Com. v. Hicks, M.

J-S95043-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
MICHAEL J. HICKS, :
:
Appellant : No. 510 EDA 2016
Appeal from the Judgment of Sentence January 11, 2016
in the Court of Common Pleas of Lehigh County,
Criminal Division, No(s): CP-39-CR-0005692-2014
BEFORE: STABILE, MOULTON and MUSMANNO, JJ.
MEMORANDUM BY MUSMANNO, J.: FILED MARCH 29, 2017
Michael J. Hicks (“Hicks”) appeals from the judgment of sentence
entered following his conviction of driving under the influence of alcohol
(“DUI”)—high rate of alcohol (second offense).1 We affirm.
The suppression court briefly summarized the facts underlying Hicks’s
arrest as follows:
On June 28, 2014, at approximately 2:30 [a.m.], members
of the Allentown Police Department [] were dispatched to the
Pace Mart[,] located at 640 N. 7th Street in Allentown,
Pennsylvania[,] for a male with a firearm. The male, later
identified as … [Hicks], was observed with the firearm by a city
camera operator. The camera operator advised officers that
[Hicks] showed the firearm to another patron, put the firearm in
his waistband, covered it with his shirt, and walked inside the
Pace Mart. [Hicks] eventually got back into his vehicle and
began to drive away. Based on the information provided, police
stopped [Hicks’s] vehicle.
Officer Ryan Alles [(“Officer Alles”)] approached [Hicks]
and observed him moving his hands to his waistband. As such,
1
See 75 Pa.C.S.A. § 3802(b).
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[Officer] Alles drew his weapon and ordered [Hicks] to keep his
hands up. Officer Kyle Pammer [(“Officer Pammer”)] held
[Hicks’s] arms while [Officer] Alles removed the firearm from a
holster on [Hicks’s] person, [Hicks] was removed from the
vehicle for safety reasons and handcuffed. Officers smelled the
odor of an alcoholic beverage coming from [Hicks]. During a
search of [Hicks’s] person, a small bag of green leafy vegetable
matter was found in [Hicks’s] pocket. The substance field tested
positive for marijuana.
Trial Court Order, 9/18/15, at 1-2 n.1.
Police arrested Hicks and charged him with the above-described DUI
charge, as well as with one count each of disorderly conduct, DUI—general
impairment (second offense), and possession of a small amount of
marijuana.2 Hicks filed a pretrial suppression Motion and a Motion for writ of
habeas corpus as to the charge of disorderly conduct. The suppression court
denied the suppression Motion, granted Hicks’s Motion for habeas corpus
relief, and dismissed the charge of disorderly conduct. Following a non-jury
trial, the trial court convicted Hicks of DUI—high rate of alcohol (second
offense), and acquitted him of the remaining charges. Thereafter, the trial
court sentenced Hicks to 30 days to six months in jail and to pay a fine.
Hicks filed a timely Notice of Appeal, followed by a court-ordered Pa.R.A.P.
1925(b) Concise Statement of matters complained of on appeal.
Hicks presents the following claims for our review:
A. Whether the suppression court erred in failing to grant
[Hicks’s] request for suppression of evidence by erroneously
applying the “reasonable suspicion” standard?
2
See 18 Pa.C.S.A. § 5503(a)(4); 75 Pa.C.S.A. § 3802(a)(1); 35 P.S. § 780-
113(a)(31).
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B. Whether the suppression court erred in finding that police
had sufficient reasonable suspicion to warrant the seizure of
[Hicks]?
Brief for Appellant at 4. As Hicks’s claims are related, we will address them
together.
Hicks first claims that the suppression court applied the wrong
standard in denying his suppression Motion. Id. at 9. Hicks asserts that the
suppression court erred in determining whether police had “reasonable
suspicion” of criminal activity, rather than probable cause. Id. Hicks argues
that “he was subjected to an illegal custodial detention[,]” unsupported by
the required probable cause. Id. at 9, 13. According to Hicks, the police
pole camera showed that four or five marked police cruisers, with their lights
flashing, surrounded his vehicle. Id. at 12. Hicks states that Officer Alles
approached Hicks with his gun drawn and pointed at Hicks. Id. Hicks
contends that the officers did not inform him of the reason for the vehicle
stop, or inquire as to whether he had a permit to carry a firearm. Id. Hicks
states that he was taken from his vehicle, handcuffed, frisked and placed
into a police vehicle. Id. Under these circumstances, Hicks asserts, he was
subjected to a custodial detention or an arrest, which was not supported by
the requisite probable cause. Id. at 13.
