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.*

OPINION BY RANSOM, J.:                                   FILED JUNE 26, 2018

        Appellant, the Commonwealth of Pennsylvania, appeals from the order

entered March 31, 2017, granting Appellee Tareek Alquan Hemingway’s

suppression motion. After careful review, we affirm.

        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.




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*   Former Justice specially assigned to the Superior Court.
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       At the 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 search.

       Rather 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 disorderly

conduct.1

       In 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
____________________________________________


1  35 P.S. § 780-113(a)(30); 18 Pa.C.S. §§ 5104, 5121, and 5503,
respectively.

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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.

       The Commonwealth timely appealed.2 Both the Commonwealth and the

court have complied with Pa.R.A.P. 1925(a)-(b).

       On appeal, the Commonwealth raises the following issues for our

review:

       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.

The Commonwealth’s Brief at 3.

       First, 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


____________________________________________


2 In its notice of appeal, the Commonwealth certified that the suppression
court’s order granting Appellee’s motion to suppress terminates or
substantially handicaps the prosecution. See Pa.R.A.P. 311(d) (permitting
interlocutory appeal where Commonwealth certifies with its notice of appeal
that order terminates or substantially handicaps prosecution). Thus, the
appeal is properly before us. See Commonwealth v. Ivy, 146 A.3d 241,
244 n.2 (Pa. Super. 2016).

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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.

      When 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 error.

Commonwealth v. Haines, 168 A.3d 231, 234 (Pa. Super. 2017) (internal

citations and quotations omitted).

      We 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 probable cause.

In re J.G., 145 A.3d 1179, 1185 (Pa. Super. 2016).




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      Here, 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.

      Our 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).

      As 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 suspicion:

      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 dangerous.




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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)).

      There 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.

      In 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 515-16.

      This 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 individual’s conduct.

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



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crime area did not support reasonable suspicion that defendant was engaged

in criminal activity) (internal citations and quotations omitted) (emphasis

added).

      Our 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).

      Similarly, 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.




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      However, 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).

      In the 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 1116-

17.

      In the 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 investigative detention that must be

supported by reasonable suspicion. Baldwin, 147 A.2d at 1203; see also

Carter, 779 A.2d at 594.

      Based upon the facts, i.e., Appellee’s actions of speaking to a woman

on the street in a high crime area with his hands in his pockets, we discern no

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reasonable suspicion sufficient for such a detention. See Carter, 779 A.2d at

594-95.   Thus, Officer Detwiler’s command was improper.          Any potential

danger in the interaction initiated by police was manufactured by Officer

Detwiler himself. See Carter, 779 A.2d at 594.

      Here, the Commonwealth cites to no cases to support its specific

proposition and instead cites generally to the case law justifying Terry stops.

See Commonwealth’s Brief at 9.         Even assuming, arguendo, that the

interaction was a mere encounter, much of the precedent concerning similar

situations does not support the Commonwealth’s position.

      For example, in Commonwealth v. Hall, 713 A.2d 650, 653 (Pa.

Super. 1998), rev’d on other grounds, 771 A.2d 1232 (Pa. 2001), this Court

did not find that the officer’s request that the defendant remove his hands

from his pockets constituted a seizure; however, the defendant’s subsequent

refusal to comply escalated the encounter into one where the totality of the

circumstances justified a stop and frisk. Id. However, in Hall, the defendant

was the one to initiate contact with the police, whereas in the instant case,

the police initiated contact with the defendant. Id. at 652-53.

      Neither does Coleman support this position.         The Commonwealth

asserts that Appellee’s refusal to comply with orders, along with the fact that

officers encountered Appellee at 2:00 a.m. in a high crime area, demonstrated

the justified belief that Appellee was armed and dangerous.           However,

Coleman is easily distinguishable on its facts.




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      The instant case is distinguishable in several important aspects. First,

Coleman involved a violent crime in progress, making it more likely that the

suspects may have been armed. In the instant matter, police were responding

to a noise complaint. Second, in Coleman, police had a specific description

of the clothing the suspects wore, and Coleman himself was wearing clothing

that matched that description. There was no such description of Appellee in

this case. Third, in Coleman, Coleman put his hands in his pockets after police

initiated the encounter. Here, as noted above, it was the fact that Appellee’s

hands were in his pockets that caused Officer Detwiler to initiate the

encounter.

      Similarly, Commonwealth v. Thomas, 179 A.3d 77 (Pa. Super. 2018),

is distinguishable. In Thomas, police received a report at 1:20 a.m. of a black

male with a gun, dressed in a blue hooded sweatshirt and blue pants or jeans.

Id. at 80. When officers arrived at the location provided in the report, they

saw a black male, later identified as the defendant, wearing a black hooded

sweatshirt, black jacket, and black pants, and walking down the street. Id.

After circling the block, the officers noticed the defendant sitting on a stoop.

Id.   As the officers circled the block four or five times, they noticed the

defendant watching them, reversing his direction away from them, and

looking again. Id. By the time the officers stopped the defendant, he had his

hands in his pockets and refused to remove them when ordered. Id. Officers

patted him down, and felt a gun in his pockets. Id.




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      The Thomas panel characterized this interaction as a mere encounter

and noted that the defendant was not seized when officers asked him to

remove his hands from his pockets.       Id. at 82-83.   In support, the panel

quoted Coleman to note that such a reaction by a police officer does not

elevate the mere encounter into an investigative detention because the

reaction was necessitated by the individual’s conduct. Id. (quoting Coleman,

19 A.3d at 1117).

      The instant case is again distinguishable on the facts. First, the officers

in Thomas had a description of the suspect, namely, a black male wearing a

dark hooded sweatshirt and jeans. Id. at 80. Although the description of the

clothing was not exact, it was reasonably close given the late hour. In the

instant matter, there was no description of the suspect at all: not race, not

gender, not clothing. Second, the report in Thomas was of a man with a gun,

a matter in which officers would reasonably fear for their safety upon seeing

a man with his hands in his pockets. Id. at 80. In the instant case, officers

were responding to a noise complaint, with no reports of weapons. Further,

the individual’s conduct did not necessitate the officer’s reaction: Appellee was

speaking to two women, with his hands in his pockets.          In contrast, the

Thomas defendant behaved suspiciously by appearing to attempt to evade

the police before he was stopped. Id. at 80-83.

      Accordingly, Thomas and Coleman do not affect our analysis and

conclusion that the encounter in the instant case was an investigative

detention which was initiated without reasonable suspicion. Baldwin, 147

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A.2d at 1203; see also Carter, 779 A.2d at 594; Coleman, 19 A.3d at 1117;

Thomas, 179 A.3d at 80-83.

       Here, the police initiated this interaction without reasonable suspicion.

See Carter, 779 A.2d at 594. Whatever happened after was of no moment,

as the critical point in the interaction was Officer Detwiler’s improper

command.3       Accordingly, the suppression court did not err in granting

Appellee’s motion, and we affirm.

       Order affirmed.

       Judge Bowes joins this opinion and files a Concurring Opinion.

       President Judge Emeritus Stevens files a Dissenting Opinion.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/26/2018




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3 Accordingly, the Commonwealth’s second issue – that the court erred in
suppressing items discarded as Appellee ran – is moot based upon our
disposition of the first issue.

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