J-A21018-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

SAMUEL RIVERA

Appellant No. 3079 EDA 2013

Appeal from the Judgment of Sentence October 31, 2013

In the Court of Common Pleas of Philadelphia County

Criminal Division at No(s): CP-51-CR-0006946-2013

BEFORE: BOWES, J., OTT, J., and STRASSBURGER, J.*

MEMORANDUM BY OTT, J.: FILED NOVEMBER 06, 2014

Samuel Rivera appeals from the judgment of sentence imposed 

October 31, 2013, in the Philadelphia County Court of Common Pleas. The 

trial court imposed a sentence of three years’ reporting probation after 

finding Rivera guilty of one count of possession of a controlled substance 

(cocaine).1 On appeal, Rivera challenges the trial court’s denial of his 

pretrial suppression motion. For the reasons set forth below, we affirm.

The facts underlying Rivera’s arrest and conviction are summarized by 

the trial court as follows:

____________________________________________

* Retired Senior Judge assigned to the Superior Court.

1 35 P.S. § 780-113(a)(16).
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On February 11, 2013, at approximately 10:25 a.m., 

Officer [Christopher] Daukaus and his partner ... were traveling 

northbound on the 2900 block of North 3rd Street when Officer 

Daukaus observed Rivera having a conversation with an 

unknown Hispanic male. Rivera then reached into his pocket, 

removed his hand, and as he was reaching toward the Hispanic 

male, he looked toward Officer Daukaus and immediately put his 

hand back into his pocket and began to walk southbound on 

North 3rd Street. Believing he had observed a narcotics 

transaction, Officer Daukaus exited his vehicle and told Rivera to 

stop. In response, Rivera began to run and then hopped on a 

nearby bicycle and continued southbound down North 3rd Street. 

He went several blocks ... and ultimately ended up on North 

Philip Street where Officer Daukaus and [his partner] attempted 

to apprehend him. As the officers struggled with Rivera, Rivera 

stuffed a clear sandwich baggie containing a white substance 

into his mouth. After Rivera spit out the baggie, [Officer 

Daukaus’s partner] placed him under arrest and Officer Daukaus 

recovered the baggie, which contained twelve (12) clear packets 

containing a white substance, alleged cocaine. Incident to the 

arrest, Officer Daukaus recovered a number of clear packets with 

a blue insert containing a white substance, alleged heroin, from 

Rivera’s person – one (1) from his left hand, one (1) from his 

left jacket pocket, and fourteen (14) from his right inside jacket 

pocket. The officer also recovered $114 U.S. currency form 

Rivera.

Trial Court Opinion, 1/6/2014, at 2-3.

Rivera was subsequently charged with one count each of possession of 

controlled substances and possession with intent to deliver controlled 

substances (“PWID”).2 He filed a timely pretrial motion to suppress the 

evidence recovered as a result of what he believed to be an unlawful seizure. 

A suppression hearing was conducted on October 31, 2013, and at the close 

of the testimony, the trial court denied Rivera’s motion to suppress. The 

____________________________________________

2 35 P.S. § 780-113(a)(30).
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case proceeded immediately to a non-jury trial, at which time the testimony 

from the suppression hearing was incorporated into the record and no 

further testimony was presented. Thereafter, the trial court found Rivera 

guilty of possession of a controlled substance, but not guilty of PWID. 

Rivera was sentenced that same day to a term of three years’ reporting 

probation, and this timely appeal followed.3

Rivera’s sole issue on appeal challenges the trial court’s denial of his 

pretrial suppression motion. Specifically, Rivera contends Officer Daukaus 

lacked reasonable suspicion or probable cause to stop him when the officer 

observed Rivera simply “put his hand in his pocket, [take] something out 

and put his hand back in his pocket.” Rivera’s Brief at 9. Therefore, he 

asserts the drugs the officers recovered following his subsequent flight were 

the fruits of the initial unlawful seizure. 

Our review of an order denying a pretrial motion to suppress is wellestablished. 

[We are] 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 

____________________________________________

3 On December 11, 2013, the trial court ordered Rivera to file a concise 

statement or errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). 

Rivera complied with the trial court’s directive, and filed a concise statement 

on December 31, 2013. 
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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, as here, 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 courts 

below are subject to our plenary review.

Commonwealth v. Delvalle, 74 A.3d 1081, 1084 (Pa. Super. 2013) 

(citations omitted).

In the case sub judice, there is no dispute that, after observing what 

he believed to be a drug transaction, Officer Dauhaus attempted to make an 

investigatory detention of Rivera by ordering Rivera to stop. Accordingly, 

we must determine whether, at that time, Officer Dauhaus had reasonable 

suspicion to believe Rivera was engaging in criminal activity. See 

Commonwealth v. Zhahir, 751 A.2d 1153, 1156 (Pa. 2000) (“[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.”).

