COMMONWEALTH v. HEMINGWAY

No. 684 WDA 2017.

192 A.3d 126 (2018)

2018 PA Super 183

COMMONWEALTH of Pennsylvania, Appellant v. Tareek Alquan HEMINGWAY.

Superior Court of Pennsylvania.

Filed June 26, 2018.

Reargument Denied September 4, 2018.


Attorney(s) appearing for the Case

Peter J. Weeks , Assistant District Attorney, Hollidaysburg, for Commonwealth, appellant.

Russell Montgomery , Public Defender, Hollidaysburg, for appellee.

BEFORE: BOWES, J., RANSOM, J., and STEVENS, P.J.E.


Appellant, the Commonwealth of Pennsylvania, appeals from the order entered March 31, 2017, granting Appellee Tareek Alquan Hemingway's suppression motion. After careful review, we affirm.

We adopt the following statement of facts from the trial court opinion, which in turn is supported by the record. See Trial Court Op. (TCO), 3/30/2017, at 1-5. On October 8, 2016, at approximately 2:12 a.m., Altoona Police Department patrolmen Joseph Detwiler and Derek Tardive responded to a noise complaint "in a high crime area." No information or description was given regarding any person involved in the noise complaint.

At the location, officers observed Appellee and another man conversing with two women in a car. Appellee had his hand in his pocket. Although Appellee and his companion were not inside the building that was the address of the complaint, because officers were concerned that "if they responded to the noise complaint first, the men would not be there when they got outside," they approached Appellee. See Notes of Testimony (N.T.), 2/6/17, at 12. Officer Detwiler ordered Appellee to remove his hand from his pocket. Officer Tardive ordered Appellee to put his hands on his head and stated that he would be conducting a pat-down search.

Rather than comply, Appellee immediately fled on foot. Subsequent to a foot chase, the officers recovered Appellee's shoe and near the shoe, four bags of a white powdery substance, later identified as cocaine. Appellee was arrested and subsequently charged with possession with intent to deliver a controlled substance ("PWID"), resisting arrest, escape, and disorderly conduct.1

In November 2016, Appellee filed a suppression motion, arguing that police officers did not have reasonable suspicion to justify their initial attempt to stop and frisk Appellee based upon his mere presence in a high crime area and the fact that he had his hand in his pocket. In February 2017, the suppression court convened a hearing at which Officer Detwiler testified, and at which Officer Tardive's preliminary hearing testimony was read into the record. On March 17, 2017, the suppression court granted the order, finding that Appellee was subjected to an unlawful investigative detention as the officers lacked reasonable suspicion that criminal activity was afoot.

The Commonwealth timely appealed.2 Both the Commonwealth and the court have complied with Pa.R.A.P. 1925(a)-(b).

On appeal, the Commonwealth raises the following issues for our review:

1. Whether the suppression court erred in concluding that Officers Detwiler and [Tardive], viewed from the standpoint of an objective reasonable police officer, did not possess reasonable suspicion that criminal activity may be afoot and that Appellee may be armed and dangerous. 2. Whether the suppression court erred in suppressing controlled substances that were not found pursuant to a search of defendant, but were discarded by Appellee before or during his struggle with police.

The Commonwealth's Brief at 3.

First, the Commonwealth contends that the court erred in concluding that officers did not possess reasonable suspicion that criminal activity may be afoot and that Appellant was armed and dangerous. See Commw. Brief at 7-8. The Commonwealth contends that the following facts support its argument and subsequent investigatory stop: 1) that the time of the encounter was 2:00 a.m.; 2) the area was a high crime area; 3) Appellee's interactions with the vehicle were consistent with drug transactions; 4) Appellee "shoved his hand into his pocket when he made eye contact with the officers." Id. at 9-10.

When reviewing the grant of a suppression motion,

we must determine whether the record supports the trial court's factual findings and whether the legal conclusions drawn from those facts are correct. We may only consider evidence presented at the suppression hearing. In addition, because the defendant prevailed on this issue before the suppression court, we consider only the defendant's evidence and so much of the Commonwealth's evidence as remains uncontradicted when read in the context of the record as a whole. We may reverse only if the legal conclusions drawn from the facts are in error.

Commonwealth v. Haines, 168 A.3d 231, 234 (Pa. Super. 2017) (internal citations and quotations omitted).

We further note that [t]here are three types of encounters between law enforcement officials and private citizens. A "mere encounter" need not be supported by any level of suspicion but carries no official compulsion to stop or respond. An "investigative detention" must be supported by reasonable suspicion and subjects the suspect to a stop and a period of detention, but it does not have the coercive conditions that would constitute an arrest. The courts determine whether reasonable suspicion exists by examining the totality of the circumstances. An arrest, or "custodial detention," must be supported by probable cause.

In re J.G., 145 A.3d 1179, 1185 (Pa. Super. 2016).

Here, we must determine 1) the type of encounter and corresponding level of suspicion required to support that encounter; and 2) whether the facts supported said level of suspicion. Id. at 1185.

