J-S69033-17
2018 PA Super 183
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT
OF
PENNSYLVANIA
Appellant
v.
TAREEK ALQUAN HEMINGWAY
No. 684 WDA 2017
Appeal from the Order March 31, 2017
In the Court of Common Pleas of Blair County
Criminal Division at No(s): CP-07-CR-0002262-2016
BEFORE: BOWES, J., RANSOM, J., and STEVENS, P.J.E.*
OPINION BY RANSOM, J.: FILED JUNE 26, 2018
Appellant, the Commonwealth of Pennsylvania, appeals from the order
entered March 31, 2017, granting Appellee Tareek Alquan Hemingway’s
suppression motion. After careful review, we affirm.
We adopt the following statement of facts from the trial court opinion,
which in turn is supported by the record. See Trial Court Op. (TCO),
3/30/2017, at 1-5. On October 8, 2016, at approximately 2:12 a.m., Altoona
Police Department patrolmen Joseph Detwiler and Derek Tardive responded
to a noise complaint “in a high crime area.” No information or description was
given regarding any person involved in the noise complaint.
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* Former Justice specially assigned to the Superior Court.
J-S69033-17
At the location, officers observed Appellee and another man conversing
with two women in a car. Appellee had his hand in his pocket. Although
Appellee and his companion were not inside the building that was the address
of the complaint, because officers were concerned that “if they responded to
the noise complaint first, the men would not be there when they got outside,”
they approached Appellee. See Notes of Testimony (N.T.), 2/6/17, at 12.
Officer Detwiler ordered Appellee to remove his hand from his pocket. Officer
Tardive ordered Appellee to put his hands on his head and stated that he
would be conducting a pat-down search.
Rather than comply, Appellee immediately fled on foot. Subsequent to
a foot chase, the officers recovered Appellee’s shoe and near the shoe, four
bags of a white powdery substance, later identified as cocaine. Appellee was
arrested and subsequently charged with possession with intent to deliver a
controlled substance (“PWID”), resisting arrest, escape, and disorderly
conduct.1
In November 2016, Appellee filed a suppression motion, arguing that
police officers did not have reasonable suspicion to justify their initial attempt
to stop and frisk Appellee based upon his mere presence in a high crime area
and the fact that he had his hand in his pocket. In February 2017, the
suppression court convened a hearing at which Officer Detwiler testified, and
at which Officer Tardive’s preliminary hearing testimony was read into the
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1 35 P.S. § 780-113(a)(30); 18 Pa.C.S. §§ 5104, 5121, and 5503,
respectively.
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record. On March 17, 2017, the suppression court granted the order, finding
that Appellee was subjected to an unlawful investigative detention as the
officers lacked reasonable suspicion that criminal activity was afoot.
The Commonwealth timely appealed.2 Both the Commonwealth and the
court have complied with Pa.R.A.P. 1925(a)-(b).
On appeal, the Commonwealth raises the following issues for our
review:
1. Whether the suppression court erred in concluding that Officers
Detwiler and [Tardive], viewed from the standpoint of an objective
reasonable police officer, did not possess reasonable suspicion
that criminal activity may be afoot and that Appellee may be
armed and dangerous.
2. Whether the suppression court erred in suppressing controlled
substances that were not found pursuant to a search of defendant,
but were discarded by Appellee before or during his struggle with
police.
The Commonwealth’s Brief at 3.
First, the Commonwealth contends that the court erred in concluding
that officers did not possess reasonable suspicion that criminal activity may
be afoot and that Appellant was armed and dangerous. See Commw. Brief at
7-8. The Commonwealth contends that the following facts support its
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2 In its notice of appeal, the Commonwealth certified that the suppression
court’s order granting Appellee’s motion to suppress terminates or
substantially handicaps the prosecution. See Pa.R.A.P. 311(d) (permitting
interlocutory appeal where Commonwealth certifies with its notice of appeal
that order terminates or substantially handicaps prosecution). Thus, the
appeal is properly before us. See Commonwealth v. Ivy, 146 A.3d 241,
244 n.2 (Pa. Super. 2016).
