J-S06008-25
2025 PA Super 61
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
ANDREW DAVID MILLER : No. 1051 WDA 2024
Appeal from the Suppression Order Entered July 30, 2024
In the Court of Common Pleas of Venango County
Criminal Division at No(s): CP-61-CR-0000133-2024
BEFORE: PANELLA, P.J.E., LANE, J., and BENDER, P.J.E.
OPINION BY PANELLA, P.J.E.: FILED: March 14, 2025
The Commonwealth appeals from the order of the Court of Common
Pleas of Venango County which granted Andrew David Miller’s suppression
motion. The Commonwealth argues the suppression court erred in granting
Miller’s suppression motion because Miller was legally detained and Terry1
frisked. After careful review, we affirm in part and reverse in part.
We glean the following factual and procedural history from the certified
record. On February 27, 2024, around 10:30 p.m. on a rainy night, two
Pennsylvania State Police Troopers observed Miller attempt to enter the front
passenger side of a parked car. The driver, Rachel Fleeger, looked confused
and Miller threw his hands in the air. Miller then entered the vehicle, and
Fleeger drove out of the parking lot. Shortly after, she failed to properly stop
____________________________________________
1 Terry v. Ohio, 392 U.S. 1 (1968).
J-S06008-25
at a stop sign. The troopers initiated a traffic stop and the vehicle was pulled
over.
One trooper approached the passenger side and the other trooper
approached the driver’s side. Upon request, Miller and Fleeger provided the
troopers their IDs. During this interaction, Miller had shaky hands and was
breathing heavily. The troopers went back to their patrol vehicle for about 10
minutes to check the IDs and vehicle registration.
When the troopers returned to the vehicle, they asked Miller to step out
of the vehicle due to his nervous demeanor. One trooper observed a small
yellow rubber band on the passenger side of the vehicle. Based on his training
and experience, this trooper believed the small rubber band was used in the
packaging of narcotics. Either before requesting Miller to exit the vehicle or
while Miller was exiting the vehicle this trooper observed a rolled paper filled
with marijuana (i.e., a “joint”) in the center console.2 Miller exited the vehicle
with his hands up and fully cooperated.
The other trooper conducted a Terry frisk of Miller. During his pat down,
this trooper felt a box shaped hard plastic container in Miller’s groin region
which he suspected contained contraband but did not suspect to be a weapon.
Miller started yelling and becoming irate and claimed that the item was his
penis.
____________________________________________
2 The suppression court did not make a factual finding as to when the trooper
observed the rolled paper of marijuana and there is no uncontradicted
evidence in the record as to when exactly it was observed.
-2-
J-S06008-25
Next, Fleeger consented to a vehicle search. Other than the items
previously observed in plain view, the vehicle search resulted in the recovery
of glass pipes, a digital scale, and a plastic bag with marijuana. These items
were all found in Fleeger’s bag and were not connected to Miller. See N.T.,
6/25/24, at 20-21, 35.
After the vehicle search, the troopers informed Miller that he was under
arrest. The troopers’ testimony suggests that they arrested Miller for his
actions in obstructing the frisk and the rolled paper of marijuana observed in
plain view, and additionally to further investigate the object that they detected
during the Terry frisk. They informed him that he would be transported back
to the police station “for further investigation of what the box was containing
inside his pants.” Aff. of Prob. Cause, at 2. To conduct the search incident to
arrest the troopers had to forcibly detain Miller during which suspected drug
paraphernalia fell out of his pants. The further search of Miller resulted in the
recovery of additional drug paraphernalia, a marijuana joint, and a large
amount of methamphetamine.
Miller was charged with possession with the intent to deliver
methamphetamine (35 P.S. § 780-113(a)(30)), possession of
methamphetamine (35 P.S. § 780-113(a)(16)), possession of a small amount
of marijuana for personal use (35 P.S. § 780-113(a)(31)(i)), possession with
intent to use drug paraphernalia (35 P.S. § 780-113(a)(32)), resisting arrest
(18 Pa.C.S.A. § 5104), and obstructing the administration of law (18 Pa.C.S.A.
-3-
J-S06008-25
§ 5101). Miller filed a suppression motion, and a hearing was held on June 25,
2024. Both troopers testified at the hearing.3
On July 30, 2024, the suppression court issued a two-sentence order
that granted Miller’s suppression motion and stated that “[a]ll evidence
discovered after requiring [Miller] to exit the vehicle is hereby suppressed.”
Order, 7/30/24. The Commonwealth filed an interlocutory appeal 4 and
complied with the suppression court’s order to file a 1925(b) statement. The
suppression court filed a 1925(a) opinion explaining the reasons for its ruling.