In his second claim, Hicks argues that the officers lacked reasonable
suspicion to justify his “seizure.” Id. at 15. Hicks contends that he lawfully
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possessed his weapon, and there were no indications that criminal activity
was afoot. Id. at 16.
Our “standard of review in addressing a challenge to the denial of a
suppression motion is limited to determining whether the suppression court’s
factual findings are supported by the record and whether the legal
conclusions drawn from those facts are correct.” Commonwealth v.
Mason, 130 A.3d 148, 151 (Pa. Super. 2015) (citation omitted). “[O]ur
scope of review is limited to the factual findings and legal conclusions of the
suppression court.” In re L.J., 79 A.3d 1073, 1080 (Pa. 2013) (citation
omitted). “We may consider only the Commonwealth’s evidence and so
much of the evidence for the defense as remains uncontradicted when read
in the context of the record as a whole.” Commonwealth v. Williams, 125
A.3d 425, 431 (Pa. Super. 2015) (citation omitted). “Once a defendant files
a motion to suppress, the Commonwealth has the burden of proving that the
evidence in question was lawfully obtained without violating the defendant’s
rights.” Commonwealth v. Fleet, 114 A.3d 840, 844 (Pa. Super. 2015)
(citation omitted).
As this Court has explained,
[t]he 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
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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, 624 Pa. 690, 87 A.3d
320 (Pa. 2014).
…
“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, 188 L. Ed. 2d 680 (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, 109 S.
Ct. 1581, 104 L. Ed. 2d 1 (1989) (internal quotation marks and
citations 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…..
Commonwealth v. Carter, 105 A.3d 765, 768-69 (Pa. Super. 2014) (en
banc); accord, Mason, 130 A.3d at 152.
Consequently,
[a]n officer who lacks the level of information required for
probable cause to arrest need not “simply shrug his shoulders
and allow a crime to occur or a criminal to escape.” Adams v.
Williams, 407 U.S. 143, 145, 92 S. Ct. 1921, 32 L. Ed. 2d 612-5-
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(1972). Where an officer reasonably suspects that criminal
activity is afoot, the officer may temporarily freeze the status
quo by preventing the suspect from leaving the scene in order to
ascertain his identity and gather additional information. Terry
v. Ohio, 392 U.S. 1, 21, 20 L. Ed. 2d 889, 88 S. Ct. 1868(1968). The officer may also conduct a quick frisk for weapons if
he reasonably fears that the person with whom he is dealing
may be armed and dangerous. Id. The question of whether
reasonable suspicion existed at the time of an investigatory
detention must be answered by examining the totality of the
circumstances to determine whether there was a particularized
and objective basis for suspecting the individual stopped of
criminal activity. United States v. Cortez, 449 U.S. 411, 417,
66 L. Ed. 2d 621, 101 S. Ct. 690 (1981). There is no ready test
for determining reasonableness other than by balancing the need
to search or seize against the invasion to which the search or
seizure entails. Terry, 392 U.S. at 21. Police are generally
justified in stopping an individual when relying on information
transmitted by a valid police bulletin. United States v.
Hensley, 469 U.S. 221, 232, 83 L. Ed. 2d 604, 105 S. Ct. 675(1985).
In the Interest of D.M., 727 A.2d 556, 557-58 (Pa. 1999).
Finally, the United States Supreme Court has explained that “the right
to make an arrest or investigatory stop necessarily carries with it the right to
use some degree of physical coercion or threat thereof to effect it[.]”
Graham v. Connor, 490 U.S. 386, 396 (1989). When police officers make
an investigative stop, they may take such steps as are “reasonably
necessary to protect their personal safety and to maintain the status quo
during the course of the stop.” Hensley, 469 U.S. at 235. In evaluating the
reasonableness of the officer’s use of force, we “judge from the perspective
of a reasonable officer on the scene, rather than with the 20/20 vision of
hindsight.” Graham, 490 U.S. at 443.