When determining whether reasonable suspicion exists to justify a 

police stop, we must bear in mind the following:

A police officer may detain an individual in order to conduct an 

investigation if that officer reasonably suspects that the 

individual is engaging in criminal conduct. “This standard, less 

stringent than probable cause, is commonly known as 

reasonable suspicion.” In order to determine whether the police 
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officer had reasonable suspicion, the totality of the 

circumstances must be considered. 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. Foglia, 979 A.2d 357, 360 (Pa. Super. 2009) (en banc) 

(internal citations and quotation omitted). This Court has held that, in 

determining whether a police officer possessed the requisite reasonable 

suspicion, “[e]vasive behavior ... is relevant[,]” as is an officer’s prior 

experience.4 Id. at 361. 

Here, the trial court found that Officer Dauhaus had reasonable 

suspicion to believe Rivera was engaged in criminal behavior when he 

ordered Rivera to “stop.” The court explained:

In the instant case, Officer Daukaus observed Rivera reach into 

his pocket, remove his hand and begin to reach toward the 

Hispanic male with whom he was standing. Upon seeing Officer 

Daukaus, Rivera immediately put his hand back into his pocket 

and began to walk away from the area. When told to stop, 

____________________________________________

4 With regard to a police officer’s prior experience in the context of a 

weapons frisk, the Foglia Court stated:

[I]f a suspect engages in hand movements that police know, 

based on their experience, are associated with the secreting of a 

weapon, those movements will buttress the legitimacy of a 

protective weapons search of the location where the hand 

movements occurred.

Foglia, supra, 979 A.2d at 361.
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Rivera began to run from the officer and then hopped on a 

nearby bicycle and continued to flee from police. Officer 

Daukaus’[s] knowledge of drug sales in the area, for which he 

made numerous arrests, taken in conjunction with his 

observations of Rivera’s hand movements gave rise to Officer 

Daukaus’[s] reasonable suspicion of a narcotics transaction, for 

which he was entitled to conduct an investigative detention. 

Rivera’s ensuing flight from the officers through the 

neighborhood and his ultimately spitting out a baggie containing 

a white substance, alleged cocaine, contributed to the totality of 

the circumstances providing Officer Daukaus[] with probable 

cause to stop and search Rivera. 

Trial Court Opinion, 1/6/2014, at 5.

Rivera contends, however, that Officer Daukaus’s observations prior to 

the stop were insufficient to justify a reasonable belief that Rivera was 

engaged in criminal behavior. He emphasizes that the officer did not

witness an “exchange of money or objects,”5and, therefore, was operating 

under an “unparticularized ‘hunch’” that a narcotics transaction was 

occurring. Rivera’s Brief at 11-12. He describes what Officer Daukhaus 

observed as follows: “Mr. Rivera merely spoke with another person, during 

the day in a residential neighborhood, took something out of his pocket and 

put it back.” Id. at 13. 

Rivera also argues Officer Daukhaus had “fairly limited experience with 

drug arrests[,]” so that his observations were not enhanced by his own 

experience. Id. at 13. Furthermore, Rivera asserts that his flight should not 

have “play[ed] a role in [the officer’s] decision to stop” him because he fled 

____________________________________________

5

Indeed, Officer Daukhaus testified on cross-examination: “I witnessed no 

exchange.” N.T., 10/31/2013, at 18.
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only after Officer Daukhaus ordered him to stop. Id. at 14. Accordingly, he 

contends because the initial seizure was unconstitutional, the drugs 

recovered following the subsequent chase should have been suppressed as 

“fruit of the poisonous tree.” Id. at 15. 

The decision of the Pennsylvania Supreme Court in Commonwealth 

v. Cook, 735 A.2d 673 (Pa. 1999), is instructive. In Cook, two officers, in 

an unmarked vehicle, were patrolling a block in the City of Harrisburg 

between 8:00 p.m. and 1:00 a.m. They noticed three individuals, one of 

whom was the defendant, conversing on a corner. As the officers passed in 

their vehicle, 

they observed [the defendant] take his left hand out of his front 

pocket in a fist position and reach toward one of the other 

individuals. The individual reached out toward [the defendant] 

and attempted to receive the unidentified item from his hand. 

To further investigate this conduct, [the officers] made a U-turn 

and drove to the corner where the group was gathered. As soon 

as [the defendant] spotted the officers and the car, he placed his 

hand back in his pocket and began backing away from the 

group. [One officer] exited the car, identified himself as a 

Harrisburg police officer, and began walking toward the group. 

[The defendant] immediately began to run “in almost a dead 

sprint.” 