In its 1925(a) opinion the suppression court found that the troopers’
removal, detention, and frisk of Miller was based on “the observation of a
single, small, yellow rubber band.” 1925(a) Opinion, at 1. The suppression
court concluded that the rubber band was insufficient to establish “reasonable
suspicion of drug use or drug dealing sufficient to remove and detain [Miller].”
Id. at 2. Further, the suppression court concluded that the repeated frisks of
____________________________________________
3 At the end of the suppression hearing, the suppression court continued the
matter to allow defense counsel to review the MVR footage and instructed him
to notify the court whether “further testimony or hearing is necessary.” N.T.,
6/25/24, at 38. A few days later, “after a Supplemental Hearing,” the
suppression court directed the Commonwealth and Miller to submit
memorandums of law. Order, 7/1/24. Although it is unclear based on the
suppression court’s order, there is no transcript or anything else in the record
to suggest that there was a supplemental hearing other than the initial June
25, 2024, suppression hearing. Therefore, our review is limited solely to that
suppression hearing.
4 Pursuant to Pa.R.A.P. 904(e), the Commonwealth certified that the
suppression order “has terminated or substantially handicapped [its]
prosecution of this case.” See Certificate of Termination.
-4-
J-S06008-25
Miller were unlawful because the troopers did not suspect that the item in
Miller’s groin area was a weapon or that Miller posed a threat to their safety.
See id. at 2. Lastly, based on its review of the MVR footage, the suppression
court found that Miller was not aggressive towards the troopers during his
detention to warrant a charge of resisting arrest. See id. at 2-3.
On appeal, the Commonwealth raises three issues. First, the
Commonwealth argues we should remand the matter to the suppression court
to enter findings of fact and conclusions of law. See Commonwealth’s Brief,
at 7. Second, the Commonwealth argues the suppression court erred in
granting the suppression motion because the troopers conducted a lawful
Terry frisk. See id. at 8-12. Third, the Commonwealth argues that the
suppression court erred in suppressing the evidence since Miller was lawfully
placed under investigative detention for the drug paraphernalia seen in plain
view inside the vehicle and during the lawful investigative detention drugs and
drug paraphernalia fell out of his pants. See id. at vi, 2, 8-12.
A suppression court is required, at the end of a suppression hearing, to
enter findings of fact and conclusions of law on the record. See Pa.R.Crim.P.
581(I). Here, the suppression court did not enter findings of fact and
conclusions of law on the record after the hearing or in its order granting
Miller’s motion. Previously, we have remanded for a suppression court to enter
findings of fact and conclusions of law when the suppression court failed to do
so and did not file a 1925(a) opinion explaining its ruling. See
Commonwealth v. Sharaif, 205 A.3d 1286, 1289-90 (Pa. Super. 2019).
-5-
J-S06008-25
However, we have conducted appellate review in situations when the
suppression court failed to enter findings of fact and conclusions of law on the
record but issued a 1925(a) opinion explaining its ruling. See
Commonwealth v. Rivera, 311 A.3d 1160, 1163 n.2 (Pa. Super. 2024),
appeal denied,
325 A.3d 1024 (Pa. 2024) (explaining that absent a
suppression court’s findings of fact and conclusions of law on the record
“appellate review may be possible based on facts in an opinion in support of
an order on appeal.”) (citation omitted). Here, the suppression court explained
its reasoning for its order in its 1925(a) opinion. Therefore, a remand is not
necessary, and we turn to the Commonwealth’s arguments.
The law governing our review of a suppression court’s order is well-
established.
When reviewing the propriety of a suppression order, an appellate
court is required to determine whether the record supports the
suppression court’s factual findings and whether the inferences
and legal conclusions drawn by the suppression court from those
findings are appropriate. Where the defendant prevailed in the
suppression court, we may consider only the evidence of the
defense and so much of the evidence for the Commonwealth as
remains uncontradicted when read in the context of the record as
a whole. Where the record supports the factual findings of the
suppression court, we are bound by those facts and may reverse
only if the legal conclusions drawn therefrom are in error.
However, where the appeal of the determination of the
suppression court turns on allegations of legal error, the
suppression court's conclusions of law are not binding on an
appellate court, whose duty it is to determine if the suppression
court properly applied the law to the facts.
Commonwealth v. Tillery, 249 A.3d 278, 280 (Pa. Super. 2021) (citation
and brackets omitted).
