Com. v. Dixon, T. ( 2019 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
TERREL PATRICK DIXON : No. 1320 WDA 2018
Appeal from the Order Entered, September 11, 2018,
in the Court of Common Pleas of Allegheny County,
Criminal Division at No(s): CP-02-CR-0011754-2017.
BEFORE: OTT, J., KUNSELMAN, J., and MUSMANNO, J.
MEMORANDUM BY KUNSELMAN, J.: FILED AUGUST 01, 2019
The Commonwealth appeals from the order granting Terre! Patrick
Dixon's motion to suppress evidence obtained by police incident to a
warrantless search conducted as part of a stop and frisk. We affirm.
The suppression court stated its findings of fact as follows.
[Officer] Michael Catanzaro, an 18[ -]year veteran of the
Wilkinsburg Police Department, was assigned to pick up a [police]
vehicle from a department mechanic on September 12, 2017. He
was traveling in an unmarked vehicle and in plain clothes.
At approximately 11:45 a.m., Officer Catanzaro was driving
through the 900 block of Stoner Way when he observed two black
males standing in the back yard [sic] of 921 Ross Avenue. Officer
Catanzaro did not recognize either of the males, although
subsequently it was determined that .Dixon
. . was from that
. . .
area.
As Officer Catanzaro approached, the two males walked away
from the back yard [sic], so he radioed the patrol officers to stop
and talk to [Dixon].
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Officer Catanzaro testified that he noticed [Dixon] "tap" his right
side in a manner he thought was consistent with carrying a
concealed weapon.
There [were] no active calls for assistance in that specific area,
and no recent known criminal activity. The only testimony was
that there were several cases that were assigned to the Criminal
Investigations Division, including burglaries and a robbery that
occurred in that general area. Additionally, Officer Catanzaro
testified that he executed a search warrant one block over
approximately two months prior.
When the patrol unit stopped [Dixon], [he] appeared nervous, and
looked about the area from side to side. For this reason, Officer
Catanzaro directed that Officer Granger conduct a pat down to
determine whether [Dixon] was armed.
It was unknown to Officer Catanzaro whether [Dixon] had a
license to carry a concealed weapon, and [he] stated that [Dixon]
"appeared to be someone that would not be eligible to possess a
permit to carry a firearm concealed." Officer Catanzaro did not
elaborate on this statement, but it is implied in the testimony that
it was due to [Dixon] not attaining the age of 21 at the time of the
offense.
Trial Court Opinion, 9/11/18, at 1-2 (citations to the record and formatting
omitted).
When Officer Granger performed the pat down on Dixon, he discovered
a firearm in his waistband. The police arrested Dixon and charged him with a
single count of firearms not to be carried without a license.'
Dixon filed a motion to suppress the evidence. A suppression hearing
was held on May 24, 2018, and on August 13, 2018, the suppression court
orally granted Dixon's motion. The Commonwealth petitioned the court to
issue findings of fact and conclusions of law, and filed a motion for
' 18 Pa.C.S.A. § 6106(a)(1).
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reconsideration. On September 11, 2018, the suppression court issued its
written findings of fact and conclusions of law, and entered an order granting
suppression on the basis that the facts, as provided by Officer Cantanzaro's
testimony at the suppression hearing, did not establish "the requisite
reasonable suspicion that criminal activity was afoot to stop and frisk [Dixon]."
Trial Court Opinion, 9/13/18, at 2. That same day, the suppression court
denied the Commonwealth's motion for reconsideration.
The Commonwealth filed a timely notice of appeal. Both the
Commonwealth and the trial court complied with Pa.R.A.P. 1925. The
Commonwealth raises one issue on appeal: "Whether the trial court erred in
finding that the police officer did not have reasonable suspicion to believe
[Dixon] was carrying an unlawful firearm, and therefore, lacked grounds to
stop and search him?" Commonwealth's Brief at 4.
When, as here, police have acted without a warrant, "determinations of
reasonable suspicion and probable cause should be reviewed de novo on
appeal." Ornelas v. United States, 517 U.S. 690, 699 (1996). But "a
reviewing court should take care both to review findings of historical fact only
for clear error and to give due weight to inferences drawn from those facts by
resident judges and local law enforcement officers." Id.Because Dixon prevailed at the suppression hearing "we consider only
the evidence of [Dixon] and so much of the evidence for the Commonwealth
as remains uncontradicted when read in the context of the suppression
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hearing record as a whole." Commonwealth v. Lukach, 195 A.3d 176, 183
(Pa. 2018) (citations and quotation marks omitted). As for the subject matter,
"our scope of review is limited to the factual findings and legal conclusions of
the suppression court." In re L.1., 79 A.3d 1073, 1080 (Pa. 2013).
