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.

CONCURRING OPINION BY BOWES, J.:                        FILED JUNE 26, 2018

      I join Judge Ransom’s thoughtful opinion. I write separately to respond

to President Judge Emeritus Stevens’s dissent, and to note my view that our

opinion today is limited to the facts. I would not foreclose a finding that a

command to remove hands is constitutionally reasonable even in the absence

of reasonable suspicion. My analysis follows.

      Judge Stevens states that the police officers “had every right to

approach and question Appellee, especially at 2 a.m., in a high crime area.”

Dissenting Opinion at 1. That is accurate, but misleading as it fails to consider

Appellee’s rights.   An officer is free to approach and ask questions.     “Law

enforcement officers do not violate the Fourth Amendment’s prohibition of

unreasonable seizures merely by approaching individuals on the street or in

other public places and putting questions to them if they are willing to listen.”



____________________________________
* Former Justice specially assigned to the Superior Court.
J-S69033-17



United States v. Drayton, 536 U.S. 194, 200 (2002) (citations omitted).

The dissent ignores the fact that the flip side of that doctrine is that the citizen

can simply decline the invitation.     “If a reasonable person would feel free

to terminate the encounter, then he or she has not been seized.” Id. Thus,

while officers had the right to approach Appellee and ask him to remove his

hands, Appellee had the right to decline the request under the mere encounter

framework.

      Next, Judge Stevens errs by failing to recognize that Appellee was not

asked to remove his hands, he was ordered to do so. The dissent maintains

that Appellee was not seized when told to show his hands, and opines that,

for purposes of ensuring the officers’ safety, Appellee was required to honor

the request. “[T]he record shows when the officers first approached Appellee

on foot, they asked Appellee to take his hand from his pocket for their safety.

At this point, the interaction between Appellee and the officers remained a

mere encounter, and the officer’s request to see Appellee’s hands did not turn

the encounter into an investigative detention.”         Dissenting Opinion at 6

(emphasis in original).

      I cannot agree that this interaction was a mere encounter. According

to Judge Stevens, the officers merely asked Appellee to show his hands. When

Appellee failed to do so, his failure to abide by these requests justified the

frisk. “Appellee’s refusal to comply with the officer’s request to refrain from

concealing his hands in his pocket gave the officer reason to believe that

Appellee could have a weapon and justified the subsequent protective frisk.”

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Dissenting Opinion at 8. This analysis falls apart once one considers, under

mere encounter principles, that Appellee was not obligated to submit to the

show of authority. How, then, does the refusal to comply create reasonable

suspicion that Appellee was armed and dangerous? The dissent appears to

embrace the dangerous view, espoused by the Commonwealth, that an

individual with nothing to hide will simply obey the authorities.

      Appellee’s refusal to submit to a simple request by Ptlm. Detwiler
      to remove his hands, is certainly a factor that a reasonable police
      officer may consider when determining whether to demand a
      person submit to a “Terry frisk”. Had Appellee simply removed
      his hand, Ptlm. Detwiler may have been able to deal with the
      situation differently.

Commonwealth’s brief at 7 n.1.

      The dissent continues:

            When an individual refuses to comply with a reasonable
      request to remove his hands from his pocket and the
      circumstances lead an officer to believe that the individual is
      armed and dangerous, the police officer should have the right to
      do a brief pat-down search of that individual for the police officer’s
      personal safety. We should not create a policy that says otherwise.

Dissenting opinion at 8.

      Respectfully, this case is not about creating policies, it is about applying

the Fourth Amendment, and I do not find support in the law for that

conclusion. With respect to frisks, it is well-settled that

      Warrantless searches and seizures (such as occurred in this case)
      are unreasonable per se, unless conducted pursuant to specifically
      established and well-delineated exceptions to the warrant
      requirement. One such exception, the Terry “stop and frisk,”
      permits a police officer to briefly detain a citizen for investigatory
      purposes if the officer observes unusual conduct which leads him

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       to reasonably conclude, in light of his experience, that criminal
       activity may be afoot.

