J-S44018-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
RICO GREEN
Appellee No. 1878 WDA 2013
Appeal from the Order November 14, 2013
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0003610-2013
BEFORE: BENDER, P.J.E., LAZARUS, J., and OTT, J.
MEMORANDUM BY LAZARUS, J. FILED AUGUST 08, 2014
The Commonwealth of Pennsylvania appeals from the order of the
Court of Common Pleas of Allegheny County granting Rico Green’s motion to
suppress all evidence obtained after Green was stopped by police on the
streets of Pittsburgh. After careful review, we reverse.
On September 13, 2012, Officers Mark Goob, Edward Fallert and
Michael Hoffman were on plain-clothes duty in an unmarked car driving
toward the Northview Heights neighborhood of Pittsburgh due to recent
complaints of drug activity and gun violence. While driving, Officer Fallert
observed Green walking on the sidewalk toward their vehicle. Officer Fallert
testified that Green was wearing a white t-shirt and sweatpants with an
elastic waistband, and stated that he thought Green might be carrying a
gun. Officer Goob then noticed a bulge in the front section of Green’s
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waistband, and Officer Fallert slowed the vehicle, eventually coming to a
stop. Green stopped walking, and Officers Goob and Hoffman jumped out of
the vehicle.
Officer Goob started walking toward Green, displaying his badge, and
stated, “Hey, Pittsburgh Police, can you come here for a second.” Trial Court
Opinion, 11/13/14, at 2. Green stopped and looked around for a moment
from his stationary position. Officer Goob moved closer to Green, and was
able to see the bulge more clearly. Officer Goob then asked Green if he was
carrying a gun, but Green did not respond. Officer Goob advised Green that
he was going to pat him down. Officer Goob then touched the bulge on
Green’s waistband, and “his tactile sense [told] him that it [was] the ‘handle
of a gun.’” Id. Officer Hoffman then handcuffed Green, and Officer Goob
lifted Green’s t-shirt to reveal a Smith and Wesson firearm loaded with nine
bullets.
On July 3, 2013, Green filed a timely pre-trial motion to suppress all
evidence. On July 24, 2013, the court held an evidentiary hearing on the
motion, and on November 14, 2013, the court granted the motion. The
Commonwealth filed a timely Notice of Appeal on November 26, 2013. On
December 4, 2013, the court ordered the Commonwealth to file a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b),
and the Commonwealth did so on December 24, 2013.
On appeal, the Commonwealth raises the following issue:
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Whether the suppression court erred in concluding that the
police did not have reasonable suspicion to approach [Green],
who displayed a bulge in his waistband that the officers believed
was a firearm, to inquire whether he possessed a firearm, but
then patted him down when [Green] did not answer the officer’s
question regarding the presence of the gun?
Brief of Appellant, at 4.
When reviewing a trial court’s order granting a motion to suppress, our
standard of review is as follows:
[W]e are required to determine whether the record supports the
suppression court’s factual findings and whether the legal
conclusions drawn by the suppression court from those findings
are accurate. In conducting our review, we may only examine
the evidence introduced by appellee along with any evidence
introduced by the Commonwealth which remains uncontradicted.
Our scope of review over the suppression court’s factual findings
is limited in that if these findings are supported by the record we
are bound by them. Our scope of review over the suppression
court’s legal conclusions, however, is plenary.
Commonwealth v. Gutierrez, 36 A.3d 1104, 1107 (Pa. Super. 2012).
Before reviewing the issue presented by the Commonwealth, this case
warrants an inquiry into the level of police-citizen interaction involved.
Fourth Amendment jurisprudence recognizes three levels of police-citizen
encounters:
The first [level of interaction] is the “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.
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Commonwealth v. Bryant, 866 A.2d 1143, 1146 (Pa. Super. 2005). The
trial court held, and all parties agree, that Green’s encounter with the police
began as a mere encounter, when Officer Goob stated, “Hey, Pittsburgh
Police, can you come here for a second,” and then rose to the level of an
investigative detention when Officer Goob informed Green that he was going
to pat him down. Trial Court Opinion, 11/13/14, at 5; Brief of Appellant, at
12; Brief of Appellee, at 8, 18, 25. Based on the undisputed fact that Green
was subject to an investigative detention, the Commonwealth was required
to prove that the officers had reasonable suspicion of criminal activity at the
time they patted Green down. Id. at 1146.
