Com. v. Hemingway, T. , 192 A.3d 126 ( 2018 )

J-S69033-17
2018 PA Super 183COMMONWEALTH OF : IN THE SUPERIOR COURT OF
PENNSYLVANIA : 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.*
DISSENTING OPINION BY STEVENS, P.J.E.: FILED JUNE 26, 2018
Our society is seeing an alarming trend of law enforcement officers being
attacked.1 Given the need to balance the protection of law enforcement
officers with the constitutional rights of an individual under investigation, there
may be reasonable differences of opinion in any given set of facts.
Here, respectfully, the police officers under the facts of this case had
every right to approach and question Appellee, especially at 2 a.m., in a high
crime area. Considering these facts, when Appellee refused to remove his
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1 Within just a ten-day span, there were two such attacks in Luzerne County,
Pennsylvania. On May 31, 2018, in Edwardsville, several officers were
attacked while investigating a violent domestic dispute. Officers allegedly
assaulted after domestic in Edwardsville, Times Leader, 6/1/18,
https://www.timesleader.com/news/706303/officers-allegedly-assaulted-
after-domestic-in-edwardsville. On June 9, 2018, in Hazleton, a man on an
all-terrain vehicle (ATV) attempted to run over a police officer who was
attempting to offer him assistance. Man on ATV tries to run down officer who
was there to help him, Standard Speaker, 6/11/18, at 1. A simple internet
search produces a plethora of attacks on law enforcement officers.
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* Former Justice specially assigned to the Superior Court.
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hand from his pocket, the officers found it necessary to conduct a limited
protective frisk of Appellee’s person for their personal safety. There is nothing
intrusive about the actions of the police officers in this case that justifies a
suppression order.
Law enforcement officers should have the right to ask an individual to
take his hand out of his pocket for their safety. We must remember that police
officers in the line of duty are faced with on-the-spot decisions in a highly
stressful environment. It is perfectly reasonable to give officers some leeway
in asking an individual to remove their hands from their pockets during an
interaction.
As the trial court erred in concluding that the police officers unlawfully
seized Appellee by approaching him and subsequently asking him to take his
hands out of his pockets to ensure their safety, I respectfully dissent.
A police officer does not need any level of suspicion to approach an
individual and ask them questions. Commonwealth v. Baldwin, 147 A.3d
1200, 1202–1203 (Pa.Super. 2016).
Both the United States and Pennsylvania Supreme Courts have
held that the approach of a police officer followed by questioning
does not constitute a seizure. Florida v. Bostick, 501 U.S. 429,
434, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991) (police can
approach people at random, ask questions, and seek consent to
search) (collecting cases); Florida v. Royer, 460 U.S. 491, 497,
103 S.Ct. 1319, 75 L.Ed.2d 229 (1983) (“law enforcement officers
do not violate the Fourth Amendment by merely approaching an
individual in the street or in another public place, by asking him is
he is willing to answer some questions, [or] by putting questions
to him if the person is willing to listen”); Commonwealth v.
Smith, 575 Pa. 203, 836 A.2d 5, 11 (2003) (“the mere approach
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of police followed by police questioning ... does not amount to a
seizure”); In re D.M., 566 Pa. 445, 781 A.2d 1161, 1164 (2001)
(“the police may approach anyone in a public place to talk to him,
without any level of suspicion”).
Commonwealth v. Thomas, 179 A.3d 77, 82 (Pa.Super. 2018) (quoting
Commonwealth v. Coleman, 19 A.3d 1111, 1117 (Pa.Super. 2011)).
Our courts have repeatedly held that an officer’s request that an
individual remove their hands from their pockets does not escalate a mere
encounter to an investigative detention requiring reasonable suspicion.
An officer is justified in insisting that a citizen not conceal his
hands during an encounter with police; an officer may make this
reasonable request to ensure his or her own protection in case
that individual is armed.
This Court has 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.” Commonwealth v. Carter, 779 A.2d 591, 594
(Pa.Super. 2001).
