J-S73005-18

2019 PA Super 179

COMMONWEALTH OF PENNSYLVANIA

Appellee

v.

BRIAN LUCZKI 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

No. 93 WDA 2018

Appeal from the Judgment of Sentence December 18, 2017

In the Court of Common Pleas of Allegheny County

Criminal Division at No(s): CP-02-CR-0003552-2017

BEFORE: GANTMAN, P.J., BENDER, P.J.E., and OLSON, J.

OPINION BY GANTMAN, P.J.: FILED JUNE 7, 2019

Appellant, Brian Luczki, appeals from the amended judgment of 

sentence entered in the Allegheny County Court of Common Pleas, following 

his bench trial conviction for possession of a controlled substance.1 We affirm. 

In its opinion, the trial court accurately set forth the relevant facts of 

this case as follows: 

In this case, the evidence presented at [the suppression 

hearing/stipulated trial] established that on November 29,

2016, Officer William Luffey of the Allegheny County Port 

Authority Police was working with other police officers as 

part of the District Attorney task force targeting the sale of

illegal narcotics (“DANET”). Officers were in the area of 

Federal and Henderson Streets on the North Side of 

Pittsburgh due to complaints of drug sales. The Sandusky

Court housing project is adjacent to the area and the task 

force had made in excess of thirty drug arrests in the area 

that month. 

____________________________________________

1 35 P.S. § 780-113(a)(16). 
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Officer Luffey first observed [Appellant] walking away from 

the officers and toward the Sandusky Court Housing Project. 

[Appellant] was with an individual known to [Officer] Luffey 

as he had arrested that individual on drug charges on five 

prior occasions. [Appellant and the individual] walked 

toward Sandusky Court and out of the view of the officers. 

Approximately 14 minutes later, the two individuals were 

observed coming back from the area of Sandusky Court 

walking toward the officers. Officer Luffey testified that 

based on his training and experience, and the observations 

he made, he believed that the individuals had purchased 

illegal narcotics. Officer Luffey and Sgt. Wagner who were 

in plain clothes, but wearing their badges around their 

necks, waited until the individuals were a few feet away and 

announced themselves as police officers. Officer Luffey

stated, “I need to speak to you,” and both [Appellant]

and the other individual turned and started to walk away. 

[Appellant pulled] his hand out of his front pocket and 

Officer Luffey could clearly see a stamp bag in [Appellant’s]

hand. After asking [Appellant] to open his hand [Officer 

Luffey] observed three stamp bags marked “no pain” in 

[Appellant’s] hand. [Appellant] was then placed under 

arrest for possession of a controlled substance. 

(Trial Court Opinion, filed April 27, 2018, at 2-3) (internal citations to record

and footnote omitted) (emphasis added). The packets taken from Appellant 

contained heroin, and the Commonwealth charged Appellant with possession 

of a controlled substance. 

Appellant filed a motion to suppress on August 25, 2017, in which he 

argued the interaction between the police and Appellant constituted an 

unlawful search and seizure, without reasonable suspicion or probable cause. 

Specifically, Appellant claimed the police seized him without reasonable 

suspicion or probable cause, and searched his person without a warrant, 

probable cause, or any other valid exception to the warrant requirement. 
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Appellant claimed the moment the officers approached him with displayed 

badges and identified themselves as police officers, they had “seized” him,

and then conducted an illegal search when the officer ordered Appellant to 

show what he had in his hand. (See Motion To Suppress Evidence, filed 

8/25/17, at 4.) 

The court conducted a suppression hearing on December 15, 2017. The 

Commonwealth presented one witness, Officer Luffey, who testified he is a 

twenty-two-year veteran police officer. He has been working with DANET for 

nine years, has attended numerous narcotics investigation interdiction classes 

during his entire career, and had made in excess of thirty arrests over a fourweek period in the area where he interacted with Appellant. Officer Luffey 

stated he and his partner had been assigned to the area due to numerous 

complaints of illegal drug deals. Officer Luffey said he actually knew 

Appellant’s companion and had arrested Appellant’s companion for possession 

of narcotics five times within the past year. Officer Luffey described how 

Appellant’s and his companion’s actions roused the officers’ suspicion and 

explained: “[F]rom my training and experience being in the area where I’ve 

made numerous drug arrests over the past few weeks, the history of 

[Appellant’s companion] and the short amount of time they were gone, I 

believed that the two purchased illegal narcotics.” (N.T. Suppression Hearing, 

12/15/17, at 3-7). Officer Luffey observed Appellant and his companion as 

they walked back from the area of Sandusky Court toward the officers. Officer 
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Luffey stated: 

Commonwealth: Okay. ...can you tell the Court what 

happened after that[?]

Officer Luffey: Sergeant Wagner and myself, we 

approached the two with our badges displayed and verbally 

identified ourselves as police officers. 

Commonwealth: Officer Luffey, were you in uniform this 

day or were you in plainclothes?

Officer Luffey: I was in plainclothes as was Sergeant 

Wagner.

Commonwealth: But you had a badge around your 

neck?

Officer Luffey: Yes, a badge around my neck and a 

radio in my hand and verbally announcing myself, which 

[Appellant’s companion] knew me from narcotics 

encounters with him. 

Commonwealth: [Appellant’s companion] would have 

recognized you in plainclothes regardless of your badge? 