In evaluating whether an officer possessed reasonable suspicion to
conduct a search, the trial court must:
[E]xamin[e] the totality of the circumstances to determine
whether there was a particularized and objective basis for
suspecting the individual stopped of criminal activity. Thus, to
establish grounds for reasonable suspicion, the officer whose
impressions formed the basis for the stop must articulate specific
facts which, in conjunction with reasonable inference derived
from those facts, led him reasonably to conclude, in light of
experience, that criminal activity was afoot.
Commonwealth v. Cottman, 764 A.2d 595, 598-99 (Pa. Super. 2000).
Further, “when assessing the reasonableness of an officer’s decision to frisk
a suspect during an investigatory detention, an appellate court does not
consider the officer’s unparticularized suspicion or hunch, but rather the
specific reasonable inferences which he is entitled to draw from the facts in
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light of his experience.” Commonwealth v. Stevenson, 894 A.2d 759,
772 (Pa. Super. 2006) (quotations omitted).
Here, the trial court based its conclusion that Officers Goob and Fallert
lacked reasonable suspicion to conduct the search on the belief that the
officers failed to prove the requisite training and experience to determine
that: 1) the encounter took place in a high crime area; or 2) that Green
possessed an illegal firearm based on the bulge in his pants. We disagree.
At trial, Officers Goob and Fallert both testified that they received Top Gun
training1, and Officer Fallert testified that he also received training from the
Bureau of Alcohol, Tobacco and Firearms (ATF) in characteristics of armed
individuals, how they conceal their weapons and their mannerisms. N.T.
Suppression Hearing, 7/24/13, at 23, 38-39. Both Officers Goob and Fallert
also testified that they have made thousands of gun arrests throughout their
respective twelve and twenty years of experience on the police force. Id.
Further, Officers Goob and Fallert testified that they had experience in
the particular neighborhood of Northview Heights, given their assignment to
a team charged with combating the high levels of drug and gun activity
present there. Id. at 23. The evidence of record in the instant case is
____________________________________________
1
The Top Gun training program is a drug enforcement training program
designed for the investigator and prosecutor that highlights various stages of
a typical drug investigation from the time the initial information is received
through the resulting search warrants. Pennsylvania Narcotic Officers’
Association, available at www.pnoa.org/topgun.html (last visited on
7/17/2014).
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almost identical to that which was present in Stevenson, supra, and which
this Court deemed sufficient to establish requisite training and experience.
As such, the record does not support the trial court’s determination that
Officers Goob and Fallert lacked the necessary training and experience to
identify gun-related criminal activity. Gutierrez, supra.
Accordingly, we must turn to whether the officers had reasonable
suspicion to conduct the search, based on their training and experience. At
trial, Officer Fallert testified that while driving the unmarked police vehicle,
he observed Green walking on the sidewalk and saw “a bulge consistent with
when [he] tuck[s] [his] firearm into [his] waistband.” N.T. Suppression
Hearing, 7/24/13, at 40. He stated that the way Green was carrying the gun
is the “most common way people carry illegal firearms.” Id. Further, he
testified that Green did not appear to be of legal age to carry a firearm. Id.
At trial, Officer Goob testified that after Officer Fallert alerted him that he
believed Green was carrying a gun, he exited the vehicle, and once he was
within a few feet of Green, he “could see the object in his waistband more
clearly, and it resembled a handgun . . . so [he] asked him if he was
armed.” Id. At that point, Officer Goob advised Green that he was going to
pat him down. As such, this is the point at which Officer Goob was required
to have reasonable suspicion of criminal activity. Bryant, supra.
Based on this testimony, Officers Goob and Fallert both offered
“specific and articulable facts” to support their “objective and particularized”
suspicion that Green was in possession of a firearm. Cottman, supra.
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Accordingly, the trial court erred in granting Green’s motion to suppress, as
the record does not support the trial court’s finding that Officers Goob and
Fallert lacked reasonable suspicion to conduct the search. Gutierrez,
supra.
Order reversed. Case remanded for proceedings consistent with the
dictates of this memorandum. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/8/2014
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