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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
LUIS LOPEZ
Appellant No. 1078 WDA 2016
Appeal from the Order June 23, 2016
In the Court of Common Pleas of Erie County
Criminal Division at No(s): CP-25-CR-0002525-2015
BEFORE: OLSON, J., MOULTON, J., and STRASSBURGER, J.*
MEMORANDUM BY MOULTON, J.: FILED AUGUST 11, 2017
Luis Lopez appeals from the June 23, 2016 judgment of sentence
entered in the Erie County Court of Common Pleas following his bench trial
conviction for carrying a firearm without a license.1 We affirm.
On June 25, 2015, a confidential informant (“CI”) contacted Erie Police
Officer Jason Russell. The CI, who had previously provided credible
information to police, told Officer Russell that “two individuals on the city’s
upper west side . . . were currently in possession of firearms.” N.T.,
12/16/15, at 8. The CI named Lopez as one of the individuals. Id. at 9.
Based on prior interactions with Lopez, Officer Russell knew that Lopez was
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*
Retired Senior Judge assigned to the Superior Court.
1
18 Pa.C.S. § 6106(a)(1).
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ineligible for a firearm license because he was under 21. Id. Officer Russell
also knew the general area where Lopez could be located. Id.
Officer Russell and his partner, Officer Ginkel,2 headed to the Little
Italy section of Erie’s upper west side, which, according to Officer Russell, is
a high-crime area. Id. at 7, 10. Within ten to fifteen minutes, the officers
located Lopez seated in front of a residence. Id. The officers exited the car
and asked Lopez “what’s going on,” to which Lopez responded “what’s up?”
Id. at 12. Officer Russell then asked Lopez if he had “any firearms or
weapons on [him.]” Id. Lopez immediately turned and fled up an enclosed
flight of stairs that led to an apartment. Id. Officer Russell gave chase,
during which he saw Lopez reach “downward along his midline toward the
center of his body with his right hand.” Id. at 13. As Lopez crossed the
threshold of the apartment, Officer Russell saw Lopez’s right elbow move
“upwards and outwards away from [Lopez’s] body,” revealing a small black
pistol in Lopez’s right hand. Id. at 14. Once Officer Russell entered the
apartment, he tackled Lopez into the bathroom area and both men fell into
the bathtub. Id. at 15. Officer Russell arrested Lopez and secured the
firearm. Id.
On November 25, 2015, Lopez filed a pretrial motion to suppress the
firearm. In his motion, Lopez argued that Officers Russell and Ginkel lacked
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2
Officer Ginkel’s first name is not in the certified record.
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reasonable suspicion to stop him. After a December 16, 2015 suppression
hearing, the trial court denied Lopez’s motion. On May 11, 2016, Lopez
proceeded to a non-jury trial, after which he was convicted of the
aforementioned offense. On June 23, 2016, the trial court sentenced Lopez
to 15 to 30 months’ incarceration followed by 3 years’ probation. On July
22, 2016, Lopez timely appealed to this Court.
On appeal, Lopez asserts that the trial court erred in denying his
motion to suppress the firearm. In reviewing the denial of a suppression
motion, we must determine
whether the suppression court’s factual findings are
supported by the record and whether the legal conclusions
drawn from those facts are correct. Because the
Commonwealth prevailed before the suppression court, we
may consider only the evidence of the Commonwealth 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 suppression court’s factual findings are
supported by the record, we are bound by these findings
and may reverse only if the court’s legal conclusions are
erroneous. Where, as here, the appeal of the
determination of the suppression court turns on allegations
of legal error, the suppression court’s legal conclusions are
not binding on an appellate court, whose duty it is to
determine if the suppression court properly applied the law
to the facts. Thus, the conclusions of law of the courts
below are subject to our plenary review.
Commonwealth v. Jones, 988 A.2d 649, 654 (Pa. 2010) (internal
quotations and citations omitted).