* * *

Commonwealth: Officer Luffey, did you approach 

[Appellant] and [his companion]?

Officer Luffey: When we identified ourselves with our 

badges displayed they both had looks of shock on their 

face[s] and they started walking away. And when they were

doing that I observed [Appellant]. He was going into his 

front pants pocket. And I could clearly see him removing 

stamp bags of heroin. 

Commonwealth: Now, you said that—your observation 

of [Appellant] when he removed his hand from his pocket, 

what did you see in his hand?

Officer Luffey: I could clearly see white stamp bags of 

heroin. I didn’t know how many there were, but I knew it 
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was heroin.

Commonwealth: And are you familiar with the 

packaging that’s typically used to sell illegal narcotics?

Officer Luffey: Absolutely, from working DANET and 

being a police officer for twenty-two years I’ve probably 

made four to five hundred heroin arrests.

Commonwealth: Can you describe briefly what that 

stamp bag might look like?

Officer Luffey: It’s the size of a stamp, you know, like, 

it’s white, and each bag always has a mark on it, a label. 

Commonwealth: Okay. And is that what you observed 

in [Appellant’s] hand?

Officer Luffey: Yeah. But I couldn’t see the label. I 

could see it was a stamp bag, but I could not see the 

stamping on it. 

Commonwealth: Okay. And after you observed the 

stamp bags of heroin in [Appellant’s] hand what happened 

after that? 

Officer Luffey: I advised him to open up his hand and 

he complied, and there were three stamp bags of heroin 

stamped “No pain” on them. 

Commonwealth: Now, at any time was [Appellant], prior 

to this, was [Appellant] detained? 

Officer Luffey: No. We just approached and identified

ourselves as police officers. And he walked away. He 

reached into his pocket, and I [saw] the heroin. 

Commonwealth: Was he handcuffed?

Officer Luffey: No. 

Commonwealth: Prior to observing those stamp bags in 

his hands did you pat him down? 
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Officer Luffey: Nothing. No.

Commonwealth: Okay. And after you observed the 

stamp bags in his hand what did you do after that? 

Officer Luffey: That’s when I placed him under arrest 

and detained him.

(Id. at 8-11). During cross-examination, Officer Luffey confirmed the 

testimony he had given on direct examination about his training and 

experience, and the fact that the officers were in plainclothes. The crossexamination testimony added that the officers were on foot in public, and not 

in police vehicles, when they interacted with Appellant and his companion. 

Upon the officers’ approach, identification, and request, Appellant and his 

companion separated and turned to walk away, which was when Officer Luffey 

saw Appellant remove white bags from his right pocket, cupped in his right 

hand, and in plain view. The incident occurred in the afternoon, about 4:35 

P.M., on November 29, 2016. The product in the bags confiscated from 

Appellant tested positive for heroin. (Id. at 11-21). 

In closing argument, defense counsel said:

You heard Officer Luffey’s testimony that he approached,

identified himself, saw [Appellant] walk away from him 

pulling something out of his pocket that the officer could tell 

based on his training and experience was three stamp bags. 

I think what you are hearing him testify to is a hunch and a 

belief that these two individuals were there to purchase or 

use heroin. He saw something white come out of my client’s 

pocket. He assumed that that was a stamp bag based on

the fact that my client was with a known drug user. When 

he ordered my client to open his hands that is where the 

unlawful search lies. Ordering him to open his hands is the 
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same as telling him to empty his pockets. He suspected 

there was something illegal in his hand. He ordered him to 

open it so that he could verify that that was, in fact, 

something illegal. Once he did that he saw that my client

did, in fact, have heroin in his hand. I’m not denying the 

fact that this officer has been doing this for a long time and 

he had a good sense of what was going on. It does not give 

him the right to search my client just because he was in a 

high crime area with a known drug user. That does not give 

him a right to conduct a search without something more. 

He maybe had reasonable suspicion to conduct an 

investigatory stop. He maybe could have asked some 

questions. But he didn’t do that. He ordered him to open 

his hands. He ordered my client to open his hands and show 

him the contents of his hands. 

I would submit that it was not possible to tell that the white 

thing in my client’s hand was a stamp bag. Maybe there 

was enough, as I said, to conduct an investigatory 

detention, but not a search. There was not enough to 

enable this officer to conduct a search of my client, which is 

what it was when he ordered him to open his hands. 

Because of that I would ask you to suppress this evidence. 

And that’s all I have, Your Honor. 

(Id. at 22-24). In response, the Commonwealth argued:

Your Honor, you heard testimony from Officer Luffey. He’s 

a twenty-two year veteran of the—as a police officer. And 

you heard his testimony today, that he was working as a 

DANET—under the DANET team on the day the incident 

occurred. The reason he was there was because of

complaints of open air drug sales. He has been working with 

the DANET group for the better part of a decade. And he is

familiar with the co-defendant in this case and knows him 

to be a known drug...

* * *

A known drug user. All of these things together would 

certainly support a reasonable suspicion if not probable 

cause for him to encounter [Appellant’s companion] and 

[Appellant]. However, Your Honor, I will submit that 

approaching them does not amount to a search. And 
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[Appellant’s] surprise at being encountered by a police 

officer and removing those items from his pocket certainly 

would not amount to a search. And Officer Luffey observed 

these items in plain view as he testified today. 

