March 11, 2014
COMMONWEALTH OF PENNSYLVANIA, Appellant
DAVID LONG, Appellee
Appeal from the Order Entered September 17, 2012 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0013472-2011
BEFORE: BENDER, P.J., SHOGAN, J., and FITZGERALD, J. [*]
The Commonwealth, as appellant, appeals from the trial court's September 17, 2012 order granting David Long's motion to suppress evidence seized by police officers pursuant to an investigative detention of Long, which the trial court concluded was not supported by reasonable suspicion. After careful review, we affirm.
Long was arrested on September 27, 2011, and charged with various violations of the Uniform Firearms Act, 18 Pa.C.S. §§ 6101-6187, including possession of a firearm by a person prohibited, carrying a firearm without a license, and carrying a firearm on public property in Philadelphia. Prior to trial, Long filed a motion to suppress and a hearing was conducted on September 17, 2012. At the close thereof, the trial court granted Long's motion to suppress. The Commonwealth filed a timely motion for reconsideration, which the court denied. The Commonwealth then filed a timely notice of appeal and a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). Herein, the Commonwealth presents one question for our review:
Where police investigating a recent gunpoint robbery that occurred less than two blocks away approached [Long] and his companion, who were generally consistent with the flash description of the suspects, at night in a high crime area, [Long] began walking away as soon as he saw the police, and when they told him to stop [Long] fled and discarded a shotgun, did the lower court err in suppressing it?
Commonwealth's Brief at 3.
Initially, we note our standard of review of the Commonwealth's claim:
When reviewing the propriety of a suppression order, an appellate court is required to determine whether the record supports the suppression court's factual findings and whether the inferences and legal conclusions drawn by the suppression court from those findings are appropriate. Where the [appellee] prevailed in the suppression court, we may consider only the evidence of the [appellee] and so much of the evidence for the Commonwealth as remains uncontradicted when read in the context of the record as a whole. Where the record supports the factual findings of the suppression court, we are bound by those facts and may reverse only if the legal conclusions drawn therefrom are in error. However, 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.
Commonwealth v. Walls, 53 A.3d 889, 892 (Pa. Super. 2012) (quoting Commonwealth v. Peterson, 17 A.3d 935, 937 (Pa. Super. 2011) (internal quotation marks and citations omitted), appeal denied, 29 A.3d 372 (Pa. 2011)).
At the suppression hearing conducted in this case, Philadelphia Police Officer Antoine Wesley testified that on September 27, 2011, at approximately 9:00 p.m., he and his partner, Officer Diggs, received a report of an armed robbery. N.T. Suppression Hearing, 9/17/12, at 5-6. In response, the officers, who were in full uniform and were riding in an unmarked police vehicle, traveled to the area of 69th and Guyer Streets. Id. at 6. Officer Wesley described that location as a "high-crime area" known for "[a] lot of auto thefts and … robberies." Id. at 6-7.
Officer Wesley, the driver of the unmarked vehicle, testified that when he turned the vehicle onto 69th Street, he observed two men, later identified as Long and his father, David Wiggins, "standing close … together … next to a dark colored SUV[.]" Id. Officer Wesley stated that Long and Wiggins "looked in our direction as we turned, " and then "started to walk off…." Id. at 7-8. The officer stopped the unmarked police car "short of [the] SUV" and he and Officer Diggs "exited the vehicle." Id. at 9. Officer Wesley further testified:
[Officer Wesley]: … Once we exited the vehicle, my partner, he took the pavement side and started walking towards the male. I took the street side walking into the park. This park, Your Honor, has a chain [link] fence maybe about eight feet tall, which separates the football field from the buildings of the recreational center but it's a fence that you could see clearly through. It's two different entrances going into it.
As my partner is walking through the entrance that these two males had walked through, my partner yelled to the males, "Police. Stop." These males ignored the first command and my partner yelled the same command again, "Police stop." The male I stated earlier, Mr. David Wiggins, he stopped. At that time, I still observed [Long] walking in a quick fast pace walk. During that time, I observed [Long] go into the middle part of his pocket and then [he] pulled out a long object and I seen [sic] his arm motion going up towards his face.
