J-A08036-15

*Retired Senior Judge assigned to the Superior Court.

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,

 Appellee

 v.

DARYL ANTHONY BAER,

 Appellant

:

:

:

:

:

:

:

:

:

IN THE SUPERIOR COURT OF

PENNSYLVANIA

 No. 729 MDA 2014

Appeal from the Judgment of Sentence Entered March 13, 2014

in the Court of Common Pleas of York County,

Criminal Division, at No(s): CP-67-CR-0006201-2013

BEFORE: SHOGAN, WECHT, and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.: FILED JULY 10, 2015

Daryl Anthony Baer (Appellant) appeals from the March 13, 2014 

judgment of sentence of one year of probation imposed following his 

conviction for possession of drug paraphernalia.1 On appeal, Appellant 

challenges the denial of his pre-trial suppression motion. We affirm.

The trial court offered the following factual and procedural history of 

the case.

In the early morning hours of April 6, 2013, Officer David 

Kahley was on routine patrol outside of a Turkey Hill gas station 

in West York, Pennsylvania. While on patrol he observed a 

vehicle enter the parking lot of a church, which he knew was 

closed. He observed two people exit the car and head towards 

the adjoining alley. At this point, Officer Kahley drove into the 

alley to see which way the individuals were heading, and he 

 

1 On March 12, 2014, Appellant also was sentenced to 75 days’ incarceration 

at the above docket number for his conviction of the summary offense of 

driving while operating privileges were suspended or revoked. 
J-A08036-15

- 2 -

observed them quickly walk into the parking lot of a business, 

which, like the church, was also closed. Without activating his 

emergency lights or shining his spotlight, Officer Kahley 

approached the pair and asked where they were going. They 

responded that they were heading to the female’s apartment, 

which was located on the 1400 block of Market Street, the 

opposite direction of the way the pair was walking.

Because of the time of night and the area, which Officer 

Kahley knew to be high crime, plus the inconsistency between 

the pair’s conduct and their statements, the officer asked them 

for identification. He was able to identify both individuals; the 

man was identified as Daryl Baer, the Appellant, and the other 

individual, a female, was identified as Alexis Bohr. Officer 

Kahley discovered that Ms. Bohr had a warrant out for her 

arrest, so he placed her in custody. He also discovered that the 

Appellant’s license was suspended for an earlier DUI. Sometime 

after Officer Kahley began talking to the Appellant, but before 

the Appellant was placed in custody, another officer arrived just 

to assist Officer Kahley if he should need it. 

After placing Ms. Bohr in custody, Officer Kahley testified 

that he performed a pat-down of the Appellant. During the 

suppression hearing, where the stop and subsequent evidence 

were challenged, Officer Kahley stated that the Appellant kept 

putting his hands in his pockets, even after Officer Kahley asked 

him to stop. At this point, Officer Kahley felt it was a safety 

concern, and this is what led to him patting down the Appellant. 

While patting down the Appellant, Officer Kahley stated that he 

felt two objects in the Appellant’s left breast pocket of his coat. 

He testified that he immediately knew the objects were 

hypodermic needles, and that he asked the Appellant if they 

were needles, to which the Appellant responded “I don't know.” 

Officer Kahley asked the Appellant if he could remove the objects 

and the Appellant said yes. The objects were hypodermic 

needles.

The Appellant was taken into custody for possession of 

drug paraphernalia and Officer Kahley read the Appellant his 

Miranda[2]rights. The Appellant appeared to understand his 

 

2 Miranda v. Arizona, 384 U.S. 436 (1966).
J-A08036-15

- 3 -

rights, and according to Officer Kahley, admitted that the 

needles were his, they were used for shooting up heroin, and 

that he had used heroin four days earlier. The Appellant also 

told Officer Kahley that he was the one driving the vehicle that 

he and Ms. Bohr were seen exiting. The Appellant was taken to 

Central Booking and the Appellant’s vehicle was searched and 

towed. During that search of the vehicle, a purse, which 

contained a small black bag, was found on the passenger seat. 

The black bag contained numerous hypodermic needles, 29 bags 

of heroin, and a packet of Suboxone, which is commonly used in 

treating heroin addicts. 

At the trial, Officer Kahley testified that standard 

procedure regarding testing needles is, because of dangers 

associated with them, to take pictures of the needles and then 

destroy them. Further, all of the labs that Officer Kahley was 

aware of do not even accept needles for testing unless some 

kind of exigent circumstances exist. Officer Kahley did not 

fingerprint the needles, as that is not standard procedure in 

cases such as this. The parties stipulated to the fact that the 

Pennsylvania State Police, Bureau of Forensic Services, received 

the evidence, with the exception of the hypodermic needles, 

found in the purse. The lab found that the residue contained in 

the bags was heroin.