Once he observed those stamp bags in [Appellant’s] hand, 

asking him to open his hand, I don’t think under anybody’s

rationale would amount to a search as defense counsel is 

trying to suggest, argue here. Even if it did, Your Honor,

it’s my belief that [Officer Luffey] had more than enough 

reason to do that anyway. 

Nothing further, Your Honor. 

(Id. at 24-26). 

The court considered the testimony as well as the arguments of counsel, 

recognized that Appellant’s mere presence in the crime area or simply 

associating with a known drug user would not itself be illegal, but concluded 

the initial interaction between Appellant and the officers was a “mere 

encounter.” The circumstances, however, changed as soon as Officer Luffey 

saw the stamp bags in Appellant’s hand. The court reasoned: 

Thank you. Well, this is one of those weird cases where the 

irony is that what the result was−I don’t know how to 

articulate it−I don’t think there was a sufficient basis to 

search [Appellant]. But that’s not what happened. 

This is one of those strange cases. I agree that in the 

standard of, like, being in a drug area and maybe [whom]

you associate with would cause an officer within [his] 

experience to look at things differently. But I also don’t 

subscribe to the belief, and I think [defense counsel] said 

it’s because−we’ve had other cases in this−which is, that if 

you live in a certain area you’re pretty much going to get 

searched. You know, that’s not the thing. And there are 

plenty of people [who] would be in that area [who] aren’t

doing anything suspect, and they are just poor. Okay. 

That’s one thing. 
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See, I look at all those circumstances, that [Appellant] is 

with a known drug user and that...maybe doesn’t add 

anything. Just observing him walking on that street going 

toward Sandusky Court, which I think everybody in the 

entire county knows what goes on in Sandusky Court. And 

the−as far as the drug trafficking and crime there, that still 

doesn’t add [up]. 

But what this turns on for me is what the interaction is and 

what was said. Now, had they said “stop” or “hold on” or

“give me everything in your pockets” or, I don't know, I 

could describe it a number of different ways. In this case 

the police officers are conducting the interdiction through 

DANET. They are watching the area. 

At this point, then, when they say to these two individuals, 

one of whom is known to this officer, “Hey, police officers−" 

wait, and I wrote it down. “Can we talk to you?” Let me 

just make sure. I actually highlighted it. “Police officers. 

Can we speak to you?” It’s an interaction. It wasn’t, “Stop. 

Get over here.” There wasn’t any−so he just says, “Can we 

speak to you?” And then the individuals turn around and 

start to walk away. 

And what it turns on for me is at that point if they had 

grabbed them and started searching them, I would agree 

with you. I can’t explain why people do stuff. But the 

testimony was clear. The witness didn’t say, “I saw 

something white and suspected it to be a stamp bag.” He 

said, “I saw a stamp bag. I couldn’t see how many, but I 

clearly saw a stamp bag.” 

And to me at that point, then, that does change things. And 

the reason I say there is irony to it is because if he hadn’t I 

don’t think there would have been at that time probable 

cause. There certainly wouldn’t have been probable cause 

to search them. There might have been reasonable 

suspicion to go on and do something else, but there 

certainly wasn’t probable cause to search at that time. But 

[Officer Luffey] didn’t need [probable cause] because [what 

he saw] was in plain view. And that’s where it turned for 

me. Again, I have to go with the uncontradicted evidence 

that was presented here, not what your side is, I get that,
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but I’m just going on the standard. On the standard here 

the officers are free to say to people all the time, they’re like

free to wander among us, and they’re free to watch things, 

and they’re free to speak to us as long as they are not 

seizing us or leading us to believe that we are not free to 

interact or we are not free to leave and that we must interact 

with them. And they said, “Hey, police officers, can we talk 

to you?” And then the witness sees what he clearly sees as 

a stamp bag. He said he didn’t know the number. I know

what you are saying. It’s just that it’s not consistent with 

what he testified to repeatedly. 

And even under cross-examination, depending on how the 

testimony was−I didn’t hear anything that you crossed him

with that was inconsistent with what he said, which is that, 

you know, again, I would have to go through the whole

transcript to see..., but nothing was inconsistent with what 

he testified to today. 

With respect to why would anyone do that, I don’t know why 

anyone does anything. I really don’t. I couldn’t explain why 

people do things in a panic or whatever it is. But I don’t 

have any reason at this point, absent some other factors, to 

take that as anything other than credible testimony that 

given [Officer Luffey’s] training and experience he clearly

recognized at least one stamp and didn’t know how many

[bags], and that the command to open his hand determined 

what the number was. So while I completely understand 

the issues that you raise I just wouldn’t agree with respect 

to what the facts show the interaction was. 

So based on that I will respectfully deny your motion. 

(Id. at 26-30).2 

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2

In its Rule 1925(a) opinion, the trial court explained more clearly how it 

found the initial interaction between the police officers and Appellant was a 

mere encounter that required no reasonable suspicion or probable cause. 

When Appellant turned to walk away from the officers and pulled stamp bags 

from his pocket, Officer Luffey saw the bags in plain view, cupped in 

Appellant’s hand. Officer Luffey instantly recognized the bags as “stamp bags”
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Immediately following the suppression hearing, the court conducted a 

jury-waiver colloquy, proceeded with a stipulated bench trial, and convicted 

Appellant of one count of possession of a controlled substance as charged. 