At that time, once it was out, he turned to his left side, Your Honor. I immediately recognized that it was a shotgun. I yelled to my partner "Gun." At that time, that male discarded the gun underneath a tree, which caused it to hit the chain [link] fence. Then that male fled on foot. I chased this male, Your Honor. A brief foot pursuit and I was able to apprehend that male a short distance away. Once he was apprehended and we were walking back to our vehicle, in my presence, my partner recovered a shotgun.
Id. at 9-10. Officer Wesley arrested Long and placed the gun on property receipt.
On cross-examination, Officer Wesley stated that he did not stop Long as a result of the 911 call reporting the armed robbery. Id. at 14. When asked if the flash description had any impact on his decision to stop Long and Wiggins, Officer Wesley stated:
[Officer Wesley]: At the time, Your Honor, no, it did not. I was going to ask these males did they see anyone who had ran [sic] through the park as we were pulling up. But then when these males started to walk away once we turned into the block, it raised my suspicion about these two males when we turned onto the block. So that's why we exited the vehicle and we started to go over to investigate these two males.
From these facts, the trial court concluded that Long was "seized" at the moment that Officer Diggs stated, "Police. Stop." Trial Court Opinion (TCO), 7/2/13, at 6-7. The Commonwealth, however, argues that "[i]t was only after [Long] and his father had already started to evasively walk away that the officers got out of the car and told them to stop. Our courts have recognized that such requests do not in themselves necessarily constitute a seizure." Commonwealth's Brief at 15 (citing In the Interest of D.M., 781 A.2d 1161, 1162 (Pa. 2001) (concluding that no seizure occurred where officer "exited his vehicle and told appellant to come over"); Commonwealth v. Brown, 904 A.2d 925, 930 (Pa. Super. 2006) (agreeing with trial court that officer's identifying himself as a police officer and saying "stop" did not constitute a seizure)).
In Walls, we explained:
The Fourth Amendment of the Federal Constitution and Article I, Section 8 of the Pennsylvania Constitution protect individuals from unreasonable searches and seizures. "To secure the right of citizens to be free from such [unreasonable] intrusions, courts in Pennsylvania require law enforcement officers to demonstrate ascending levels of suspicion to justify their interactions with citizens as those interactions become more intrusive." Commonwealth v. Pratt, 930 A.2d 561, 563 (Pa.Super.2007) (citation omitted), appeal denied, 596 Pa. 743, 946 A.2d 686 (2008). We have long recognized that there are three levels of intrusion involved in interactions between members of the public and the police. The first is a mere encounter, which requires no level of suspicion at all. Commonwealth v. Daniels, 999 A.2d 590, 596 (Pa.Super.2010). The second level is an investigative detention, which must be supported by reasonable suspicion. Id. at 596–597. Finally, the third level is an arrest or custodial detention, which must be supported by probable cause. Id. at 597.
Walls, 53 A.3d at 892-93. Moreover, this Court has also stated:
In determining whether an interaction should be considered a mere encounter or an investigative detention, the focus of our inquiry is on whether a "seizure" of the person has occurred. Commonwealth v. Mendenhall, [ ] 552 Pa. 484, 715 A.2d 1117, 1120 (1998). Within this context, our courts employ the following objective standard to discern whether a person has been seized: "[W]hether, under all the circumstances surrounding the incident at issue, a reasonable person would believe he was free to leave." Commonwealth v. Smith, 732 A.2d 1226, 1232 (Pa. Super. 1999)[.] ... Thus, "a seizure does not occur simply because a police officer approaches an individual and asks a few questions." United States v. Kim, 27 F.3d 947, 950 (3d Cir.1994).
Commonwealth v. Cooper, 994 A.2d 589, 592 (Pa. Super. 2010) (quoting Commonwealth v. Mulholland, 794 A.2d 398, 401 (Pa. Super. 2002) (citation omitted)).
