Commonwealth v. Carter , 2014 Pa. Super. 265 ( 2014 )

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2014 PA Super 265COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
HYKEEM CARTER
Appellee No. 2339 EDA 2012
Appeal from the Order July 6, 2012
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0000285-2012
BEFORE: GANTMAN, P.J., FORD ELLIOTT, P.J.E., BENDER, P.J.E.,
PANELLA, J., DONOHUE, J., ALLEN, J., LAZARUS, J., MUNDY, J.,
and OLSON, J.
OPINION BY MUNDY, J.: FILED DECEMBER 02, 2014
The Commonwealth appeals from the July 6, 2012 order, granting the
motion to suppress filed by Appellee, Hykeem Carter. After careful review,
we reverse and remand for further proceedings.
We summarize the uncontradicted factual and procedural background
of this case as follows. On November 9, 2011, at approximately 9:00 p.m.,
Officer Matthew Blaszczyk of the Philadelphia Police Department was
patrolling near 700 East Madison Avenue in Philadelphia, at the corner of
Madison Avenue and G Street. N.T., 6/5/12, at 4. Officer Blaszczyk testified
that this is a known drug corner and he personally has made multiple gun
and drug arrests at this corner. Id. at 5-6. At said time, Officer Blaszczyk
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and his partner, Officer White1, were driving northbound on G Street when
they observed Appellee standing on the northeast corner of the intersection.
Id. at 4. Officer Blaszczyk “immediately observed a bulge in [Appellee’s]
left coat pocket.” Id. at 5. Officer Blaszczyk believed that it was a heavy
object because of “the way it weighed the jacket down and the way it
protruded.” Id. As Officers Blaszczyk and White drove northbound by
Appellee, Officer Blaszczyk noted that, “Appellee looked in [their] direction
and began to walk south.” Id. The officers circled around the block and
approached the intersection from a different direction. Upon returning to the
intersection, Officer Blaszczyk observed that Appellee was back on the same
corner, with the same bulge in his coat. Id. Officer Blaszczyk noted that he
and Officer White did this multiple times.
Each time we came down the street, it was a few
times, maybe three or four times, [Appellee] would
look in our direction and walk the opposite way
whichever way we were coming from.
And the way he turned his body was so that
that bulge, you know, we could see it initially. And
then he’d turn. So he wasn’t in our view.
Id. at 6.
The officers got out of their vehicle and approached [Appellee], and
again Appellee turned his body away from the officers so they could not see
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1
We note that Officer White’s first name does not appear in the certified
record.
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the bulge in his coat. Id. at 8. Officer Blaszczyk further testified that based
on the size and shape of the bulge, the way it weighed Appellee’s coat down,
and the way it swung, he believed the bulge to be a firearm. Officers
Blaszczyk and White stopped Appellee and patted him down. Id. During
the pat-down, Officer Blaszczyk noticed upon feeling the bulge, that he could
“immediately feel the shape of a firearm.” Id. Officer Blaszczyk recovered
from Appellee’s person “a 22-caliber Walther handgun, a Walther P-22
model.” Id. at 9. The handgun was also “loaded with eight live rounds[]” of
ammunition. Id.
Based on the above, Appellee was taken into custody. On January 7,
2012, the Commonwealth filed an information charging Appellee with one
count each of possession of a firearm with manufacturer’s number altered,
firearms not to be carried without a license, and carrying a firearm in public
in Philadelphia.2 On April 19, 2012, Appellee filed an omnibus pre-trial
motion, in part arguing for suppression of all evidence based on a violation
of his Fourth Amendment rights. On June 5, 2012, the suppression court
conducted an evidentiary hearing at which Officer Blaszczyk testified for the
Commonwealth. Appellee did not offer any evidence at the suppression
hearing. At the conclusion of this hearing, the suppression court denied
Appellee’s motion to suppress. The suppression court concluded that
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2
18 Pa.C.S.A. §§ 6110.2(a), 6106(a)(1), and 6108, respectively.
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reasonable suspicion existed “based on the totality of the circumstances …
[including the] high crime drug area … [a]nd the behavior of [Appellee].”
