hawkins, 547 Pa. at 656-57, suspicion of criminal
conduct, the suspect may be stopped and questioned. Id.
692 A.2d at 1070). Since anyone can describe a person who
is standing in a particular location, "something more is
needed to corroborate the caller's allegations of criminal
conduct." Id. In the typical anonymous caller situation, the
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J. S65035/01
police will need an independent basis to establish reasonable
suspicion. Id.
As explained in Hawkins, where the police are acting on
information supplied anonymously, the public will receive its
full measure of protection by police who act within
constitutional restraints. Hawkins, 547 Pa. at 657-58, 692
A.2d at 1071. When the police receive unverified information
that a person is engaged in illegal activity, the police may
observe the suspect and conduct an investigation. If police
surveillance produces a reasonable suspicion of criminal
conduct, the suspect may be stopped and questioned. Id.
Commonwealth v. Wimbush, 561 Pa. 368, 376-377, 750 A.2d 807, 811
(2000).
¶17 Thus, when Officer Blymire received the radio dispatch, which relayed
the information from the anonymous informant, he could certainly act on
this information by going to the address specified in the tip and commencing
an investigation. However, once at the address he was not permitted to
conduct an investigative detention of individuals who matched the physical
description given in the tip, absent some independent corroborating basis
that gave rise to a reasonable belief on his part that those individuals were
engaged in criminal activity. There was no such independent factual basis
that would lead Officer Blymire to reasonably suspect Appellant of
involvement in criminal activity.
¶18 In the first place the tip itself provided absolutely no basis upon which
Officer Blymire could conclude that Appellant was armed. The anonymous
informant specifically identified the driver of the Honda as the individual in
possession of the gun. The tip made no reference to the passenger as being
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J. S65035/01
armed or otherwise involved in criminal activity. Officer Blymire observed
the individual matching the description of the allegedly armed driver
standing outside of the car and could clearly see that that individual
possessed no weapon. Appellant, who matched the description of the
passenger given in the tip, was seated in the passenger seat when Officer
Blymire observed him. Thus, Officer Blymire had no reasonable basis upon
which to conclude that Appellant was the armed individual referred to by the
tipster.
¶19 Moreover, and importantly, Appellant did nothing whatsoever in
response to the initial appearance of Officer Blymire, or in response to his
companion's actions of running towards the apartment complex. Neither did
Appellant move from his seated position in the time that it took for Officer
Blymire to radio for backup and drive around the block. Indeed, when
Officer Blymire later exited his vehicle after other officers had arrived and
approached the vehicle, Appellant still remained in the exact position in
which Officer Blymire had first seen him. It is clear then that these
circumstances, examined both individually and in conjunction with one
another, did not give Officer Blymire the requisite reasonable suspicion to
effectuate an investigative detention of Appellant.
¶20 Officer Blymire merely observed Appellant reclining in the passenger
seat of a car which was parked in an area "close to" a high crime area. Our
caselaw is quite emphatic that an individual's mere presence in a high crime
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J. S65035/01
area is manifestly insufficient to justify a Terry stop. See e.g. In re D.M.,
supra; Cook, supra; In re M.D., 781 A.2d 192, 197 (Pa.Super. 2001).
Therefore, it is abundantly plain that simply being physically present in a
vehicle which is parked near a high crime area cannot provide the requisite
reasonable suspicion for an investigative detention.
¶21 The only thing which Officer Blymire observed, that was arguably out
of the ordinary, was the fact that the driver of the parked car ran across the
street when Officer Blymire approached. We are cognizant of our Supreme
Court's holding in In re D.M., supra, that flight of an individual in a high
crime area, coupled with a prior anonymous tip that a person matching the
description of the fleeing individual was in possession of a gun, will give rise
to the requisite reasonable suspicion for police officers to detain the fleeing
individual. However, here it was not the fleeing individual whom the police
officer stopped, but rather the individual's companion, who did not flee at
the sight of the police. Indeed, when Appellant was confronted with the
presence of the police he elected to remain where he was and to continue
his lawful conduct of reclining in the passenger seat. Appellant did nothing
out of the ordinary in response to the police presence, which would have
given rise to any reasonable suspicion of his involvement in criminal activity.
¶22 As discussed, supra, the police must have individualized and
particularized reasonable suspicion that the specific person stopped was
involved in criminal activity. In re D.M., Espada, supra. Here there was
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J. S65035/01
no such individualized or particularized suspicion that Appellant was involved
in criminal activity. His companion's conduct of fleeing at the sight of Officer
Blymire cannot be imputed to Appellant. See Espada, supra, (no
reasonable suspicion existed to detain individual when his companions fled
upon the approach of a police vehicle and appellant continued to normally
walk down the street in the direction of the police vehicle). As Officer
Blymire explicitly acknowledged, Appellant himself did nothing suspicious
prior to his request that Appellant step out of the car. See N.T. Suppression
Hearing, supra, at 17. Consequently, when Officer Blymire ordered him out
of the car, Appellant was unjustifiably subjected to an investigative detention
in the absence of reasonable suspicion. This violated his absolute right
under the United States and Pennsylvania Constitutions to be free of an
unlawful seizure of his person.
¶23 Since we have determined that Appellant was subjected to an
unlawful detention, we must examine whether his consent to search the
cylinder recovered during the frisk of his person was the product of the
unlawful detention. As our Supreme Court has recognized:
Where . . . a consensual search has been preceded by an
unlawful seizure, the exclusionary rule requires suppression
of the evidence obtained absent a demonstration by the
government both of a sufficient break in the causal chain
between the illegality and the seizure of evidence, thus
assuring that the search is not an exploitation of the prior
illegality, and of voluntariness.
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J. S65035/01
Commonwealth v. Strickler, 563 Pa. 47, 57, 757 A.2d 884, 889 (2000);
Commonwealth v. Freeman, 563 Pa. 82, 88, 757 A.2d 903, 906 (2000).
The three (3) relevant factors to be examined in determining whether an
unlawfully detained individual's consent to search is an independent act of
free will or the product of the illegal detention are the temporal proximity of
the detention and the consent, any intervening circumstances, and,
particularly, the purpose and flagrancy of the officer's unlawful conduct.
Freeman, at 92, 757 A.2d at 909.
¶24 Here Officer Blymire frisked Appellant as soon as Appellant exited the
vehicle. The cylinder containing the small amount of cocaine was taken from
Appellant's pocket during the pat down search. Officer Blymire requested
consent to look inside immediately after he recovered the cylinder from
Appellant's pocket. Clearly under these circumstances Appellant's "consent"
was the direct product of the unlawful detention and seizure of his person.
As such the contraband recovered from the cylinder was the fruit of the
poisonous tree and should have been suppressed. See Freeman, supra;
Wong Sun v. United States, 371 U.S. 471, 83 S. Ct. 407, 9 L. Ed. 2d 441
(1963) (evidence obtained as a result of an illegal search is the "fruit of the
poisonous tree" of the illegal detention and must be suppressed).
¶25 Judgment of sentence vacated. Case remanded for a new trial absent
the suppressed evidence. Jurisdiction is relinquished.
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