Applying these legal principles to the case at hand, we conclude that Long was seized at least upon the second command to stop made by Officer Diggs. The facts of this case are distinguishable from the cases on which the Commonwealth relies, In re D.M. and Brown. First, in both of those cases, police did not pursue the defendants in any way. For instance, in In re D.M., the officer "exited his vehicle and told [D.M.] to come over." In re D.M., 781 A.2d at 1162. Likewise, in Brown, the officer stepped out in front of the defendant as the defendant walked toward him and said, "Stop." Brown, 904 A.2d at 929. Here, to the contrary, Long and Wiggins were walking away when the officers exited their vehicle and pursued Long and Wiggins. Furthermore, unlike in either In re D.M. or Brown, the record in this case establishes that Officer Diggs twice yelled his "command" to stop. Id. at 10. Even if the first command to stop did not amount to a "seizure, " surely Officer Diggs' "yell[ing] the same command again" confirmed to Long and Wiggins that they were not free to continue to walk away from the pursuing officers. Id. Therefore, Long was "seized" at the moment Officer Diggs yelled the command to stop for a second time.
Next, we must assess whether the officers had reasonable suspicion to support their seizure of Long for investigative purposes. In arguing that they did, the Commonwealth states:
[The officers] encountered [Long] almost immediately after receiving a report of an armed robbery by two black men, one of whom had a thin build, within about a block of where [Long], who had a thin build, and another black man were standing. The area was notorious for robberies and auto thefts. It was nighttime. [Long] and the other man acted evasively as soon as they saw the officers' car turn the corner, by walking away toward a dimly lit park.
Commonwealth's Brief at 16-17. The Commonwealth characterizes Long's conduct as the equivalent to "unprovoked flight in a high crime area, " and argues that this alone is enough to constitute reasonable suspicion. Id. (citing, inter alia, In re D.M., 781 A.2d at 1164 (stating "it is evident that unprovoked flight in a high crime area is sufficient to create a reasonable suspicion to justify a Terry stop under the Fourth Amendment"); Brown, 904 A.2d at 930 (stating "it is clear that unprovoked flight in a high crime area establish a reasonable suspicion to believe that criminal activity is afoot to allow for a Terry stop")).
First, we agree with the trial court that "it is disingenuous of the Commonwealth to described [Long] as 'fleeing' from the unmarked police car…." TCO at 5. While Officer Wesley testified that Long and Wiggins looked in his direction, there was no evidence demonstrating that Long knew that the unmarked vehicle was occupied by police officers. In any event, Long did not run – he simply walked away. We cannot agree with the Commonwealth that merely walking away from an oncoming police vehicle, especially one that is unmarked, constitutes flight.
Additionally, because Officer Wesley expressly testified that he did not consider the flash description or robbery report in deciding to stop Long and/or Wiggins, it is inappropriate to consider those facts in assessing the officers' reasonable suspicion. See N.T. Suppression Hearing at 14. It is true that this Court has stated that "reasonable suspicion is based upon an objective standard, not subjective intent." Commonwealth v. Foglia, 979 A.2d 357, 361 (Pa. Super. 2009). However, we have also long held that "to establish grounds for reasonable suspicion, the officer must 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." Commonwealth v. Repper, 814 A.2d 1196, 1204 (Pa. Super. 2002). Instantly, Officer Wesley specifically articulated that the flash description and reported robbery were not facts that he considered in suspecting that Long was engaged in criminal activity. Therefore, we decline to consider those facts in assessing whether the officer's suspicion was reasonable.
Instead, the totality of the circumstances properly considered in determining if reasonable suspicion existed in this case amounts to the following. Officers Wesley and Diggs observed Long and Wiggins standing in close proximity to one another, on the sidewalk next to an SUV, in a high crime area at 9:00 p.m. Long and Wiggins looked in the direction of the officers who were in full uniform but were riding in an unmarked police vehicle. Long and Wiggins turned and walked away from the oncoming vehicle in the direction of a park. They continued to walk away as the officers stopped their vehicle, exited, and pursued them on foot. Officer Diggs then repeatedly commanded the two men to stop and announced that he was a police officer. Considering the totality of the facts preceding Officer Diggs' second command to stop which constituted Long's seizure, we agree with the trial court that there was no reasonable suspicion to stop Long. See In re J.G., 860 A.2d 185, 189 (Pa. Super. 2004) (concluding that juvenile's presence in high crime area and the fact that he "started to walk away" when he saw an unmarked police vehicle approaching were insufficient to constitute reasonable suspicion for a Terry stop and frisk). Accordingly, we affirm the court's order granting Long's motion to suppress.