Id. at 21. The suppression court also noted that Officer Blaszczyk testified
“very credibly.” Id.
Appellee sought reconsideration of the suppression court’s order,
which was granted. The next day, on June 6, 2012, the suppression court
heard additional arguments from the Commonwealth and Appellee. The
suppression court took the matter under advisement. On July 6, 2012, the
suppression court entered a new order granting Appellee’s motion to
suppress. On August 6, 2012, the Commonwealth filed a timely notice of
appeal.3 On October 3, 2013, a divided panel of this Court affirmed the
suppression court’s order in an unpublished memorandum. The
Commonwealth filed a timely petition for reargument en banc on October
17, 2013. On December 6, 2013, this Court entered an order granting the
Commonwealth’s petition for reargument en banc and the panel
memorandum was withdrawn.
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3
We note that the 30th day following the suppression court’s July 6, 2012
order was Sunday, August 5, 2012. It is manifest that when calculating a
filing period, all weekends are excluded from said calculation. 1 Pa.C.S.A.
§ 1908. Therefore, the Commonwealth’s notice of appeal filed on Monday,
August 6, 2012, was timely. We also observe that on August 6, 2012, the
Commonwealth contemporaneously filed a concise statement of matters
complained of on appeal pursuant to Pennsylvania Rule of Appellate
Procedure 1925(b), even though the suppression court had not ordered it to
do so. The suppression court filed its Rule 1925(a) opinion on October 3,
2012.
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In its substituted brief on reargument, the Commonwealth raises one
issue for our review.
Did a police officer, who had made more than 75 gun
arrests, have reasonable suspicion to frisk [Appellee]
where the officer, while on patrol in a high-crime
neighborhood at night, observed [Appellee] on a
street corner known for illegal drug and gun activity,
and saw a weighted gun-like bulge with a sharp edge
in [Appellee]’s jacket pocket, and [Appellee], four
times within a ten-minute period, turned his body to
conceal the bulge and walked away whenever the
police drove by?
Commonwealth’s Brief at 3.
We begin by noting our well-settled standard of review.
When the Commonwealth appeals from a
suppression order, we follow a clearly defined
standard of review and consider only the evidence
from the defendant’s witnesses together with the
evidence of the prosecution that, when read in the
context of the entire record, remains uncontradicted.
The suppression court’s findings of fact bind an
appellate court if the record supports those findings.
The suppression court’s conclusions of law, however,
are not binding on an appellate court, whose duty is
to determine if the suppression court properly
applied the law to the facts.
Commonwealth v. Miller, 56 A.3d 1276, 1278-1279 (Pa. Super. 2012)
(citations omitted), appeal denied, 70 A.3d 810 (Pa. 2013). In the instant
case, the Commonwealth argues that the suppression court erred when it
concluded that Officers Blaszczyk and White violated Appellee’s Fourth
Amendment rights when they stopped him and patted him down.
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Commonwealth’s Brief at 12-20. Appellee counters that the officers lacked
any constitutional basis to stop and frisk him. Appellee’s Brief at 14.
The Fourth Amendment of the Federal Constitution provides, “[t]he
right of the people to be secure in their persons, houses, papers, and
effects, against unreasonable searches and seizures, shall not be violated
….” U.S. Const. amend. IV. Likewise, Article I, Section 8 of the
Pennsylvania Constitution states, “[t]he people shall be secure in their
persons, houses, papers and possessions from unreasonable searches and
seizures ….” Pa. Const. Art. I, § 8. Under Pennsylvania law, there are three
levels of encounter that aid courts in conducting search and seizure
analyses.
