In the Interest of: J.S., a Minor ( 2018 )

J-A08022-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: J.S., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
:
:
APPEAL OF: COMMONWEALTH OF :
PENNSYLVANIA :
:
:
: No. 1996 EDA 2016
Appeal from the Order Entered June 10, 2016
In the Court of Common Pleas of Lehigh County Criminal Division at
No(s): CP-39-JV-0000216-2016
BEFORE: PANELLA, J., LAZARUS, J., and STRASSBURGER*, J.
MEMORANDUM BY LAZARUS, J.: FILED MAY 04, 2018
The Commonwealth of Pennsylvania (Commonwealth) appeals from the
order,1 entered in the Court of Common Pleas of Lehigh County, granting
Appellee J.S.’s motion to suppress physical evidence and statements obtained
as a result of an allegedly unlawful search and seizure. After careful review,
we affirm.
The suppression judge made the following findings of fact in the matter:2
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1 The Commonwealth has certified that the order will terminate or
substantially handicap the prosecution. See Commonwealth’s Brief, at 8; see
also Pa.R.A.P. 311(d).
2 On September 26, 2017, this Court remanded the instant matter for
preparation of a Pa.R.Crim.P. 581(I) record statement of findings of fact and
conclusions of law from the suppression judge. See Commonwealth v. J.S.,
No. 1996 EDA 2016 (Pa. Super. filed Sept. 26, 2017). The suppression judge
complied with our directive and prepared a Pa.R.A.P. 1925(a) opinion detailing
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* Retired Senior Judge assigned to the Superior Court.
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 On March 21, 2016, Officer Jacoby Glenny, a City of
Allentown police officer, was assigned the nightshift of the
Fourth Platoon.
 At approximately 1:40 a.m., Officer Glenny pulled up to the
traffic light at the intersection of Tenth and Turner Streets
and observed a white Chevy Malibu in the parking lane at
the corner of the intersection.
 While watching the vehicle, Officer Glenny further observed
an individual drop a foil wrapper out of the driver-side car
window onto the street.
 The vehicle had a dark-window tint, but Officer Glenny could
see a person in the driver’s seat of the vehicle.
 Officer Glenny continued driving as he ran the vehicle’s
registration. The registration did not match the white sedan.
Officer Glenny drove around the block and parked on Tenth
Street.
 Officer Glenny had mistakenly run the wrong registration.
He ran the correct registration while parked on Tenth Street.
Again, the registration did not match the vehicle.
 Officer Glenny turned his vehicle onto Turner Street and
observed three males walking toward the white sedan.
When the individuals saw the marked police vehicle and/or
the uniformed officer, they turned around and began
walking [in] the opposite direction.
 Officer Glenny notified the communications center that he
was going to stop and talk to three males in the 900 block
of Turner Street.
 Two additional officers responded that they were en route.
The males began to walk through the park located in the
900 block of Turner Street.
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his findings of fact and conclusions of law in the matter. See Trial Court
Opinion, 1/30/18.
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 The park was closed at that hour. Officer Glenny called to
the three males; he told them to stop and to come toward
him so he could talk to them.
 The males continued to walk south into the park. Officer
Glenny followed them.
 The park was dark with no street lights.
 The individuals each separately complied with the officer’s
requests for them to stop. J.S. was the last person to stop
and walk toward the officer.
 Officer Glenny spoke to the three males for approximately
one to two minutes.
 J.S. was asked and he confirmed that he was the driver of
the white sedan, it was his vehicle, and that he had recently
purchased it.
 J.S. was not asked to provide his name, date of birth,
address, or to show identification.
 J.S. approached Officer Glenny with his hands in his
pockets. Officer Glenny asked J.S. to remove his hands
from his pockets; J.S. complied. However, J.S.
subsequently put his hands back in his pockets while talking
to Officer Glenny. Officer Glenny repeated his request for
J.S. to remove his hands from his pockets; J.S. again
complied.
 J.S. was cooperative[,] but standoffish with Officer Glenny.
 J.S. stood approximately five feet away from Officer Glenny.