Our Court has previously observed that [t]o determine whether a mere encounter rises to the level of an investigatory detention, we must discern whether, as a matter of law, the police conducted a seizure of the person involved. To decide whether a seizure has occurred, a court must consider all the circumstances surrounding the encounter to determine whether the demeanor and conduct of the police would have communicated to a reasonable person that he or she was not free to decline the officer's request or otherwise terminate the encounter. Thus, the focal point of our inquiry must be whether, considering the circumstances surrounding the incident, a reasonable person innocent of any crime, would have thought he was being restrained had he been in the defendant's shoes.

Commonwealth v. Reppert, 814 A.2d 1196, 1201-1202 (Pa. Super. 2002) (citations omitted).

As noted, a mere encounter is a "request for information." It need not be supported by any level of suspicion and, accordingly, carries no official compulsion to stop and respond. See Commonwealth v. Baldwin, 147 A.3d 1200, 1202-03 (Pa. Super. 2016). However, in order to conduct a pat-down of a person, police must have reasonable suspicion:

A police officer is entitled to conduct a limited search of an individual to detect weapons if the officer observes unusual and suspicious conduct on the part of the individual which leads the officer to reasonably believe that criminal activity is afoot and that the person may be armed and dangerous.

Commonwealth v. Martinez, 403 Pa.Super. 125, 588 A.2d 513, 514 (1991) (internal citations and quotations omitted) (citing Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)).

There is some precedent regarding police requests that defendants remove their hands from their pockets, and the level of encounter resulting from such orders. However, the conclusion we may draw from such precedent is that it is a fact-specific inquiry, and, as will be discussed, infra, partially dependent on the timing of the request.

In Martinez, two police officers in an unmarked vehicle pulled up alongside the defendant, requested that she come over to them, turn around, take her hands from her jacket, and put them on the car. See Martinez, 588 A.2d at 515. The officers exited the vehicle and approached Martinez from either side, preventing her from leaving. Id. The Martinez Court thus concluded that she had been seized for Fourth Amendment purposes and that reasonable suspicion was necessary to justify the stop. Id. at 515-16.

This Court has previously stated that

if during a mere encounter, an individual on his own accord, puts his hands in his pocket, thereby creating a potential danger to the safety of a police officer, the officer may justifiably reach for his side arm and order the individual to stop and take his hand out of his pocket. Such reaction by a police officer does not elevate the mere encounter into an investigative detention because the officer's reaction was necessitated by the individual's conduct.

See Commonwealth v. Carter, 779 A.2d 591, 594 (Pa. Super. 2001) (finding that the defendant's presence in a car with other individuals in a high crime area did not support reasonable suspicion that defendant was engaged in criminal activity) (internal citations and quotations omitted) (emphasis added).

Our Supreme Court has recognized that when police officers are investigating an allegation of narcotics trafficking in a high crime area, they are justified in asking a defendant who matches a police description to remove his hands from his pockets. See Commonwealth v. Zhahir, 561 Pa. 545, 751 A.2d 1153, 1158 (2000) (noting that defendant's suspicious behavior appeared to have been in response to police presence and that officers were justified in requesting that he remove his hands for their own safety).

Similarly, in Commonwealth v. Coleman, police officers were dispatched to a robbery in progress involving two black males wearing green hooded jackets covered by black coats. See Coleman, 19 A.3d 1111, 1114 (Pa. Super. 2011). Upon observing Coleman, who matched the flash description, the officer inquired whether he had a gun. Id. In response, Coleman fumbled with his hands in his pockets. Id. The officer then ordered Coleman to take his hands out of his pockets and, upon his refusal, bought Coleman to a police van, where two knives were recovered from his pockets. Id. Our Court concluded that the officer's request did not constitute a seizure and that the combination of 1) the description of the robber and 2) Coleman's refusal to remove his hands from his pockets was sufficient to justify an investigative detention and protective frisk. Id. at 1117.

However, a police officer is not permitted to create a dangerous situation and then use the self-created danger as the basis for escalating an encounter into a seizure. See Carter, 779 A.2d at 594 (noting that in telling suspect to put his hands in his pockets, then ordering him to take them out, police officer manufactured danger himself).

In the instant case, the initial interaction between officers and Appellee was not a mere encounter. As noted above, a mere encounter constitutes a request for information but carries no official compulsion to stop and respond. See Baldwin, 147 A.3d at 1202-03. When in response to police questioning, a person puts his hands in his pockets and is ordered to remove them, the encounter does not escalate to a seizure. See Coleman, 19 A.3d at 1116-17.

In the instant case, Appellee already had his hands in his pockets when the officers initiated the encounter, contrary to the Commonwealth's characterization in its brief. See N.T., 2/6/17, at 10. Officer Detwiler did not ask whether Appellee was armed or, indeed, ask him for any information at all. The interaction commenced with Officer Detwiler's command that Appellee remove his hands from his pocket. Thus, the initial interaction was not a "mere encounter," but was, instead, an investigative detention that must be supported by reasonable suspicion. Baldwin, 147 A.3d at 1203; see also Carter, 779 A.2d at 594.