On cross-examination ... Officer Kahley admitted that he 

made some mistakes on the night of April 6, 2013. The officer’s 

Affidavit of Probable Cause did not make mention of finding two 

needles on the Appellant's person. The affidavit also did not 

mention any statements that the Appellant made to the officer. 

Lastly, Officer Kahley admitted that he took pictures of the 

contraband found in the purse, but did not take pictures of the 

needles found on the Appellant. However, on redirect Officer 

Kahley clarified that he does not put every single detail in the 

Affidavit of Probable Cause. Further, his supplemental incident 

report, which was drafted just after the Appellant was taken to 

Central Booking, did state that two needles were found on the 

Appellant, and did mention the Appellant’s incriminating 

statements.

Trial Court Opinion, 7/30/2014, at 2-4 (citations omitted). 
J-A08036-15

- 4 -

Prior to trial, Appellant filed an omnibus pre-trial motion in which he 

sought to suppress the needles, the evidence of Appellant’s suspended 

license, and Appellant’s incriminating statements. After a hearing, the trial 

court denied the motion. Appellant proceeded to trial and was convicted and 

sentenced as indicated above. Appellant timely filed a post-sentence motion 

and a notice of appeal following that motion’s denial. Both Appellant and the 

trial court complied with Pa.R.A.P. 1925.

Appellant presents five questions for this Court’s review:

1. Did the lower court err when it determined that the initial 

encounter by the police officer was a mere encounter where the 

police officer did not observe any evidence of criminal activity 

and did not have reasonable suspicion to stop or detain the 

Appellant by pulling his marked police cruiser up to the 

Appellant, exiting his marked vehicle and talking to the Appellant 

with a backup unit arriving in less than four (4) minutes after the 

initial encounter thereby surrounding the Appellant in a show of 

force?

2. Did the suppression/trial court err in finding that the officer 

possessed reasonable suspicion to effectuate an investigatory 

detention where the officer gave no articulable facts that the 

Appellant was engaging in criminal activity when the officer 

viewed Appellant walking in a parking lot and the Appellant told 

the officer of his destination?

3. Did the suppression/trial court err in finding that the officer 

possessed a reasonable belief that the Appellant was presently 

armed and dangerous to justify a “Terry Frisk”[3]of the 

Appellant which occurred after the officer ran Appellant’s license 

and found no outstanding warrants?

 

3 Terry v. Ohio, 392 U.S. 1 (1968).
J-A08036-15

- 5 -

4. Did the suppression/trial court err in refusing to suppress 

the fruits of the investigatory detention where the seizing police 

officer had no reasonable suspicion to detain, nor probable cause 

to arrest Appellant at the instant when the seizing officer took 

Appellant’s license and ran the license for a warrant check?

5. Did the suppression/trial court err in refusing to suppress 

the fruits of the “Terry Frisk” where the frisking/seizing officer 

exceeded the scope of the “Terry Frisk” when the contraband 

was immediately apparent to the officer that the contraband was 

not a weapon and the officer preceded [sic] to manipulate/pinch 

the object until he believed it to be contraband?

Appellant’s Brief at 2-3 (suggested and trial court answers omitted).

We consider Appellant’s questions mindful of the following standard of 

review.

Our standard of review in addressing a challenge to the denial of 

a suppression motion is limited to determining whether the 

suppression court’s factual findings are supported by the record 

and whether the legal conclusions drawn from those facts are 

correct. Because the Commonwealth prevailed before the 

suppression court, we may consider only the evidence of the 

Commonwealth and so much of the evidence for the defense as 

remains uncontradicted when read in the context of the record 

as a whole. Where the suppression court’s factual findings are 

supported by the record, we are bound by these findings and 

may reverse only if the court’s legal conclusions are erroneous. 

Where ... the appeal of the determination of the suppression 

court turns on allegations of legal error, the suppression court’s 

legal conclusions are not binding on an appellate court, whose 

duty it is to determine if the suppression court properly applied 

the law to the facts. Thus, the conclusions of law of the court[] 

below are subject to our plenary review.

Commonwealth v. Perel, 107 A.3d 185, 188 (Pa. Super. 2014) (quoting 

Commonwealth v. Jones, 988 A.2d 649, 654 (Pa. 2010)). 
J-A08036-15

- 6 -

We begin our examination of Appellant’s claims of error by reiterating 

the applicable legal principles.