Also on December 15, 2017, the court initially sentenced Appellant, but on 

December 18, 2017, the court entered a corrected sentencing order and 

imposed three (3) to six (6) months’ incarceration, plus sixteen (16) months’ 

probation. By order filed on January 3, 2018, the court also granted Appellant 

early parole and set his release for within 48 hours of January 12, 2018. 

Appellant filed a timely notice of appeal on January 12, 2018. The court 

ordered Appellant on January 16, 2018, to file a concise statement of errors 

complained of on appeal per Pa.R.A.P. 1925(b) by February 16, 2018. 

Appellant timely complied on February 15, 2018. In his Rule 1925(b) 

statement, Appellant essentially ignored defense counsel’s concessions on the 

record at the suppression hearing, about reasonable suspicion for the initial 

interaction between the officers and Appellant and his companion, as 

reiterated in defense counsel’s closing argument, which focused solely on the 

search conducted after Officer Luffey saw the “stamp bags.” (See N.T.

Suppression Hearing at 22-24). Instead, Appellant renewed his original 

position as follows: 

This Honorable Court erred when it denied [Appellant’s]

____________________________________________

used for heroin distribution, which gave Officer Luffey probable cause to order 

Appellant to open his hand fully. (See Trial Court Opinion, filed April 27, 2018, 

at 3.)
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Motion to Suppress Evidence. The seizure and subsequent 

search of [Appellant’s] person were illegal and conducted in 

violation of [his] rights under the Fourth and Fourteenth 

Amendments to the United States Constitution, as well as 

Article One, Section Eight of the Pennsylvania Constitution, 

for the following reasons:

a. [Appellant] was subjected to a seizure where 

two police officers who had identified 

themselves as such approached him with their 

badges displayed and one stated, “I need to 

speak with you.” This seizure was not 

supported by reasonable suspicion that 

[Appellant] was engaged in criminal activity or 

by probable cause to arrest him. 

b. The police officer’s subsequent order to 

[Appellant] “to open up his hand” was a search 

of [Appellant’s] person. This search was

conducted without a warrant and in the absence 

of any delineated exception to the warrant 

requirement. 

(Appellant’s Concise Statement of Errors Complained of on Appeal, filed 

2/15/18, at 3) (unpaginated). 

Appellant now presents the following issue on appeal:

DID THE TRIAL COURT ERR IN DETERMINING THAT 

[APPELLANT]’S RIGHTS UNDER THE FOURTH AND 

FOURTEENTH AMENDMENTS TO THE UNITED STATES 

CONSTITUTION, AS WELL AS ARTICLE ONE, SECTION 

EIGHT OF THE PENNSYLVANIA CONSTITUTION, WERE NOT 

VIOLATED WHEN [APPELLANT] WAS SUBJECTED TO A 

SEIZURE—AN ILLEGAL INVESTIGATORY DETENTION, NOT 

A MERE ENCOUNTER—WHEN TWO POLICE OFFICERS WHO 

HAD IDENTIFIED THEMSELVES AS SUCH APPROACHED HIM 

WITH THEIR BADGES DISPLAYED AND ONE STATED, “I 

NEED TO SPEAK WITH YOU”?

(Appellant’s Brief at 4). 

Appellant argues the police violated his constitutional right to be free 
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from unlawful seizures and searches. Specifically, Appellant complains Officer 

Luffey “seized” Appellant in an investigatory detention, at the outset of their 

interaction, because no reasonable person would not have felt free to walk 

away from Officer Luffey under the circumstances. Appellant claims Officer 

Luffey illegally detained Appellant, based on no more than a “hunch” that

Appellant had purchased drugs. Appellant submits the trial court erred when 

it characterized the nature of his initial interaction with Officer Luffey as a 

mere encounter, where the officers’ display and assertion of authority would 

lead a reasonable person to believe he was not free to decline the officers’

requests to speak with them or otherwise terminate the contact. Appellant 

emphasizes that, when Officer Luffey said to Appellant, “I need to speak with 

you,” the statement was the functional equivalent of a command to stop, 

which only an unreasonable and imprudent citizen in Appellant’s position 

would have felt free to ignore. As a result, Appellant contends the search 

following his unlawful detention was likewise illegal; and the trial court erred 

in denying the suppression motion. Appellant concludes this Court should 

reverse and remand for a new trial with instructions to suppress the evidence. 

We disagree. 

Appellate review of an order that denied a motion to suppress evidence 

is as follows: 

We may consider only the Commonwealth’s evidence 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 record supports the factual findings of 
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the trial court, we are bound by those facts and may reverse 

only if the legal conclusions drawn therefrom are in error. 

An appellate court, of course, is not bound by the 

suppression court's conclusions of law. 

Commonwealth v Arter, 637 Pa. 541, 546-47, 151 A.3d 149, 153 (201) 

(quoting Commonwealth v. Gary, 625 Pa. 183, 189-90, 91 A.3d 102, 106 

(2014)). “It is within the suppression court’s sole province as factfinder to 

pass on the credibility of witnesses and the weight to be given their 

testimony.” Commonwealth v. Clemens, 66 A.3d 373, 378 (Pa.Super. 

2013). 

