J-S62005-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

STANLEY ALTON, JR. 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1375 WDA 2018

Appeal from the Judgment of Sentence Entered August 23, 2018

In the Court of Common Pleas of Allegheny County 

Criminal Division at No(s): CP-02-CR-0012885-2017

BEFORE: PANELLA, P.J., KUNSELMAN, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY PANELLA, P.J.: FILED FEBRUARY 3, 2020

Stanley Alton appeals from the judgment of sentence entered on August 

23, 2018, in the Allegheny County Court of Common Pleas after the trial court 

convicted him of possession of ecstasy pursuant to a stipulated non-jury trial. 

On appeal, Alton contends the trial court erred in failing to suppress the 

ecstasy as he believes the frisk violated his constitutional rights. After careful 

review, we affirm. 

While on routine patrol, Pittsburgh Police Officers Dixon and Grey

watched as an SUV drove through a stop sign at a high rate of speed. Due to 

the motor vehicle violations, they pursued the SUV and pulled it over.

When Officers Dixon and Grey approached the vehicle, an odor of 

marijuana streamed from the car as the driver lowered his window. The 

officers requested identification from the driver, Terrence Morgan, and his 

passenger, Alton. Both men complied.
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After conducting identification and warrant checks, the officers 

discovered that Morgan had an outstanding arrest warrant and a suspended 

driver’s license. As a result, Morgan was placed in custody, and Alton was 

patted down. No weapons were found on Alton. 

However, during the pat down, Officer Dixon felt a bulge in Alton’s 

pocket that, based on his training and experience, indicated to him it was 

potential contraband. Shortly thereafter, Alton acknowledged that the object 

was ecstasy, and Officer Dixon placed him in custody. The officers then

performed a search of Morgan’s vehicle and discovered a loaded handgun in 

the glove compartment.

Following his arrest, Alton filed a motion to suppress the ecstasy, 

claiming he was subject to an illegal search. The trial court denied his motion 

and held the case for trial. The court found Alton guilty of one count of 

possession of a controlled substance and sentenced him to 3 to 6 months’ 

imprisonment.1 This appeal is now properly before us.

In his brief, Alton raises two issues for our review: (1) the police failed 

to establish the requisite reasonable suspicion to perform a protective frisk of 

his person; and (2) the seizure of the pills violated the plain feel doctrine. See 

Appellant’s Brief, at 9, 11. 

As an initial matter, we must address the Commonwealth’s argument 

that Alton waived his second claim. The Commonwealth here contends that 

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1 See Pa.C.S.A. 35 § 780-113(a)(16).
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Alton failed to include his plain feel argument in his Pa.R.A.P. Rule 1925(b) 

statement. See Appellee’s Brief, at 35. Our review of Alton’s 1925(b) 

statement confirms the Commonwealth’s assertion, and Alton has not filed a 

reply brief responding to the Commonwealth’s claim. As our Supreme Court 

has noted, “any appellate issues not raised in a Rule 1925(b) statement will 

be deemed waived.” Commonwealth v. Hill, 16 A.3d 484, 494 (Pa. 2011). 

Therefore, based on our review of his Rule 1925(b) statement, we agree with 

the Commonwealth that Alton waived this claim.

In his sole preserved issue on appeal, Alton contends the trial court 

erred in denying his motion to suppress. In particular, Alton argues that Officer 

Dixon failed to establish there was reasonable suspicion to believe he was 

armed and dangerous. See Appellant’s Brief, at 11. Moreover, because Officer 

Dixon lacked reasonable suspicion, Alton asserts that he was subject to an 

illegal frisk as a result. See id. Therefore, Alton concludes the ecstasy was 

illegally obtained.

The Commonwealth counters that Officer Dixon possessed the requisite 

reasonable suspicion to conduct a frisk of Alton. Indeed, the Commonwealth 

argues that the smell of marijuana and the driver’s arrest were specific and 

articulable facts from which Officer Dixon could reasonably infer that Alton 

was armed and dangerous. See Appellee’s Brief, at 24-25. As such, the 

Commonwealth concludes the trial court did not err in denying Alton’s motion 

to suppress. 
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In reviewing the denial of a suppression motion, we must determine 

whether the record supports the lower court’s factual findings and whether 

the legal conclusions drawn from those facts are correct. Commonwealth v. 