Coleman, 19 A.3d at 1117 (quoting Commonwealth v. Carter,
779 A.2d 591, 594 (Pa.Super. 2001) (noting that the fact that the
officer asked the appellant to take his hands out of his pockets did
not turn the encounter into a seizure)). See also
Commonwealth v. Blair, 860 A.2d 567, 573 (Pa.Super. 2004)
(finding that interaction remained a mere encounter when an
officer approached a parked car and asked its occupants to show
their hands).
Thomas, 179 A.3d at 83.
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During a mere encounter, however, an officer may recognize the need
to conduct a protective frisk of an individual if he reasonably believes the
person is armed and dangerous. This Court has held:
[w]hen 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. Terry [v. Ohio, 392 U.S. 1, 24, 88 S.Ct.
1868, 20 L.Ed.2d 889 (1968)]. “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.” Adams v.
Williams, 407 U.S. 143, 146, 92 S.Ct. 1921, 32 L.Ed.2d 612(1972).
Commonwealth v. Simmons, 17 A.3d 399, 403 (Pa.Super. 2011) (quotation
marks omitted). Further, “the court must be guided by common sense
concerns that give preference to the safety of the police officer during
an encounter with a suspect where circumstances indicate that the suspect
may have, or may be reaching for, a weapon.” Commonwealth v.
Stevenson, 894 A.2d 759, 772 (Pa.Super. 2006) (citation omitted) (emphasis
in original).
In Thomas, police officers were on patrol when they received a report
of a black male with a gun in a high crime area in Philadelphia. When the
officers arrived at the reported location, they observed a black male, later
identified as the appellee, walking eastbound on Greenway Avenue. After the
officers circled the block in their patrol car four or five times, the officers
observed the appellee repeatedly reverse his direction and look back at the
officers each time they passed by.
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Although the appellee did not meet the exact description outlined in the
dispatch report, the officers believed the appellee’s behavior was suspicious
and approached him. Appellee had his hands in his pockets but refused the
officers’ request to remove them. At that point, the officers conducted a
limited protective frisk of the appellee’s person for their personal safety.
The Thomas Court reversed the lower court’s decision to suppress the
evidence and rejected its finding that the officers lacked the requisite suspicion
to approach the appellee, ask him to show his hands, and conduct a brief
protective frisk. Thomas, 179 A.3d at 84. First, the Thomas court found
the officers’ request for the appellee to remove his hands from his pockets did
not escalate the encounter into an investigative detention. See Coleman,
supra; Blair, supra. Second, the Thomas Court determined that the
appellee’s refusal to remove his hands from his pockets justified a brief
protective frisk of his person for the officers’ protection.
Specifically, this Court found that “[i]t was reasonable for [the officers]
to infer that Appellee may have been armed and dangerous, given his refusal
to show his hands and his evasive movements in response to police presence
in an area specifically known for high levels of crime and violence.” Thomas,
179 A.3d at 83-84. See Commonwealth v. Hall, 713 A.2d 650, 653
(Pa.Super. 1998), rev'd on other grounds, 565 Pa. 92, 771 A.2d 1232 (2001)
(finding although that officer’s request that the defendant to remove his hands
from his pockets did not constitute a seizure, the defendant's persistence in
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keeping his hands concealed escalated the encounter into one where the
totality of the circumstances justified a frisk).
Similarly, in the instant case, the 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.
See Thomas, supra; Coleman, supra; Blair, supra.Thereafter, Appellee refused to comply with officers’ request to remove
his hand from his pocket. This suspicious behavior, along with the fact that
the officers had encountered Appellee at approximately 2 a.m. in a high crime
area, demonstrates that the officers were justified in attempting to perform a
pat-down of Appellee for their personal safety as they reasonably believed
that Appellee was armed and dangerous. See Thomas, supra; Hall, supra.
Moreover, I cannot agree with the Majority’s assertion that the Officer
Detwiler had no right to command Appellee to stop concealing his hand as
“[a]ny potential danger in the interaction initiated by police was manufactured
by Officer Detwiler himself.” Majority, at 9. The Majority’s position is
unsupported by the aforementioned precedent, and its reliance on this Court’s
decision in Carter is misplaced. In Carter, the officer pulled his firearm on
the appellee and told him to remove his hand from his pocket; however, the
officer admitted on cross-examination that he had initially told the defendant
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to place his hand in his pocket. This Court questioned the validity of the
officer’s belief that the defendant was armed and dangerous:
Since it was the officer who told Appellee to put his hand in his
pocket, we find it absurd that the officer would then argue that he
became concerned for his safety when Appellee complied with his
directive. A police officer cannot for instance, ask an individual to
pick up a gun lying on the floor, and then claim that he was afraid
for his safety because the individual picked up the gun. 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.
