J-A08011-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
KENNITH C. MONROE
No. 712 EDA 2016
Appeal from the Order Entered February 12, 2016
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0010262-2015
BEFORE: PANELLA, J., LAZARUS, J., and STEVENS, P.J.E.*
MEMORANDUM BY PANELLA, J. FILED JULY 18, 2017
The Commonwealth of Pennsylvania appeals1 from the order entered
on February 12, 2016, in the Court of Common Pleas of Philadelphia County.
The order granted Appellee Kennith2 C. Monroe’s pretrial motion to suppress
evidence. We reverse and remand for further proceedings.
____________________________________________
*
Former Justice specially assigned to the Superior Court.
1
This appeal is permissible as of right because the Commonwealth has
certified in good faith that the suppression order submitted for our review
substantially handicaps the prosecution and the appeal is not intended for
delay purposes. See Pa.R.A.P. 311(d).
2
There appears to be some discrepancy in the record concerning the correct
spelling of Appellee’s first name. We have adopted the spelling that appears
on Appellant’s Notice of Appeal and in Appellee’s Brief. See Notice of Appeal,
3/10/16; Appellee’s Brief, 12/19/16.
J-A08011-17
The relevant facts and procedural history are as follows. On June 8,
2015, Monroe was arrested and charged with possession of a firearm without
a license and carrying a firearm on the streets of Philadelphia.3 Monroe filed
a motion to suppress. The trial court held a suppression hearing.
At the hearing, the Commonwealth presented the testimony of Police
Officer Timothy Gibson. Officer Gibson testified that on the evening of June
8, 2015, he and his partner, Officer Loesch, were on patrol in a marked
police vehicle in the area of 1900 North Broad Street in Philadelphia. See
N.T., Suppression Hearing, 2/2/16, at 7-8.4 At approximately 10:50 p.m.,
Officer Gibson observed a male, driving a purple Vespa scooter southbound
on North Broad Street, disregard a red light at the intersection of North
Broad street and Norris street. See id., at 8. The driver, later identified as
Monroe, continued southbound and drove through another red light at the
intersection of North Broad Street and Paulette Walk. See id. The officers
activated the police vehicle’s siren and external lights and directed Monroe
to pull his vehicle to the side of the road. See id. Monroe complied,
disembarked, and stood beside the Vespa. See id.
____________________________________________
3
18 Pa.C.S.A. §§ 6106(A)(1) and 6108, respectively.
4
While the record reflects that the suppression hearing took place on
February 2, 2016, the Notes of Testimony indicates that the suppression
hearing took place on February 2, 2015. See N.T., 2/2/16. We will to refer
to the correct date, February 2, 2016, when citing to this document.
-2-
J-A08011-17
As Officer Gibson approached Monroe, Monroe, without prompting,
informed Officer Gibson that “[i]t’s my friend’s [sic] Mike’s bike.” Id.
Further, Officer Gibson noted that Monroe appeared “very nervous,” was
“swaying back and forth, continuously reaching into his pockets,” and was
almost “stuttering” as he spoke to the officers. Id., at 8-9. Officer Gibson
informed Monroe that they had pulled him over for running the red lights
and asked Monroe for insurance, registration and his identification. See id.,
at 9, 23. At this point, Monroe calmed down but was unable to find the
insurance or registration for the Vespa and did not have identification on his
person. See id., at 9-11. However, Monroe provided his name for Officer
Gibson, who left Monroe with Officer Loesch and ran Monroe’s name through
the NCIC/PCIC system to check for outstanding warrants. See id., at 12.
Officer Gibson did not find any warrants, but returned to Monore to
confirm that his identification information was correct. Upon his return,
Officer Gibson noted that Monroe “became extremely nervous swaying back
and forth again, reaching in both of his pockets, and his right hand kept
reaching into his pocket as if he was bringing an object out of his pocket but
then pushing it back in.” Id., at 12, 25-26. Based upon his six years of
experience and his knowledge of robberies in the area, Officer Gibson
believed that Monroe might be concealing a weapon, feared for his life and
the life of his partner, and therefore conducted an open hand frisk for
weapons. See id., at 12-14, 27.
-3-
J-A08011-17
During the frisk, Officer Gibson felt a bulge in Monroe’s front right
pocket that he “immediately recognized as possibly being the handle of a
firearm.” Id., at 13. He removed the object from Monroe’s pocket—and
recovered a .22 caliber handgun. See id.
On cross-examination, Officer Gibson disclosed that although his intent
in stopping Monroe was to discuss the red light traffic violations or to issue
tickets for those violations, he did not ultimately issue a ticket for the red
light violations. See id., at 17-18. Officer Gibson clarified that because he
was still attempting to receive Monroe’s identification immediately prior to
the frisk, he had never indicated that Monroe was free to leave the
interaction. See id., at 23-24. Further, Officer Gibson admitted that he
never saw any object in Monroe’s hand. See id., at 26. Overall, the entire
interaction between Officer Gibson and Monroe lasted approximately five
minutes. See id., at 24. Monroe did not testify or present any testimony on
his behalf.