The Fourth Amendment to the United States Constitution and Article I, 

Section 8 of the Pennsylvania Constitution guarantee the right of the people 

to be secure in their persons, houses, papers, and possessions from 

unreasonable searches and seizures. Commonwealth v. Morrison, 166 

A.3d 357, 363-64 (Pa.Super. 2017). “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). Because interactions between law enforcement and the 

general citizenry are widely varied, search and seizure law looks at how the 

interaction is classified and if a detention has occurred. Commonwealth v. 

DeHart, 745 A.2d 633, 636 (Pa.Super. 2000). 

Our Supreme Court in Commonwealth v. Adams, ___ Pa. ___, ___,
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205 A.3d 1195, 1199-1200 (2019) recently reiterated the general levels or 

classifications of contacts between the police and the citizenry and reviewed 

long-standing precedent on the topic as follows: 

The first is a mere encounter, sometimes referred to as a 

consensual encounter, which does not require the officer to 

have any suspicion that the citizen is or has been engaged 

in criminal activity. This interaction also does not compel 

the citizen to stop or respond to the officer. A mere 

encounter does not constitute a seizure, as the citizen is free 

to choose whether to engage with the officer and comply 

with any requests made or, conversely, to ignore the officer 

and continue on his or her way. The second type of 

interaction, an investigative detention, is a temporary 

detention of a citizen. This interaction constitutes a seizure 

of a person, and to be constitutionally valid police must have 

a reasonable suspicion that criminal activity is afoot. The 

third, a custodial detention, is the functional equivalent of 

an arrest and must be supported by probable cause. A 

custodial detention also constitutes a seizure. 

No bright lines separate these types of [interactions], but 

the United States Supreme Court has established an 

objective test by which courts may ascertain whether a 

seizure has occurred to elevate the interaction beyond a 

mere encounter. The test, often referred to as the “free to 

leave test,” requires the court to determine whether, taking 

into account all of the circumstances surrounding the 

encounter, the police conduct would have communicated to 

a reasonable person that he was not at liberty to ignore the 

police presence and go about his business. [W]henever a

police officer accosts an individual and restrains his freedom 

to walk away, [the officer] has “seized” that person. 

Id. at ___, 205 A.3d at 1199-1200 (most internal citations and quotation 

marks omitted). Whether a seizure has occurred, under the circumstances 

related in the undisputed testimony at a suppression hearing, is a question of 

law involving a plenary scope of review. Commonwealth v. Au, 615 Pa. 
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330, 337, 42 A.3d 1002, 1006 (2012). Our standard of review regarding 

questions of law is de novo. Commonwealth v. McGarry, 172 A.3d 60, 65 

(Pa.Super. 2017), appeal denied, ___ Pa. ___, 185 A.3d 966 (2018). 

When initially evaluating the level of interaction between law 

enforcement and a citizen to determine if a seizure occurred, “courts conduct 

an objective examination of the totality of the surrounding circumstances.” 

Commonwealth v. Lyles, 626 Pa.343, 350, 97 A.3d 297, 302 (2014). 

The totality-of-the-circumstances test is ultimately centered 

on whether the suspect has in some way been restrained by 

physical force or show of coercive authority. Under this test, 

no single factor controls the ultimate conclusion as to 

whether a seizure occurred—to guide the inquiry, the United 

States Supreme Court and this Court have employed an 

objective test entailing a determination of whether a 

reasonable person would have felt free to leave or otherwise 

terminate the encounter. [W]hat constitutes a restraint on 

liberty prompting a person to conclude that he is not free to 

“leave” will vary, not only with the particular police conduct 

at issue, but also with the setting in which the conduct 

occurs. 

This Court and the United States Supreme Court have 

repeatedly held a seizure does not occur where officers 

merely approach a person in public and question the 

individual or request to see identification. Officers may 

request identification or question an individual so long as 

the officers do not convey a message that compliance with 

their requests is required. Although police may request a 

person’s identification, such individual still maintains the 

right to ignore the police and go about his business. 

Id. at 350-51, 97 A.3d at 302-03 (internal citations and quotation marks 

omitted). 

To decide whether a seizure has occurred, a court must 

consider all the circumstances surrounding the encounter to 
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determine whether the demeanor and conduct of the police 

would have communicated to a reasonable person that 

he...was not free to decline the officer’s request or otherwise 

terminate the encounter. A variety of factors may influence 

this determination, including the threatening presence of 

several officers, the display of a weapon by an officer, some 

physical touching of the person of the citizen, or the use of 

language or tone of voice indicating that compliance with 

the officer’s request might be compelled. As our High Court 

has explained, subtle factors as the demeanor of the police 

officer, the location of the confrontation, the manner of 

expression used by the officer in addressing the citizen, and 

the content of the interrogatories or statements must be 

considered. 

Hampton, supra at 457. In addition: 

This Court has also set forth the following non-exclusive list 

of factors:

the number of officers present during the interaction; 

whether the officer informs the citizen they are 

suspected of criminal activity; the officer's demeanor 

and tone of voice; the location and timing of the 

interaction; the visible presence of weapons on the 

officer; and the questions asked. Otherwise 

inoffensive contact between a member of the public 

and the police cannot, as a matter of law, amount to 

a seizure of that person.