The first of these is a “mere encounter” (or request
for information) which need not be supported by any
level of suspicion, but carries no official compulsion
to stop or respond. The second, an “investigative
detention” must be supported by reasonable
suspicion; it subjects a suspect to a stop and period
of detention, but does not involve such coercive
conditions as to constitute the functional equivalent
of arrest. Finally, an arrest or “custodial detention”
must be supported by probable cause.
Commonwealth v. Williams, 73 A.3d 609, 613 (Pa. Super. 2013) (citation
omitted), appeal denied, 87 A.3d 320 (Pa. 2014). In this case, the
Commonwealth and Appellee agree that the seizure that took place was an
investigative detention, requiring reasonable suspicion. Commonwealth’s
Brief at 6; Appellee’s Brief at 12.
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“The Fourth Amendment permits brief investigative stops … when a
law enforcement officer has a particularized and objective basis for
suspecting the particular person stopped of criminal activity.” Navarette v.
California, 134 S. Ct. 1683, 1687 (2014). It is axiomatic that to establish
reasonable suspicion, an officer “must be able to articulate something more
than an inchoate and unparticularized suspicion or hunch.” United States
v. Sokolow, 490 U.S. 1, 7 (1989) (internal quotation marks and citation
omitted). Unlike the other amendments pertaining to criminal proceedings,
the Fourth Amendment is unique as it has standards built into its text, i.e.,
reasonableness and probable cause. See generally U.S. Const. amend. IV.
However, as the Supreme Court has long recognized, Terry v. Ohio, 392
U.S. 1 (1968) is an exception to the textual standard of probable cause.
Florida v. Royer, 460 U.S. 491, 498 (1983). A suppression court is
required to “take[] into account the totality of the circumstances—the whole
picture.” Navarette, supra (internal quotation marks and citation omitted).
When conducting a Terry analysis, it is incumbent on the suppression court
to inquire, based on all of the circumstances known to the officer ex ante,
whether an objective basis for the seizure was present.4 Adams v.
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4
To further illustrate the scope of the required analysis, we note that
although the officer in this case was correct that the bulge in Appellee’s
jacket was a gun, the Commonwealth does not get rewarded as a
constitutional matter. Conversely, the Commonwealth would not be
penalized if the officer had been wrong because Terry, by its very nature,
(Footnote Continued Next Page)
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Williams, 407 U.S. 143, 146 (1972). In addition, an officer may conduct a
limited search, i.e., a pat-down of the person stopped, if the officer
possesses reasonable suspicion that the person stopped may be armed and
dangerous. United States v. Place, 462 U.S. 696, 702 (1983) (citation
omitted).
In this case, Officer Blaszczyk testified to the following facts that led to
his decision to stop and pat-down Appellee.
Q: I’d like to direct your attention back to
November 9, 2011 at approximately 9 p.m.[,] were
you on duty as a Philadelphia police officer?
A: Yes, I was.
…
Q: Can you please tell [the suppression court]
what, if anything, you observed [Appellee] doing?
…
A: Your Honor, on that date and time, I was
working with my partner Officer White, badge
number 7097. We were all on routine patrol in the
area when we drove northbound on “G” Street when
we observed [Appellee].
He was standing on the northeast corner. He
was wearing all black clothing. I immediately
observed a bulge in his left coat pocket.
I could tell it was something heavy by the way
it weighed the jacket down and the way it protruded.
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(Footnote Continued)
“accepts the risk that officers may stop innocent people.” Illinois v.
Wardlow, 528 U.S. 119, 126 (2000).
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My partner and I, as we drove northbound on the
block, [Appellee] looked in our direction.
Q: Was he driving or were you? Was he in a
vehicle or on the street?
A: [Appellee]?
Q: Yes.
A: He was standing. He was on foot.
Q: I thought you said when he drove --
[Appellee]?
A: No. When my partner and I drove northbound
on “G” Street, he looked in our direction and began
to walk south. My partner and I stopped. And he
appeared to have left the area.
My partner and I circled back around. He
came from a different direction this time. And he
was back on that corner. I observed the bulge again
and got another look at it.
