Argued: April 23, 2014.
Appeal from the Order of the Court of Common Pleas, Philadelphia County, Criminal Division, No(s): CP-51-CR-0000285-2012. Before NICHOLS, J.
Suzan E. Willcox, Assistant District Attorney, Philadelphia, for Commonwealth, appellant.
Karl Baker, Public Defender, Philadelphia, for appellee.
BEFORE: GANTMAN, P.J., FORD ELLIOTT, P.J.E., BENDER, P.J.E., PANELLA, J., DONOHUE, J., ALLEN, J., LAZARUS, J., MUNDY, J., and OLSON, J. OPINION BY MUNDY, J. Joseph D. Seletyn, Esq., Prothonotary. President Judge Gantman, President Judge Emeritus Ford Elliott, President Judge Emeritus Bender, and Judges Panella, Allen and Olson join the opinion. Judge Lazarus files a dissenting opinion in which Judge Donohue concurs in the result.
The Commonwealth appeals from the July 6, 2012 order, granting the motion to suppress filed by Appellee, Hykeem Carter. After careful review, we reverse and remand for further proceedings.
We summarize the uncontradicted factual and procedural background of this case as follows. On November 9, 2011, at approximately 9:00 p.m., Officer Matthew Blaszczyk of the Philadelphia Police Department was patrolling near 700 East Madison Avenue in Philadelphia, at the corner of Madison Avenue and G Street. N.T., 6/5/12, at 4. Officer Blaszczyk testified that this is a known drug corner and he personally has made multiple gun and drug arrests at this corner. Id. at 5-6. At said time, Officer Blaszczyk and his partner, Officer White were driving northbound on G Street when they observed Appellee standing on the northeast corner of the intersection. Id. at 4. Officer Blaszczyk " immediately observed a bulge in [Appellee's] left coat pocket." Id. at 5. Officer Blaszczyk believed that it was a heavy object because of " the way it weighed the jacket down and the way it protruded." Id. As Officers Blaszczyk and White drove northbound by Appellee, Officer Blaszczyk noted that, " Appellee looked in [their] direction and began to walk south." Id. The officers circled around the block and approached the intersection from a different direction. Upon returning to the intersection, Officer Blaszczyk observed that Appellee was back on the same corner, with the same bulge in his coat. Id. Officer Blaszczyk noted that he and Officer White did this multiple times.
Each time we came down the street, it was a few times, maybe three or four
times, [Appellee] would look in our direction and walk the opposite way whichever way we were coming from.
And the way he turned his body was so that that bulge, you know, we could see it initially. And then he'd turn. So he wasn't in our view.
Id. at 6.
The officers got out of their vehicle and approached [Appellee], and again Appellee turned his body away from the officers so they could not see the bulge in his coat. Id. at 8. Officer Blaszczyk further testified that based on the size and shape of the bulge, the way it weighed Appellee's coat down, and the way it swung, he believed the bulge to be a firearm. Officers Blaszczyk and White stopped Appellee and patted him down. Id. During the pat-down, Officer Blaszczyk noticed upon feeling the bulge, that he could " immediately feel the shape of a firearm." Id. Officer Blaszczyk recovered from Appellee's person " a 22-caliber Walther handgun, a Walther P-22 model." Id. at 9. The handgun was also " loaded with eight live rounds" of ammunition. Id.
Based on the above, Appellee was taken into custody. On January 7, 2012, the Commonwealth filed an information charging Appellee with one count each of possession of a firearm with manufacturer's number altered, firearms not to be carried without a license, and carrying a firearm in public in Philadelphia. On April 19, 2012, Appellee filed an omnibus pre-trial motion, in part arguing for suppression of all evidence based on a violation of his Fourth Amendment rights. On June 5, 2012, the suppression court conducted an evidentiary hearing at which Officer Blaszczyk testified for the Commonwealth. Appellee did not offer any evidence at the suppression hearing. At the conclusion of this hearing, the suppression court denied Appellee's motion to suppress. The suppression court concluded that reasonable suspicion existed " based on the totality of the circumstances ... [including the] high crime drug area ... [a]nd the behavior of [Appellee]." Id. at 21. The suppression court also noted that Officer Blaszczyk testified " very credibly." Id.
Appellee sought reconsideration of the suppression court's order, which was granted. The next day, on June 6, 2012, the suppression court heard additional arguments from the Commonwealth and Appellee. The suppression court took the matter under advisement. On July 6, 2012, the suppression court entered a new order granting Appellee's motion to suppress. On August 6, 2012, the Commonwealth filed a timely notice of appeal. On October 3, 2013, a divided panel of this Court affirmed the suppression court's order in an unpublished memorandum. The Commonwealth filed a timely petition for reargument en banc on October 17, 2013. On December 6, 2013, this Court entered an order granting the Commonwealth's petition for reargument en banc and the panel memorandum was withdrawn.
