October 3, 2013
COMMONWEALTH OF PENNSYLVANIA Appellant
HYKEEM CARTER Appellee
Appeal from the Order July 6, 2012 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0000285-2012
BEFORE: BENDER, J., BOWES, J., and LAZARUS, J.
The Commonwealth appeals from an order, entered in the Court of Common Pleas of Philadelphia County, granting Hykeem Carter's motion to suppress evidence of violations of the Uniform Firearms Act. Upon review, we affirm.
The Honorable Carolyn Nichols made the following findings of fact:
On November 9, 2011, at approximately 9:00 p.m., Officer Matthew Blaszczyk and his partner, Officer White, were on routine patrol in the area of 700 East Madison Street, near the intersection of G Street in the City and County of Philadelphia . . . . Officer Blaszczyk was familiar with the area as a known drug area and had made several arrests in the area. He also testified that he received non-specialized training from the police academy.
While driving northbound on G Street, Officer Blaszczyk testified that he observed [Carter] standing on the northeast corner of the intersection. As they approached the intersection, [Carter] began to walk southbound on G Street. The officers circled back around the block and observed [Carter] again standing on the northeast corner of G Street. The officers observed a large bulge in the left pocket of [Carter]'s jacket that appeared to be weighing it down. The officers continued to circle the block 3 or 4 times, each time observing [Carter] with the bulge in his jacket pocket. Each time the officers passed [Carter], he appeared to be turning his body away from the officers so they were not able to observe the bulge in his pocket.
After observing [Carter] for approximately 10 minutes, both officers exited the vehicle and approached [him]. Officer Blaszczyk testified that he could not tell that the bulge was in fact a firearm, only that it was a sharp angle and that it appeared to weigh down the jacket. Additionally, Officer Blaszczyk did not observe [Carter] interacting with anyone in the 10 minutes they observed him. The officers conducted a pat-down for weapons, immediately felt the bulge in [Carter]'s jacket and determined it was a firearm. A Walther P-22 model handgun, which had part of its serial number altered, loaded with eight live rounds, was recovered from [Carter].
Trial Court Opinion, 10/3/2012, at 2-3 (citations omitted).
On June 5, 2012, Carter moved to suppress all physical evidence obtained by Officer Blaszczyk. Judge Nichols denied the initial motion, but then granted leave to file a motion requesting reconsideration. After additional arguments on June 6, 2012, Judge Nichols granted Carter's suppression motion. The Commonwealth timely appealed that decision.
The Commonwealth raises the following issue for our review:
Did a police officer on patrol in a high-crime neighborhood lack reasonable suspicion to frisk defendant where he observed him on a known drug corner with a weighted bulge with a sharp edge in his jacket pocket and reasonably believed the object was a gun based on more than 75 gun arrests, and defendant, four times within a ten-minute period, turned his body to conceal the bulge and walked away, whenever the police drove by?
Commonwealth's Brief, at 3.
The Fourth Amendment to the U.S. Constitution provides, in relevant part: "[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. Article I, Section 8 of the Pennsylvania Constitution echoes this language. Pa. Const. Art. I, § 8. "In deciding whether reasonable suspicion exists for an investigatory stop, our analysis is the same under both Article I, § 8 and the Fourth Amendment." Commonwealth v. Taggart, 997 A.2d 1189, 1193 (Pa.Super. 2010).
Our Supreme Court has explained:
It is well established that a police officer may conduct a brief investigatory stop of an individual if the officer observes unusual conduct which leads him to reasonably conclude, in light of his experience, that criminal activity may be afoot. Terry v. Ohio, 392 U.S. 1 (1968); Commonwealth v. Lewis, 636 A.2d 619, 623 ([Pa.] 1994). An investigatory stop subjects a person to a stop and a period of detention, but does not involve such coercive conditions as to constitute the functional equivalent of an arrest. Commonwealth v. Ellis, 662 A.2d 1043, 1047 ([Pa.] 1995). Such an investigatory stop is justified only if the detaining officer can point to specific and articulable facts which, in conjunction with rational inference derived from those facts, give rise to a reasonable suspicion of criminal activity and therefore warrant the intrusion. Commonwealth v. Murray, 331 A.2d 414, 418 ([Pa.] 1975).
Commonwealth v. E.M., 735 A.2d 654, 659 (Pa. 1999).
The Supreme Court of the United States has noted that the "central inquiry" of any search and seizure analysis is "the reasonableness . . . of the particular governmental invasion of a citizen's personal security." Terry, 392 U.S. at 19. Reasonableness depends on a balance between the public interest and the accused's right to be free from arbitrary intrusion by police. Id. at 20-21. Any evidence recovered as a result of a stop made without reasonable suspicion must be suppressed. Commonwealth v. Hicks, 253 A.2d 276, 280 (Pa. 1969).