-6-
J-S06008-25
Initially, we consider the Commonwealth’s claim that the trooper’s plain
view observation of a rolled paper containing marijuana in the vehicle’s center
console contributed to the troopers’ reasonable suspicion to justify the Terry
frisk. See Commonwealth’s Brief, at 9. In his brief, Miller recognizes that the
troopers observed “papers” in the center console. See Appellee’s Brief, at 4,
9, 13, 15. However, in its 1925(a) opinion the suppression court makes no
mention of the trooper’s observation of the rolled paper of marijuana and
instead explained that the troopers’ observation of a single small yellow rubber
band did not justify the Terry frisk. See 1925(a) Opinion, at 2. There is a gap
in the suppression court’s findings regarding the observation of marijuana and
rolling papers. Thus, we must review the evidence presented by Miller, and as
much of the Commonwealth’s evidence that remains uncontradicted, i.e., that
the trooper observed rolled papers of marijuana in the center console prior to
the Terry frisk. See Tillery, 249 A.3d at 280.
Our review of the record indicates that the troopers testified multiple
times that the first trooper observed rolled papers of marijuana in the vehicle’s
center console prior to the Terry frisk. Both troopers testified that this was
observed and a rolled paper of marijuana in the center console was seen. See
N.T., 6/25/24, at 8, 19-20, 22, 34. Miller presented no evidence that
contradicts this testimony. Therefore, we will consider the trooper’s
observation of the rolled paper of marijuana in the vehicle’s center console
when deciding whether the suppression court erred in concluding that the
investigative detention and the Terry frisk were unlawful.
-7-
J-S06008-25
Importantly, our focus is on the suppression court’s findings and
conclusions related to the investigative detention and Terry frisk. The
suppression court suggests that the evidence presented by the
Commonwealth was insufficient not only to detain and frisk Miller but also to
remove him from the vehicle. See 1925(a) Opinion, at 2. We note that
although the troopers asked Miller out of the vehicle, detained him, and frisked
him in quick succession, they are distinct events. Officers have “an absolute
right” and do not need reasonable suspicion to ask an occupant to step out of
a vehicle for the duration of a lawful traffic stop. See Commonwealth v.
Palmer, 145 A.3d 170, 173 (Pa. Super. 2016) (citations omitted). Asking a
passenger out of a vehicle is only a seizure if the traffic stop has concluded.
See Commonwealth v. Reppert,
814 A.2d 1196, 1202 (Pa. Super. 2002)
(en banc). Here, the traffic stop had not concluded; the troopers had just
returned Fleeger and Miller their IDs and had not yet issued a citation.
Therefore, the suppression court erred in concluding that the troopers could
not remove Miller from the vehicle.
The Commonwealth argues that the Terry frisk was lawful because the
troopers had reasonable suspicion of criminal activity based on their
observation of Miller’s nervousness and the plain view of the yellow band,
which in their training and experience is used for packaging drugs, and the
rolled paper of marijuana in the center console. See Commonwealth’s Brief,
at 8-12. Thus, according to the Commonwealth, the pat down of Miller’s groin
-8-
J-S06008-25
area was justified because people involved with drugs hide contraband there.
See id. at 12.
Miller claims that the troopers were searching for drugs under the guise
of a frisk for weapons. See Appellee’s Brief, at 5. Miller asserts the frisk was
unjustified because there was no reasonable suspicion that Miller was a threat
to the troopers’ or others’ safety. See id. at 8-9. Further, he argues that he
was not a safety threat because he made no furtive movements and there was
no evidence that the troopers suspected that he was hiding a weapon. See
id. at 10-11, 14-15.
“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. Luczki, 212 A.3d
530, 542 (Pa. Super. 2019) (citation omitted). “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.”
Id. (citation omitted).
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.
-9-
J-S06008-25
Commonwealth v. Brinson, 328 A.3d 1096, 1104 (Pa. Super. 2024)
(citation omitted).
“[T]o proceed from a stop to a frisk, the police officer must reasonably
suspect that the person is armed and dangerous.” Int. of T.W., 261 A.3d
409, 417 (Pa. 2021) (quoting Arizona v. Johnson,
555 U.S. 323, 326-27
(2009)). “A Terry frisk is a type of investigative detention requiring
reasonable suspicion that criminal activity is afoot and that the individual
whose suspicious behavior he is investigating at close range is armed and
presently dangerous to the officer or to others.” Commonwealth v. Davis,
102 A.3d 996, 999 (Pa. Super. 2014) (citation and quotation marks omitted).
“To validate a Terry frisk, the police officer must be able to articulate specific
facts from which he reasonably inferred that the individual was armed and
dangerous.” Commonwealth v. Cunningham,
287 A.3d 1, 10 (Pa. Super.
2022) (citation omitted). “In determining whether a Terry frisk was supported
by a sufficient articulable basis, we examine the totality of the circumstances.”