My partner and I made observations over the
course of about 10 minutes. And, eventually, my
partner and I, based on our experience in that area,
[knew that] “G” and Madison is a known drug corner.
It’s a corner where I’ve made multiple gun
arrests, multiple drug arrests. And based on my
experience in that area, my partner and I decided to
stop [Appellee].
Q: When you were observing [Appellee] was he
doing anything other than standing on the corner?
Was he looking at you or anything?
…
A: Each time we came down the street, it was a
few times, maybe three or four times, he would look
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in our direction and walk the opposite way whichever
way we were coming from.
And the way he turned his body was so that
that bulge, you know, we could see it initially. And
then he’d turn. So he wasn’t in our view.
Q: And about how many times did that happen
when he turned his body away from you?
A: About three or four.
…
Q: And how long have you been a Philadelphia
police officer?
A: About six years now.
Q: And has it always been in the 25th district?
A: Yes.
Q: How many gun arrests have you made in that
area?
A: I’d say approximately 75 or more[].
…
Q: Have you made any gun arrests in that
particular area of “G” and Madison?
A: Yes, I’ve made about, I’d say, between 8 and
10 just in that area alone.
Q: And, in your experience, and during this arrest,
where on the person’s person did you find these
guns?
A: Most of the time it’s either in a coat pocket or
tucked in a waistband. But also I’ve seen people
have it directly in their pants pocket. But all of my
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gun arrests, I don’t think any of them were carrying
a gun in a holster.
…
Q: And what occurred when you and your partner
decided to get out of your vehicle?
A: Well, my partner and I approached [Appellee]
for investigation. He turned his body away. That
bulge, that we believed was his firearm, he turned
his body so that that item was away from us.
Q: Just one question, what made you believe this
was a firearm?
A: Just based on the size, shape of it, weight. It
weighed his jacket down. The way it kind of swung.
Just my experience in that area. My experience in
dealing with firearms.
…
Q: And what did you do when you stopped him?
A: Conducted just the pat-down for weapons.
And immediately when I felt that bulge, I could
immediately feel the shape of a firearm.
Q: And what, if anything, did you recover?
A: I recovered a 22-caliber Walther handgun, a
Walther P-22 model. It was loaded with eight live
rounds.
N.T., 6/5/12, at 3-9.
Based on the above-cited testimony, the Commonwealth argues that
“Officer Blaszczyk’s suspicions were aroused when he spotted [Appellee] on
a street corner known for criminal activity, including illegal gun activity, and
observed, in [Appellee]’s coat pocket, a weighted bulge described as having
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a sharply angled contour.” Commonwealth’s Brief at 13. However, in
Appellee’s view there was no reasonable suspicion in this case because “[n]o
tips were made, no crime was reported, no criminal conduct was observed,
nor did Appellee engage in any conduct which would even suggest criminal
activity.” Appellee’s Brief at 15.
The suppression court concluded Officer Blaszczyk did not have
reasonable suspicion, as the observations he testified to making, viewed
individually, were not enough to meet the threshold of reasonable suspicion.
First, the suppression court addressed the Commonwealth’s argument that
“Officer Blaszczyk had reasonable suspicion because [Appellee] turned his
body away from the officer so they would not see his pocket.” Suppression
Court Opinion, 10/3/12, at 7. The suppression court concluded that
“[Appellee]’s action in moving around to prevent the officer from viewing the
content of his pocket is innocent activity in nature and certainly cannot
under established law lead the officer to believe that criminal activity was
afoot.” Id. The suppression court next addressed “the Commonwealth[’s]
attempt[] to establish reasonable suspicion because the officer noticed the
bulge weighed down Appellee’s pocket.” Id. at 8. The suppression court
rejected this factor because Officer Blaszczyk lacked any “expertise or
specialized training that would lead him to believe that anything that is
weighted down is a gun.” Id. The suppression court then moved on to
consider “the fact that the officer described the bulge as having a sharp
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angle to indicate that the officer knew Appellee had a gun prior to the pat
down.” Id. The suppression court rejected this factor because “nothing was
presented to [the suppression court] by way of experience or expertise to
establish by the preponderance of the evidence that” the bulge was a gun.