Based upon the facts, i.e., Appellee's actions of speaking to a woman on the street in a high crime area with his hands in his pockets, we discern no reasonable suspicion sufficient for such a detention. See Carter, 779 A.2d at 594-95. Thus, Officer Detwiler's command was improper. Any potential danger in the interaction initiated by police was manufactured by Officer Detwiler himself. See Carter, 779 A.2d at 594.

Here, the Commonwealth cites to no cases to support its specific proposition and instead cites generally to the case law justifying Terry stops. See Commonwealth's Brief at 9. Even assuming, arguendo, that the interaction was a mere encounter, much of the precedent concerning similar situations does not support the Commonwealth's position.

For example, in Commonwealth v. Hall, 713 A.2d 650, 653 (Pa. Super. 1998), rev'd on other grounds, 565 Pa. 92, 771 A.2d 1232 (2001), this Court did not find that the officer's request that the defendant remove his hands from his pockets constituted a seizure; however, the defendant's subsequent refusal to comply escalated the encounter into one where the totality of the circumstances justified a stop and frisk. Id. However, in Hall, the defendant was the one to initiate contact with the police, whereas in the instant case, the police initiated contact with the defendant. Id. at 652-53.

Neither does Coleman support this position. The Commonwealth asserts that Appellee's refusal to comply with orders, along with the fact that officers encountered Appellee at 2:00 a.m. in a high crime area, demonstrated the justified belief that Appellee was armed and dangerous. However, Coleman is easily distinguishable on its facts.

The instant case is distinguishable in several important aspects. First, Coleman involved a violent crime in progress, making it more likely that the suspects may have been armed. In the instant matter, police were responding to a noise complaint. Second, in Coleman, police had a specific description of the clothing the suspects wore, and Coleman himself was wearing clothing that matched that description. There was no such description of Appellee in this case. Third, in Coleman, Coleman put his hands in his pockets after police initiated the encounter. Here, as noted above, it was the fact that Appellee's hands were in his pockets that caused Officer Detwiler to initiate the encounter.

Similarly, Commonwealth v. Thomas, 179 A.3d 77 (Pa. Super. 2018), is distinguishable. In Thomas, police received a report at 1:20 a.m. of a black male with a gun, dressed in a blue hooded sweatshirt and blue pants or jeans. Id. at 80. When officers arrived at the location provided in the report, they saw a black male, later identified as the defendant, wearing a black hooded sweatshirt, black jacket, and black pants, and walking down the street. Id. After circling the block, the officers noticed the defendant sitting on a stoop. Id. As the officers circled the block four or five times, they noticed the defendant watching them, reversing his direction away from them, and looking again. Id. By the time the officers stopped the defendant, he had his hands in his pockets and refused to remove them when ordered. Id. Officers patted him down, and felt a gun in his pockets. Id.

The Thomas panel characterized this interaction as a mere encounter and noted that the defendant was not seized when officers asked him to remove his hands from his pockets. Id. at 82-83. In support, the panel quoted Coleman to note that such a reaction by a police officer does not elevate the mere encounter into an investigative detention because the reaction was necessitated by the individual's conduct. Id. (quoting Coleman, 19 A.3d at 1117).

The instant case is again distinguishable on the facts. First, the officers in Thomas had a description of the suspect, namely, a black male wearing a dark hooded sweatshirt and jeans. Id. at 80. Although the description of the clothing was not exact, it was reasonably close given the late hour. In the instant matter, there was no description of the suspect at all: not race, not gender, not clothing. Second, the report in Thomas was of a man with a gun, a matter in which officers would reasonably fear for their safety upon seeing a man with his hands in his pockets. Id. at 80. In the instant case, officers were responding to a noise complaint, with no reports of weapons. Further, the individual's conduct did not necessitate the officer's reaction: Appellee was speaking to two women, with his hands in his pockets. In contrast, the Thomas defendant behaved suspiciously by appearing to attempt to evade the police before he was stopped. Id. at 80-83.

Accordingly, Thomas and Coleman do not affect our analysis and conclusion that the encounter in the instant case was an investigative detention which was initiated without reasonable suspicion. Baldwin, 147 A.3d at 1203; see also Carter, 779 A.2d at 594; Coleman, 19 A.3d at 1117; Thomas, 179 A.3d at 80-83.

Here, the police initiated this interaction without reasonable suspicion. See Carter, 779 A.2d at 594. Whatever happened after was of no moment, as the critical point in the interaction was Officer Detwiler's improper command.3 Accordingly, the suppression court did not err in granting Appellee's motion, and we affirm.

Order affirmed.

Judge Bowes joins this opinion and files a Concurring Opinion.

President Judge Emeritus Stevens files a Dissenting Opinion.

CONCURRING OPINION BY BOWES, J.:

I join Judge Ransom's thoughtful opinion. I write separately to respond to President Judge Emeritus Stevens's dissent, and to note my view that our opinion today is limited to the facts. I would not foreclose a finding that a command to remove hands is constitutionally reasonable even in the absence of reasonable suspicion. My analysis follows.

