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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: R.J., A MINOR IN THE SUPERIOR COURT OF
PENNSYLVANIA
APPEAL OF: R.J., A MINOR
No. 1567 EDA 2015
Appeal from the Dispositional Order May 27, 2015
In the Court of Common Pleas of Philadelphia County
Juvenile Division at No(s): CP-51-JV-0000948-2015
BEFORE: OTT, J., DUBOW, J., and JENKINS, J.
MEMORANDUM BY JENKINS, J.: FILED FEBRUARY 19, 2016
Appellant R.J., a minor, appeals from the dispositional order entered in
the Philadelphia County Court of Common Pleas following his adjudication of
delinquency for possession of a firearm by a minor1 and carrying a firearm
on public streets in Philadelphia.2 After careful review, we affirm.
On April 29, 2015, at approximately 7:30 p.m., Officer Kennedy and
Officer McCarthy responded to a radio call that a black male in camouflaged
clothing had fired a gun near Kozy’s Bar by 51st Street and Haverford
Avenue. Suppression Hearing N.T., 5/18/2015, at 3-4. The officers
observed three males in a breezeway between houses near Kozy’s Bar, one
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1
18 Pa.C.S. § 6110.1(a).
2
18 Pa.C.S. § 6108.
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of whom was wearing camouflaged pants. Id. at 4. When the police officers
introduced themselves as such, one of the three males fled, leaving
Appellant and the male wearing the camouflaged pants standing shoulder to
shoulder in the breezeway. Id. The police then observed a silver gun on
the ground approximately one foot away from the man with the camouflaged
pants. Id. At this point, the officers frisked both males, detaining them
with handcuffs so that they would not lunge at the gun. Id. While frisking
Appellant, Officer Kennedy felt a hard metal object, which was a firearm.
Id. at 5. Appellant was arrested and charged with possession of a firearm
with manufacturer number altered,3 firearms not to be carried without a
license,4 possession of a firearm by a minor, and carrying a firearm on public
streets in Philadelphia.
On May 5, 2015, Appellant filed a motion to suppress all physical
evidence on the basis that his stop, frisk, and arrest were illegal as police
lacked reasonable suspicion to detain him and lacked probable cause to
arrest him. On May 18, 2015, the court conducted a hearing and denied
Appellant’s motion. Following a bench trial, the court found Appellant guilty
of possession of a firearm by a minor and carrying a firearm on public
streets in Philadelphia and acquitted Appellant of the other charges.
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3
18 Pa.C.S. § 6110.2(a).
4
18 Pa.C.S. § 6106(a)(1).
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On May 27, 2015, Appellant filed a timely notice of appeal. Both
Appellant and the trial court complied with Pa.R.A.P. 1925.
Appellant raises the following issue for our review:
DID NOT THE [TRIAL] COURT ERR IN DENYING
[APPELLANT’S] MOTION TO SUPPRESS PHYSICAL
EVIDENCE WHEN AN OFFICER ILLEGALLY DETAINED AND
SEIZED [APPELLANT] ON LESS THAN PROBABLE CAUSE
OR REASONABLE SUSPICION BASED ON AN
UNSUBSTANTIATED AND UNCORROBORATED ANONYMOUS
TIP?
Appellant’s Brief at 3.
Appellant argues police illegally detained and arrested him. He claims
that the anonymous tip the officers received did not provide reasonable
suspicion for a Terry5 stop. Appellant avers that when the officers
handcuffed him, they were placing him under the functional equivalent of
arrest for which they lacked probable cause. Appellant concludes the court
erred in denying his motion to suppress. We disagree.
When addressing a challenge to a trial court’s denial of a suppression
motion, our standard of review is “whether the factual findings are
supported by the record and whether the legal conclusions drawn from these
facts are correct.” Commonwealth v. Hawkins, 45 A.3d 1123, 1126
(Pa.Super.2012), appeal denied, 53 A.3d 756 (Pa.2012) (internal citation
omitted). Further:
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5
Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).
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[w]hen reviewing the rulings of a suppression court, we
must consider only the evidence of the prosecution and so
much of the evidence for the defense as remains
uncontradicted when read in the context of the record as a
whole. Where the record supports the findings of the
suppression court, we are bound by those facts and may
reverse only if the legal conclusions drawn therefrom are
in error.
Id. (citations and internal quotation marks omitted). Additionally, when
reviewing the suppression court’s rulings, we consider only the suppression
record. In re L.J., 79 A.3d 1073, 1085 (Pa.2013) (“it is inappropriate to
consider trial evidence as a matter of course, because it is simply not part of
the suppression record, absent a finding that such evidence was unavailable
during the suppression hearing.”).
Pennsylvania recognizes three types of interactions between police
officers and citizens. Commonwealth v. Stevenson, 832 A.2d 1123,
1126-27, (Pa.Super.2003). “Interaction between citizens and police officers,
under search and seizure law, is varied and requires different levels of
justification depending upon the nature of the interaction and whether or not
the citizen is detained.” Id.
The first category, a mere encounter or request for
information, does not need to be supported by any level of
suspicion, and does not carry any official compulsion to
stop or respond. The second category, an investigative
detention, derives from [Terry, supra.] and its progeny:
such a detention is lawful if supported by reasonable
suspicion because, although it subjects a suspect to a stop
and a period of detention, it does not involve such coercive
conditions as to constitute the functional equivalent of an
arrest. The final category, the arrest or custodial
detention, must be supported by probable cause.
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Commonwealth v. Gonzalez, 979 A.2d 879, 884 (Pa.Super.2009) (quoting
Commonwealth v. Moyer, 954 A.2d 659, 663 (Pa.Super.2008) (en banc)
(quoting Commonwealth v. Smith, 836 A.2d 5, 10 (Pa.2003))).