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argument and subsequent investigatory stop: 1) that the time of the
encounter was 2:00 a.m.; 2) the area was a high crime area; 3) Appellee’s
interactions with the vehicle were consistent with drug transactions; 4)
Appellee “shoved his hand into his pocket when he made eye contact with the
officers.” Id. at 9-10.
When reviewing the grant of a suppression motion,
we must determine whether the record supports the trial court’s
factual findings and whether the legal conclusions drawn from
those facts are correct. We may only consider evidence presented
at the suppression hearing. In addition, because the defendant
prevailed on this issue before the suppression court, we consider
only the defendant’s evidence and so much of the
Commonwealth’s evidence as remains uncontradicted when read
in the context of the record as a whole. We may reverse only if
the legal conclusions drawn from the facts are in error.
Commonwealth v. Haines, 168 A.3d 231, 234 (Pa. Super. 2017) (internal
citations and quotations omitted).
We further note that
[t]here are three types of encounters between law enforcement
officials and private citizens. A “mere encounter” need not be
supported by any level of suspicion but carries no official
compulsion to stop or respond. An “investigative detention” must
be supported by reasonable suspicion and subjects the suspect to
a stop and a period of detention, but it does not have the coercive
conditions that would constitute an arrest. The courts determine
whether reasonable suspicion exists by examining the totality of
the circumstances. An arrest, or “custodial detention,” must be
supported by probable cause.
In re J.G., 145 A.3d 1179, 1185 (Pa. Super. 2016).
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Here, we must determine 1) the type of encounter and corresponding
level of suspicion required to support that encounter; and 2) whether the facts
supported said level of suspicion. Id. at 1185.
Our Court has previously observed that
[t]o determine whether a mere encounter rises to the level of an
investigatory detention, we must discern whether, as a matter of
law, the police conducted a seizure of the person involved. To
decide whether a seizure has occurred, a court must consider all
the circumstances surrounding the encounter to determine
whether the demeanor and conduct of the police would have
communicated to a reasonable person that he or she was not free
to decline the officer’s request or otherwise terminate
the encounter. Thus, the focal point of our inquiry must be
whether, considering the circumstances surrounding the incident,
a reasonable person innocent of any crime, would have thought
he was being restrained had he been in the defendant’s shoes.
Commonwealth v. Reppert, 814 A.2d 1196, 1201–1202 (Pa. Super. 2002)
(citations omitted).
As noted, a mere encounter is a “request for information.” It need not
be supported by any level of suspicion and, accordingly, carries no official
compulsion to stop and respond. See Commonwealth v. Baldwin, 147 A.2d
1200, 1202-03 (Pa. Super. 2016). However, in order to conduct a pat-down
of a person, police must have reasonable suspicion:
A police officer is entitled to conduct a limited search of an
individual to detect weapons if the officer observes unusual and
suspicious conduct on the part of the individual which leads the
officer to reasonably believe that criminal activity is afoot and that
the person may be armed and dangerous.
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Commonwealth v. Martinez, 588 A.2d 513, 514 (Pa. Super. 1991) (internal
citations and quotations omitted) (citing Terry v. Ohio, 88 S. Ct. 1868
(1968)).
There is some precedent regarding police requests that defendants
remove their hands from their pockets, and the level of encounter resulting
from such orders. However, the conclusion we may draw from such precedent
is that it is a fact-specific inquiry, and, as will be discussed, infra, partially
dependent on the timing of the request.
In Martinez, two police officers in an unmarked vehicle pulled up
alongside the defendant, requested that she come over to them, turn around,
take her hands from her jacket, and put them on the car. See Martinez, 588
A.2d at 515. The officers exited the vehicle and approached Martinez from
either side, preventing her from leaving. Id. The Martinez Court thus
concluded that she had been seized for Fourth Amendment purposes and that
reasonable suspicion was necessary to justify the stop. Id. at 515-16.