Following the hearing, the court granted Monroe’s suppression motion,
stating that because there was no report of the outline of contraband or
criminal activity, Officer Gibson did not have the requisite reasonable
suspicion to frisk Monroe for weapons. See N.T., 2/12/16, at 6. Further, in
its 1925(a) statement, the court clarified that it relied upon the decision in
Commonwealth v. Reppert, 814 A.2d 1196 (Pa. Super. 2002) (en banc),
to conclude that the initial traffic stop had concluded when the frisk
occurred, and that Officer Gibson had not shown renewed reasonable
-4-
J-A08011-17
suspicion following the conclusion of the traffic stop to justify the protective
frisk. See Trial Court Opinion, 5/18/16, at 6-7. This appeal followed.
On appeal, the Commonwealth challenges the suppression court’s
decision to suppress the evidence obtained from Officer Gibson’s search of
Appellee. See Commonwealth’s Brief, at 4. Specifically, the Commonwealth
contends Officer Gibson had a reasonable basis for conducting a protective
frisk of Monroe, and that the trial court’s reliance on Reppert is misplaced.
See id., at 13-14. We agree.
Our scope and standard of review is well settled.
When the Commonwealth appeals from a suppression order, this
Court may consider only the evidence from the [Appellee’s]
witnesses together with the evidence of the prosecution that,
when read in the context of the record as a whole, remains
uncontradicted. In our review, we are not bound by the
suppression court’s conclusions of law, and we must determine if
the suppression court properly applied the law to the facts. We
defer to the suppression court’s findings of fact because, as the
finder of fact, it is the suppression court’s prerogative to pass on
the credibility of the witnesses and the weight to be given to
their testimony.
Commonwealth v. Myers, 118 A.3d 1122, 1125 (Pa. Super. 2015)
(citation omitted). Here, the record supports the suppression court’s factual
findings as set forth at the suppression hearing.5 Thus, we proceed to review
the court’s legal conclusions, for which our standard of review is de novo and
____________________________________________
5
The court did not file a contemporaneous suppression opinion at the time it
granted the suppression motion.
-5-
J-A08011-17
our scope of review is plenary. See Commonwealth v. Wilson, 101 A.3d
1151, 1153 (Pa. Super. 2014), appeal denied, 121 A.3d 496 (Pa. 2015).
Neither side disputes that the Vespa was subject to a valid traffic stop,
i.e., investigative detention, due to Monroe’s disregard of two red traffic
lights. See N.T., 2/2/16, at 5; Commonwealth’s Brief, at 9-10. Further, the
parties agree that the frisk at issue constituted a protective weapons search,
or Terry6 frisk. See Appellee’s Brief, at 2; Commonwealth’s Brief, at 9.
Therefore, as we explain below, our focus is whether the frisk occurred
during the initial traffic stop. And if it did, were “the facts available to the
officer at the moment of the [intrusion]” sufficient “to warrant a man of
reasonable caution in the belief that the action taken was appropriate.”
Commonwealth v. Griffin, 954 A.2d 648, 651 (Pa. Super. 2008) (citation
and internal quotation marks omitted; brackets in original). We will proceed
to answer those questions.
The Fourth Amendment of the United States Constitution guarantees,
“[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. Similarly, the Pennsylvania Constitution assures
citizens of our Commonwealth that “[t]he people shall be secure in their
____________________________________________
6
Terry v. Ohio, 392 U.S. 1 (1968).
-6-
J-A08011-17
persons, houses, papers and possessions from unreasonable searches and
seizures….” Pa. Const. art. I, § 8.
Further, “[t]he reasonableness of a government intrusion varies with
the degree of privacy legitimately expected and the nature of the
governmental intrusion.” Commonwealth v. Fleet, 114 A.3d 840, 844 (Pa.
Super. 2015) (citation omitted). One such government intrusion that has
been recognized as an acceptable interaction between law enforcement and
citizens is an investigative detention, otherwise known as a Terry stop and
frisk.
A Terry stop permits an officer to briefly detain a citizen for
investigatory purposes if the officer has “reasonable suspicion based upon
specific and articulable facts, that criminal activity is afoot.”
Commonwealth v. Stevenson, 894 A.2d 759, 771 (Pa. Super. 2006)
(citation omitted). If at any point during this investigatory detention, an
“officer believes, based on specific and articulable facts, that the individual is
armed and dangerous” the officer may perform a Terry frisk. Id., at 772
(citation omitted). “The purpose of this limited search is not to discover
evidence of crime, but to allow the officer to pursue his investigation without
fear of violence.” Commonwealth v. Simmons, 17 A.3d 399, 403 (Pa.
Super. 2011) (citations omitted). “The fundamental inquiry” in reviewing the
officer’s decision “is an objective one,” utilizing “a totality of the
circumstances test.” Griffin, 954 A.2d at 651 (citations omitted).
