Commonwealth v. Gutierrez

• Decision Date: 24 January 2012
• Parties: COMMONWEALTH of Pennsylvania, Appellant v. Marcos M. GUTIERREZ, Appellee.
• Court: Pennsylvania Superior Court

2012 PA Super 14

36 A.3d 1104

COMMONWEALTH of Pennsylvania, Appellant

v.Marcos M. GUTIERREZ, Appellee.

Superior Court of Pennsylvania.

Argued Nov. 15, 2011.Filed Jan. 24, 2012.

Anne F. Palmer, Assistant District Attorney, Philadelphia, for Commonwealth, appellant.

Elliott M. Cohen, Philadelphia, for appellee.

BEFORE: BENDER, MUNDY and FITZGERALD^*, JJ.OPINION BY BENDER, J.:

This is a Commonwealth appeal from the order of the trial court granting Marcos M. Gutierrez's (Defendant) motion to suppress physical evidence. For the reasons that follow, we reverse.

The trial court summarized the factual and procedural history of this case as follows:

In July 2010, Gutierrez, through counsel, filed a motion seeking to suppress illegal narcotics found on his person by the Philadelphia Police. Gutierrez claimed that the police did not have the reasonable suspicion required to stop his car because the police acted pursuant to a vague and uncorroborated tip from a first-time informant. In response, the Commonwealth argued that the stop and the search were lawful. On August 25, 2010, this Court granted the motion to suppress. On September 24, 2010, the Commonwealth filed [a] Notice of Appeal.

I. Factual Findings

The following facts were established at the suppression hearing. In the early afternoon of September 3, 2009, Police Officer Liciardello received a tip from a confidential informant (“CI”). The CI provided his name and address to Officer Liciardello but the police had not previously tested the reliability of the CI by acting on information that he had supplied, nor was the supplied address verified. Officer Liciardello claimed he would be able to locate the CI again if the name and address the CI had given him were correct. He did not testify he would be able to find the source, if his information were to prove untrue. The CI informed Officer Liciardello that a Hispanic male carrying heroin and operating a white Chevrolet car would be on the 400 block of Bristol Street that day in Philadelphia between 1:30 and 2:00 PM. The CI provided no further details; there was no explanation of the source of the CI's information.

Officer Liciardello and the CI drove to the 400 block of Bristol Street. At approximately 1:45 PM, Officer Liciardello observed Gutierrez driving by in a white Chevrolet. The CI identified Gutierrez as the man with the heroin. Officer Liciardello called for backup and ordered Gutierrez to stop. Officer Liciardello testified that he ran up to white Chevrolet while yelling “[p]olice, turn off the car.” (N.T. 8/23/10, pp. 10–13, 18–19). Officer Liciardello further testified that Gutierrez responded by trying to back up, but was boxed in by an unmarked police backup vehicle driven by Officer Spicer. Officer Spicer testified that after other officers approached Gutierrez's car and after Officer Liciardello had ordered Defendant to stop, Gutierrez tried to back up and collided instead with the unmarked police car. There was no testimony of damage to the unmarked police car. Officer Spicer testified that he then removed Gutierrez from his car and patted him down. Officer Spicer felt a bulge in Gutierrez's pocket and asked Gutierrez what it was. Gutierrez replied, “I'm in a lot of trouble.” Thereupon, Officer Spicer reached into Gutierrez's pocket and removed an object which contained 106 grams of heroin.

Trial Court Opinion (T.C.O.), 3/7/11, at 1–3 (footnote omitted). Following the grant of Defendant's motion to suppress, the Commonwealth filed this appeal presenting one question for our review:

Did the lower court err in suppressing evidence based on the court's erroneous belief that police acting on information provided by an identified informant lacked reasonable suspicion to stop defendant?

Brief for Commonwealth at 4.

Our scope and standard of review in this case is as follows:

When reviewing an Order granting a motion to suppress we are required to determine whether the record supports the suppression court's factual findings and whether the legal conclusions drawn by the suppression court from those findings are accurate. In conducting our review, we may only examine the evidence introduced by appellee along with any evidence introduced by the Commonwealth which remains uncontradicted. Our scope of review over the suppression court's factual findings is limited in that if these findings are supported by the record we are bound by them. Our scope of review over the suppression court's legal conclusions, however, is plenary.

Commonwealth v. Henry, 943 A.2d 967, 969 (Pa.Super.2008) (citations omitted).

The trial court granted Defendant's motion to suppress based on the court's conclusion that the police stopped him without reasonable suspicion.

Fourth Amendment jurisprudence has led to the development of three categories of interactions between citizens and the police. 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 to respond. The second, an “investigative detention” must be supported by a reasonable suspicion; it subjects a suspect to a stop and a period of detention, but does not involve such coercive conditions as to constitute the functional equivalent of an arrest. Finally, an arrest or “custodial detention” must be supported by probable cause.

Commonwealth v. Ellis, 541 Pa. 285, 662 A.2d 1043, 1047 (1995) (citations omitted).

In the instant case, there is no doubt that Officer Liciardello subjected Defendant to an investigative detention. Officer Liciardello yelled at the Defendant to turn off his car. This type of an order effectuates a seizure, as no reasonable person in Defendant's situation would have felt free to leave at that point. See Commonwealth v. Smith, 732 A.2d 1226, 1232 (Pa.Super.1999) (stating that whether a seizure has been effected hinges on “whether a reasonable person would feel free to decline the...