 After a few minutes of questioning, Officer Glenny asked J.S.
to come closer. Instead, J.S. took a step away from Officer
Glenny. The officer reached out to grab J.S.’s arm, but J.S.
ducked away from Officer Glenny, put his hands down at his
waist, and ran west through the park.
 J.S. ran for approximately 100 feet. He was chased by
Officer Glenny who deployed his Taser. J .S. was hit by the
Taser and collapsed face-first in the middle of Hazel Street.
He was bleeding from his face, nose, and mouth.
 J.S. was put in handcuffs.
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 A firearm was recovered from J.S.’s waistband, along with
five live rounds and an extended magazine. Nine bags of
marijuana were found in his shorts.
Trial Court Opinion, 1/30/18, at 1-3 (citations to notes of testimony omitted).
On April 8, 2016, the Commonwealth filed a juvenile petition charging
J.S. with firearms not to be carried without a license,3 possession of a firearm
with altered manufacturer’s number,4 possession of a small amount of
marijuana,5 and disorderly conduct.6 On May 2, 2016, J.S. filed a pre-trial
motion to suppress physical evidence and/or statements. After a hearing, the
court granted J.S.’s motion to suppress. This timely appeal follows.
On appeal, the Commonwealth presents the following issue for our
review: “Did the trial court err in concluding that police unlawfully searched
and seized [J.S.], where [J.S.] was stopped based on probable cause that he
had violated various ordinances, the Crimes Code, and the Vehicle Code, and
the police gathered reasonable suspicion [J.S.] was armed[?]”
Commonwealth’s Brief, at 4.
An appellate court's standard of review in suppression matters is well-
settled:
When the Commonwealth appeals from a suppression order, an
appellate court follows a clearly defined standard of review and
considers only the evidence from the defendant’s witnesses
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3 18 Pa.C.S. § 6106(a)(1).
4 18 Pa.C.S. § 6110.2(a).
5 35 P.S. § 780-113(a)(31).
6 18 Pa.C.S. § 5503(a)(4).
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together with the evidence of the prosecution that, when read in
the context of the entire record, remains uncontradicted. The
suppression court's findings of fact bind an appellate court if the
record supports those findings. The suppression court’s
conclusions of law, however, are not binding on an appellate court,
whose duty is to determine if the suppression court properly
applied the law to the facts.
Commonwealth v. Carter, 105 A.3d 765, 768 (Pa. Super 2014) (citations
omitted).
Instantly, the Commonwealth asserts that the police had probable cause
to stop J.S. where he had “violated various ordinances, the Crimes Code and
the Vehicle Code, and the[y] had gathered reasonable suspicion that [J.S.]
was armed.” Commonwealth’s Brief, at 4.
Under Pennsylvania law, there are three levels of encounters that aid
courts in conducting search and seizure analyses.
The first of these is a “mere encounter” (or request for
information) which need not be supported by any level of
suspicion, but carries no official compulsion to stop or respond.
The second, an “investigative detention” must be supported by
reasonable suspicion; it subjects a suspect to a stop and period of
detention, but does not involve such coercive conditions as to
constitute the functional equivalent of arrest. Finally, an arrest or
“custodial detention” must be supported by probable cause.
* * *
When an officer, by means of physical force or show of authority,
has restrained the liberty of an individual, a “seizure” has
occurred. Any curtailment of a person’s liberty by the police must
be supported at least by a reasonable and articulable suspicion
that the person seized is engaged in criminal activity.
Our Supreme Court has adopted an objective test for determining
whether a police officer has restrained the liberty of a citizen such
that a seizure occurs. The pivotal inquiry in making this
determination is whether a reasonable person innocent of any
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crime, would have thought he . . . [wa]s being restrained had he
. . . been in the defendant’s shoes. A Court must examine all
surrounding circumstances evidencing a show of authority or
exercise of force, including the demeanor of the police officer, the
manner of expression used by the officer in addressing the citizen,
and the content of the interrogatories or statements. If a
reasonable person would not feel free to terminate the encounter
with police and leave the scene, then a seizure of that person has
occurred.
