Com. v. Flanders, M. ( 2018 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
MASON FLANDERS : No. 470 EDA 2017
Appeal from the Order January 13, 2017
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0008117-2016
BEFORE: LAZARUS, J., DUBOW, J., and PLATT, J.*
MEMORANDUM BY DUBOW, J.: FILED SEPTEMBER 26, 2018
The Commonwealth of Pennsylvania appeals from the January 13, 2017
Order entered in the Philadelphia County Court of Common Pleas granting
Mason Flanders’s Motion to Suppress physical evidence and a statement he
made to police. Because we conclude that the arresting officer had reasonable
suspicion to stop Flanders for a brief investigation, we reverse the trial court’s
suppression ruling and remand for further proceedings.
On August 17, 2016, Philadelphia Police Officer Timothy Dollarton
arrested Flanders for Carrying a Firearm without a License and Carrying a
Firearm in Public in Philadelphia.1
Flanders filed an Omnibus Pretrial Motion on October 6, 2016, which
included a Motion to Suppress the firearm seized by Officer Dollarton.
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1 18 Pa.C.S. § 6106(a)(1) and 18 Pa.C.S. § 6108, respectively.
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* Retired Senior Judge assigned to the Superior Court.
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The court held a hearing on the Motion on January 13, 2017. At the
commencement of the hearing, Flanders’s counsel informed the court that
Flanders also sought to suppress statements he had made to Officer Dollarton.
Officer Dollarton, a 4-year veteran of the Philadelphia Police
Department, was the Commonwealth’s sole witness at the suppression
hearing. He testified that on the afternoon of August 17, 2016, he was
patrolling in the area of the 6000 Block of Buist Avenue in Philadelphia in a
marked police vehicle.2 N.T., 1/13/17, at 6, 8. At approximately 3:50 PM,
while stopped at a traffic light at the intersection of Buist Avenue and 61 st
Street, he saw Flanders begin to cross the street approximately 25 feet in
front of him.3 Id. at 6-7. Officer Dollarton testified that, as soon as Flanders
started walking, he noticed a bulge on the right side of the waistband of
Flanders’s pants, in the same area where Officer Dollarton places his own
firearm. Id. at 8, 11. He testified that Flanders was walking “normal[ly],”
with both arms swinging. Id. at 8-9. Officer Dollarton then testified that
Flanders looked in the direction of the police vehicle, immediately after which
Flanders stopped swinging his right arm and held it still over the bulge. Id.
at 8-9.
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2 Officer Dollarton testified that this is a high-crime area where there are many
shootings, robberies, illegal narcotics, and gun crimes, and that he had, on
one occasion, personally observed a shooting a half block from the location of
the instant stop. N.T., 1/13/17, at 6.
3 Officer Dollarton described Flanders as wearing jeans and an untucked grey
t-shirt that was not baggy. Id. at 11-13. He described Flanders’s jeans as
“regular fit . . . not particularly baggy, not particularly tight.” Id. at 18.
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Officer Dollarton testified that, after Flanders took a few more steps, he
again looked in Officer Dollarton’s direction, then stopped in the middle of the
crosswalk, and turned his body away from Officer Dollarton so that Flanders’s
back was facing Officer Dollarton. Id. at 9-10. Officer Dollarton testified that,
from that vantage point, he again saw the bulge in Flanders’s waistband. Id.
at 10. Officer Dollarton described Flanders as moving erratically across the
crosswalk, changing directions multiple times as he did so, all the while
holding his right arm across the area where Officer Dollarton had seen the
bulge in his waistband. Id. at 9-12.
Officer Dollarton recounted that he then drove his patrol vehicle directly
toward Flanders, exited his vehicle, and told Flanders to put his hands on the
hood of the police vehicle. Id. at 13. Officer Dollarton testified that, without
any prompting, Flanders announced to him that he had “just found it in the
alley.” Id. Officer Dollarton explained that he believed Flanders was referring
to the firearm that Officer Dollarton suspected Flanders had in his waistband.
Id. at 14.
Officer Dollarton testified that he then frisked Flanders in the area where
he saw the bulge and found the firearm. Id.
At the conclusion of the hearing, the trial court granted Flanders’s
Motion to Suppress the firearm and his statement, concluding that Officer
Dollarton lacked reasonable suspicion to stop Flanders. Id. at 32-33.
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The Commonwealth timely appealed, certifying that the suppression
order terminates or substantially handicaps its prosecution. See Pa.R.A.P.
311(d).
The Commonwealth raises the following issue on appeal:
Did the lower court err in concluding that Officer Dollarton did not
have reasonable suspicion to stop [Flanders] and therefore the
gun he found on him and the statement [Flanders] blurted out had
to be suppressed?
Commonwealth’s Brief at 4.
The Commonwealth challenges the trial court’s order granting Flanders’s
Motion to Suppress. Our standard of review on such matters is well-settled:
When the Commonwealth appeals from a suppression order, this
Court follows a clearly defined scope and standard of review. We
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. This
Court must first determine whether the record supports the factual
findings of the suppression court and then determine the
reasonableness of the inferences and legal conclusions drawn
from those findings. In appeals where there is no meaningful
dispute of fact, as in the case sub judice, our duty is to determine
whether the suppression court properly applied the law to the
facts of the case.