Interaction between citizens and police officers, under 

search and seizure law, is varied and requires different levels of 

justification depending upon the nature of the interaction and 

whether or not the citizen is detained. The three levels of 

interaction are mere encounter, investigative detention, and 

custodial detention. A mere encounter can be any formal or 

informal interaction between an officer and a citizen, but will 

normally be an inquiry by the officer of a citizen. A mere 

encounter does not carry any official compulsion to stop or 

respond to police, and as a result, does not need to be supported 

by any level of suspicion. In contrast, an investigative detention 

carries an official compulsion to stop and respond. The 

detention is temporary, but it must be supported by specific and 

articulable facts creating a reasonable suspicion that the suspect 

is engaged in criminal activity. The test for reasonable suspicion 

is an objective one: ... whether the officer’s action was justified 

at its inception, and whether it was reasonably related in scope 

to the circumstances which justified the interference in the first 

place. Regarding the stop, a police officer may, short of an 

arrest, conduct an investigative detention if he has a reasonable 

suspicion, based upon specific and articulable facts, that 

criminality is afoot. The assessment of reasonable suspicion, like 

that applicable to the determination of probable cause, requires 

an evaluation of the totality of the circumstances, with a lesser 

showing needed to demonstrate reasonable suspicion in terms of 

both quantity or content and reliability. Finally, an arrest or 

custodial detention must be supported by probable cause. 

To determine if an interaction rises to the level of an 

investigative detention, i.e., a Terry stop, the court must 

examine all the circumstances and determine whether police 

action would have made a reasonable person believe he was not 

free to go and was subject to the officer’s orders. To guide this 

crucial analysis, the United States Supreme Court has devised an 

objective test entailing whether, in view of all surrounding 

circumstances, a reasonable person would believe he was free to 

leave. In evaluating the circumstances, the focus is directed 

toward whether, by means of physical force or show of authority, 
J-A08036-15

- 7 -

the citizen-subject’s movement has in some way been 

restrained. No single factor should control this determination, 

and courts must examine the totality of the circumstances when 

reaching a conclusion as to whether a seizure occurred.

Commonwealth v. Guzman, 44 A.3d 688, 692-93 (Pa. Super. 2012) 

(internal citations and quotation marks omitted). 

Although Appellant’s brief poses five separate questions, he makes 

only two arguments: (1) that Officer Kahley’s interaction with Appellant 

constituted an investigative detention unsupported by reasonable suspicion, 

and (2) that the Terry frisk was unjustified and exceeded the scope of an 

acceptable frisk. Appellant’s Brief at 12, 24. We will address Appellant’s 

arguments in a corresponding fashion.

Appellant first argues that his interaction with the police was, from the 

start, an investigative detention:

in light of the totality of the circumstances, Officer Kahley’s 

conduct of pulling behind [Appellant] and his companion in the 

early morning hours, shining his headlights on them then exiting 

his vehicle in full police uniform and calling in a person stop 

thereby having a second officer pull up in his marked police 

cruiser, is more than a mere encounter and shows that 

[Appellant’s] liberty was restrained.

Appellant’s Brief at 18. Appellant further argues that Officer Kahley lacked 

reasonable suspicion to detain Appellant, because he “never witnessed 

[Appellant] engage in any activity that would be characterized as criminal.” 

Id. at 22.
J-A08036-15

- 8 -

The trial court4 determined that Officer Kahley’s questioning of 

Appellant and request for his identification was a mere encounter, largely on 

the basis of our Supreme Court’s opinion in Commonwealth v. Au, 42 A.3d 

1002 (Pa. 2012). In that case, the police officer initiating the encounter did 

not “activate the emergency lights on his vehicle; position his vehicle so as 

to block the car that [Au] was seated in from exiting the parking lot; 

brandish his weapon; make an intimidating movement or overwhelming 

show of force; make a threat or a command; or speak in an authoritative 

tone.” Id. at 1008. Although the officer in Au used his headlights and a 

flashlight, “this was in furtherance of the officer’s safety, and we conclude it 

was within the ambit of acceptable, non-escalatory factors.” Id. Under the 

circumstances present, “a request for identification is not to be regarded as 

escalatory in terms of the coercive aspects of a police-citizen encounter.” 

Id. at 1007. Accordingly, the Court held that “the arresting officer’s request 

for identification did not transform his encounter with [Au] into an 

unconstitutional investigatory detention.” Id. at 1009.

As in Au, Officer Kahley did not activate the emergency lights on his 

vehicle when initially approaching Appellant; nor did he block Appellant’s 

movements, brandish his weapon, or make any threats or commands. 