This Court has previously stated that
if during a mere encounter, an individual on his own accord, puts
his hands in his pocket, thereby creating a potential danger to the
safety of a police officer, the officer may justifiably reach for his
side arm and order the individual to stop and take his hand out of
his pocket. Such reaction by a police officer does not elevate the
mere encounter into an investigative detention because the
officer’s reaction was necessitated by the individual’s conduct.
See Commonwealth v. Carter, 779 A.2d 591, 594 (Pa. Super. 2001)
(finding that the defendant’s presence in a car with other individuals in a high
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crime area did not support reasonable suspicion that defendant was engaged
in criminal activity) (internal citations and quotations omitted) (emphasis
added).
Our Supreme Court has recognized that when police officers are
investigating an allegation of narcotics trafficking in a high crime area, they
are justified in asking a defendant who matches a police description to remove
his hands from his pockets. See Commonwealth v. Zhahir, 751 A.2d 1153,
1158 (Pa. 2000) (noting that defendant’s suspicious behavior appeared to
have been in response to police presence and that officers were justified in
requesting that he remove his hands for their own safety).
Similarly, in Commonwealth v. Coleman, police officers were
dispatched to a robbery in progress involving two black males wearing green
hooded jackets covered by black coats. See Coleman, 19 A.3d 1111, 1114
(Pa. Super. 2011). Upon observing Coleman, who matched the flash
description, the officer inquired whether he had a gun. Id. In response,
Coleman fumbled with his hands in his pockets. Id. The officer then ordered
Coleman to take his hands out of his pockets and, upon his refusal, bought
Coleman to a police van, where two knives were recovered from his pockets.
Id. Our Court concluded that the officer’s request did not constitute a seizure
and that the combination of 1) the description of the robber and 2) Coleman’s
refusal to remove his hands from his pockets was sufficient to justify an
investigative detention and protective frisk. Id. at 1117.
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However, a police officer is not permitted to create a dangerous situation
and then use the self-created danger as the basis for escalating an encounter
into a seizure. See Carter, 779 A.2d at 594 (noting that in telling suspect to
put his hands in his pockets, then ordering him to take them out, police officer
manufactured danger himself).
In the instant case, the initial interaction between officers and Appellee
was not a mere encounter. As noted above, a mere encounter constitutes a
request for information but carries no official compulsion to stop and respond.
See Baldwin, 147 A.2d at 1202-03. When in response to police questioning,
a person puts his hands in his pockets and is ordered to remove them, the
encounter does not escalate to a seizure. See Coleman, 19 A.3d at 1116-
17.
In the instant case, Appellee already had his hands in his pockets when
the officers initiated the encounter, contrary to the Commonwealth’s
characterization in its brief. See N.T., 2/6/17, at 10. Officer Detwiler did not
ask whether Appellee was armed or, indeed, ask him for any information at
all. The interaction commenced with Officer Detwiler’s command that Appellee
remove his hands from his pocket. Thus, the initial interaction was not a
“mere encounter,” but was, instead, an investigative detention that must be
supported by reasonable suspicion. Baldwin, 147 A.2d at 1203; see also
Carter, 779 A.2d at 594.
Based upon the facts, i.e., Appellee’s actions of speaking to a woman
on the street in a high crime area with his hands in his pockets, we discern no
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reasonable suspicion sufficient for such a detention. See Carter, 779 A.2d at
594-95. Thus, Officer Detwiler’s command was improper. Any potential
danger in the interaction initiated by police was manufactured by Officer
Detwiler himself. See Carter, 779 A.2d at 594.
Here, the Commonwealth cites to no cases to support its specific
proposition and instead cites generally to the case law justifying Terry stops.
See Commonwealth’s Brief at 9. Even assuming, arguendo, that the
interaction was a mere encounter, much of the precedent concerning similar
situations does not support the Commonwealth’s position.
For example, in Commonwealth v. Hall, 713 A.2d 650, 653 (Pa.
Super. 1998), rev’d on other grounds, 771 A.2d 1232 (Pa. 2001), this Court
did not find that the officer’s request that the defendant remove his hands
from his pockets constituted a seizure; however, the defendant’s subsequent
refusal to comply escalated the encounter into one where the totality of the
circumstances justified a stop and frisk. Id. However, in Hall, the defendant
was the one to initiate contact with the police, whereas in the instant case,
the police initiated contact with the defendant. Id. at 652-53.