Additionally, citing to L.1., this Court has said "our scope of review from a
suppression ruling is limited to the evidentiary record that was created at the
suppression hearing." Commonwealth v. Cruz, 166 A.3d 1249, 1254 (Pa.
Super. 2017), appeal denied, 180 A.3d 1207 (Pa. 2018).
Generally, "searches and seizures conducted outside the judicial
process, without prior approval by judge or magistrate, are per se
unreasonable under the Fourth Amendment-subject only to a few specifically
established and well delineated exceptions." Commonwealth v. Wilson,
655 A.2d 557, 560 (Pa. Super. 1995) (citations and quotation marks omitted).
One recognized exception is where an officer has reasonable suspicion to
believe that criminal activity is afoot, and that an individual might be armed
and dangerous. Terry v. Ohio, 392 U.S. 1, 30, (1968). When this threshold
is satisfied, the officer "is entitled for the protection of himself and others in
the area to conduct a carefully limited search of the outer clothing of such
persons in an attempt to discover weapons which might be used to assault
him." Id. Such a "limited search" is commonly referred to as an investigatory
detention or a Terry stop.
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For an investigatory detention to be legal under Terry, the officer's
reasonable suspicion of criminal activity must be supported by specific and
articulable observations "of suspicious or irregular behavior on behalf of the
particular [individual] stopped." Commonwealth v. Martinez, 588 A.2d
513, 515 (Pa. Super. 1991) (citations omitted). Reasonable suspicion is a less
stringent standard than probable cause. See Commonwealth v. Conrad,
892 A.2d 826, 829 (Pa. Super. 2006). Nevertheless, in order to establish
reasonable suspicion, the 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 (1989) (citations and quotation marks omitted). In
order to determine whether an officer had reasonable suspicion to lawfully
initiate an investigatory detention, we look to the totality of the circumstances.
Commonwealth v. Semuta, 902 A.2d 1254, 1259 (Pa. Super. 2006).
The Commonwealth argues that the suppression court erred in finding
that the officers lacked reasonable suspicion to justify the investigatory
detention and the limited search of Dixon's person for weapons.
Commonwealth's Brief at 21. According to the Commonwealth, the
investigatory detention and search were supported by Officer Cantanzaro's
testimony that (1) he had 18 years of experience as a police officer in
Wilkinsburg; (2) he observed two unfamiliar males standing in the backyard
of a "high crime area;" (3) while he drove past, he noticed, through his
rearview mirror, one of the males "tap" his waistband in a manner consistent
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with someone concealing a firearm; (4) after Officer Granger had stopped
Dixon, Dixon appeared nervous and looked about the area from side to side
indicating an intent to flee; and (5) Dixon appeared to be too young to possess
a valid license to carry a concealed firearm. Id. at 23-24; see also N.T.
Suppression, 5/24/18, at 57, 59, 60, 62, 63.
In support of its argument, the Commonwealth relies upon several cases
in which this Court determined that there was reasonable suspicion to justify
an investigatory detention. See Commonwealth v. Carter, 105 A.3d 765,
774-75 (Pa. Super 2014) (finding reasonable suspicion where police observed
the defendant in a high crime area, walking away from a known drug corner,
with a weighted and angled bulge in his coat pocket, and repeatedly
attempting to conceal the bulge in his pocket once alerted to police presence);
Commonwealth v. Foglia, 979 A.2d 357, 361 (Pa. Super 2009) (finding
reasonable suspicion where police received an anonymous tip that a man
dressed in black possessed a firearm at a location known for its high volume
of drugs and weapons, and upon arrival at the location, police observed a man
dressed in black who engaged in evasive behavior by walking away from the
police and looking over his shoulder before sitting down behind some
females); and Commonwealth v. Stevenson, 894 A.2d 759, 764 (Pa. Super
2006) (finding reasonable suspicion where police officers were standing
behind an individual in a convenience store and observed that his pocket was
bulging and weighted down as if it contained a firearm, and the individual
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began to suspiciously adjust his clothing and contents of his pocket while
continuously looking back over his shoulder at the officers)
However, those cases are factually distinguishable from this case. Here,
Officer Cantanzaro did not testify that he observed any bulge in Dixon's
clothing, nor did he state that any aspect of Dixon's clothes appeared to be
weighted down. Rather, Officer Cantanzaro testified that he became
suspicious of Dixon because he placed his hand on "his front waist area." See
N.T. Suppression, 5/24/18, at 66. Notably, Officer Cantanzaro conceded that
Dixon was not carrying anything in his hands that was suspicious, and that he
did not see Dixon commit any crime as he passed. Id. Officer Cantanzaro
further conceded that he was not in the area to conduct any investigation, and
the officers received no active calls or anonymous tips regarding suspicious
individuals or activity in that area at that particular time. Id. at 73.