When evaluating a suppression order, we must determine whether the factual findings of the suppression court are supported by the record. Commonwealth v. Hernandez, 935 A.2d 1275, 1280 (Pa. 2007). Where the record supports the factual findings of the suppression court, an appellate court may only reverse when the suppression court's legal conclusions are in error. Id. The Commonwealth does not challenge Judge Nichols' factual findings as quoted above, and so we examine this case for legal error only. See id.
In the instant case, Officer Blaszczyk knew the following: 1) Carter was standing at a known "drug corner" (N.T. Suppression Hearing, 6/5/2012, at 5); 2) Carter initially walked away as Officer Blaszczyk and his partner approached (Id. at 4), and subsequently turned his body away from the officers as they passed by on at least three more occasions (Id. at 5); and 3) Carter had a bulge with a sharp angle in his pocket (Id. at 5).
Based on these facts, Officer Blaszczyk did not have an articulable, reasonable suspicion to justify a Terry stop. For the Terry stop to have been legitimate, the Commonwealth must show how Carter's actions created a reasonable suspicion that Carter was committing a crime before the stop and subsequent frisk. As Judge Nichols noted in her trial court opinion, "Carter's action in moving around to prevent the officer from viewing the content of his pocket is innocent activity in nature and certainly cannot . . . lead the officer to believe that criminal activity was afoot." Trial Court Opinion, 10/23/2012, at 7. This Court has found that "[a] police officer's observation of a citizen's nervous demeanor and furtive movements, without more, establishes nothing more than a 'hunch, ' employing speculation about the citizen's motive in the place of fact." Commonwealth v. Reppert, 814 A.2d 1196, 1206 (Pa.Super. 2002); see also Commonwealth v. Carter, 779 A.2d 591, 595 (Pa.Super. 2001) (reasonable suspicion may not be based on educated hunch).
In a case similar to this one, this Court held that police did not have a reasonable suspicion where the defendant was present in a "high drug" and "high crime" area, and walked away when he saw the police approach. In re J.G., 860 A.2d 185, 187-89 (Pa.Super. 2004). The J.G. Court distinguished between merely walking away from police, as Carter did in the instant case, and outright flight. Id. at 189 (distinguishing Commonwealth v. Jefferson, 853 A.2d 404 (Pa.Super. 2004), where court held presence in a high crime area coupled with headlong flight at the sight of officers relevant to reasonable suspicion analysis).
In another, also similar, case, the defendant was standing on a corner with several other people and walked quickly away upon seeing the police approach while "holding her hands in the front of her coat, leaning forward, as if to be holding something." Commonwealth v. Martinez, 588 A.2d 513, 515 (Pa.Super. 1991) (internal quotations removed). Our Supreme Court has also found that furtive movements in conjunction with several other factors were insufficient to justify a Terry stop. See Commonwealth v. DeWitt, 608 A.2d 1030, 1034 (Pa. 1992) (no reasonable suspicion where, as police approached vehicle in high crime area, they observed occupants engage in furtive movements, turn off lights, and attempt to drive away). Accordingly, the facts on the record are legally insufficient to justify a Terry stop, and we must affirm the decision of the suppression court. Hicks, 253 A.2d at 280.
I dissent. The learned majority concludes that the following facts considered under the totality of the circumstances do not rise to the level of reasonable suspicion of criminal activity: Appellant was standing in a known drug corner, i.e., a high crime area; he walked away from police as they approached; on three additional prior occasions, he turned his body away from police to prevent them from observing him; and had a bulge in his left-jacket pocket with a sharp angle that an officer with seventy-five gun arrests believed was consistent with a firearm. All of these observations transpired over approximately a ten-minute period at approximately 9:00 p.m. on November 9, 2011. I would suggest that any police officer, let alone one with seventy-five gun arrest, including eight to ten gun arrests in the same vicinity, who viewed these facts together and did not have reasonable suspicion that criminal activity was afoot should find a new line of work. The officer in this matter not only performed his duty of keeping the citizens of Philadelphia safe, he did so in a constitutional manner.