Therefore, the suppression court concluded “[t]he officer’s observation of a
bulge showing a sharp angle that weighed down in Appellee’s jacket is
inadequate.” Id. Lastly, the suppression court rejected the
Commonwealth’s “attempts to impute experience to Officer Blaszczyk that
he clearly [did] not possess.” Id. Although the suppression court
acknowledged Officer Blaszczyk’s six years on the force up to that date, the
court nevertheless concluded, “the Commonwealth failed to provide a nexus
between the officer’s purported experience and his ability to identify a
nondescript bulge as a gun in the circumstances described therein.” Id. at
8-9.
The Commonwealth argues that the suppression court’s analysis was
flawed in three ways. First, although the suppression court correctly stated
a totality of the circumstances was required, in the Commonwealth’s view,
“the [suppression] court went on to a piecemeal analysis of various factors
that, in its view, were individually insufficient to supply reasonable
suspicion.” Commonwealth’s Brief at 12. The Commonwealth argues that
this cuts against the principles announced by the Supreme Court in United
States v. Arvizu, 534 U.S. 266 (2002). Id. at 13. Second, the
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Commonwealth criticizes the suppression court’s rejection of factors because
they were equally consistent with innocent conduct. Id. at 16-17. Third,
the Commonwealth avers the suppression court improperly rejected Officer
Blaszczyk’s observations as to the bulge in Appellee’s coat because he lacked
any specialized training in guns. Id. at 15.
In Arvizu, the defendant “was stopped by a border patrol agent while
driving on an unpaved road in a remote area of southeastern Arizona.”
Arvizu, supra at 268. An eventual search of his van by the border patrol
revealed 100 pounds of marijuana. Id. The District Court denied Arvizu’s
motion to suppress the marijuana based on a lack of reasonable suspicion of
criminal activity by the border patrol. Id. However, the Ninth Circuit
reversed after “examin[ing] each [factor] in turn.” Id. at 272. In its view,
“the District Court’s analysis [relied] on a list of 10 factors … [but] seven of
the factors, including [Arvizu]’s slowing down, his failure to acknowledge
[the border patrol agent], the raised position of the children’s knees [inside
the van], and their odd waving carried little or no weight in the reasonable-
suspicion calculus.” Id. The Supreme Court granted certiorari and
reversed, concluding that the Ninth Circuit’s mode of analysis was contrary
to the Court’s reasonable suspicion cases.
We think that the approach taken by the Court of
Appeals here departs sharply from the teachings of
these cases. The court’s evaluation and rejection of
seven of the listed factors in isolation from each
other does not take into account the totality of the
circumstances, as our cases have understood that
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phrase. The court appeared to believe that each
observation by [the border patrol agent] that was by
itself readily susceptible to an innocent explanation
was entitled to no weight. Terry, however,
precludes this sort of divide-and-conquer analysis.
Id. at 274.
After careful review, we agree with the Commonwealth that the
suppression court engaged in the “divide-and-conquer” analysis proscribed
by Arvizu. The suppression court evaluated individual factors, concluded at
the end of each paragraph that they were insufficient to establish reasonable
suspicion in some form and ended its analysis with the conclusion that the
Commonwealth had not established reasonable suspicion as none of the
factors testified to by Officer Blaszczyk were sufficient. See Suppression
Court Opinion, 10/3/12, at 7-9. Arvizu and Terry forbid this mode of
analysis.5 See Arvizu, supra; accord Commonwealth v. Walls, 53 A.3d
889, 894-895 (Pa. Super. 2012).