Commonwealth v. Chambers, 55 A.3d 1208, 1214-15 (Pa. Super. 2012)
(citations and headnote omitted).
Instantly, Officer Glenny was driving in a marked police cruiser, at 1:30
a.m., in an area known for drug activity. He observed an occupant of a parked
vehicle toss a foil wrapper out onto the street; he testified that the cigars
inside such wrappers are used to smoke marijuana. Id. at 9. The officer ran
the car’s registration in the PennDot database; the state records indicated that
the car associated with the registration was not the same as the parked
vehicle. The car, however, was not designated as stolen. Id. at 39. Officer
Glenny then observed three individuals walking toward the vehicle. When
they noticed the officer, they turned around and walked into a nearby, closed
park. At that point, Officer Glenny effectuated an encounter, asked the three
individuals to stop, and initiated a conversation with them. J.S. acknowledged
that he owned the parked car and that he had recently purchased it. Id. at
8. Although the registration did not match the car on the system, Officer
Glenny never asked J.S. for any identification, proof of vehicle ownership, or
insurance or registration information. Id. at 32, 40.
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During his interaction with Officer Glenny, J.S. kept his hands in his
pockets. Officer Glenny asked J.S. to remove his hand from his pockets; he
complied. However, J.S. put his hands back in his pockets again; when asked
to remove them a second time, J.S. again complied. Minutes later, back-up
officers arrived on the scene and saw Officer Glenny talking to the three males.
Just as Officer Glenny asked J.S. to “come here,” J.S. took a step back away
from him. Id. at 39. At that point, the officer “reached out to grab ahold of
[J.S.’s] arm;” J.S. immediately took his hands towards his waist, ducked away
from Officer Glenny, and turned and ran. Id. J.S. ran for approximately 100
feet, chased by Officer Glenny, and was hit with the officer’s Taser. J .S., who
was now bleeding from his face, nose, and mouth, was put in handcuffs. A
search incident to his arrest uncovered a firearm, live rounds, an extended
magazine, and nine bags of marijuana on J.S.’s person.
Based on the evidence, Officer Glenny was effectuating a mere
encounter when he approached J.S. and his two compatriots as they were
walking toward the car. He had neither reasonable suspicion nor probable
cause at that point. Chambers, supra. However, when J.S. walked away
from the officer and entered a park after closing, potentially violating a city
ordinance prohibiting persons from being in a closed park, the officer was
justified in detaining J.S. for questioning. Cf. See In the Interest of J.G.,
860 A.2d 185 (Pa. Super. 2004) (officers do not have reasonable suspicion of
criminal activity “where the only evidence of criminal wrongdoing was [a
juvenile]’s presence in a high[-]crime area combined with his decision to ‘walk
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away’ from the police officers upon seeing their approach.”); Commonwealth
v. DeWitt, 608 A.2d 1030, 1034 (Pa. 2000) (flight, in and of itself, does not
constitute reasonable suspicion of criminal conduct to justify stop). Moreover,
once J.S. admitted he owned the car, Officer Glenny had further reasonable
suspicion to stop the three men and investigate further.
Our Court has held that:
[t]he allowable scope of an investigative detention by police differs
with every set of facts. See Commonwealth v. Dangle, 700
A.2d 538, 540 (Pa. Super. 1997)[.] This Court has further stated
that the scope of an investigative detention “[t]ypically means
that the officer may ask the detainee a moderate number of
questions to determine his identity and to try to obtain information
confirming or dispelling the officer's suspicions.”
Commonwealth v. Douglass, [] 539 A.2d 412, 420 (Pa. Super.
1988)[.] However, the United States Supreme Court defined the
permissible scope of an investigative detention when it stated:
An investigative detention must be temporary and last no
longer than is necessary to effectuate the purpose of the
stop. Similarly, the investigative methods employed should
be the least intrusive means reasonably available to verify
or dispel the officer's suspicion in a short period of time. It
is the State's burden to demonstrate that the seizure it
seeks to justify on the basis of a reasonable suspicion was
sufficiently limited in scope and duration to satisfy the
conditions of an investigative seizure.