In its substituted brief on reargument, the Commonwealth raises one issue for our review.
Did a police officer, who had made more than 75 gun arrests, have reasonable suspicion to frisk [Appellee] where the officer, while on patrol in a high-crime neighborhood at night, observed [Appellee] on a street corner known for illegal drug and gun activity, and saw a weighted gun-like bulge with a sharp edge in [Appellee]'s jacket pocket, and [Appellee], 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.
We begin by noting our well-settled standard of review.
When the Commonwealth appeals from a suppression order, we follow a clearly defined standard of review and consider only the evidence from the defendant's witnesses together with the evidence of the prosecution that, when read in the context of the entire record, remains uncontradicted. The suppression court's findings of fact bind an appellate court if the record supports those findings. The suppression court's conclusions of law, however, are not binding on an appellate court, whose duty is to determine if the suppression court properly applied the law to the facts.
Commonwealth v. Miller, 2012 PA Super 251, 56 A.3d 1276, 1278-1279 (Pa. Super. 2012) (citations omitted), appeal denied, 620 Pa. 730, 70 A.3d 810 (Pa. 2013). In the instant case, the Commonwealth argues that the suppression court erred when it concluded that Officers Blaszczyk and White violated Appellee's Fourth Amendment rights when they stopped him and patted him down. Commonwealth's Brief at 12-20. Appellee counters that the officers lacked any constitutional basis to stop and frisk him. Appellee's Brief at 14.
The Fourth Amendment of the Federal Constitution provides, " [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. Likewise, Article I, Section 8 of the Pennsylvania Constitution states, " [t]he people shall be secure in their persons, houses, papers and possessions from unreasonable searches and seizures ...." Pa. Const. Art. I, § 8. Under Pennsylvania law, there are three levels of encounter that aid courts in conducting search and seizure analyses.
The first of these is a " mere encounter" (or request for information) which need not be supported by any level of suspicion, but carries no official compulsion to stop or respond. The second, an " investigative detention" must be supported by reasonable suspicion; it subjects a suspect to a stop and period of detention, but does not involve such coercive conditions as to constitute the functional equivalent of arrest. Finally, an arrest or " custodial detention" must be supported by probable cause.
Commonwealth v. Williams, 2013 PA Super 172, 73 A.3d 609, 613 (Pa. Super. 2013) (citation omitted), appeal denied, 87 A.3d 320 (Pa. 2014). In this case, the Commonwealth and Appellee agree that the seizure that took place was an investigative detention, requiring reasonable suspicion. Commonwealth's Brief at 6; Appellee's Brief at 12.
" The Fourth Amendment permits brief investigative stops ... when a law enforcement officer has a particularized and objective basis for suspecting the particular person stopped of criminal activity." Navarette v. California, 134 S.Ct. 1683, 1687, 188 L.Ed.2d 680 (2014). It is axiomatic that to establish reasonable suspicion, an officer " must be able to articulate
something more than an inchoate and unparticularized suspicion or hunch." United States v. Sokolow, 490 U.S. 1, 7, 109 S.Ct. 1581, 104 L.Ed.2d 1 (1989) (internal quotation marks and citation omitted). Unlike the other amendments pertaining to criminal proceedings, the Fourth Amendment is unique as it has standards built into its text, i.e., reasonableness and probable cause. See generally U.S. Const. amend. IV. However, as the Supreme Court has long recognized, Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) is an exception to the textual standard of probable cause. Florida v. Royer, 460 U.S. 491, 498, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983). A suppression court is required to " take into account the totality of the circumstances--the whole picture." Navarette, supra (internal quotation marks and citation omitted). When conducting a Terry analysis, it is incumbent on the suppression court to inquire, based on all of the circumstances known to the officer ex ante, whether an objective basis for the seizure was present. Adams v. Williams, 407 U.S. 143, 146, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972). In addition, an officer may conduct a limited search, i.e., a pat-down of the person stopped, if the officer possesses reasonable suspicion that the person stopped may be armed and dangerous. United States v. Place, 462 U.S. 696, 702, 103 S.Ct. 2637, 77 L.Ed.2d 110 (1983) (citation omitted).
In this case, Officer Blaszczyk testified to the following facts that led to his decision to stop and pat-down Appellee.
Q: I'd like to direct your attention back to November 9, 2011 at approximately 9 p.m.[,] were you on duty as a Philadelphia police officer?
A: Yes, I was.
Q: Can you please tell [the suppression court] what, if anything, you observed [Appellee] doing?
A: Your Honor, on that date and time, I was working with my partner Officer White, badge number 7097. We were all on routine patrol in the area when we drove northbound on " G" Street when we observed [Appellee].
He was standing on the northeast corner. He was wearing all black clothing. I immediately observed a ...