Carter, 779 A.2d at 594. This Court found that the officer escalated the
situation into an investigative detention when he reached for his weapon and
ordered the appellee to show his hands.
Moreover, the Carter panel went on to clarify that its conclusion would
have been different had the appellee put his hand in his pocket without being
prompted by the officer. The Carter panel explained that the officer’s
response in reaching for his side arm and ordering the appellee to show his
hands would not have escalated the encounter into an investigative detention
as the officer would have reasonably feared for his safety as the appellee could
have been retrieving a weapon from his pocket.
There is nothing in the record in the instant case to suggest the police
officers directed Appellee to put his hands in his pockets. Thus, the decision
in Carter does not support the Majority’s conclusion.
In this same manner, I disagree with the Majority’s suggestion that an
officer has no right to ask an individual to remove his hands from his pockets
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without escalating an interaction from a mere encounter to an investigative
detention. Permitting an officer to request that an individual not conceal his
hands during an interaction promotes officer safety and allows the officer to
pursue the interaction with less apprehension of violence.
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.
As a result, consistent with the aforementioned precedent, 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.
Further, if this Court were to uphold the constitutionality of the frisk of
Appellant’s person, the officers were also justified in pursuing Appellee after
he fled the scene. Our courts have held that a police officer’s pursuit of a
fleeing suspect constitutes a seizure under Article 1, Section 8 of the
Pennsylvania Constitution, which provides broader protection than the Fourth
Amendment of the United States Constitution. Commonwealth v. Matos,
543 Pa. 449, 461–62, 672 A.2d 769, 775–76 (1996); California v. Hodari
D., 499 U.S. 621, 111 S.Ct. 1547, 113 L.Ed.2d 690 (1991) (holding that a
police officer’s pursuit of a fleeing suspect does not automatically trigger the
protection of the Fourth Amendment). Therefore, “any items abandoned by
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an individual under pursuit are considered fruits of a seizure. Those items may
only be received in evidence when an officer, before giving chase, has at least
the reasonable suspicion necessary for an investigatory stop.”
Commonwealth v. Taggart, 997 A.2d 1189, 1193 (Pa.Super. 2010)
(quoting In re M.D., 781 A.2d 192, 197 (Pa.Super. 2001)).
Appellee’s unprovoked flight in a high crime area gave the officers
reasonable suspicion to pursue and stop him. Our Supreme Court has held
that “unprovoked flight in a high crime area is sufficient to create a reasonable
suspicion to justify a Terry stop under the Fourth Amendment.” In re D.M.,
566 Pa. 445, 450, 781 A.2d 1161, 1164 (2001) (citing Illinois v. Wardlow,
528 U.S. 119, 120 S.Ct. 673, 145 L.Ed.2d 570 (2000)).2 Thus, the trial court
erred in holding that the police lacked reasonable suspicion to justify their
initial attempt to stop and frisk Appellee.3
For the foregoing reasons, I dissent.
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2 To justify an investigative detention based a suspect’s unprovoked flight in
a high crime area, “the suspect must know he is running from law enforcement
before a reasonable suspicion can attach.” Commonwealth v. Washington,
51 A.3d 895, 898 (Pa.Super. 2012). There is no question that Appellee
recognized the officers as law enforcement as they were in full uniform,
arrived in a marked patrol car, and identified themselves as officers.
3 Appellee’s suppression motion solely alleged that the officers lacked
reasonable suspicion to support their attempt to stop and frisk him. Appellee
does not challenge the propriety of the officers’ search of his person. Thus, it
is not necessary to review this issue. See Commonwealth v. Freeman, 128
A.3d 1231, 1241–42 (Pa.Super. 2015) (reiterating that a suppression motion
must “state[] specifically and with particularity the evidence sought to be
suppressed, the grounds for suppression, and the facts and events in support
thereof”).
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