Commonwealth v. Hemingway
Decision Date | 26 June 2018 |
Docket Number | No. 684 WDA 2017,684 WDA 2017 |
Citation | 192 A.3d 126 |
Parties | COMMONWEALTH of Pennsylvania, Appellant v. Tareek Alquan HEMINGWAY |
Court | Pennsylvania Superior Court |
Peter J. Weeks, Assistant District Attorney, Hollidaysburg, for Commonwealth, appellant.
Russell Montgomery, Public Defender, Hollidaysburg, for appellee.
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.
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 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:
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 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.
Commonwealth v. Haines , 168 A.3d 231, 234 (Pa. Super. 2017) (internal citations and quotations omitted).
In re J.G. , 145 A.3d 1179, 1185 (Pa. Super. 2016).
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.
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.3d 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.
Commonwealth v. Martinez , 403 Pa.Super. 125, 588 A.2d 513, 514 (1991) (internal citations and quotations omitted) (citing Terry v. Ohio , 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (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.
See Commonwealth v. Carter , 779 A.2d 591, 594 (Pa. Super. 2001) ( )(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 , 561 Pa. 545, 751 A.2d 1153, 1158 (2000) ( ).
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...
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