The suppression court’s conclusion that reasonable suspicion did not
exist, in part, because “[Appellee]’s action in moving around to prevent the
officer from viewing the content of his pocket is innocent activity …” is in
conflict with Arvizu and the Terry line of cases. Suppression Court Opinion,
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5
We agree with the dissent that the suppression court titled its analysis at
the outset as one concerning the totality of the circumstances. See
Dissenting Opinion at 2, quoting Suppression Court Opinion, 10/3/12, at 7.
Our disagreement with the suppression court, however, is based on its
subsequent analysis of each factor in isolation.
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10/3/12, at 7. Further, even in a case where one could say that the conduct
of a person is equally consistent with innocent activity, the suppression
court would not be foreclosed from concluding that reasonable suspicion
nevertheless existed. See Navarette, supra (stating, “the level of
suspicion the [Terry] standard requires is considerably less than proof of
wrongdoing by a preponderance of the evidence[]”) (internal quotation
marks omitted; emphasis added), quoting Sokolow, supra at 7;
Commonwealth v. Caban, 60 A.3d 120, 129 (Pa. Super. 2012) (stating,
“even a combination of innocent facts, when taken together, may warrant
further investigation by the police officer[]”) (citation omitted), appeal
denied, 79 A.3d 1097 (Pa. 2013). As the Supreme Court pointed out in
Arvizu, in Terry itself, the conduct of the defendant could have easily been
characterized as completely innocent.
The officer in Terry observed [Terry] and his
companions repeatedly walk back and forth, look
into a store window, and confer with one another.
Although each of the series of acts was perhaps
innocent in itself, we held that, taken together, they
warranted further investigation. See also Sokolow,
supra, at 9[] (holding that factors which by
themselves were quite consistent with innocent
travel collectively amounted to reasonable
suspicion).
Arvizu, supra at 274-275 (internal quotation marks and some citations
omitted); see also Terry, supra at 5-7.
The suppression court also disregarded Officer Blaszczyk’s
observations as to the bulge in Appellee’s coat because “nothing was
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presented to [the suppression court] by way of experience of expertise to
establish by the preponderance of the evidence that” the bulge was a gun.
Suppression Court Opinion, 10/3/12, at 8. The suppression court exclusively
relied on this Court’s decision in Commonwealth v. Stevenson, 894 A.2d
759 (Pa. Super. 2006), appeal denied, 917 A.2d 846 (Pa. 2007) for its
rationale. See Suppression Court Opinion, 10/3/12, at 8.
In conducting a reasonable suspicion inquiry, a suppression court is
required to “afford due weight to the specific, reasonable inferences drawn
from the facts in light of the officer’s experience[.]” Commonwealth v.
Brown, 996 A.2d 473, 477 (Pa. 2010); see also Commonwealth v.
Foglia, 979 A.2d 357, 361 (Pa. Super. 2009) (en banc) (concluding that
reasonable suspicion for a Terry stop existed in part because the defendant
“touched his waist area and sat down on a stoop behind some females …
[and t]he police officer was aware, based upon his experience with armed
suspects, that weapons are often concealed in a person’s waistband[]”),
appeal denied, 990 A.2d 727 (Pa. 2010). “Among the circumstances that
can give rise to reasonable suspicion are the [officer]’s knowledge of the
methods used in recent criminal activity and the characteristics of persons
engaged in such illegal practices.” United States v. Mendenhall, 446 U.S.
544, 563 (1980).
In Stevenson, this Court concluded that reasonable suspicion existed
for a Terry stop based upon the following.
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The Commonwealth’s evidence, which we must
consider as credible in this appeal, establishes that
the officers observed that [Stevenson] possessed a
concealed weapon; that [Stevenson] acted
suspiciously and in a manner that suggested that his
weapon may be illegal or unlicensed; that
[Stevenson] carried his weapon in a location on his
person that, in Officer Absten’s experience, indicated
that the weapon may be illegal or unlicensed; and
that Officer Absten had the requisite training and
experience to make the necessary assessments as to
whether [Stevenson] was carrying an illegal or
unlicensed weapon.