Judge Stevens states that the police officers "had every right to approach and question Appellee, especially at 2 a.m., in a high crime area." Dissenting Opinion at 137. That is accurate, but misleading as it fails to consider Appellee's rights. An officer is free to approach and ask questions. "Law enforcement officers do not violate the Fourth Amendment's prohibition of unreasonable seizures merely by approaching individuals on the street or in other public places and putting questions to them if they are willing to listen." United States v. Drayton, 536 U.S. 194, 200, 122 S.Ct. 2105, 153 L.Ed.2d 242 (2002) (citations omitted). The dissent ignores the fact that the flip side of that doctrine is that the citizen can simply decline the invitation. "If a reasonable person would feel free to terminate the encounter, then he or she has not been seized." Id. Thus, while officers had the right to approach Appellee and ask him to remove his hands, Appellee had the right to decline the request under the mere encounter framework.

Next, Judge Stevens errs by failing to recognize that Appellee was not asked to remove his hands, he was ordered to do so. The dissent maintains that Appellee was not seized when told to show his hands, and opines that, for purposes of ensuring the officers' safety, Appellee was required to honor the request. "[T]he record shows when the officers first approached Appellee on foot, they asked Appellee to take his hand from his pocket for their safety. At this point, the interaction between Appellee and the officers remained a mere encounter, and the officer's request to see Appellee's hands did not turn the encounter into an investigative detention." Dissenting Opinion at 139 (emphasis in original).

I cannot agree that this interaction was a mere encounter. According to Judge Stevens, the officers merely asked Appellee to show his hands. When Appellee failed to do so, his failure to abide by these requests justified the frisk. "Appellee's refusal to comply with the officer's request to refrain from concealing his hands in his pocket gave the officer reason to believe that Appellee could have a weapon and justified the subsequent protective frisk." Dissenting Opinion at 140. This analysis falls apart once one considers, under mere encounter principles, that Appellee was not obligated to submit to the show of authority. How, then, does the refusal to comply create reasonable suspicion that Appellee was armed and dangerous? The dissent appears to embrace the dangerous view, espoused by the Commonwealth, that an individual with nothing to hide will simply obey the authorities.

Appellee's refusal to submit to a simple request by Ptlm. Detwiler to remove his hands, is certainly a factor that a reasonable police officer may consider when determining whether to demand a person submit to a "Terry frisk". Had Appellee simply removed his hand, Ptlm. Detwiler may have been able to deal with the situation differently.

Commonwealth's brief at 7 n.1.

The dissent continues:

When an individual refuses to comply with a reasonable request to remove his hands from his pocket and the circumstances lead an officer to believe that the individual is armed and dangerous, the police officer should have the right to do a brief pat-down search of that individual for the police officer's personal safety. We should not create a policy that says otherwise.

Dissenting opinion at 140.

Respectfully, this case is not about creating policies, it is about applying the Fourth Amendment, and I do not find support in the law for that conclusion. With respect to frisks, it is well-settled that

Warrantless searches and seizures (such as occurred in this case) are unreasonable per se, unless conducted pursuant to specifically established and well-delineated exceptions to the warrant requirement. One such exception, the Terry "stop and frisk," permits a police officer to briefly detain a citizen for investigatory purposes if the officer observes unusual conduct which leads him to reasonably conclude, in light of his experience, that criminal activity may be afoot. Terry further held that when an officer is justified in believing that the individual whose suspicious behavior he is investigating at close range is armed and presently dangerous to the officer or to others the officer may conduct a pat down search to determine whether the person is in fact carrying a weapon. The purpose of this limited search is not to discover evidence of crime, but to allow the officer to pursue his investigation without fear of violence.

Commonwealth v. Simmons, 17 A.3d 399, 403 (Pa.Super. 2011) (cleaned up).

Thus, during a Terry stop, i.e., a stop supported by reasonable suspicion, a frisk is permitted when there is a justification to believe that the individual is armed and dangerous. On what grounds did the officer believe that Appellee, who was not under investigation for any criminal activity, was armed and dangerous? Aside from the refusal to submit to authority, I discern no reason. Judge Stevens does not grapple with that question, and states that the officer should be permitted to conduct a frisk due to the failure to comply with the request. Therefore, the dissent appears to promulgate a per se rule that an officer may approach any citizen for any reason, and demand to see their hands. The result of noncompliance is an invasive pat-down search. That rule cannot be squared with precedent.

As the majority noted, this decision is largely limited to this "fact-specific inquiry[.]" Majority opinion at 130. I do not interpret our opinion to foreclose the possibility that an order to remove hands, even in the absence of reasonable suspicion, is constitutionally valid. I offer these additional thoughts.