       Terry further held that when an officer is justified in believing that
       the individual whose suspicious behavior he is investigating at
       close range is armed and presently dangerous to the officer or to
       others the officer may conduct a pat down search to determine
       whether the person is in fact carrying a weapon. The purpose of
       this limited search is not to discover evidence of crime, but to
       allow the officer to pursue his investigation without fear of
       violence.

Commonwealth v. Simmons, 17 A.3d 399, 403 (Pa.Super. 2011) (cleaned

up).

       Thus, during a Terry stop, i.e., a stop supported by reasonable

suspicion, a frisk is permitted when there is a justification to believe that the

individual is armed and dangerous. On what grounds did the officer believe

that Appellee, who was not under investigation for any criminal activity, was

armed and dangerous? Aside from the refusal to submit to authority, I discern

no reason. Judge Stevens does not grapple with that question, and states

that the officer should be permitted to conduct a frisk due to the failure to

comply with the request. Therefore, the dissent appears to promulgate a per

se rule that an officer may approach any citizen for any reason, and demand

to see their hands.     The result of noncompliance is an invasive pat-down

search. That rule cannot be squared with precedent.

       As the majority noted, this decision is largely limited to this “fact-specific

inquiry[.]” Majority opinion at 6. I do not interpret our opinion to foreclose

the possibility that an order to remove hands, even in the absence of


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reasonable suspicion, is constitutionally valid.     I offer these additional

thoughts.

      There is no doubt that officer safety is a weighty and valid consideration

in a Fourth Amendment analysis. Indeed, “‘[T]he ultimate touchstone of the

Fourth Amendment,’ we have often said, ‘is reasonableness.’” Michigan v.

Fisher, 558 U.S. 45, 47 (2009) (quoting Brigham City, Utah v. Stuart, 547

U.S. 398, 403 (2006)).     Warrantless seizures and searches thus may be

deemed reasonable if “the exigencies of the situation make the needs of law

enforcement so compelling that the warrantless search is objectively

reasonable under the Fourth Amendment.” Mincey v. Arizona, 437 U.S. 385,

394 (1978) (quotation marks and citation omitted).

      Presently, a seizure occurred when Appellee was ordered to remove his

hands. Thus, the question is whether the seizure was reasonable. The seizure

was minimally invasive to the degree it was de minimis, as there is no great

privacy interest involved in removing one’s hands from pockets. Nevertheless,

it was a seizure. Thus, there must be some showing that the law enforcement

needs were so compelling that the seizure, no matter how minimal, was

objectively reasonable. On this point, I find persuasive the following analysis

set forth by the United States Court of Appeals for the Ninth Circuit in United

States v. Enslin, 327 F.3d 788 (9th Cir. 2003).

      In Enslin, federal marshals were searching for a fugitive, and had

information that the fugitive was in a particular home. The marshals received


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permission to search the home, and in the course of the search entered a back

bedroom.     Enslin was in the bed, and had apparently been sleeping.

“Concerned for their safety while they searched the room . . . [marshals]

ordered Enslin to show his hands.”        Id. at 791.     He complied, and his

movement shifted the covers, revealing a gun. The Court determined that the

gun was not subject to suppression. I quote the pertinent analysis in full.

      B. The marshals' order to Enslin to show his hands imposed
      only a de minimis obligation upon him and does not require
      suppression of the gun that was then in plain view.

      Enslin asserts that he was seized without reasonable suspicion
      when the marshals ordered him to show his hands as they entered
      the back bedroom. Therefore, Enslin contends that the district
      court should have suppressed the gun that the marshals saw when
      Enslin complied with their order. To address this claim, we must
      determine whether the marshals' order constituted a seizure
      under the Fourth Amendment and, if so, whether it was
      nonetheless reasonable under the circumstances. We answer both
      inquiries in the affirmative.

      1. The show hands order constituted a seizure under the
      Fourth Amendment.

      The Government argues that the marshals’ order to Enslin to show
      his hands did not constitute a seizure pursuant to the Fourth
      Amendment. We disagree. “The Fourth Amendment applies to all
      seizures of the person, including seizures that involve only a brief
      detention short of traditional arrest.” The appropriate inquiry is
      whether the marshals’ order “in some way restrain[ed]” Enslin's
      liberty such that a reasonable person under the circumstances
      would not have felt free to disregard the order. Even if the official
      interference with an individual's liberty is brief, provided that it is
      some sort of “meaningful interference ... with an individual's
      freedom of movement,” it constitutes a seizure.