Raglin, 178 A.3d 868, 871 (Pa. Super. 2018). While our standard of review 

is highly deferential to the suppression court’s factual findings and credibility 

determinations, we afford no deference to the court’s legal conclusions, and 

review such conclusions de novo. See Commonwealth v. Hughes, 836 A.2d 

893, 898 (Pa. 2003).

Here, it is important to note that Alton does not challenge the initial 

traffic stop or the subsequent search of the vehicle. See Appellant’s Brief, at 

10. To that end, there is no dispute that Officers Dixon and Grey conducted a 

lawful traffic stop, based upon violations of the Motor Vehicle Code, and a 

permissible search of the vehicle. Further, our review of the record indicates 

that such conduct was legally permissible. Accordingly, we will only address

whether Officer Dixon had reasonable suspicion to conduct a pat down search 

of Alton after Morgan was placed in custody.

A police-citizen encounter may implicate the liberty and privacy 

interests of the citizen as guaranteed by the Fourth Amendment to the United 

States Constitution and Article I, § 8 of the Pennsylvania Constitution. See 

Commonwealth v. Smith, 172 A.3d 26, 31 (Pa. Super. 2017). Fourth 

Amendment jurisprudence recognizes three levels of interactions between 

police officers and citizens: (1) a mere encounter; (2) an investigative 

detention; and (3) a custodial detention. See id., at 32.
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The first of these interactions is a mere encounter, which need not be 

supported by any level of suspicion, as it carries no official compulsion for a 

citizen to stop or respond. See Raglin, 178 A.3d at 871. The second, an 

investigative detention, must be supported by reasonable suspicion; it 

subjects a suspect to a stop and a period of detention, but does not constitute 

an arrest. See Commonwealth v. Baldwin, 147 A.3d 1200, 1202 (Pa. 

Super. 2016). Finally, a custodial detention or an arrest must be supported by 

probable cause. See Commonwealth v. Collins, 950 A.2d 1041, 1046 (Pa. 

Super. 2008).

In the instant case, Officer Dixon conducted a frisk of Alton pursuant to 

Terry v. Ohio, 392 U.S. 1 (1968). A Terry frisk is a type of investigative 

detention in which an officer briefly detains a citizen if the officer “observes 

unusual conduct which leads him to reasonably conclude, in light of his 

experience, that criminal activity may be afoot.” Commonwealth v. 

Fitzpatrick, 666 A.2d 323, 325 (Pa. 1995). If an officer is justified in believing 

the detained individual is armed and dangerous, the officer may then conduct 

a frisk of the individual’s outer garments for weapons. See Commonwealth 

v. Scarborough, 89 A.3d 679, 683 (Pa. Super. 2014). Accordingly, a Terry 

frisk applies to traffic stops, such as the one here, in the same way as other

typical police encounters. See Commonwealth v. Mesa, 683 A.2d 643, 646 

(Pa. 1996). 

To conduct a Terry frisk for weapons, the police must have reasonable 

suspicion. See Commonwealth v. Simmons, 17 A.3d 399, 403 (Pa. Super. 
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2011). “In order to establish reasonable suspicion, the police officer must 

articulate specific facts from which he could reasonably infer that the 

individual was armed and dangerous.” Commonwealth v. Mack, 953 A.2d 

587, 590 (Pa. Super. 2008) (citation omitted). Further, the facts indicating 

that an individual is armed and dangerous must be viewed under the totality 

of the circumstances. See Commonwealth v. Holmes, 14 A.3d 89, 95 (Pa. 

2011). If either the initial stop or the frisk is found to be unreasonable, all 

evidence derived from the illegal government activity must be excluded. See 

Simmons, 17 A.3d at 403.

Alton, as an occupant of the vehicle, was subject to a Terry frisk by 

Officer Dixon following Morgan’s arrest. Generally, “all companions of [an] 

arrestee within the immediate vicinity, capable of accomplishing a harmful 

assault on the officer, are constitutionally subject to the cursory ‘pat-down’ 

reasonably necessary to give assurance that they are unarmed.” 