Lopez argues that Officers Russell and Ginkel seized him and, as a
result, the officers had to have reasonable suspicion that criminal activity
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was afoot. According to Lopez, the officers lacked reasonable suspicion
because Officer Russell did not explain the circumstances by which the CI
gained information that Lopez was carrying a firearm and because nothing
about the officers’ initial contact with Lopez would lead to reasonable
suspicion of criminal activity.
The trial court concluded that Officer Russell’s initial contact with Lopez
was a mere encounter and, as a result, Loped was not seized. The trial
court also found that once Lopez fled, Officer Russell possessed reasonable
suspicion to seize Lopez, as Lopez’s “unprovoked flight in a high[-]crime
area, along with knowledge that [Lopez] was recently observed with a
firearm, provided Officer Russell with reasonable suspicion to detain
[Lopez].” Opinion, 1/15/16, at 3.
The investigation of possible criminal activity invariably brings police
officers in contact with members of the public. Depending on the
circumstances, a police-citizen encounter may implicate the liberty and
privacy interests of the citizen as embodied in both the federal constitution,
see U.S. Const. art. IV,3 and our state constitution, see Pa. Const. art. I, §
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3
The Fourth Amendment to the United States Constitution provides:
The right of the people to be secure in their persons,
houses, papers, and effects, against unreasonable
searches and seizures, shall not be violated, and no
Warrants shall issue, but upon probable cause, supported
by Oath or affirmation, and particularly describing the
(Footnote Continued Next Page)
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8.4 The law recognizes three distinct levels of interaction between police
officers and citizens: (1) a mere encounter; (2) an investigative detention;
often described as a Terry stop, see Terry v. Ohio, 392 U.S. 1 (1968); and
(3) a custodial detention. See Commonwealth v. Jones, 874 A.2d 108,
116 (Pa.Super. 2005).
“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,” Commonwealth v. DeHart, 745 A.2d 633,
636 (Pa.Super. 2000) (citation and quotation omitted), and therefore need
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(Footnote Continued)
place to be searched, and the persons or things to be
seized.
U.S. Const. amend. IV.
4
Our Supreme Court has held that “the Fourth Amendment [of the
United States Constitution] and Article I, [Section] 8 [of the Pennsylvania
Constitution] are coterminous for Terry [v. Ohio, 392 U.S. 1 (1968)]
purposes.” Commonwealth v. Chase, 960 A.2d 108, 118 (Pa. 2008).
Article I, Section 8 of the Pennsylvania Constitution provides:
The people shall be secure in their persons, houses,
papers and possessions from unreasonable searches and
seizures, and no warrant to search any place or to seize
any person or things shall issue without describing them as
nearly as may be, nor without probable cause, supported
by oath or affirmation subscribed to by the affiant.
Pa. Const. art. I, § 8.
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not be justified by any level of police suspicion, Commonwealth v. Polo,
759 A.2d 372, 375 (Pa. 2000).
An investigative detention “constitutes a seizure of a person and
activates the protections of the Fourth Amendment.” Commonwealth v.
Baldwin, 147 A.3d 1200, 1203 (Pa.Super. 2016). To determine whether
and when a seizure has occurred, we employ “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.”
Commonwealth v. Strickler, 757 A.2d 884, 889 (Pa. 2000) (citations
omitted).
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.
Id. at 890 (internal citation and footnotes omitted).
We agree with the trial court that Officer Russell’s initial contact with
Lopez was a mere encounter. When Officer Russell stopped his cruiser in
front of the residence, he did not have his emergency lights engaged, did
not tell Lopez to “stop,” and did not draw his service weapon. Rather, he
exited the vehicle and asked Lopez “what’s going on” and whether he was
carrying a firearm. Under similar circumstances, this Court has concluded
“that the approach of a police officer followed by questioning does not
constitute a seizure.” Commonwealth v. Coleman, 19 A.3d 1111, 1116
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(Pa.Super. 2011) (finding mere encounter where police officer approached
robbery suspect and asked suspect whether he was armed).