Therefore, we conclude that Officer Kahley’s initial contact with Appellant 

 

4 The Rule 1925(a) opinion before us was authored by the trial court, not by 

the suppression court. 
J-A08036-15

- 9 -

was a mere encounter, and his request for Appellant’s identification did not 

escalate it to an investigatory detention. 

It was not until Officer Kahley retained possession of Appellant’s 

identification card that the mere encounter became an investigative 

detention. See Commonwealth v. Hudson, 995 A.2d 1253, 1259 (Pa. 

Super. 2010) (“Officer Gonzalez effectuated an investigative detention of 

Hudson at the time that Officer Gonzalez took and maintained possession of 

Hudson's identification. In such a situation, no reasonable person would 

have felt free to terminate the encounter and depart the scene.”). However, 

we agree with the trial court that, by the time Officer Kahley requested 

Appellant’s identification, he had the reasonable suspicion necessary to 

conduct an investigative detention. See Trial Court Opinion, 7/30/2014, at 

9 (“The inconsistency between Appellant’s statements and actions, along 

with the time of night and the location, a high crime area, would have given 

a reasonable officer reasonable suspicion that criminal activity was afoot.”). 

Appellant claims that Officer Kahley described no criminal activity; 

rather, he contends, the actions of Appellant and Ms. Bohr, “namely walking 

away from a vehicle and answering questions, are perfectly consistent with 

innocent behavior[.]” Appellant’s Brief at 23. Appellant’s argument ignores 

the applicable standards:

In order to determine whether the police officer had reasonable 

suspicion, the totality of the circumstances must be considered. 
J-A08036-15

- 10 -

... Also, the totality of the circumstances test does not limit our 

inquiry to an examination of only those facts that clearly indicate 

criminal conduct. Rather, even a combination of innocent facts, 

when taken together, may warrant further investigation by the 

police officer.

Commonwealth v. Kemp, 961 A.2d 1247, 1255 (Pa. Super. 2008) (en 

banc) (citations and quotation marks omitted).

Based upon the totality of the circumstances, Officer Kahley had 

reasonable suspicion to investigate Appellant and his companion further. 

See, e.g., Commonwealth v. Carter, 105 A.3d 765, 774 (Pa. Super. 

2014) (en banc) (holding officers had reasonable suspicion when they 

observed Carter, in a high-crime area, at night, attempt to conceal from the 

officers a bulge in his coat pocket).

Having determined that Officer Kahley’s initial encounter and later 

detention of Appellant were valid, we consider Appellant’s remaining 

arguments concerning legitimacy of the subsequent Terry frisk. We begin 

with an examination of the relevant legal principles.

If, during the course of a valid investigatory stop, an 

officer observes unusual and suspicious conduct on the part of 

the individual which leads him to reasonably believe that the 

suspect may be armed and dangerous, the officer may conduct a 

pat-down of the suspect’s outer garments for weapons. In order 

to justify a frisk under Terry, the officer must be able to point to 

particular facts from which he reasonably inferred that the 

individual was armed and dangerous. Such a frisk, permitted 

without a warrant and on the basis of reasonable suspicion less 

than probable cause, must always be strictly limited to that 

which is necessary for the discovery of weapons which might be 

used to harm the officer or others nearby.
J-A08036-15

- 11 -

Commonwealth v. E.M., 735 A.2d 654, 659 (Pa. 1999) (internal citations 

and quotation marks omitted). Additionally, 

In [Minnesota v. Dickerson, 508 U.S. 366, 375 (1993)], 

the U.S. Supreme Court legitimized the seizure of contraband 

discovered during the scope of a Terry frisk where the officer 

feels an object whose contour or mass makes its criminal 

character immediately apparent. However, noting that the 

officer in Dickerson “determined that the lump was contraband 

only after ‘squeezing, sliding and otherwise manipulating the 

contents of the defendant's pocket’—a pocket which the officer 

already knew contained no weapons,” the Court held that:

... the officer’s continued exploration of respondent’s 

pocket after having concluded that it contained no 

weapon was unrelated to “[t]he sole justification of 

the search [under Terry: ] ... the protection of the 

police officer and others nearby.” It therefore 

amounted to the sort of evidentiary search that 

Terry expressly refused to authorize ...

Commonwealth v. Griffin, --- A.3d ---, 2015 WL 2193891 at *4 (Pa. 

Super. filed May 12, 2015) (quoting Commonwealth v. Graham, 721 A.2d 

1075, 1081 (Pa. 1998)) (citations omitted).