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At the suppression hearing, Officer Pammer, an eight-year veteran of
the Allentown Police Department, testified that at about 3:00 a.m., he and
his partner, Officer Michael Mancini (“Officer Mancini”) received a radio
dispatch regarding “an individual at the Pace Market Gulf station … that was
brandishing a firearm.” N.T., 7/14/15, at 6. Officer Pammer described the
location as a “high crime neighborhood,” and explained that the police
department has received calls regarding drug dealing, people with weapons
and loitering at that location. Id. at 7. According to Officer Pammer, the
radio dispatch informed all units “that a male in a white shirt was
brandishing a firearm towards another male at the Pace Mart and that he
was driving, I believe it was a silver Chevy.” Id. at 7-8. Officer Pammer
described what next transpired as follows:
Myself and Officer Mancini[,] including several other officers that
were available at that time[,] proceeding to that location. As we
were pulling up to the location, I observed that Officer Alles was
the first officer to be on location. He was at the rear of …
[Hicks’s] vehicle, which was a silver Chevy Impala. It was
occupied by one male[,] who was [Hicks]. He was at the gas
pumps, [Hicks] was in the vehicle and it was running.
Id. at 8. Officer Pammer stated that he and the other officers were in
uniform, and were driving marked police units. Id. Officer Pammer testified
as to what he observed as follows:
When I first arrived, … Officer Alles … began running up towards
the vehicle, [and] about halfway up towards the vehicle[,] I
observed that he did unholster his weapon due to the nature of
the call. … I heard him yelling verbal commands, I couldn’t make
them out because we were still a distance away. He went up to
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the … driver’s side of the door and appeared to be giving
commands to [Hicks].
…
I started approaching[] Officer Alles and the vehicle. Officer
Alles was giving verbal commands to show us his hands. I saw
that [] Hicks was moving his hands around in the car. I got up
to Officer Alles, he advised me that [Hicks] had a gun on him.
Officer Alles still had his weapon out at the time. I grabbed both
of [Hicks’s] hands and held on to him while Officer Alles removed
the firearm from the right side of [] Hicks.
…
[Hicks] was removed from the vehicle after the gun was
removed safely. I could smell, upon talking to him, he smelled
like alcohol. Officer Alles put handcuffs on him and then[,] while
I was there[,] Officer Mancini started a pat[-]down of the outer
garments of [] Hicks for any other weapons. … Officer Mancini
removed a baggie of suspected marijuana from [] Hicks’s front
right pocket.
…
We confirmed that [Hicks] did have a concealed carry permit
through Lehigh County.
Id. at 9-11.
Contrary to Hicks’s assertions, we discern no error or abuse of
discretion by the suppression court in its application of the “reasonable
suspicion” standard. Here, police stopped Hicks based upon a radio dispatch
regarding a man brandishing a firearm. “[P]ossession of a concealed firearm
in public is sufficient to create a reasonable suspicion that the individual may
be dangerous, such that an officer can approach the individual and briefly
detain him in order to investigate whether the person is properly licensed.”
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Mason, 130 A.3d at 153 (quoting Commonwealth v. Robinson, 600 A.2d
957, 959 (Pa. Super. 1991)); see also In the Interest of D.M., 727 A.2d
at 558 (stating that “[p]olice are generally justified in stopping an individual
when relying on information transmitted by a valid police bulletin”). Thus,
the trial court properly ascertained whether officers had a reasonable
suspicion that Hicks possessed a concealed firearm in public. See Mason,
130 A.3d at 153.
Viewed in a light most favorable to the Commonwealth, the totality of
the circumstances further established that the officers’ actions in removing
Hicks from the vehicle and securing him were supported by reasonable
suspicion, and reasonably necessary to “freeze the status quo[,]” prevent
Hicks from leaving the scene “in order to ascertain his identity and gather
additional information[,]” and to protect the officers’ personal safety. See
Hensley, 469 U.S. at 235; D.M., 727 A.2d at 557. As set forth above,
officers received a radio dispatch about a man in a white shirt brandishing a
weapon to another man at the Pace Mart. N.T., 7/14/15, at 7. The dispatch
indicated that the man was driving a silver Chevrolet Impala. Id. at 8.
Upon arriving at the Pace Mart, Officer Pammer observed Officer Alles
approaching Hicks, who was in a silver Chevrolet Impala located at the gas
pumps. Id. When Officer Pammer approached the vehicle, he heard Officer
Alles give Hicks commands to “show us his hands[,]” but Hicks “was moving
his hands around in the car.” Id. at 10. Officer Alles advised Officer
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Pammer that Hicks still possessed a gun. Id. Upon Officer Pammer
restraining Hicks’s hands, Officer Alles removed the weapon from Hicks,
after which Hicks was removed from the vehicle. Id. At that time, Officer
Pammer noticed an odor of alcohol on Hicks. Id. at 10-11. Accordingly, we
discern no error or abuse of discretion by the suppression court in the
standard it applied or in its conclusion that the stop was supported by the
requisite reasonable suspicion of criminal activity.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/29/2017
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