J-A09013-15

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,             : IN THE SUPERIOR COURT OF
                                          :      PENNSYLVANIA
                    Appellant             :
                                          :
            v.                            :
                                          :
MALIK NOEL,                               :
                                          :
                    Appellee              : No. 1087 EDA 2014

                  Appeal from the Order entered March 13, 2014,
                   Court of Common Pleas, Philadelphia County,
                 Criminal Division at No. CP-51-CR-0006259-2013

BEFORE: BOWES, DONOHUE and STABILE, JJ.

DISSENTING MEMORANDUM BY DONOHUE, J.:                 FILED JUNE 17, 2015

      I fully agree with the learned Majority that the number of anonymous

tips in this case provides no greater indicia of reliability than does a single

anonymous tip.      See Maj. at 19; see also Commonwealth v. Jackson,

698 A.2d 571, 573 (Pa. 1997) (“Where … the underlying source of the police

department’s information is an anonymous telephone call, the courts have

recognized that the tip should be treated with particular suspicion.”).       I

further agree that simply because Malik Noel (“Noel”) matched some

innocuous characteristics of the person seen with a gun as described in some

of the tips, this does not give rise to a finding that the police had a

reasonable suspicion to believe that Noel was armed and dangerous. Maj. at

19.   Thus, this case turns on whether Noel’s act of slipping his hand

underneath the barber cape while getting a haircut as police approached
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him, in a private business with no history of violent episodes albeit located in

a high crime area, provided the police with a reasonable suspicion to conduct

a Terry frisk of Noel. In my view, it did not.

      It is uncontested that the police subjected Noel to an investigative

detention. Prior to conducting an investigative detention, police must have

“at least a reasonable suspicion that the person seized is then engaged in

unlawful activity.” Commonwealth v. Reppert, 814 A.2d 1196, 1203 (Pa.

Super. 2002) (en banc) (citing Commonwealth v. Polo, 759 A.2d 372, 375

(Pa. 2000)).    We must examine the totality of the circumstances to

determine whether the officer was able to “articulate specific observations,

which, in conjunction with reasonable inferences derived from those

observations, led him reasonably to conclude, in light of his experience, that

criminal activity was afoot and that the person he stopped was involved in

that activity.” Id. at 1204 (citation omitted).

               Although a police officer’s knowledge and length
            of experience weigh heavily in determining whether
            reasonable suspicion existed, our [c]ourts remain
            mindful that the officer’s judgment is necessarily
            colored by his or her primary involvement in the
            often competitive enterprise of ferreting out crime.
            Therefore, the fundamental inquiry of a reviewing
            court must be an objective one, namely, whether the
            facts available to the officer at the moment of the
            [intrusion] warrant a man of reasonable caution in
            the belief that the action taken was appropriate.
            This inquiry will not be satisfied by an officer’s
            hunch or unparticularized suspicion.




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Id. (internal citations and quotation marks omitted) (emphasis in the

original).

        The question of whether reasonable suspicion existed at the time of

the investigative detention is a fact-specific inquiry. Examining other case

law addressing similar circumstances, I, like the trial court, would conclude

that the police did not have reasonable suspicion to conduct the investigative

detention in this case.

        In Commonwealth v. DeWitt, 608 A.2d 1030 (Pa. 1992), for

example, the defendant was in a parked car with other occupants in a

church parking lot where there had been reports of criminal activity. Id. at

1031.     At approximately 11:50 p.m., police observed the vehicle and

approached to investigate, at which time the occupants extinguished the

interior lights of the car and “made furtive movements and suspicious

movements as if they were trying to hide something.”       Id. at 1032.    The

defendant attempted to drive away from the scene and police stopped the

vehicle, thereafter observing in plain view alcohol, cocaine and marijuana

inside the car. Id. A subsequent frisk of the defendant and search of the

vehicle yielded cocaine, marijuana and drug paraphernalia.         Id.     Our

Supreme Court held that despite reports of criminal behavior at that

location, furtive movements by the occupants of the vehicle as the police

approached, flight, and the stop occurring at night, police did not have

reasonable suspicion to conduct an investigative detention. Id. at 1034.



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      Furthermore, in Reppert, the defendant was a backseat passenger in

a friend’s vehicle. Reppert, 814 A.2d at 1199. The police chief observed

that the car had expired inspection and registration stickers and began to

follow, observing the defendant’s head and shoulders moving, which caused

the chief to believe that the defendant “was stuffing something into his

pockets or between the seat cushions of the car.” Id. Upon stopping the

vehicle, the driver provided an explanation for the expired stickers and the

chief did not issue a citation. Id. While the chief spoke with the driver, he

observed that the defendant was “antsy and very, very nervous, with a look

on his face.” Id. The chief ordered the defendant out of the car and at that

point, he saw “bulges” in the defendant’s front pockets. Id. The defendant

emptied his pockets as instructed by the chief, revealing $51 in cash, forty-

one grams of marijuana with multiple small bags and a small scale. Id. This

Court, sitting en banc, held that “[a] police officer’s observation of a citizen’s

nervous demeanor and furtive movements, without more, establishes

nothing more than a ‘hunch,’ employing speculation about the citizen’s

motive in the place of fact.” Id. at 1026.