Stevenson, supra at 772-773 (footnote omitted). Relevant to this appeal,
this Court noted that the officer based his decision to stop Stevenson in part
due to heightened training the officer had received in his career.
Officer Absten then made his own assessment, based
on Bureau of Alcohol, Tobacco and Firearms (“ATF”)
training he had received on identifying armed
subjects and types of firearms. This training had
included means of identifying certain mannerisms
characteristic of persons not professionally familiar
with carrying handguns. Also, the police officers had
been trained to be cognizant of apparently weighted
pockets and the visible outline of firearms pressing
from inside the pockets.
Id. at 764. It is from these two passages in Stevenson that the
suppression court rejected Officer Blaszczyk’s observations of Appellee in
this case, because he lacked any specific or special training like the officer in
Stevenson had received.
We agree with the Stevenson Court that any specialized training
received by an officer is undoubtedly relevant to, and may be critical in,
conducting a reasonable suspicion analysis. However, the suppression
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court’s decision in this case goes one step beyond Stevenson, insofar that
the suppression court implicitly required Officer Blaszczyk to have similar
heightened training in order for observations to have any significance. In
the suppression court’s view, “[t]he mere fact that an officer carries [a] gun,
knows other people who carry guns, received training at the academy or has
been in the force for six years do[es] not aid the officer in establishing
reasonable suspicion … in this case.” Suppression Court Opinion, 10/3/12,
at 8.
The suppression court’s rationale is in tension with the prior cases
cited above. In this case, Officer Blaszczyk formed his suspicions based in
part on his six years’ experience as a Philadelphia police officer, conducting
over 75 gun arrests, eight to ten of which were specifically located at the
corner at which he encountered Appellee. Officer Blaszczyk further testified
that in his experience, many people who carry guns do so in their coat
pockets. See N.T., 6/5/12, at 7, 8. Officer Blaszczyk was permitted to
utilize his “knowledge of the methods used in recent criminal activity” in
order to form his decision as to whether to stop Appellee. Mendenhall,
supra. Officer Blaszczyk was not required to receive specialized training in
order to make his decision. Nothing contained in Stevenson suggests this
Court intended to impose such a burdensome requirement on law
enforcement.
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In the case sub judice, the Commonwealth, through Officer Blaszczyk,
established that Appellee was in a high-crime area, at night, with a weighted
and angled bulge in his coat pocket. Furthermore, Appellee was alerted to
the officers’ presence and intentionally turned his body away from them, at
least three times, to conceal the bulge. The officers also observed Appellee
walking away from the known drug corner whenever the officer’s passed by
it.6 In our view, the Commonwealth sufficiently showed that Officer
Blaszczyk had the reasonable suspicion to first seize Appellee as well as
conduct the limited Terry pat-down, as the entire basis for Officer
Blaszczyk’s seizure before the pat-down was that Appellee was armed and
dangerous. See Place, supra; Foglia, supra at 361 (stating, “[s]ince the
criminal activity in question involved possession of a firearm and since
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6
We agree with Appellee’s assertion that “[w]here an officer, without
reasonable suspicion or probable cause, approaches an individual, the
individual has a right to ignore the police and go about his business.”
Appellee’s Brief at 15, citing Royer, supra at 497-498. However, we cannot
agree that “[t]he approach urged by the Commonwealth would also allow a
stop and frisk whenever an officer in a high-crime area encounters an
individual who wears baggy clothing … appears nervous in reaction to seeing
the police, but does not try to evade or flee.” Id. at 22. It is axiomatic that
an ordinary citizen may stand on a street corner, even in a high-crime area
as “[o]ur caselaw is quite emphatic that an individual's mere presence in a
high crime area is manifestly insufficient to justify a Terry stop.”
Commonwealth v. Alaya, 791 A.2d 1202, 1210 (Pa. Super. 2002).