      We think that the show hands order was a “meaningful
      interference” with Enslin’s freedom. He had his hands covered and
      two armed marshals ordered him to reveal his hands. A

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      reasonable person in Enslin’s situation would not have felt free to
      ignore the request of the marshals, who likely had their hands on
      their weapons when they gave the order. Therefore, the marshals’
      order to Enslin to show his hands constituted a seizure within the
      meaning of the Fourth Amendment.

      2. The show hands order did not violate the Fourth
      Amendment because it was not an unreasonable seizure.

      Our conclusion that the show hands order was a seizure does not
      end the inquiry, “[f]or the Fourth Amendment does not proscribe
      all searches and seizures, but only those that are
      unreasonable.” The marshals’ order to Enslin to show his hands,
      although technically a seizure, does not violate the Fourth
      Amendment because it was not an unreasonable seizure under the
      circumstances. The obligation placed upon Enslin to reveal his
      hands for officer safety during the search for a fugitive was de
      minimis and thus constitutionally reasonable.

      Any inquiry into the reasonableness of a seizure requires “a careful
      balancing of the nature and quality of the intrusion on the
      individual's    Fourth    Amendment      interests   against    the
      countervailing governmental interests at stake.” In this case, that
      balance affirmatively favors the Government’s interest in officer
      safety, leading us to conclude that the marshals’ order was
      constitutional. On Enslin’s side of the balance, requiring an
      individual to reveal his hands does force him to show a part of his
      person that was otherwise concealed. However, the nature and
      quality of the intrusion are minimal.

Id. at 795–96 (footnotes omitted).

      I find this analysis compelling.   As applied herein, the order to show

hands resulted in a seizure, which was minimally invasive. However, I cannot

find that it was reasonable under these particular circumstances.        Enslin

differs from in this case to a significant degree in terms of the facts, as the

marshals therein were attempting to serve an arrest warrant for a fugitive,

and were lawfully authorized to search the home. Herein, Appellee was merely


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on the street. While I agree that the fact the encounter occurred at 2:00 a.m.

in a high crime area is pertinent to the analysis, the fact is that the officers

were responding to a simple noise complaint.        There is no indication that

Appellee and his apparent companions were doing anything warranting a

police interaction beyond a mere encounter.1 Thus, the only need to protect

officer safety in this situation was caused by their initiating the encounter. Cf.

Kentucky v. King, 563 U.S. 452, 462 (2011) (“Where, as here, the police did

not create the exigency by engaging or threatening to engage in conduct that

violates the Fourth Amendment, warrantless entry to prevent the destruction

of evidence is reasonable and thus allowed.”).

       I would not find, as set forth by the analysis employed in Enslin, that

all orders to show hands are constitutionally unreasonable even in the absence

of a seizure supported by reasonable suspicion of criminal activity. In other

cases, there may well be additional facts that tip the Fourth Amendment

balance in favor of law enforcement safety.         Here, however, the officers

conceded that they did not intend to address the noise complaint before


____________________________________________


1 The Commonwealth asserts that the officers had reasonable suspicion to
detain Appellee, which we reject. See Majority Opinion at 8-9. If the
Commonwealth were correct on this point, the analysis with respect to officer
safety would dramatically shift, as the existence of reasonable suspicion may
be a basis to further temporarily restrict Appellee’s liberty. See e.g.
Pennsylvania v. Mimms, 434 U.S. 106 (1977) (per curiam) (explaining that
once a motor vehicle is lawfully detained, officers may order the driver to exit
the vehicle due to the interest in officer safety outweighing the de minimis
additional intrusion).


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engaging Appellee, whom they suspected would leave the area if the officers

addressed the noise complaint. See Majority opinion at 2. Therefore, the

officers had a mere hunch that Appellee may have been involved in criminal

activity, and seized him on that impermissible basis. Therefore, I join the

majority opinion.




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