Appellant claims that Officer Kahley failed to articulate specific facts to 

establish that he reasonably inferred that Appellant was armed and 

dangerous. Appellant’s Brief at 27-28. Even if the frisk was justified, 

Appellant continues, Officer Kahley was not justified in seizing the 

hypodermic needles because the incriminating nature of the items was not 

immediately apparent. Id. at 28-29. Therefore, Appellant argues, the 
J-A08036-15

- 12 -

needles were obtained unlawfully, and the fruits of the search should have 

been suppressed. Id. at 30.

At the suppression hearing, Officer Kahley testified that, after Ms. Bohr 

was taken into custody and identified Appellant as the driver of the car, he 

noticed that Appellant “was putting his hands in his pockets several times, 

which I continued to tell him to remove his hands from his pockets. And it 

started -- became a safety concern to me and we patted him down.” N.T., 

11/22/2013, at 10. See also id. at 18 (noting that he was not initially 

concerned, but became increasingly fearful that Appellant had weapons 

when Appellant continued to put his hands in his pockets after he told him to 

stop doing so). We agree with the trial court that this testimony was 

sufficient to justify a Terry frisk. See, e.g., Commonwealth v. 

Scarborough, 89 A.3d 679, 684 (Pa. Super. 2014) (holding Terry frisk was 

justified when Scarborough kept his hand in his pocket after police directed 

him to remove it, as such conduct suggested that Scarborough may have 

had a weapon on his person).

Next, Officer Kahley testified that, during the pat down, “I felt two

items in his left chest coat pocket, which I immediately recognized to be 

hypodermic needles.” Id. at 10. On cross-examination, he offered greater 

detail about the frisk:

Q: How could you tell the difference on the outside of a coat 

between a needle and let’s say a pen?
J-A08036-15

- 13 -

A: I could feel the object that was thin enough and had 

bumps on the bottom part that’s not consistent with a pen.

Q: Did that require you to manipulate that object to feel and 

tell what it is?

A: I think since I felt it, I sort of would have just grabbed it to 

see that it was a thin object and that’s when I felt that it wasn’t 

a pen.

Q: Well, so when you felt it all you could feel a thin object 

and you dropped it from there. You didn’t touch the object to 

determine what exactly it was?

A: I wasn’t running my hands along it and really wasn’t 

manipulating. I just felt there was an object there and more so 

tried to pinch it to see what kind of object it was. I didn’t 

continue much more than that to determine whether or not it 

could have been something more.

Q: But when you felt it at first you knew it wasn’t a weapon 

correct?

A: I didn’t believe it was a weapon, such as a knife or firearm.

Q: All right. Then after that you pinched it anyhow knowing it 

wasn’t a weapon?

A: I wasn’t sure at first.

Q: Wasn’t sure what?

A: If it could have been a knife or something more. Once I 

felt it was thinner, then I believe[d] it wasn’t a knife and more 

so of drug paraphernalia.

N.T., 11/22/2013, at 19-20.

Appellant claims that Officer Kahley exceeded the permissible scope of 

a Terry frisk when he pinched Appellant’s coat, as his testimony evidences 
J-A08036-15

- 14 -

that it was not immediately apparent during the initial pat down that 

Appellant possessed contraband. Appellant’s Brief at 28-29. We disagree.

“Once the initial pat-down dispels the officer’s suspicion that 

the suspect is armed, any further poking, prodding, squeezing, or other 

manipulation of any objects discovered during that pat-down is outside the 

scope of the search authorized under Terry.” Graham, 721 A.2d at 1082 

(emphasis added). Here, viewing the evidence in the light most favorable to 

the Commonwealth, Officer Kahley’s pinching of Appellant’s outer garment 

occurred before he had confirmed that Appellant was unarmed, and was 

done for the specific purpose of ruling out the possibility that it was a 

weapon. Therefore, Officer Kahley’s testimony was sufficient to establish a 

proper seizure under the plain feel doctrine. See, e.g., Commonwealth v. 

Pakacki, 901 A.2d 983, 989 (Pa. 2006) (holding plain feel doctrine 

applicable when trooper, during a Terry frisk “felt an object which he knew 

from his experience in law enforcement to be a marijuana pipe”). 

Because Officer Kahley was justified in performing a Terry frisk, and 

because his seizure of the contraband was permissible under the plain feel 

doctrine, the suppression court properly denied Appellant’s motion to 

suppress the hypodermic needles.
J-A08036-15

- 15 -

Judgment of sentence affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 7/10/2015