-7-
J-A08011-17
In Reppert, the case relied upon by the suppression court, an en banc
panel of this Court set parameters on the length of the investigative
detention caused by the initial traffic stop. There, the defendant was a
passenger in a vehicle that was lawfully pulled over for expired registration
stickers. See 814 A.2d at 1199. While the vehicle was pulling over, the
arresting officer observed the defendant engaging in movements that
suggested that he was secreting an object into the seat cushions. See id.
The arresting officer interacted with the driver of the vehicle, accepted his
explanation, and decided not to issue a citation for the stop. See id. At that
point, the en banc panel determined that the traffic stop had concluded
because the officer “had realized the purpose for the stop and had no further
reasons to detain the driver of the vehicle or its occupants under the guise of
the original traffic infraction.” Id., at 1203. However, the officer then
directed the defendant to exit the vehicle and empty his pockets. See id., at
1199. As the traffic stop, i.e., investigative detention, had concluded, the
panel held that any subsequent search and seizure required a renewed
showing of reasonable suspicion to support an additional detention and frisk.
See id., at 1206.
Based upon its interpretation of this ruling, the suppression court
concluded that Officer Gibson “had realized the purpose for the stop and had
no further reasons to detain the driver of the vehicle” once Monroe provided
his name, and that therefore any frisk after that point required renewed
-8-
J-A08011-17
reasonable suspicion, which the suppression court did not find. However, the
record is devoid of any proof that Officer Gibson had realized the purpose of
the stop at the time he frisked Monroe.
Unlike Reppert, although Officer Gibson ultimately did not issue
citations for the traffic violations, there is no testimony that Officer Gibson
had decided not to issue traffic citations at any time prior to the frisk. The
officers never informed Monroe that he was free to leave. Further, as Monroe
did not have any documentation for himself or the scooter, it is highly
unlikely that the officer would have allowed him to leave prior to confirming
this information. Thus, we cannot conclude, as the suppression court did,
that Officer Gibson realized the purpose of the stop prior to the frisk.
It is clear from the suppression court’s comments, which highlighted
that Officer Gibson failed to testify regarding any indication that criminal
activity was occurring, that the trial court applied the wrong standard to
determine whether Officer Gibson had the requisite reasonable suspicion to
perform the protective frisk. Therefore, we must analyze whether Officer
Gibson had reasonable suspicion to perform a protective frisk under the
correct standard—whether the officer held an objectively reasonable belief
that the suspect may have been armed and dangerous.
When assessing the reasonableness of an officer’s decision to frisk an
individual during an investigatory detention, we are not permitted to
consider an officer’s “unparticularized suspicion or hunch,” but rather we
-9-
J-A08011-17
must consider “the specific reasonable inferences which he is entitled to
draw from the facts in light of his experience.” Stevenson, 894 A.2d at 772
(citations and internal quotation marks omitted). Further, “common sense
concerns” guide the inquiry and “give preference to the safety of the police
officer during an encounter with a suspect where circumstances indicate that
the suspect may have, or may be reaching for, a weapon.” Id (emphasis
and citation omitted).
Here, the record establishes that Officer Gibson immediately noted
that after Monroe disembarked from his Vespa, he was nervous, stuttering,
swaying back and forth, and reaching into his pockets. After Officer Gibson
asked for his information, Monroe calmed down as he looked for information
for the Vespa. However, once Officer Gibson returned from running Monroe’s
name through the system, Monroe became extremely nervous again,
resumed swaying, and began “reaching into his pocket as if he was bringing
an object out of his pocket but then pushing it back in.” N.T., Suppression
Hearing, 2/2/16, at 12, 25-26. Based upon this behavior and Officer
Gibson’s experience and knowledge of the crime in the area, he believed
Monroe to be concealing a weapon. Officer Gibson conducted a frisk, citing
fear for the safety of Officer Loesch as well as himself, and recovered a
firearm.
Viewing the totality of the circumstances, we find that Officer Gibson’s
description of Monroe’s nervous behavior during the course of a valid traffic
- 10 -
J-A08011-17
stop, coupled with his furtive movements in reaching, and seemingly
pushing an object, into his pocket, justified Officer Gibson’s reasonable
suspicion that Monroe was armed and dangerous. In fact in
Commonwealth v. Wilson, a panel of this court found that a similar furtive
movements, over a similar span of time, when witnesses within the scope of
a lawful traffic stop, provides a reasonable basis for a protective frisk. See
927 A.2d 279, 284-285 (Pa. Super. 2007) (finding that extreme nervousness
and furtive movements, combined with the fact that defendant placed his
hands inside his coat as if reaching for something, sufficient to justify a
frisk). See also Commonwealth v. Simmons, 17 A.3d 399, 404 (Pa.
Super. 2011) (finding passenger’s movements in reaching towards the floor
and across his chest during a traffic stop sufficient to justify a frisk).
Accordingly, we reverse the trial court’s suppression order and remand for
further proceedings.
Order reversed. Case remanded for proceedings consistent with this
memorandum. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/18/2017
- 11 -
Com. v. Monroe, K.
Combined Opinion