There is no doubt that officer safety is a weighty and valid consideration in a Fourth Amendment analysis. Indeed, "`[T]he ultimate touchstone of the Fourth Amendment,' we have often said, `is reasonableness.'" Michigan v. Fisher, 558 U.S. 45, 47, 130 S.Ct. 546, 175 L.Ed.2d 410 (2009) (quoting Brigham City, Utah v. Stuart, 547 U.S. 398, 403, 126 S.Ct. 1943, 164 L.Ed.2d 650 (2006)). Warrantless seizures and searches thus may be deemed reasonable if "the exigencies of the situation make the needs of law enforcement so compelling that the warrantless search is objectively reasonable under the Fourth Amendment." Mincey v. Arizona, 437 U.S. 385, 394, 98 S.Ct. 2408, 57 L.Ed.2d 290 (1978) (quotation marks and citation omitted).

Presently, a seizure occurred when Appellee was ordered to remove his hands. Thus, the question is whether the seizure was reasonable. The seizure was minimally invasive to the degree it was de minimis, as there is no great privacy interest involved in removing one's hands from pockets. Nevertheless, it was a seizure. Thus, there must be some showing that the law enforcement needs were so compelling that the seizure, no matter how minimal, was objectively reasonable. On this point, I find persuasive the following analysis set forth by the United States Court of Appeals for the Ninth Circuit in United States v. Enslin, 327 F.3d 788 (9th Cir. 2003).

In Enslin, federal marshals were searching for a fugitive, and had information that the fugitive was in a particular home. The marshals received permission to search the home, and in the course of the search entered a back bedroom. Enslin was in the bed, and had apparently been sleeping. "Concerned for their safety while they searched the room ... [marshals] ordered Enslin to show his hands." Id. at 791. He complied, and his movement shifted the covers, revealing a gun. The Court determined that the gun was not subject to suppression. I quote the pertinent analysis in full.

B. The marshals' order to Enslin to show his hands imposed only a de minimis obligation upon him and does not require suppression of the gun that was then in plain view. Enslin asserts that he was seized without reasonable suspicion when the marshals ordered him to show his hands as they entered the back bedroom. Therefore, Enslin contends that the district court should have suppressed the gun that the marshals saw when Enslin complied with their order. To address this claim, we must determine whether the marshals' order constituted a seizure under the Fourth Amendment and, if so, whether it was nonetheless reasonable under the circumstances. We answer both inquiries in the affirmative. 1. The show hands order constituted a seizure under the Fourth Amendment. The Government argues that the marshals' order to Enslin to show his hands did not constitute a seizure pursuant to the Fourth Amendment. We disagree. "The Fourth Amendment applies to all seizures of the person, including seizures that involve only a brief detention short of traditional arrest." The appropriate inquiry is whether the marshals' order "in some way restrain[ed]" Enslin's liberty such that a reasonable person under the circumstances would not have felt free to disregard the order. Even if the official interference with an individual's liberty is brief, provided that it is some sort of "meaningful interference... with an individual's freedom of movement," it constitutes a seizure. We think that the show hands order was a "meaningful interference" with Enslin's freedom. He had his hands covered and two armed marshals ordered him to reveal his hands. A reasonable person in Enslin's situation would not have felt free to ignore the request of the marshals, who likely had their hands on their weapons when they gave the order. Therefore, the marshals' order to Enslin to show his hands constituted a seizure within the meaning of the Fourth Amendment. 2. The show hands order did not violate the Fourth Amendment because it was not an unreasonable seizure. Our conclusion that the show hands order was a seizure does not end the inquiry, "[f]or the Fourth Amendment does not proscribe all searches and seizures, but only those that are unreasonable." The marshals' order to Enslin to show his hands, although technically a seizure, does not violate the Fourth Amendment because it was not an unreasonable seizure under the circumstances. The obligation placed upon Enslin to reveal his hands for officer safety during the search for a fugitive was de minimis and thus constitutionally reasonable. Any inquiry into the reasonableness of a seizure requires "a careful balancing of the nature and quality of the intrusion on the individual's Fourth Amendment interests against the countervailing governmental interests at stake." In this case, that balance affirmatively favors the Government's interest in officer safety, leading us to conclude that the marshals' order was constitutional. On Enslin's side of the balance, requiring an individual to reveal his hands does force him to show a part of his person that was otherwise concealed. However, the nature and quality of the intrusion are minimal.

Id. at 795-96 (footnotes omitted).

I find this analysis compelling. As applied herein, the order to show hands resulted in a seizure, which was minimally invasive. However, I cannot find that it was reasonable under these particular circumstances. Enslin differs from in this case to a significant degree in terms of the facts, as the marshals therein were attempting to serve an arrest warrant for a fugitive, and were lawfully authorized to search the home. Herein, Appellee was merely on the street. While I agree that the fact the encounter occurred at 2:00 a.m. in a high crime area is pertinent to the analysis, the fact is that the officers were responding to a simple noise complaint. There is no indication that Appellee and his apparent companions were doing anything warranting a police interaction beyond a mere encounter.1 Thus, the only need to protect officer safety in this situation was caused by their initiating the encounter. Cf. Kentucky v. King, 563 U.S. 452, 462, 131 S.Ct. 1849, 179 L.Ed.2d 865 (2011) ("Where, as here, the police did not create the exigency by engaging or threatening to engage in conduct that violates the Fourth Amendment, warrantless entry to prevent the destruction of evidence is reasonable and thus allowed.").