Neither does Coleman support this position. The Commonwealth
asserts that Appellee’s refusal to comply with orders, along with the fact that
officers encountered Appellee at 2:00 a.m. in a high crime area, demonstrated
the justified belief that Appellee was armed and dangerous. However,
Coleman is easily distinguishable on its facts.
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The instant case is distinguishable in several important aspects. First,
Coleman involved a violent crime in progress, making it more likely that the
suspects may have been armed. In the instant matter, police were responding
to a noise complaint. Second, in Coleman, police had a specific description
of the clothing the suspects wore, and Coleman himself was wearing clothing
that matched that description. There was no such description of Appellee in
this case. Third, in Coleman, Coleman put his hands in his pockets after police
initiated the encounter. Here, as noted above, it was the fact that Appellee’s
hands were in his pockets that caused Officer Detwiler to initiate the
encounter.
Similarly, Commonwealth v. Thomas, 179 A.3d 77 (Pa. Super. 2018),
is distinguishable. In Thomas, police received a report at 1:20 a.m. of a black
male with a gun, dressed in a blue hooded sweatshirt and blue pants or jeans.
Id. at 80. When officers arrived at the location provided in the report, they
saw a black male, later identified as the defendant, wearing a black hooded
sweatshirt, black jacket, and black pants, and walking down the street. Id.
After circling the block, the officers noticed the defendant sitting on a stoop.
Id. As the officers circled the block four or five times, they noticed the
defendant watching them, reversing his direction away from them, and
looking again. Id. By the time the officers stopped the defendant, he had his
hands in his pockets and refused to remove them when ordered. Id. Officers
patted him down, and felt a gun in his pockets. Id.
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The Thomas panel characterized this interaction as a mere encounter
and noted that the defendant was not seized when officers asked him to
remove his hands from his pockets. Id. at 82-83. In support, the panel
quoted Coleman to note that such a reaction by a police officer does not
elevate the mere encounter into an investigative detention because the
reaction was necessitated by the individual’s conduct. Id. (quoting Coleman,
19 A.3d at 1117).
The instant case is again distinguishable on the facts. First, the officers
in Thomas had a description of the suspect, namely, a black male wearing a
dark hooded sweatshirt and jeans. Id. at 80. Although the description of the
clothing was not exact, it was reasonably close given the late hour. In the
instant matter, there was no description of the suspect at all: not race, not
gender, not clothing. Second, the report in Thomas was of a man with a gun,
a matter in which officers would reasonably fear for their safety upon seeing
a man with his hands in his pockets. Id. at 80. In the instant case, officers
were responding to a noise complaint, with no reports of weapons. Further,
the individual’s conduct did not necessitate the officer’s reaction: Appellee was
speaking to two women, with his hands in his pockets. In contrast, the
Thomas defendant behaved suspiciously by appearing to attempt to evade
the police before he was stopped. Id. at 80-83.
Accordingly, Thomas and Coleman do not affect our analysis and
conclusion that the encounter in the instant case was an investigative
detention which was initiated without reasonable suspicion. Baldwin, 147
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A.2d at 1203; see also Carter, 779 A.2d at 594; Coleman, 19 A.3d at 1117;
Thomas, 179 A.3d at 80-83.
Here, the police initiated this interaction without reasonable suspicion.
See Carter, 779 A.2d at 594. Whatever happened after was of no moment,
as the critical point in the interaction was Officer Detwiler’s improper
command.3 Accordingly, the suppression court did not err in granting
Appellee’s motion, and we affirm.
Order affirmed.
Judge Bowes joins this opinion and files a Concurring Opinion.
President Judge Emeritus Stevens files a Dissenting Opinion.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/26/2018
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3 Accordingly, the Commonwealth’s second issue – that the court erred in
suppressing items discarded as Appellee ran – is moot based upon our
disposition of the first issue.
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