Commonwealth v. Arthur, 62 A.3d 424, 427 (Pa. Super. 2013) (internal
citations and quotation marks omitted).
The Commonwealth argues that the court erred as a matter of law in
granting Flanders’s Motion to Suppress because the totality of the
circumstances indicated that Officer Dollarton had reasonable suspicion to
stop Flanders. Commonwealth’s Brief at 12-13.
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The Fourth Amendment of the United States Constitution and Article 1,
Section 8 of our state Constitution protect citizens from unreasonable searches
and seizures. In re D.M., 781 A.2d 1161, 1163 (Pa. 2001). “To secure the
right of citizens to be free from . . . [unreasonable searches and seizures],
courts in Pennsylvania require law enforcement officers to demonstrate
ascending levels of suspicion to justify their interactions with citizens as those
interactions become more intrusive.” Commonwealth v. Beasley, 761 A.2d
621, 624 (Pa. Super. 2000). Our Supreme Court has defined three levels of
interaction between citizens and police officers: (1) mere encounter, (2)
investigative detention, and (3) custodial detention. See Commonwealth v.
Boswell, 721 A.2d 336, 340 (Pa. 1997) (OAJC). Here, the parties and the
court agree that Officer Dollarton subjected Appellant to an investigative
detention.
When evaluating the legality of investigative detentions, Pennsylvania
has adopted the holding of Terry v. Ohio, 392 U.S. 1 (1968), wherein the
United States Supreme Court held that police may conduct an investigatory
detention if they have reasonable suspicion that criminal activity is afoot.
“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.”
Commonwealth v. Carter, 105 A.3d 765, 769 (Pa. Super. 2014). In order
to justify an investigative detention, a police officer must be able to identify
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“specific and articulable facts” leading her to suspect that criminal activity is
afoot. Terry, 392 U.S. at 21.
In determining whether an officer’s stop of a defendant was supported
by reasonable suspicion, the court must consider the totality of the
circumstances, and give due weight to the reasonable inferences the officer
drew from the facts based upon his experience. Commonwealth v. Foglia,
979 A.2d 357, 360 (Pa. Super. 2009) (en banc).4 “[E]ven a combination of
innocent facts, when taken together, may warrant further investigation by the
police officer.” Id. (citation omitted). See also Carter, 105 A.3d at 771-72
(concluding that the suppression court undermined the “totality of the
circumstances” approach that should be used to determine whether a police
officer had reasonable suspicion by evaluating individual factors in isolation).
The suppression court is not foreclosed from concluding that a police
officer had reasonable suspicion even where the defendant’s conduct was
equally consistent with innocent activity. Carter, 105 A.3d at 772. See also
Commonwealth v. Davis, 102 A.3d 996, 1000 (Pa. Super. 2014) (explaining
that although the item weighing down the defendant’s pocket could have been
something other than a gun, that did not mean that it was unreasonable for
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4 In Foglia, the totality of the circumstances supporting the officer’s
reasonable suspicion included the appellant’s presence in a high crime area,
common knowledge that offenders hide firearms in waistbands, and the
experienced officer’s observation of hand movements associated with
secreting of a weapon. Foglia, 979 A.2d at 361-62.
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the police officer to suspect, based on the totality of the circumstances, that
it was a gun).
Moreover, reasonable suspicion is “considerably less than proof of
wrongdoing by a preponderance of the evidence.” Navarette v. California,
134 S. Ct. 1683, 1687 (2014). See also Commonwealth v. Fink, 700 A.2d
447, 449 (Pa. 1997) (explaining that reasonable suspicion is less than a
“certainty, a preponderance, or even a fair probability.”).
Here, the suppression court found that Officer Dollarton lacked
reasonable suspicion to subject Flanders to a non-custodial investigative stop
based on two facts: (1) that the Commonwealth did not offer evidence “to
refute the fact that there is no law that makes it illegal, when you’re in the
middle of a crosswalk, to change your mind and change direction;” and (2)
that “there is no legal requirement for someone to move their arms when they
walk.” Supp. Ct. Op., 5/24/17, at 5-6. The court nonetheless concluded that,
viewing the facts “in their totality,” Officer Dollarton “did not have reasonable
suspicion that [Flanders] was engaged in criminal activity, or that [he] may
have been in possession of a weapon in furtherance of criminal activity.” Id.
We disagree that the trial court reviewed the facts “in their totality”
before granting the Motion to Suppress.
While changing directions in a crosswalk and holding one’s arm still
across one’s waistband may not alone support a finding of reasonable
suspicion, contrary to the suppression court’s conclusion, those two
circumstances do not represent the totality of the circumstances. Rather, the
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totality of the circumstances included the fact of the area’s high crime rate,
Officer Dollarton’s 4-plus years of experience, his prior observation of a
shooting within a block of the instant location, and his observation of a bulge
in Flanders’s waistband. Combined with Flanders’s suspicious behaviors
described above, these circumstances supported Officer Dollarton’s
reasonable suspicion that criminal activity was afoot.
Given the totality of the circumstances, we conclude that the
suppression court erred as a matter of law in finding that Officer Dollarton
lacked reasonable suspicion to conduct an investigatory stop of Flanders.
Accordingly, we reverse and remand the case for further proceedings
consistent with this Memorandum.
Order reversed. Case remanded. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/26/18
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