Moreover, while the Commonwealth contends that Dixon was in a high
crime area, the suppression court made no such finding.2 Additionally, the
2 The suppression record does not reflect high volume of cases in this area.
a
Indeed, Officer Cantanzaro testified only that "several cases were assigned to
the Criminal Investigations Division, including burglaries and a robbery that
occurred in that general area." See N.T. Suppression, 5/24/18, at 58. He
also testified that he made one narcotics related arrest and executed one
search warrant nearby roughly two months prior to Dixon's arrest. Id.
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suppression court made no finding that Dixon walked away in a suspicious or
evasive manner.3
Although the Commonwealth argues that Officer Cantanzaro's testimony
regarding Dixon's nervous disposition and youthful appearance should be
considered as part of the totality of the circumstances that justified the stop,
we cannot include these observations in our analysis because they occurred
after Officer Granger stopped Dixon. See Martinez, 588 A.2d at 516(holding that the totality of the circumstances analysis must be limited to the
facts known to the officers prior to initiating the stop).
Even if Officer Cantanzaro reported to Officer Granger that he saw a
firearm protruding from Dixon's waistband, or what appeared to be the outline
of a firearm concealed by Dixon's clothing, the officers would still lack
reasonable suspicion in order to justify an investigatory detention. See
Commonwealth v. Hicks, 208 A.3d 916, 949 (Pa. 2019) (concluding that
there was no reasonable suspicion to justify an investigatory detention where
the police received a report that an individual exited his vehicle with a firearm
visible in his waistband, and subsequently pulled his shirt over the firearm to
3 The suppression record supports the absence of such a finding because
Officer Cantanzaro merely testified that, as he was driving past Dixon in an
unmarked police car, while in plain clothes, he saw "the lead male walk away
first in a hurried manner." See N.T. Suppression, 5/24/18, at 59; see also
Commonwealth v. Key, 789 A.2d 282, 289-90 (Pa. Super. 2001) (holding
that merely walking away from the police does not provide reasonable
suspicion).
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conceal it as he walked into a gas station). According to Hicks, the mere
possession of a concealed firearm in public is not enough to establish
reasonable suspicion because such rule "allows a police officer to base the
decision to detain a particular individual upon an inchoate and unparticularized
suspicion or hunch that the individual is unlicensed and therefore engaged in
wrongdoing. Id. at 946 (internal quotations and citations omitted).
In our view, this case is factually similar to Martinez, where this Court
determined that reasonable suspicion was not established where the facts
known to the officers prior to initiating the investigatory detention established
only "that Martinez was talking with a group of people on a street corner at
12:20 A.M., she walked away quite rapidly after looking in the direction of an
unmarked police vehicle, and her jacket appeared to have a bulge in it." Id.
at 516 (internal quotation marks omitted). This Court held that these facts
did not amount to reasonable suspicion that Martinez was armed and
dangerous or that criminal activity was afoot. Id. The observations by police
in this case are even less than those at issue in Martinez, since Officer
Cantanzaro merely observed Dixon in a backyard, touch his waistband, and
begin to quickly walk down the street.
Limiting our analysis to the facts known to Officer Cantanzaro prior to
directing Officer Granger to initiate an investigative detention of Dixon, we
agree with the suppression court's determination that the evidence was
insufficient to establish a reasonable suspicion that criminal activity was afoot.
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See Hicks, supra; Martinez, supra. Accordingly, we affirm the suppression
court's order granting Dixon's motion to suppress the evidence.
Order affirmed.
Judgment Entered.
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Joseph D. Seletyn,
Prothonotary
Date: 8/1/2019
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