Id.
We agree with the Commonwealth that Miller’s initial investigative
detention after the troopers had him step out of the vehicle was legal. Miller
was detained based on the troopers’ observation of his nervousness, the
rubber band, and the rolled paper of marijuana in the vehicle’s center console.
These facts, particularly the rolled paper of marijuana, gave the troopers
- 10 -
J-S06008-25
reasonable suspicion that Miller illegally possessed marijuana, i.e., that
criminal activity was afoot.5
However, based on the totality of the circumstances, we conclude the
troopers failed to articulate specific facts from which they could reasonably
infer that Miller was armed and dangerous to justify a Terry frisk.
A factually analogous case, Commonwealth v. Henderson, No. 882
MDA 2023, 2024 WL 4235017 (Pa. Super. filed Sept. 19, 2024) (unpublished
memorandum), is instructive.6
In Henderson, during a traffic stop a trooper observed in plain view a
digital scale with marijuana “shake” on it in the center console. See id. at *1.
The troopers asked the defendant out of the vehicle, placed him under
investigative detention, and performed a frisk. See id. During the frisk, the
trooper felt what he believed to be a bag of marijuana in the defendant’s
pocket and removed it. See id. The troopers then retrieved the digital scale
from the vehicle and found a firearm. See id. The suppression court granted
the defendant’s motion to suppress the bag of marijuana and firearm but
denied the motion as to the digital scale. See id. The suppression court found
the frisk to be unlawful because the defendant “was not under arrest and the
____________________________________________
5 Under the Medical Marijuana Act, unused medical marijuana must be kept in
its original packaging. See 35 P.S. § 10231.303(b)(6). Further, medical
marijuana cannot be smoked. See 35 P.S. § 10231.304(b)(1); see also 35
P.S. § 10231.303(b)(2) (legal forms and consumption of medical marijuana).
6 Non-precedential decisions filed after May 1, 2019, may be cited as
persuasive authority. See Pa.R.A.P. 126(b)(2).
- 11 -
J-S06008-25
troopers did not have reason to believe that there was a danger to their safety
at the time of the pat down.” Id. (record citation omitted).
On appeal, we affirmed because the troopers failed to articulate any
facts from which it could be inferred that the defendant was armed and
dangerous. See id. at *3. Specifically, the troopers did not observe any furtive
movements, did not observe any object that might be a weapon, and the
defendant did not act in a hostile or threatening way. See id. We further
explained that our Courts have rejected the notion that involvement with
illegal drugs alone supports an inference that a defendant is armed and
dangerous. See id. at *4 (citing Commonwealth v. Grahame, 7 A.3d 810,
816-17 (Pa. 2010)).
Similarly, here, the troopers failed to articulate specific facts from which
they could reasonably infer that Miller was armed and dangerous. Miller did
not make any furtive movements, the troopers did not observe any object that
could be a weapon, and Miller did not act in a hostile or threatening manner.
In fact, Miller fully cooperated—he exited the vehicle with his hands up and
did not prevent the troopers from frisking him. See N.T., 6/25/24, at 17, 34.
Further, in its brief, the Commonwealth seemingly concedes that the troopers
frisked Miller’s groin area to detect drugs rather than for safety reasons stating
that “people involved with narcotics hide drugs in that area[.]”
Commonwealth’s Brief, at 12 (citing N.T., 6/25/24, at 10). Miller’s
nervousness and proximity to a yellow rubber band and a rolled paper of
marijuana did not establish a sufficient articulable basis from which it could
- 12 -
J-S06008-25
be reasonably inferred that he was armed and dangerous to justify a Terry
frisk. See Henderson, No. 882 MDA 2023, 2024 WL 4235017. Therefore, the
Commonwealth’s argument as to the lawfulness of the Terry frisk does not
merit relief.
Lastly, the Commonwealth argues that suppression was not warranted
because the troopers discovered drugs and paraphernalia on Miller’s person
during the lawful investigative detention. See Commonwealth’s Brief, at 2-3,
8, 12 Specifically, the Commonwealth asserts that items fell out of Miller’s
pockets while he was lawfully detained. See id. at 12. We are unconvinced by
the Commonwealth’s argument for two reasons.