According to the majority, the police observations in this case provided only a hunch that Appellant was engaging in illegal activity and that his actions of moving around to prevent police from observing him were innocent behaviors. The majority's conclusions are not only legally tenuous, they overlook applicable law and fail to consider the facts based on the totality of the circumstances. It is well established that "even a combination of innocent facts, when taken together, may warrant further investigation[.]" Commonwealth v. Kemp, 961 A.2d 1247, 1255 (Pa.Super. 2008) (en banc)); see also Commonwealth v. Cook, 735 A.2d 673, 676 (Pa. 1999). As this Court cogently stated in Commonwealth v. Riley, 715 A.2d 1131, 1135 (Pa.Super. 1998), "Merely because a suspect's activity may be consistent with innocent behavior does not alone make detention and limited investigation illegal. . . . Rather, we view the circumstances through the eyes of a trained officer, not an ordinary citizen." The majority ignores these important principles in its decision to affirm the suppression court.
While Appellant's mannerisms could be consistent with legal activity, and Appellant's behavior was not itself illegal, this disregards the proper analysis. See Riley, supra. Appellant's actions and the facts known to the officer cannot be viewed in a vacuum. While I could agree that, when viewed independently of one another, the facts herein do not give rise to reasonable suspicion; when considered together, it is evident that the officer not only exercised common sense, but had reasonable suspicion to conduct the interdiction. Appellant's combined actions of standing in a high crime area at night, walking away from police, turning his body away from police to prevent them from observing him, and having a bulging item with a sharp angle concealed in his pocket would lead any reasonable police officer to suspect criminal activity was occurring.
The majority's reliance on In re J.G., 860 A.2d 185 (Pa.Super. 2004), is unavailing. First, I note that the Commonwealth therein conceded the stop and search were improper. More importantly, the individual in that case merely walked away from police in a high crime area and there was no evidence that could have led the officers to believe he was armed. Instantly, Appellant not only walked away from police in a high crime area, he also continually prevented them from observing him by turning his body away from them, and possessed an item in his pocket that reasonably could have been perceived to be a firearm. These important distinguishing facts render In re J.G., inapposite. The other cases relied on by the majority, Commonwealth v. Martinez, 588 A.2d 513 (Pa.Super. 1991) and Commonwealth v. DeWitt, 608 A.2d 1030 (Pa. 1992), are equally distinguishable based on the precise facts therein.
Martinez did not involve a period of time of approximately ten minutes in which the defendant continually sought to avoid police observation nor did police observe a heavy object in the person's possession that reasonably could have been construed as a gun. DeWitt is wholly unhelpful as it involved a traffic stop in a church parking lot and bears no semblance to the matter presented here.
The majority also erroneously opines that I have contravened our scope of review by re-weighing the evidence. Majority Memorandum, at n.2. Setting aside that the majority's position relates to the standard of review, i.e., how we view the evidence, and not our scope of review, its suggestion that I have disregarded the suppression court's credibility determinations is entirely belied by the record. For example, at the initial suppression hearing the court stated, "I believe it's a high crime area. The officer testified. He very credibly testified. And he has extensive drug experience. He's made 75 drug arrests in the area. It's a high crime high drug [area]. And the behavior of the defendant, he testified, certainly warranted a pat down." N.T., 6/5/12, at 17-18 (emphasis added).
After reconsidering its original ruling, the suppression court still maintained, "After a clear review of the case law, certainly the officer testified credibly. This Court believes there just wasn't enough there to support the reasonable suspicion to stop, pat-down." N.T., 7/6/12, at 4 (emphasis added). Hence, when the court reconsidered the matter, it still believed the officer testified credibly but that under the totality of circumstances the facts did not justify a stop and search. The court's determination that the officer's credible testimony did not rise to the level of reasonable suspicion was a legal conclusion. It is this legal conclusion, that reasonable suspicion was not present, where I part ways with the suppression court and the majority.
It is axiomatic that legal conclusions do not bind this Court. See Commonwealth v. Rushing, 2013 PA.Super. 162, *5 ("this Court does not, nor is it required to, defer to the suppression court's legal conclusions"); Commonwealth v. Peterson, 17 A.3d 935, 937 (Pa.Super. 2011) ("where the appeal of the determination of the suppression court turns on allegations of legal error, 'the suppression court's conclusions of law are not binding on an appellate court, whose duty it is to determine if the suppression court properly applied the law to the facts.'"). Our standard of review requires us to accept Appellee's evidence, and so much evidence that the Commonwealth introduced that is not contradicted. See Peterson, supra. Appellee did not introduce any evidence that contradicted the Commonwealth's evidence, as the officer was the only person to testify, and the court on multiple occasions expressly delineated that the officer testified credibly.
In sum, the combination of police observation of a heavy object in Appellant's pocket, Appellant's continual turning away from police when they passed, Appellant's presence in a high crime area, and Appellant's walking away from police when they approached, warranted a brief Terry stop. Thus, I would reverse the suppression court's decision, and respectfully dissent from the majority's decision to affirm.