A “mere encounter” can be any formal or informal
interaction between an officer and a citizen, but will
normally be an inquiry by the officer of a citizen. The
hallmark of this interaction is that it carries no official
compulsion to stop or respond.
In contrast, an “investigative detention,” by implication,
carries an official compulsion to stop and respond, but the
detention is temporary, unless it results in the formation of
probable cause for arrest, and does not possess the
coercive conditions consistent with a formal arrest. Since
this interaction has elements of official compulsion it
requires “reasonable suspicion” of unlawful activity. In
further contrast, a custodial detention occurs when the
nature, duration and conditions of an investigative
detention become so coercive as to be, practically
speaking, the functional equivalent of an arrest.
Stevenson, 832 A.2d at 1127-29.
We analyze whether a “mere encounter” has risen to the level of an
“investigative detention” under the following standard:
To guide the crucial inquiry as to whether or not a seizure
has been effected, the United States Supreme Court has
devised an objective test entailing a determination of
whether, in view of all surrounding circumstances, a
reasonable person would have believed that he was free to
leave. In evaluating the circumstances, the focus is
directed toward whether, by means of physical force or
show of authority, the citizen-subject’s movement has in
some way been restrained. In making this determination,
courts must apply the totality-of-the-circumstances
approach, with no single factor dictating the ultimate
conclusion as to whether a seizure has occurred.
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Commonwealth v. Downey, 39 A.3d 401, 405 (Pa.Super.2012), appeal
denied, 50 A.3d 124 (Pa.2012) (quoting Commonwealth v. Coleman, 19
A.3d 1111, 1116 (Pa.Super.2011)).
“Police must have reasonable suspicion that a person seized is
engaged in unlawful activity before subjecting that person to an investigative
detention.” Commonwealth v. Goldsborough, 31 A.3d 299, 306
(Pa.Super.2011), appeal denied, 49 A.3d 442 (Pa.2012) (quoting
Commonwealth v. Cottman, 764 A.2d 595 (Pa.Super.2000)).
Reasonable suspicion exists only where the officer is able
to articulate specific observations which, in conjunction
with reasonable inferences derived from those
observations, led him reasonably to conclude, in light of
his experience, that criminal activity was afoot and that
the person he stopped was involved in that activity.
Therefore, the fundamental inquiry of a reviewing court
must be an objective one, namely, whether the facts
available to the officer at the moment of intrusion warrant
a [person] of reasonable caution in the belief that the
action taken was appropriate.
Id. (quoting Commonwealth v. Jones, 874 A.2d 108, 116
(Pa.Super.2005) (internal citations and quotation marks omitted)).
Police must have probable cause that a person is engaged in criminal
activity before subjecting that person to an arrest or “custodial detention.”
Goldsborough, 31 A.3d at 306.
Probable cause is made out when the facts and
circumstances which are within the knowledge of the
officer at the time of the arrest, and of which he has
reasonably trustworthy information, are sufficient to
warrant a [person] of reasonable caution in the belief that
the suspect has committed or is committing a crime. The
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question we ask is not whether the officer’s belief was
correct or more likely true than false. Rather, we require
only a probability, and not a prima facie showing, of
criminal activity. In determining whether probable cause
exists, we apply a totality of the circumstances test.
Id. (quoting Commonwealth v. Williams, 2 A.3d 611 (Pa.Super.2010) (en
banc), appeal denied, 19 A.3d 1051 (Pa.2011)) (internal citations and
quotation marks omitted) (emphasis in original).
The key difference between an investigative detention and
a custodial one is that the latter involves such coercive
conditions as to constitute the functional equivalent of an
arrest. In determining whether an encounter with the
police is custodial, the standard is an objective one, with
due consideration given to the reasonable impression
conveyed to the person interrogated rather than the
strictly subjective view of the troopers or the person being
seized and must be determined with reference to the
totality of the circumstances.
Commonwealth v. Pakacki, 901 A.2d 983, 987-88 (Pa.2006) (internal
citations omitted).
The court considers the totality of the circumstances to
determine if an encounter is investigatory or custodial, but
the following factors are specifically considered: the basis
for the detention; the duration; the location; whether the
suspect was transported against his will, how far, and why;
whether restraints were used; the show, threat or use of
force; and the methods of investigation used to confirm or
dispel suspicions.
Goldsborough, 31 A.3d at 306 (quoting Commonwealth v. Teeter, 961
A.2d 890, 899 (Pa.Super.2008)).
Here, the interaction between the police officers and Appellant began
as a mere encounter. The officers responded to a radio call about a shooting
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and a black male suspect who was dressed in camouflage. The officers saw
three men in a breezeway close to the reported scene, one of whom was
wearing camouflaged pants. They announced that they were police officers.
At this point, this was a mere encounter because the officers did not stop
Appellant or his companions.
Then, one of the three men ran without provocation. At this point, the
officers approached Appellant and his camouflaged companion and observed
a silver gun on the ground a foot away from the duo. The police officers
then had reasonable suspicion to suspect that Appellant could be involved in
illegal gun activity. At this point, the officers detained Appellant and his
comrade with handcuffs to frisk them.6 This was a reasonable measure for
officer safety considering the close proximity of the gun. It was at this point
that the frisk revealed Appellant’s gun. The police now had probable cause
to arrest Appellant.
Thus, we find the suppression court’s factual findings are supported by
the record of the suppression court and the legal conclusions drawn
therefrom are correct. See Hawkins, supra.
Dispositional order affirmed.
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6
“We, of course, do not hold that every time the police place an individual in
handcuffs that individual has been arrested.” Commonwealth v. Carter,
643 A.2d 61, 68 (Pa.1994).
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/19/2016
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In the Interest of: R.J., a Minor
Combined Opinion