Commonwealth v. Jackson, 907 A.2d 540, 543-44 (Pa. Super. 2006) (citing

United States v. Berryhill, 445 F.2d 1189, 1193 (9th Cir. 1971). In other 

words, an arrestee’s companion, like Alton, may be frisked if there is 

reasonable suspicion that the companion is armed and dangerous. See id., at 

544-45. However, we cannot conclude in this case that Officer Dixon 

established the requisite reasonable suspicion to pat down Alton for weapons.

Here, Officer Dixon identified no specific, articulable facts that would 

indicate Alton was armed or dangerous. The pat down, as Officer Dixon 

testified, was performed based on the totality of the circumstances in this 
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case; namely, the smell of marijuana and Morgan’s outstanding arrest 

warrant. See N.T., Hearing, 06/12/18, at 8. Although the smell of marijuana

may indicate illegal activity, Pennsylvania does not recognize the “guns follow 

drugs” presumption as a basis to justify a frisk for weapons. See

Commonwealth v. Grahame, 7 A.3d 810, 816 (Pa. 2010). In addition, there 

is no evidence that Alton’s conduct conveyed a threat of danger to Officer 

Dixon. The pat down of Alton was therefore illegal due to the absence of 

reasonable suspicion.

Although the suppression court incorrectly found reasonable suspicion 

existed here to frisk Alton, the error is not consequential to our conclusion 

because the suppression court’s legal findings are not binding on this Court. 

See In re O.J., 958 A.2d 561, 564 (Pa. Super. 2008). Moreover, “if the record 

supports the result reached by the suppression court, we may affirm on any 

ground.” Commonwealth v. Brown, 64 A.3d 1101, 1105 n.3 (Pa. Super. 

2013) (citation omitted). Therefore, we can affirm the trial court’s denial of 

Alton’s motion to suppress if we conclude another basis exists to justify the 

Terry frisk here.

In its brief, the Commonwealth asserts there is an alternative basis upon 

which to affirm the suppression court’s decision in this case: the inevitable 

discovery doctrine. See Appellee’s Brief, at 27. The Commonwealth argues

there was probable cause to search Morgan’s car based upon the odor of 

marijuana that was detected by the officers during the traffic stop. See id., 

at 31-32. After police discovered the firearm inside the vehicle, the 
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Commonwealth asserts that Officer Dixon would have had at least reasonable 

suspicion to believe Alton might have also had a firearm on his person. See 

id., at 34. Therefore, on that basis, the Commonwealth contends that the frisk 

would have resulted in the inevitable discovery of the drugs on Alton’s person. 

See id. For that reason, the Commonwealth concludes we should affirm the 

suppression court’s decision.

The inevitable discovery doctrine provides that “evidence which would

have been discovered was sufficiently purged of the original illegality to allow 

admission of the evidence.” Commonwealth v. Ingram, 814 A.2d 264, 272 

(Pa. Super. 2002). This doctrine requires that the evidence at issue would 

have been discovered inevitably despite the initial illegality. See 

Commonwealth v. Gonzalez, 979 A.2d 879, 890 (Pa. Super. 2009). 

Consequently, the burden of proving such inevitable discovery, by a 

preponderance of the evidence, rests with the Commonwealth. See 

Commonwealth v. Hoffman, 589 A.2d 737, 743 (Pa. Super. 1991).

Here, Alton was arrested after Officer Dixon patted him down and 

located the ecstasy pills in his pocket. Although Officer Dixon lacked 

reasonable suspicion to frisk Alton initially, the officer would have eventually

acquired reasonable suspicion to pat him down. The lawful search of Morgan’s 

car for marijuana in which police found a firearm would have provided Officer 

Dixon with reasonable suspicion to frisk Alton for weapons. See 

Commonwealth v. Powell, 934 A.2d 721, 723-24 (Pa. Super. 2007)

(holding that pat down of passenger was justified where police had already 
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retrieved a gun from the driver). And so, Officer Dixon’s pat down of Alton 

would have resulted in the inevitable discovery of the drugs in his pocket.

Hence, we conclude that the Commonwealth established by a 

preponderance of the evidence that the drugs in Alton’s pocket would have 

been inevitably discovered absent police error. For that reason, the record 

supports the suppression court’s finding that the evidence was not subject to 

suppression.

Judgment affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 2/3/2020