I would not find, as set forth by the analysis employed in Enslin, that all orders to show hands are constitutionally unreasonable even in the absence of a seizure supported by reasonable suspicion of criminal activity. In other cases, there may well be additional facts that tip the Fourth Amendment balance in favor of law enforcement safety. Here, however, the officers conceded that they did not intend to address the noise complaint before engaging Appellee, whom they suspected would leave the area if the officers addressed the noise complaint. See Majority opinion at 128. Therefore, the officers had a mere hunch that Appellee may have been involved in criminal activity, and seized him on that impermissible basis. Therefore, I join the majority opinion.

DISSENTING OPINION BY STEVENS, P.J.E.:

Our society is seeing an alarming trend of law enforcement officers being attacked.1 Given the need to balance the protection of law enforcement officers with the constitutional rights of an individual under investigation, there may be reasonable differences of opinion in any given set of facts.

Here, respectfully, the police officers under the facts of this case had every right to approach and question Appellee, especially at 2 a.m., in a high crime area. Considering these facts, when Appellee refused to remove his hand from his pocket, the officers found it necessary to conduct a limited protective frisk of Appellee's person for their personal safety. There is nothing intrusive about the actions of the police officers in this case that justifies a suppression order.

Law enforcement officers should have the right to ask an individual to take his hand out of his pocket for their safety. We must remember that police officers in the line of duty are faced with on-the-spot decisions in a highly stressful environment. It is perfectly reasonable to give officers some leeway in asking an individual to remove their hands from their pockets during an interaction.

As the trial court erred in concluding that the police officers unlawfully seized Appellee by approaching him and subsequently asking him to take his hands out of his pockets to ensure their safety, I respectfully dissent.

A police officer does not need any level of suspicion to approach an individual and ask them questions. Commonwealth v. Baldwin, 147 A.3d 1200, 1202-1203 (Pa.Super. 2016).

Both the United States and Pennsylvania Supreme Courts have held that the approach of a police officer followed by questioning does not constitute a seizure. Florida v. Bostick, 501 U.S. 429, 434, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991) (police can approach people at random, ask questions, and seek consent to search) (collecting cases); Florida v. Royer, 460 U.S. 491, 497, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983) ("law enforcement officers do not violate the Fourth Amendment by merely approaching an individual in the street or in another public place, by asking him is he is willing to answer some questions, [or] by putting questions to him if the person is willing to listen"); Commonwealth v. Smith, 575 Pa. 203, 836 A.2d 5, 11 (2003) ("the mere approach of police followed by police questioning ... does not amount to a seizure"); In re D.M., 566 Pa. 445, 781 A.2d 1161, 1164 (2001) ("the police may approach anyone in a public place to talk to him, without any level of suspicion").

Commonwealth v. Thomas, 179 A.3d 77, 82 (Pa.Super. 2018) (quoting Commonwealth v. Coleman, 19 A.3d 1111, 1117 (Pa.Super. 2011)).

Our courts have repeatedly held that an officer's request that an individual remove their hands from their pockets does not escalate a mere encounter to an investigative detention requiring reasonable suspicion.

An officer is justified in insisting that a citizen not conceal his hands during an encounter with police; an officer may make this reasonable request to ensure his or her own protection in case that individual is armed. This Court has stated that "if during a mere encounter, an individual on his own accord, puts his hands in his pocket, thereby creating a potential danger to the safety of a police officer, the officer may justifiably reach for his side arm and order the individual to stop and take his hand out of his pocket. Such reaction by a police officer does not elevate the mere encounter into an investigative detention because the officer's reaction was necessitated by the individual's conduct." Commonwealth v. Carter, 779 A.2d 591, 594 (Pa.Super. 2001). Coleman, 19 A.3d at 1117 (quoting Commonwealth v. Carter, 779 A.2d 591, 594 (Pa.Super. 2001) (noting that the fact that the officer asked the appellant to take his hands out of his pockets did not turn the encounter into a seizure)). See also Commonwealth v. Blair, 860 A.2d 567, 573 (Pa.Super. 2004) (finding that interaction remained a mere encounter when an officer approached a parked car and asked its occupants to show their hands).

Thomas, 179 A.3d at 83.

During a mere encounter, however, an officer may recognize the need to conduct a protective frisk of an individual if he reasonably believes the person is armed and dangerous. This Court has held:

[w]hen an officer is justified in believing that the individual whose suspicious behavior he is investigating at close range is armed and presently dangerous to the officer or to others[,] the officer may conduct a pat down search to determine whether the person is in fact carrying a weapon. Terry [v. Ohio, 392 U.S. 1, 24, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)]. "The purpose of this limited search is not to discover evidence of crime, but to allow the officer to pursue his investigation without fear of violence." Adams v. Williams, 407 U.S. 143, 146, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972).

