from the Order March 31, 2017 In the Court of Common Pleas of
Blair County Criminal Division at No(s):
BEFORE: BOWES, J., RANSOM, J., and STEVENS, P.J.E.
the Commonwealth of Pennsylvania, appeals from the order
entered March 31, 2017, granting Appellee Tareek Alquan
Hemingway's suppression motion. After careful review, 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.
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
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
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 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.
Commonwealth timely appealed. Both the Commonwealth and
the court have complied with Pa.R.A.P. 1925(a)-(b).
appeal, the Commonwealth raises the following issues for our
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.
Commonwealth's Brief at 3.
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
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.
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
Commonwealth v. Haines, 168 A.3d 231, 234 (Pa.
Super. 2017) (internal citations and quotations omitted).
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
In re J.G., 145 A.3d 1179, 1185 (Pa. Super. 2016).
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.
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).
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
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
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)).
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.
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
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
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 crime area did not
support reasonable suspicion that defendant was engaged in
criminal activity) (internal citations and quotations
omitted) (emphasis added).
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).
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.
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).
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
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