Id. at 674. During the chase, the defendant abandoned a sandwich bag, 

which contained crack cocaine, and two pagers. The defendant was 

subsequently arrested, and moved to suppress the evidence recovered from 

what he described as an illegal seizure. The trial court denied his request, 

and this Court affirmed on appeal. The Supreme Court granted review to 
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determine whether the police officers “demonstrated reasonable suspicion to 

stop” the defendant. Id.

In holding the seizure was supported by reasonable suspicion, the 

Supreme Court emphasized the similarities of the facts before it with those 

in the seminal decision, Terry v. Ohio, 392 U.S. 1 (1968). In Terry, an 

officer, with 30 years’ experience patrolling for shoplifters, observed the 

defendant and another man “taking turns pacing down the street and 

peering into a nearby store window and then walking back to the corner and 

rejoining his companion.” Cook, supra, 735 A.2d at 676. They also spoke 

briefly with a third man who then walked away. After the men continued 

this routine for 10 to 12 minutes, they walked off together before meeting 

up again with the third man. At that point, the officer began to suspect that 

the two were “‘casing a job,” and decided to stop them to investigate 

further. Id., quoting Terry, supra, 392 U.S. at 6. The officer asked for the 

men’s names, and when they mumbled a response, the officer grabbed the 

defendant and patted him down, at which time he recovered a firearm. 

The Terry Court concluded that the search was based upon reasonable 

suspicion. Relying on Terry, the Cook Court explained:

[T]he decision in Terry was based, in part, on the “recognition 

that a police officer may in appropriate circumstances and in an 

appropriate manner approach a person for purposes of 

investigating possibly criminal behavior even though there is no 

probable cause to make an arrest.” “It was this legitimate 

investigative function [the officer] was discharging when he 

decided to approach [Terry] and his companions.” In light of 

this recognition, the Court created a test, which balanced the 

need to search against the invasion which the search entails. In 
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order to justify the search, the police officer must be able to 

“point to specific and articulable facts which, taken together with 

rational inferences from those facts, reasonably warrant that 

intrusion.” Even a combination of innocent facts, when 

taken together, may warrant further investigation by the 

police officer. Moreover, “in determining whether the officer 

acted reasonably in such circumstances, due weight must be 

given, not to his inchoate and unparticularized suspicion or 

‘hunch,’ but to the specific reasonable inferences he is 

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

This standard, less stringent than probable cause, is commonly 

known as reasonable suspicion.

Cook, supra, 735 A.2d at 676.

With regard to the case before it, the Cook Court noted that both of 

the officers involved in the stop had been assigned to the “street level drug 

interdiction unit” for two years, and one officer had made “prior drug arrests 

in the same area where the instant incident occurred.” Id. at 677. Further, 

like the officer in Terry, the officers in Cook “made firsthand observations of 

completely innocent conduct--[i.e., the attempted hand-off of an unknown 

object]-- ... which immediately aroused their suspicions” based upon their 

experience in drug investigations. Id. The Court explained:

Similar to the situation that existed in Terry, it is beyond 

peradventure that it was part of the legitimate investigative 

function of police work for the officers in the instant case to 

investigate the situation further. This belief prompted them to 

make a U-turn and approach the group on the corner, at which 

point appellant withdrew his hand from the other individual and 

began to back away. When the police officers went to 

investigate, appellant fled. Thus, based on the facts surrounding 

the instant case, including the police officers’ training, expertise 

and past drug arrests in the same area; the attempted exchange 

of an unidentified object in a high crime area, appellant’s 

nervous behavior when the police made a U-turn; and 

appellant’s flight, the police officers were able to point to specific 
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and articulable facts, which in light of their police training and 

expertise, supported a finding of reasonable suspicion.

Id. at 677-678.

We find the facts presented in the instant matter to be substantially 

similar to those in Cook. Although Officer Daukaus had been a police officer 

for only three years, he testified that he had been assigned to the same 

district for that entire time. N.T., 10/31/2013, at 10. More importantly, he 

stated that he observed “many” narcotics transactions over that three year 

period, and made approximately 10 to 15 arrests on that very block, “almost 

all” of which were for narcotics. Id. at 10-11. Furthermore, Officer Daukaus 

testified the attempted transaction he observed on the day in question was 

“extremely similar” to those he had observed in the past. Id. at 11. While 

the officer acknowledged he did not witness an actual hand-to-hand 

exchange, he stated that he observed Rivera “reaching in, going to hand 

[the other man] something, looking back at us and then bringing, closing his 

hand up and putting it back into his pocket.” Id. at 18. Officer Daukaus 

testified that he saw objects in Rivera’s hand, and although he “couldn’t 

make out what they were, ... [he] knew they weren’t any type of money or 

small coins or anything like that.” Id. at 17. Based on his prior experience, 

Officer Daukaus believed he had interrupted a hand-to-hand narcotics 

transaction.6 Id. at 20. 