Nothing in our decision today circumscribes an individual’s otherwise general
right to stand or be present on a street corner. See, e.g., Commonwealth
v. Chambers, 55 A.3d 1208, 1216 (Pa. Super. 2012) (concluding no
reasonable suspicion existed where the defendant was walking on a street in
a high-crime area and took a step back after a probation officer called out
his name).
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[Foglia]’s act of patting his waistband bolstered [the officer]’s reasonable
belief that [Foglia] actually had a gun in his pants, [the officer] was
constitutionally permitted to conduct a patdown search of [Foglia]’s
waistband[]”).
Additionally, the cases Appellee has cited do not alter our conclusion.
Appellee primarily relies on Commonwealth v. Martinez, 588 A.2d 513(Pa. Super. 1991), appeal denied, 608 A.2d 29 (Pa. 1992), In re J.G., 860
A.2d 185 (Pa. Super. 2004), and Commonwealth v. Reppert, 814 A.2d
1196 (Pa. Super. 2002) (en banc). In Martinez, this Court held that the
officer did not have reasonable suspicion of criminal activity where the
defendant “walked quickly away from a group of people on a street corner
after observing a nearby police vehicle … [and] where … officers observed a
bulge in her front pocket[.]” Martinez, supra at 514. In J.G., this Court
reached the same conclusion “where the only evidence of criminal
wrongdoing was [the juvenile]’s presence in a high crime area combined
with his decision to ‘walk away’ from the police officers upon seeing their
approach.” J.G., supra at 187. Finally, in Reppert, this Court held that no
reasonable suspicion existed based on “a police officer’s observation of head
and shoulder movements of the rear seat passenger in a motor vehicle,
coupled with the officer’s conclusion … [that Reppert] appeared ‘very, very
nervous[.]’” Reppert, supra at 1199. In each of these cases, while there
may be one factor in common with the instant case, the totality of
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circumstances in each case is not analogous to the case at bar, and
therefore do not control the constitutional analysis here.7 In Martinez, the
defendant did not consistently position or turn her body so as to conceal
something from law enforcement, as Appellee did here. In J.G., the police
did not observe an angled bulge in the juvenile’s coat pocket, as the officers
did here. Finally, in Reppert, the defendant was not stopped in a high-
crime area, nor was there any type of angled bulge. In sum, as we conclude
that none of the cases cited by Appellee are persuasive in the instant
matter, the suppression court legally erred when it concluded that Appellee’s
Fourth Amendment rights have been violated. See Miller, supra.Based on the foregoing, we conclude that the suppression court legally
erred when it granted Appellee’s motion to suppress. Accordingly, the
suppression court’s July 6, 2012 order is reversed, and the case is remanded
for further proceedings, consistent with this opinion.
____________________________________________
7
Appellee also relies on the Sixth Circuit’s decision in United States v.
Patterson, 340 F.3d 368 (6th Cir. 2003). In that case, the Court of Appeals
concluded that no reasonable suspicion existed based on the defendant
standing with a group, walking away from the officers as they approached
and where one member of the group, not Patterson, “ma[de] a throwing
motion towards the bushes.” Id. at 369-370. We note, “this Court is not
bound by decisions of federal courts inferior to the United States Supreme
Court, even though we may look to them for guidance.” Commonwealth v.
Huggins, 68 A.3d 962, 968 (Pa. Super. 2013) (citation omitted), appeal
denied, 80 A.3d 775 (Pa. 2013). Additionally, the United States presented
even less than the Commonwealth had in Martinez, as in Patterson, the
Court of Appeals highlighted that the one person who made any tossing
movements was not the defendant.
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Order reversed. Case remanded. Jurisdiction relinquished.
President Judge Gantman, President Judge Emeritus Ford Elliott,
President Judge Emeritus Bender, and Judges Panella, Allen and Olson join
the opinion.
Judge Lazarus files a dissenting opinion in which Judge Donohue
concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/2/2014
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