Commonwealth v. Simmons, 17 A.3d 399, 403 (Pa.Super. 2011) (quotation marks omitted). Further, "the court must be guided by common sense concerns that give preference to the safety of the police officer during an encounter with a suspect where circumstances indicate that the suspect may have, or may be reaching for, a weapon." Commonwealth v. Stevenson, 894 A.2d 759, 772 (Pa.Super. 2006) (citation omitted) (emphasis in original).

In Thomas, police officers were on patrol when they received a report of a black male with a gun in a high crime area in Philadelphia. When the officers arrived at the reported location, they observed a black male, later identified as the appellee, walking eastbound on Greenway Avenue. After the officers circled the block in their patrol car four or five times, the officers observed the appellee repeatedly reverse his direction and look back at the officers each time they passed by.

Although the appellee did not meet the exact description outlined in the dispatch report, the officers believed the appellee's behavior was suspicious and approached him. Appellee had his hands in his pockets but refused the officers' request to remove them. At that point, the officers conducted a limited protective frisk of the appellee's person for their personal safety.

The Thomas Court reversed the lower court's decision to suppress the evidence and rejected its finding that the officers lacked the requisite suspicion to approach the appellee, ask him to show his hands, and conduct a brief protective frisk. Thomas, 179 A.3d at 84. First, the Thomas court found the officers' request for the appellee to remove his hands from his pockets did not escalate the encounter into an investigative detention. See Coleman, supra; Blair, supra. Second, the Thomas Court determined that the appellee's refusal to remove his hands from his pockets justified a brief protective frisk of his person for the officers' protection.

Specifically, this Court found that "[i]t was reasonable for [the officers] to infer that Appellee may have been armed and dangerous, given his refusal to show his hands and his evasive movements in response to police presence in an area specifically known for high levels of crime and violence." Thomas, 179 A.3d at 83-84. See Commonwealth v. Hall, 713 A.2d 650, 653 (Pa.Super. 1998), rev'd on other grounds, 565 Pa. 92, 771 A.2d 1232 (2001) (finding although that officer's request that the defendant to remove his hands from his pockets did not constitute a seizure, the defendant's persistence in keeping his hands concealed escalated the encounter into one where the totality of the circumstances justified a frisk).

Similarly, in the instant case, the record shows when the officers first approached Appellee on foot, they asked Appellee to take his hand from his pocket for their safety. At this point, the interaction between Appellee and the officers remained a mere encounter, and the officer's request to see Appellee's hands did not turn the encounter into an investigative detention. See Thomas, supra; Coleman, supra; Blair, supra.

Thereafter, Appellee refused to comply with officers' request to remove his hand from his pocket. This suspicious behavior, along with the fact that the officers had encountered Appellee at approximately 2 a.m. in a high crime area, demonstrates that the officers were justified in attempting to perform a pat-down of Appellee for their personal safety as they reasonably believed that Appellee was armed and dangerous. See Thomas, supra; Hall, supra.

Moreover, I cannot agree with the Majority's assertion that the Officer Detwiler had no right to command Appellee to stop concealing his hand as "[a]ny potential danger in the interaction initiated by police was manufactured by Officer Detwiler himself." Majority, at 131. The Majority's position is unsupported by the aforementioned precedent, and its reliance on this Court's decision in Carter is misplaced. In Carter, the officer pulled his firearm on the appellee and told him to remove his hand from his pocket; however, the officer admitted on cross-examination that he had initially told the defendant to place his hand in his pocket. This Court questioned the validity of the officer's belief that the defendant was armed and dangerous:

Since it was the officer who told Appellee to put his hand in his pocket, we find it absurd that the officer would then argue that he became concerned for his safety when Appellee complied with his directive. A police officer cannot for instance, ask an individual to pick up a gun lying on the floor, and then claim that he was afraid for his safety because the individual picked up the gun. A police officer is not permitted to create a dangerous situation and then use the self-created danger as the basis for escalating an encounter into a seizure.

Carter, 779 A.2d at 594. This Court found that the officer escalated the situation into an investigative detention when he reached for his weapon and ordered the appellee to show his hands.

Moreover, the Carter panel went on to clarify that its conclusion would have been different had the appellee put his hand in his pocket without being prompted by the officer. The Carter panel explained that the officer's response in reaching for his side arm and ordering the appellee to show his hands would not have escalated the encounter into an investigative detention as the officer would have reasonably feared for his safety as the appellee could have been retrieving a weapon from his pocket.

There is nothing in the record in the instant case to suggest the police officers directed Appellee to put his hands in his pockets. Thus, the decision in Carter does not support the Majority's conclusion.

In this same manner, I disagree with the Majority's suggestion that an officer has no right to ask an individual to remove his hands from his pockets without escalating an interaction from a mere encounter to an investigative detention. Permitting an officer to request that an individual not conceal his hands during an interaction promotes officer safety and allows the officer to pursue the interaction with less apprehension of violence.

When an individual refuses to comply with a reasonable request to remove his hands from his pocket and the circumstances lead an officer to believe that the individual is armed and dangerous, the police officer should have the right to do a brief pat-down search of that individual for the police officer's personal safety. We should not create a policy that says otherwise.