Commonwealth v. Newsome, 170 A.3d 1151, 1155 (Pa.Super. 2017) 

(internal citations omitted). Our Supreme Court has also stated:

We recognize the conceptual difficulties inherent in the 

administration of the reasonable-person standard. Although 

the test is cast in objective terms, absent empirical proofs, 

there remains substantial room for reasonable 

disagreement concerning how such a hypothetical person 

might feel in any given set of circumstances. Such 

differences have been manifested, at both the federal and 

state level, in many divided opinions on the subject. 

Nevertheless, the High Court has settled on an approach 

allocating very modest weight to the possibility for 
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psychological coercion arising from a fairly wide range of 

police conduct which may be regarded as being appropriate 

to and inherent in the circumstances facilitating the 

interaction. Cf. Wayne R. LaFave, Search and Seizure: A 

Treatise on the Fourth Amendment § 9.4(a), at 425 (4th ed.

2004) (observing that “the confrontation is a seizure only if 

the officer adds to those inherent pressures by engaging in 

conduct significantly beyond that accepted in social 

intercourse[,]” which include moral and instinctive 

pressures to cooperate). 

Au, supra at 338-39, 42 A.3d 1007-08 (most internal citations omitted). 

Thus, all law enforcement communications with a citizen do not automatically 

constitute detentions. Lyles, supra at 354, 97 A.3d at 304-05. With respect 

to the show of authority needed for a detention, the circumstances must 

present some level of coercion, beyond the officer’s mere employment, that 

conveys a demand for compliance or threat of tangible consequences from 

refusal. Commonwealth v. Young, 162 A.3d 524, 529 (Pa.Super. 2017) 

(citing Lyles, supra at 353-54, 97 A.3d at 304). 

An investigative detention, unlike a mere encounter, 

constitutes a seizure of a person and thus activates the 

protections of Article 1, Section 8 of the Pennsylvania 

Constitution. To institute an investigative detention, an 

officer must have at least a reasonable suspicion that 

criminal activity is afoot. Reasonable suspicion requires a 

finding that based on the available facts, a person of 

reasonable caution would believe the intrusion was 

appropriate.

* * *

Reasonable suspicion exists only where the officer is able to 

articulate specific observations which, in conjunction with 

reasonable inferences derived from those observations, led 

him reasonably to conclude, in light of his experience, that 

criminal activity was afoot and that the person he stopped 
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was involved in that activity. Therefore, the fundamental 

inquiry of a reviewing court must be an objective one, 

namely, whether the facts available to the officer at the 

moment of intrusion warrant a [person] of reasonable 

caution in the belief that the action taken was appropriate.

Commonwealth v. Jones, 874 A.2d 108, 116 (Pa.Super. 2005) (internal 

citations omitted). “[T]he question of whether reasonable suspicion existed 

at the time of an investigatory detention must be answered by examining the 

totality of the circumstances to determine whether there was a particularized 

and objective basis for suspecting the individual stopped of criminal activity.” 

Commonwealth v. Cottman, 764 A.2d 595, 598-99 (Pa.Super. 2000) 

(quoting Commonwealth v. Beasley, 761 A.2d 621, 625 (Pa.Super. 2000), 

appeal denied, 565 Pa. 662, 775 A.2d 801 (2001)). 

In making this determination, we must give due weight...to 

the specific reasonable inferences the police officer is 

entitled to draw from the facts in light of his experience. 

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. Young, 904 A.2d 947, 957 (Pa.Super. 2006), appeal 

denied, 591 Pa. 664, 916 A.2d 633 (2006) (internal citations and quotation 

marks omitted). “[W]hether the defendant was located in a high crime 

area...supports the existence of reasonable suspicion.” Commonwealth v. 

Foglia, 979 A.2d 357, 361 (Pa.Super. 2009) (en banc), appeal denied, 605 

Pa. 694, 990 A.2d 727 (2010) (internal citations omitted). See, e.g., 

Commonwealth v. Valentin, 748 A.2d 711 (Pa.Super. 2000), appeal denied, 
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564 Pa. 731, 766 A.2d 1247 (2000) (concluding reasonable suspicion for stop 

existed where officer, who had made many narcotics arrests and was familiar 

with drug trafficking that regularly took place in surveilled location, observed 

exchange of cash for small objects; in light of officer’s experience, he 

reasonably suspected that drug sale had occurred). See also In Interest of 

S.J., 551 Pa. 637, 643, 713 A.2d 45, 47-48 (1998) (concluding reasonable 

suspicion for stop existed, where officer had previously made six arrests

involving drug activity in same high crime area, detected odor of marijuana 

and observed group of men smoking marijuana; when officer approached 

group, defendant tried to hide among other members of group; officer’s actual 

observance of illegal activity combined with defendant’s suspicious behavior,

was enough to justify investigatory stop of defendant, but not ensuing pat 

down for weapons). 

“Probable cause is made out when the facts and circumstances which 

are within the knowledge of the officer at the time of the arrest, and of which 

[the officer] has reasonably trustworthy information, are sufficient to warrant 

[an officer] of reasonable caution in the belief that the suspect has committed 

or is committing a crime.” Commonwealth v. Thompson, 604 Pa. 198, 203, 

985 A.2d 928, 931 (2009) (internal quotation marks omitted).

The question we ask is not whether the officer’s belief was 

correct or more likely true than false. Rather, we require 

only a probability, and not a prima facie showing, of 

criminal activity. In determining whether probable cause 

exists, we apply a totality of the circumstances test. 
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Id. (emphasis in original) (internal citations and quotation marks omitted). 