Officer Russell, however, later seized Lopez,5 which was an
investigative detention that required Officer Russell to possess reasonable
suspicion. An officer may stop and briefly detain a person for investigatory
purposes when that officer has “reasonable suspicion, based on specific and
articulable facts, that criminal activity may be afoot.” Commonwealth v.
Allen, 725 A.2d 737, 740 (Pa. 1999). “[T]he fundamental inquiry is an
objective one, namely, whether the facts available to the officer at the
moment of the intrusion warrant a man of reasonable caution in the belief
that the action taken was appropriate.” Commonwealth v. Gray, 784 A.2d
137, 142 (Pa.Super. 2001). We must consider the totality of the
circumstances, including such factors as “tips, the reliability of the
informants, time, location, and suspicious activity, including flight.” Id.
(citing Commonwealth v. Freeman, 757 A.2d 903, 908 (Pa. 2000)).
Our Supreme Court addressed a nearly identical set of circumstances
in In re D.M., 781 A.2d 1161 (Pa. 2001). There, police received a radio call
identifying a man with a gun in a specific high-crime area; the call “included
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5
For the purposes of this appeal, we presume that Lopez was seized
as soon as Officer Russell gave chase. See Commonwealth v. Cook, 735
A.2d 673, 675 (Pa. 1999) (“a police officer’s pursuit of a person fleeing the
officer [is] a seizure for purposes of Article 1, Section 8 of the Pennsylvania
Constitution”) (citing Commonwealth v. Matos, 672 A.2d 769, 776 (Pa.
1996)).
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a description of the ‘man with a gun’ as a black male, wearing a white t-
shirt, blue jeans and white sneakers.” Id. at 1162. A police officer
responded and located D.M., who matched the radio description. Id. When
the officer “exited his vehicle and told [D.M.] to come over,” D.M. fled. Id.
A back up officer apprehended and frisked D.M., finding a handgun. Id.
D.M. moved to suppress the handgun, arguing that he was seized when the
officer asked him to “come over” and the officer lacked reasonable suspicion
to stop him. Id. Our Supreme Court disagreed, concluding that D.M. was
only seized when the officer attempted to effectuate the stop and that D.M’s
flight in a high-crime area along with the anonymous caller’s information
provided the officer reasonable suspicion to stop D.M. Id. at 1165.
We conclude that D.M. controls the outcome of this case. Like D.M.,
Lopez was not seized until after he fled and Officer Russell gave chase. In
addition, like the officer in D.M., Officer Russell had reasonable suspicion
when he seized Lopez because: (1) Officer Russell had credible information
that Lopez was carrying a firearm; (2) Officer Russell knew that Lopez was
under 21 and thus ineligible to hold a permit to carry a concealed firearm;
(3) Lopez was in a high-crime area;6 and (4) Lopez fled unprovoked by
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6
We agree with the concurring memorandum that individuals living in
high-crime areas do not have fewer rights than people living elsewhere.
However, both our Supreme Court and the United States Supreme Court
have made clear that location can be relevant to the assessment of
reasonable suspicion. See D.M., 781 A.2d at 1164; Illinois v. Wardlow,
528 U.S. 119, 124-125 (2000). We reference Lopez’s location because it
(Footnote Continued Next Page)
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police. Accordingly, Officer Russell lawfully seized Lopez, and the trial court
correctly denied Lopez’s motion to suppress.
Judgment of sentence affirmed.
Judge Olson joins in the memorandum.
Judge Strassburger files a concurring memorandum.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/11/2017
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(Footnote Continued)
was a relevant factor in the trial court’s analysis. Nevertheless, our decision
should not be read as holding that, had the events taken place in a “low
crime” neighborhood, Officer Russell would have lacked reasonable suspicion
for the seizure.
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