As a result, consistent with the aforementioned precedent, Appellee's refusal to comply with the officer's request to refrain from concealing his hands in his pocket gave the officer reason to believe that Appellee could have a weapon and justified the subsequent protective frisk.

Further, if this Court were to uphold the constitutionality of the frisk of Appellant's person, the officers were also justified in pursuing Appellee after he fled the scene. Our courts have held that a police officer's pursuit of a fleeing suspect constitutes a seizure under Article 1, Section 8 of the Pennsylvania Constitution, which provides broader protection than the Fourth Amendment of the United States Constitution. Commonwealth v. Matos, 543 Pa. 449, 461-62, 672 A.2d 769, 775-76 (1996); California v. Hodari D., 499 U.S. 621, 111 S.Ct. 1547, 113 L.Ed.2d 690 (1991) (holding that a police officer's pursuit of a fleeing suspect does not automatically trigger the protection of the Fourth Amendment). Therefore, "any items abandoned by an individual under pursuit are considered fruits of a seizure. Those items may only be received in evidence when an officer, before giving chase, has at least the reasonable suspicion necessary for an investigatory stop." Commonwealth v. Taggart, 997 A.2d 1189, 1193 (Pa.Super. 2010) (quoting In re M.D., 781 A.2d 192, 197 (Pa.Super. 2001)).

Appellee's unprovoked flight in a high crime area gave the officers reasonable suspicion to pursue and stop him. Our Supreme Court has held that "unprovoked flight in a high crime area is sufficient to create a reasonable suspicion to justify a Terry stop under the Fourth Amendment." In re D.M., 566 Pa. 445, 450, 781 A.2d 1161, 1164 (2001) (citing Illinois v. Wardlow, 528 U.S. 119, 120 S.Ct. 673, 145 L.Ed.2d 570 (2000)).2 Thus, the trial court erred in holding that the police lacked reasonable suspicion to justify their initial attempt to stop and frisk Appellee.3

For the foregoing reasons, I dissent.

FootNotes


* Former Justice specially assigned to the Superior Court.
1. 35 P.S. § 780-113(a)(30); 18 Pa.C.S. §§ 5104, 5121, and 5503, respectively.
2. In its notice of appeal, the Commonwealth certified that the suppression court's order granting Appellee's motion to suppress terminates or substantially handicaps the prosecution. See Pa.R.A.P. 311(d) (permitting interlocutory appeal where Commonwealth certifies with its notice of appeal that order terminates or substantially handicaps prosecution). Thus, the appeal is properly before us. See Commonwealth v. Ivy, 146 A.3d 241, 244 n.2 (Pa. Super. 2016).
3. Accordingly, the Commonwealth's second issue — that the court erred in suppressing items discarded as Appellee ran — is moot based upon our disposition of the first issue.
1. The Commonwealth asserts that the officers had reasonable suspicion to detain Appellee, which we reject. See Majority Opinion at 130-31. If the Commonwealth were correct on this point, the analysis with respect to officer safety would dramatically shift, as the existence of reasonable suspicion may be a basis to further temporarily restrict Appellee's liberty. See e.g. Pennsylvania v. Mimms, 434 U.S. 106, 98 S.Ct. 330, 54 L.Ed.2d 331 (1977) (per curiam) (explaining that once a motor vehicle is lawfully detained, officers may order the driver to exit the vehicle due to the interest in officer safety outweighing the de minimis additional intrusion).
1. Within just a ten-day span, there were two such attacks in Luzerne County, Pennsylvania. On May 31, 2018, in Edwardsville, several officers were attacked while investigating a violent domestic dispute. Officers allegedly assaulted after domestic in Edwardsville, Times Leader, 6/1/18, https://www.timesleader.com/news/706303/officers-allegedly-assaultedafter-domestic-in-edwardsville. On June 9, 2018, in Hazleton, a man on an all-terrain vehicle (ATV) attempted to run over a police officer who was attempting to offer him assistance. Man on ATV tries to run down officer who was there to help him, Standard Speaker, 6/11/18, at 1. A simple internet search produces a plethora of attacks on law enforcement officers.
2. To justify an investigative detention based a suspect's unprovoked flight in a high crime area, "the suspect must know he is running from law enforcement before a reasonable suspicion can attach." Commonwealth v. Washington, 51 A.3d 895, 898 (Pa. Super. 2012). There is no question that Appellee recognized the officers as law enforcement as they were in full uniform, arrived in a marked patrol car, and identified themselves as officers.
3. Appellee's suppression motion solely alleged that the officers lacked reasonable suspicion to support their attempt to stop and frisk him. Appellee does not challenge the propriety of the officers' search of his person. Thus, it is not necessary to review this issue. See Commonwealth v. Freeman, 128 A.3d 1231, 1241-42 (Pa.Super. 2015) (reiterating that a suppression motion must "state[] specifically and with particularity the evidence sought to be suppressed, the grounds for suppression, and the facts and events in support thereof").

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