The officer’s training and experience are a factor in determining probable 

cause but relevant to the issue only if there is a nexus between those skills 

and the search and seizure of the person and/or evidence. Id. at 210, 985 

A.2d at 935. 

“Although cases involving similar or comparable seizure determinations 

may serve as guideposts, a suppression court must independently employ the 

totality-of-the-circumstances test in determining whether a seizure occurred.” 

Lyles, supra at 354, 97 A.3d at 305. See, e.g., id. (holding that no single 

factor controls in seizure-of-person analysis; police officer’s request for 

identification alone does not raise escalatory inference of detention; courts 

must make independent examination of totality of circumstances surrounding 

interaction to determine if seizure occurred; concluding no “seizure” occurred

in absence of credible evidence of physical restraint, weapons used, blockade 

or obstruction of citizen’s ability to walk away; tenor of interaction was not 

inherently coercive); Au, supra (holding unrebutted testimony of officer 

established only mere encounter with Appellee had occurred, when officer 

interacted with Appellee in public, did not activate emergency lights, did not 

block Appellee’s car, did not brandish weapon, make intimidating movement 

or overwhelming show of force, threat, or command, or speak in authoritative 

tone; use of officer’s headlights and flashlight was in furtherance of officer’s 

safety and within ambit of acceptable, non-escalatory factors); Newsome, 
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supra (holding defendant was not “seized” during his initial interaction with 

officer, where officer responded to radio call in marked cruiser and saw 

Appellee walk away from group of males; officer exited his vehicle and told

Appellee to “come here,” but Appellee refused and continued to walk away; 

officer then observed Appellee remove object and place it in nearby flowerpot; 

object later recovered was firearm); Young, supra (holding initial interaction 

with Appellee was mere encounter, when three officers in plainclothes exited 

an unmarked vehicle, approached Appellee on public street and asked 

Appellee what he was doing and whether he had anything on his person that 

could harm officers; two brief questions constituted mere encounter, as there 

was no restraint of Appellee’s liberty, no physical force, and no show of 

authority or level of coercion, beyond officer’s mere employment, to convey

demand for compliance or threat of tangible consequences from refusal). 

Compare Adams, supra (holding interaction between police officer and 

defendant was investigative detention, where officer would not allow 

defendant to leave his vehicle; officer did not simply request that defendant 

stay in his car; instead, officer physically closed car door and barred 

defendant’s exit; officer’s action of physically closing door as defendant 

opened it communicated demand to remain in car at that location; officer’s 

acts constituted type of escalatory factor that signals “seizure” by restraint of 

freedom); Commonwealth v. Livingston, 644 Pa. 27, 174 A.3d 609 (2017)

(plurality) (holding interaction between police officer and defendant was 
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investigative detention, where defendant’s car was already parked on side of 

interstate highway, and officer pulled his patrol car alongside defendant’s car, 

with his emergency lights activated, ostensibly under community caretaking 

function, but officer was unable to articulate specific and objective facts to 

suggest defendant needed assistance); Hampton, supra (holding interaction 

between police officer and defendant was investigative detention, where 

defendant drove his vehicle from roadway into church field, and officer pulled 

her marked vehicle into field behind defendant’s car, effectively blocking his 

exit, as defendant’s vehicle was facing building so he could not travel forward). 

Importantly, “The issue of whether an individual has been seized is distinct 

from the issue of whether that seizure was reasonable.” Hampton, supra at 

458. 

A warrantless search or seizure of evidence is likewise “presumptively 

unreasonable under the Fourth Amendment and Article I, § 8, subject to a few 

specifically established, well-delineated exceptions.” Commonwealth v. 

McCree, 592 Pa. 238, 247, 924 A.2d 621, 627 (2007). “The ‘plain view’ 

doctrine is often considered an exception to the general rule that warrantless 

searches are presumptively unreasonable....” Id. (quoting Horton v. 

California, 496 U.S. 128, 133, 110 S.Ct. 2301, 2306, 110 L.Ed.2d 112, ___ 

(1990)). “The plain view doctrine provides that evidence in plain view of the 

police can be seized without a warrant....” Commonwealth v. Anderson, 40 

A.3d 1245, 1248 (2012), appeal denied, 616 Pa. 666, 51 A.3d 837 (2012).
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This doctrine permits a valid warrantless seizure of an item 

where: (1) the police have not violated the Fourth 

Amendment in arriving at the location from which the item 

could be viewed; (2) the item is in plain view; (3) the 

incriminating character of the item is immediately apparent; 

and (4) the police have a lawful right of access to the item 

itself. 

Commonwealth v. Jones, 605 Pa. 188, 201, 988 A.2d 649, 656 (2010), 

cert. denied, 562 U.S. 832, 131 S.Ct. 110, 178 L.Ed.2d 32 (2010). Courts

have alternatively described the plain view doctrine in terms of a three-prong 

test. See Commonwealth v. Miller, 56 A.3d 424, 429 (Pa.Super. 2012) 

(stating: plain view doctrine permits “the warrantless seizure of an object 

when: (1) an officer views the object from a lawful vantage point; (2) it is 

immediately apparent to him that the object is incriminating; and (3) the 

officer has a lawful right of access to the object”). 