____________________________________________

6 We note that Rivera, relying Commonwealth v. Maxon, 798 A.2d 761 

(Pa. Super. 2002), contends that Officer Daukaus simply acted on an 

(Footnote Continued Next Page)
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While we agree that we may not consider Rivera’s subsequent flight in 

our reasonable suspicion analysis because Rivera fled after the officer 

attempted to stop him, we may consider Rivera’s evasive behavior once he 

noticed the uniformed officers nearby. Notably, Officer Daukhaus testified 

that as Rivera began to hand something to the other man, Rivera “turned in 

[the officers’] direction, quickly put his hand back into his pocket, quickly put 

his body (sic) away and began to walk” in the opposite direction.7 Id. at 7-

8. See Foglia, supra, 979 A.2d at 361 (stating “[e]vasive behavior ... is 

relevant in the reasonable-suspicion mix.”).

(Footnote Continued) _______________________

“unparticularized ‘hunch.’” We disagree. The officers in Maxon, acting on a 

tip that the defendant was dealing drugs, conducted surveillance of the 

defendant’s vehicle and home. However, the only activity they observed, 

before stopping and questioning him, was “Maxon drive to, enter and exit 

several buildings ... [and] bring a baggie out of his residence but [the 

officers] could not see its contents.” Id. at 169. The Court found that 

“[a]lthough it was plausible that Maxon was engaged in illegal conduct, there 

was nothing irregular or suspicious about his or his passenger’s behavior.” 

Id. Here, Officer Daukaus witnessed an attempted hand-to-hand 

transaction, followed by Rivera’s evasive behavior when he discovered the 

police were nearby. Therefore, we do not find Maxon controlling.

7 We recognize that the defendant in Cook fled as soon as the investigating 

officer identified himself. Cook, supra, 735 A.2d at 674. See also Rivera’s 

Brief at 14 n.4 (arguing Cook is not “on point” because, in that case, “flight 

was a critical factor that contributed to the justification for the stop.”). 

However, we do not find that distinction to be dispositive. Here, although 

Rivera did not begin running until after Officer Daukaus ordered him to stop, 

he did “quickly” end his transaction as soon as he saw the officer, and began 

to walk away. N.T., 10/31/2013, at 7. We find these actions sufficient to 

constitute “evasive behavior.” 
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Therefore, considering the totality of the circumstances before Officer 

Daukaus -- including his observations of Rivera in light of the officer’s 

experience and Rivera’s evasive behavior -- we detect no basis upon which 

to disturb the finding of the trial court that the officer had reasonable 

suspicion to conduct an investigatory stop of Rivera.8 Further, we agree that 

____________________________________________

8 We note that, contrary to Rivera’s suggestion, there is no minimum set of 

circumstances required to support a finding of reasonable suspicion. See

Rivera’s Brief at 14 (noting that additional factors suggesting criminal 

activity were not present in this case). As the Cook Court explained, 

[C]ircumstances may exist which require a police officer on the 

“beat” who has made on the spot observations to take 

immediate action or investigate further by stopping and perhaps 

frisking the individual involved. Terry v. Ohio, 392 U.S. 1, 20, 

88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). 

* * * *

Case law has established that certain facts, taken alone, do not 

establish reasonable suspicion. Commonwealth v. Matos, 

543 Pa. 449, 672 A.2d 769 (1996) (flight alone does not 

constitute reasonable suspicion); Commonwealth v. DeWitt, 

530 Pa. 299, 608 A.2d 1030 (1992) (flight alone does not 

constitute reasonable suspicion); Commonwealth v. Kearney, 

411 Pa.Super. 274, 601 A.2d 346 (1992) (mere presence in a 

high crime area does not warrant a stop). However, a 

combination of these facts may establish reasonable suspicion. 

Terry v. Ohio, 392 U.S. at 22, 88 S.Ct. 1868 (innocent facts, 

when taken together, may warrant further investigation); 

Commonwealth v. Riley, 715 A.2d 1131, 1135 (Pa. Super. 

1998) (“a combination of circumstances, none of which alone 

would justify a stop, may be sufficient to achieve a reasonable 

suspicion”).

Cook, supra, 735 A.2d at 676, 677. As explained above, here, we find that 

Officer Daukaus had reasonable suspicion that Rivera was engaging in 

criminal behavior. 

(Footnote Continued Next Page)
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Rivera’s subsequent flight and attempt to secrete a baggie containing what 

appeared to be narcotics in his mouth, supported the officers’ probable 

cause to arrest him. Accordingly, Rivera is entitled to no relief.

Judgment of sentence affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 11/6/2014

 

(Footnote Continued) _______________________