Commonwealth v. Stevenson, 832 A.2d 1123, 1130 (Pa. Super. 2003),
citing Florida v. Royer, 460 U.S. 491, 500 (1983) (internal citations omitted)
(emphasis added).
While Officer Glenny initially had reasonable suspicion to stop and
investigate the situation, after talking with J.S. for a few minutes, he failed to
obtain further information to confirm or dispel his suspicions regarding the
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park violation and also never asked J.S. for any identification, proof of vehicle
ownership, or insurance or registration information on the white Chevy Malibu.
Moreover, Officer Glenny did not uncover any additional facts that would
reasonably lead him to believe that a crime was being or had been committed.
Finally, the officer failed to issue any city ordinance citation, or criminal code
or vehicle code violations during the duration of the stop. Under these
circumstances, the Commonwealth did not demonstrate that the detention
“lasted no longer than what was necessary to effectuate the purpose of the
stop.” Stevenson, supra.
The Commonwealth contends that “[b]ased on J.S.’s mannerisms,
repeated refusal to respond to the officer’s requests and furtiveness, Officer
Glenny acted reasonably in reaching to stop J.S.’s hands from returning to his
waistband area and pockets, and then chasing him as he fled.”
Commonwealth’s Brief, at 18. Specifically, the Commonwealth claims that at
the point Officer Glenny reached for J.S.’s arm, he was, in effect, conducting
a Terry7 frisk, a limited search for weapons believing that J.S. may be armed
or that his own safety was in jeopardy. We disagree.
Under Terry, if the police reasonably believe that a suspect legally
detained may be armed and dangerous, then they are permitted to conduct a
limited pat-down search of the suspect’s outer clothing for weapons to ensure
their safety. In the Interest of J.V., 762 A.2d 376 (Pa. Super. 2000).
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7 Terry v. Ohio, 392 U.S. 1 (1968).
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However, in order to assess whether an officer has a reasonable belief,
“consideration is given to specific reasonable inferences which the officer can
draw from the facts in light of his experience.” Id. at 380. No consideration
is given, however, to an officer’s unparticularized suspicions or hunches. Id.
Instantly, Officer Glenny never testified at the suppression hearing that
he believed J.S. was potentially armed and dangerous or that he feared for
his safety during the encounter. In fact, the officer testified that J.G. was
cooperative, compliant, and did not display signs of nervousness, intoxication
or being under the influence of drugs. N.T. Suppression Hearing, 5/4/16, at
9-12. Accordingly, we do not find Officer Glenny had the right to conduct a
frisk or pat-down of J.S. where he did not have a reasonable belief that J.S.
might be armed and dangerous. Terry, supra.
Officer Glenny testified that he reached for J.S.’s arm because J.S.: kept
putting his hands in and out of his pockets after being requested to remove
them; seemed “standoffish;” and took a step back from the officer when he
asked him to “come here.” Id. at 11. At the point Officer Glenny reached out
to grab J.S.’s arm, J.S. was, in effect, the subject of a custodial interrogation,
which must be supported by probable cause. See Commonwealth v.
Ingram, 814 A.2d 264, 270 (Pa. Super. 2002), quoting Commonwealth v.
Gonzalez, 546 A.2d 26, 29 (Pa. 1988), (the “test for custodial interrogation
is ‘whether the suspect . . . reasonably believes his freedom of action or
movement is being restricted[.]’”). Officer Glenny testified that right before
he reached out to grab J.S.’s arm, he believed J.S. had committed only
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summary offenses (littering, registration problem and walking through a
closed park). Id. at 40. Under such circumstances, we do not find that Officer
Glenny had probable cause.
In addition, when Officer Glenny struck J.S. with the Taser as he ran
from him, he effectuated the functional equivalent of an arrest. Chambers,
55 A.3d at 1217; Ingram, supra. However, J.S.’s attempt to abscond, by
itself, did not give rise to probable cause. DeWitt, supra. Under such
circumstances, the unlawful arrest tainted any search that followed.
Therefore, the trial court properly granted J.S.’s motion to suppress any and
all statements and physical evidence recovered as a result of Officer Glenny’s
stop of J.S.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/4/18
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