There can be no reasonable expectation of privacy in an 

object that is in plain view. To judge whether the

incriminating nature of an object was immediately apparent 

to the police officer, reviewing courts must consider the 

totality of the circumstances. 

Commonwealth v. Colon, 777 A.2d 1097, 1103 (Pa.Super. 2001) (quoting 

Commonwealth v. Petroll, 558 Pa. 565, 738 A.2d 993 (1999)). “In viewing 

the totality of the circumstances, the officer’s training and experience should 

be considered.” Miller, supra at 430 (citing Commonwealth v. Liddie, 21 

A.3d 229 (Pa.Super. 2011) (en banc)). “[T]here is no reason [a police officer] 

should be precluded from observing as an officer what would be entirely visible 

to him as a private citizen.” Colon, supra at 1103. The plain view doctrine 
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is concerned with the “seizure of evidence rather than a search without a 

warrant.” Id. See, e.g., Commonwealth v. Kendrick, 490 A.2d 923, 927 

(Pa.Super. 1985) (explaining seizure of property in plain view involves no 

invasion of privacy and is presumptively reasonable, assuming there is 

probable cause to associate property with criminal activity; experienced officer 

trained in narcotics can seize object, when he observes it from lawful vantage 

point, and holder of object tries to conceal object; given incriminating 

character of object, officer could open object and examine contents). 

In the present case, the uncontradicted testimony at the suppression 

hearing revealed that Officer Luffey and another officer were patrolling a 

section of Pittsburgh identified and confirmed as an area of high drug sales. 

Officer Luffey observed Appellant and his companion walking toward a known, 

high-drug-trafficking area, where Officer Luffey’s task force had made over 30 

drug arrests during the month of the incident. Officer Luffey recognized 

Appellant’s cohort as an individual Officer Luffey had arrested for possession 

of narcotics five times in the past year. Appellant and his companion

disappeared for approximately fourteen minutes, and returned, walking 

toward the officers’ general location. Both officers were in plainclothes, on 

foot, and on a public street. The interaction took place at 4:35 P.M., on 

November 29, 2016, in daylight. When Appellant and his companion came 

within several feet of the officers, Officer Luffey audibly identified the officers 

as police and said, “I need to speak with you.” That was the sum and 
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substance of their initial interaction. In response, Appellant and his 

companion separated and turned to walk away from the officers. 

The focus of Appellant’s challenge to the initial interaction with police 

rests on the badges around the officers’ necks and Officer Luffey’s comment 

to Appellant. This initial interaction between the officers and Appellant and 

his companion, however, was limited, informal, and carried all the hallmarks 

of a mere encounter. In detail, the interaction occurred in daylight, on a public 

street, with police officers dressed in plainclothes, and on foot. The interaction 

involved no lights, guns, marked vehicles, intimidating movement or potent 

show of force, obstruction, or physical restraint. The officers’ displayed 

badges, which merely identified their employment, conveyed no demand for 

compliance or threat of tangible consequences from refusal. See Young, 

supra. 

Furthermore, there was no evidence of a commanding tone in Officer 

Luffey’s comment to Appellant: “I need to speak with you.” Although Officer 

Luffey’s comment was a statement, rather than a question, we decline to 

characterize his initial interaction with Appellant based solely on punctuation. 

To the contrary, the officers’ primary behavior was so temperate that, in 

response, Appellant and his companion simply separated and turned to walk 

away. Thus, we conclude the officers’ limited contact fell within the ambit of 

non-escalatory conduct; and their initial interaction with Appellant and his 

companion was a mere encounter. See Au, supra; Newsome, supra; 
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Young, supra. 

As Appellant pivoted to walk away, however, Officer Luffey observed 

Appellant remove his hand from his front pocket, loosely cupped around what

Officer Luffey immediately identified as “stamp bags.” Officer Luffey instantly 

recognized the bags as common packaging for narcotics, although he could 

not tell how many bags Appellant had in his hand. Officer Luffey could see 

the bags were stamped, but he could not see the specific mark involved. When 

Officer Luffey asked Appellant to open his hand, Officer Luffey saw that 

Appellant was holding three bags stamped “no pain.” Officer Luffey placed 

Appellant under arrest for possession of a controlled substance and 

confiscated the bags. The product in the bags tested positive for heroin. 

Moreover, under the plain view doctrine, Officer Luffey was standing on 

a public street when he saw Appellant remove the “stamp bags” from his 

pocket. Therefore, Officer Luffey observed the “stamp bags” from a lawful 

vantage point. The incriminating nature of the “stamp bags” was immediately 

apparent to Officer Luffey, given the totality of the circumstances including his 

relevant training and experience, which we have already reviewed. Once he 

recognized the “stamp bags” as narcotics’ packaging, Officer Luffey had 

reasonable suspicion that Appellant was in possession of contraband, which 

justified further investigation by asking Appellant to open his hand. When 

Officer Luffey saw three stamp bags marked “no pain,” he had a lawful right 

to access and seize the drugs and probable cause to arrest Appellant for 
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possession of a controlled substance. See Jones, supra; Miller, supra; 

Colon, supra. Based upon our independent review of the totality of the 

circumstances coupled with the trial court’s credibility decisions, we conclude 

the record supports the court’s decision to deny Appellant’s suppression 

motion. See Arter, supra; Clemens, supra. Accordingly, we affirm. 

Judgment of sentence affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 6/7/2019