First, the suppression court did not find, and there is no uncontradicted
evidence, that drugs and drug paraphernalia fell out of Miller’s pockets during
his lawful investigative detention. Rather, the uncontradicted evidence was
that items fell out of Miller’s pants while he was being searched incident to
arrest before being placed in the police vehicle. The troopers both testified
that drugs and paraphernalia fell out of Miller’s pants when they arrested him
and searched him incident to arrest. See N.T., 6/25/24, at 11, 30, 35; see
also Aff. of Prob. Cause, at 2. Further, one trooper testified that items fell out
of Miller’s pants when Miller was placed up against the police vehicle and the
troopers had to forcibly spread his legs to search him. See id. at 30. We see
no uncontradicted evidence in the record that there was a separate incident
during the investigative detention where items fell out of Miller’s pants.
- 13 -
J-S06008-25
Therefore, we reject the Commonwealth’s assertion that items fell out of
Miller’s pants during the permissive investigative detention.
Second, the Commonwealth failed to meet its burden that items
recovered during the search incident to arrest were not obtained via
exploitation of the troopers detecting suspected contraband during the illegal
Terry frisk.
“[I]t is the Commonwealth’s burden to prove, by a preponderance of
the evidence, that the challenged evidence was not obtained in violation of
the defendant’s rights.” Commonwealth v. Seeney, 316 A.3d 645, 648-49
(Pa. Super. 2024) (citations omitted).
[E]vidence constitutes poisonous fruit, and, thus, must be
suppressed if, granting establishment of the primary illegality, the
evidence to which instant objection is made has been come at by
exploitation of that illegality or instead by means sufficiently
distinguishable to be purged of the primary taint.
Commonwealth v. Easter, -- A.3d --, 2025 WL 16361, at *3 (Pa. Super.
filed Jan. 2, 2025) (citation omitted). “The inquiry simply is whether the
evidence was obtained via exploitation of the initial illegality.”
Commonwealth v. Shabezz,
166 A.3d 278, 289 (Pa. 2017).
The troopers offered conflicting testimony as to why Miller was placed
under arrest and searched incident to arrest. They testified that Miller was
arrested for the drug paraphernalia seen in plain view in the vehicle and for
- 14 -
J-S06008-25
resisting arrest.7 See N.T., 6/25/24, at 12, 19-22, 29-30, 35. Notably,
however, both troopers also offered testimony that Miller was arrested in part
because of the object detected during the illegal Terry frisk. See id. at 22,
35; see also Aff. of Prob. Cause, at 2.
One trooper testified that Miller was arrested in part because of the
object detected during the Terry frisk. See N.T., 6/25/24, at 22. In response,
to defense counsel’s question whether Miller was arrested for resisting arrest,
this trooper answered “Due to the detention and the uncooperate[sic]---
uncooperativeness and due to the items, again, that were located on his
person and him claiming them to be his penis. Um, which was obviously not.”
Id. at 22. Further, the other trooper testified and stated in the affidavit of
probable cause that he told Miller that Miller “would be transported back to
PSP Franklin for further investigation of what the box was containing inside
his pants[.]” Id. at 35; see also Aff. of Prob. Cause, at 2. Therefore, the
Commonwealth failed to establish that the evidence recovered during the
search incident to arrest was not obtained via exploitation of the illegal Terry
frisk.
In sum, the suppression court erred in concluding that the troopers
unlawfully asked Miller out of the vehicle and placed him under investigative
detention. The troopers asked Miller out of the vehicle during a lawful traffic
____________________________________________
7 Based on its review of the MVR footage, the suppression court did not
observe any “sudden shift or move of aggression toward the officers[,]” and
found that Miller’s actions did not rise to the level of resisting arrest. 1925(a)
Opinion, at 2-3.
- 15 -
J-S06008-25
stop and had reasonable suspicion that criminal activity was afoot. However,
the Terry frisk of Miller was illegal because there were no articulable facts
that Miller was armed and dangerous. Further, although we commend the
Commonwealth’s well written argument to the contrary, there is no support in
the record for the Commonwealth’s assertion that drugs and drug
paraphernalia fell out of Miller’s pants during the lawful investigative detention
before Miller was arrested. Instead, the record establishes that drugs and drug
paraphernalia fell out Miller’s pants after he was arrested. Lastly, the
Commonwealth failed to meet its burden that Miller’s arrest and search
incident to arrest were not tainted by the illegal Terry frisk. Therefore, we
affirm the suppression court’s judicious decision in that regard.
Accordingly, the suppression court’s order is reversed in part to the
extent that it suppressed any evidence obtained before the Terry frisk, and
the portion of the suppression court’s order suppressing evidence obtained
after the unlawful Terry frisk is affirmed.
Order affirmed in part and reversed in part. Case remanded in
accordance with this Opinion. Jurisdiction relinquished.
DATE: 3/14/2025
- 16 -