      Finally, in Commonwealth v. Wiley, 858 A.2d 1191 (Pa. Super.

2004), the case relied upon by Noel in support of his argument for

affirmance, police received an anonymous tip describing a light-complected

black male with a gun inside of a barbershop. Id. at 1193. The officer was

familiar with both the neighborhood and the barbershop itself, and thus went



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into the shop with his gun drawn for protection.     Id.   The officer had the

defendant raise his hands, shook the defendant’s waistband, and recovered

from him a loaded gun.         Id.   On appeal by the defendant, this Court

reversed his conviction, concluding that the investigative detention was

based on nothing more than an uncorroborated anonymous tip, and the

police therefore lacked reasonable suspicion. Id. at 1196.

     Turning to the facts of the case at bar, the record reflects that there

were three anonymous tips in this case: the first described an armed thirty-

year-old black male with a medium complexion wearing a white thermal

shirt and black coat, with bushy hair and driving a red and black Charger

who went into a barber shop in the 3000 block of North 22 nd Street; the

second described an armed black male wearing a white jacket and blue

jeans who went into a barber shop at the same location; the third described

an armed black male wearing a white thermal shirt, black jacket, blue jeans

and black shoes.    N.T., 3/13/14, at 12-13.      Police eventually located a

barbershop in that area. Id. at 15. Although the neighborhood itself was a

high crime area, Officer Schmid testified that he had never been to the

barbershop itself and was unaware of any reports of criminal activity at the

business. Id. at 10, 15, 44.

     Upon entering the barbershop, Officer Schmid announced the presence

of police and asked if anyone made a call regarding a person with a gun.

Id. at 16.    He observed Noel, a medium-complected black male who



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appeared to the officer to be approximately thirty years old, getting a

haircut.   Id. at 17, 23.   According to Officer Schmid, Noel was wearing a

white thermal shirt. Id. at 17. Because Noel was wearing a barber’s cape,

Officer Schmid could only see the shirt around Noel’s neck.      Id.   Officer

Schmid did not testify to observing any additional similarities between Noel

and the various descriptions of the armed man provided in the anonymous

tips. He did not take notice of Noel’s shoes or hairstyle; he did not notice a

black or white jacket anywhere in the shop; and he only subsequently

observed that Noel was wearing jeans and that a black and red Charger was

parked outside of the shop. Id. at 25-26, 29.

      Officer Schmid began to walk towards Noel on his right side and

Officer Schmid’s partner walked towards Noel on the left.      Id. at 18-19.

Both of Noel’s arms were resting on the arms of the barber’s chair. Id. at

18. As Officer Schmid approached, the barber stepped away, and the officer

observed Noel’s left hand begin to slide down from the armrest of the barber

chair under the barber cape he was wearing for his haircut. Id. at 18. By

the time Officer Schmid reached Noel, Noel’s left hand was under the cape.

Id. at 19. Officer Schmid testified that he asked Noel what he was doing

with his hand and ordered him to show his hand, and without giving Noel

time to respond, Officer Schmid “pinched the barber cape and tossed it off of

[Noel’s] left side,” and as Noel leaned forward to stand, Officer Schmid

observed a gun in Noel’s waistband. Id. at 19-20.



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      Officer Schmid confiscated the gun and arrested Noel. Id. at 22. The

biographical information taken at the time of Noel’s arrest indicates, in

relevant part, that Noel was wearing a beige/tan thermal shirt, tan boots

and blue jeans and that Noel had a beard. Id. at 39-41.

      Taking all of the information known to Officer Schmid at the time he

subjected Noel to an investigative detention, the only characteristics that

Noel shared with the person described in the anonymous tips was that he

was a thirty-year-old, medium-complected black male wearing a light

colored thermal shirt.   The only additional fact that arguably supported a

finding of reasonable suspicion in this case was that Noel slowly slid his hand

under the barber’s cape as police approached him.         The record reflects,

however, that Noel’s back was to the police as they approached, and there

was no testimony that Noel saw the police coming towards him or that he

slid his hand under the barber’s cape in reaction to their approach. Instead,

I am of the same view as the trial court – that Noel’s behavior of moving his

hand under the barber’s cape was common for a person getting a haircut.

See Trial Court Opinion, 8/13/14, at 8.

      Although the Majority is correct that in some cases, innocent actions

can be included as factors giving rise to a finding of reasonable suspicion, I

disagree that this particular action did so in this particular case. Examining

the totality of the circumstances in the case at bar – unreliable anonymous

tips describing an armed man in the area that only vaguely resembled Noel,



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combined with Noel’s action of sliding his arm under a barber’s cape during a

haircut in a private business with no history of criminal activity – I would

conclude that Officer Schmid had no more than a hunch that Noel may have

been armed. See Reppert, 814 A.2d at 1203.

      As stated above, existing precedent dictates that furtive movements,

flight from police, at night, at a location where police had received reports of

criminal activity is insufficient to give rise to a finding of reasonable

suspicion, DeWitt, 608 A.2d at 1034, as are suspicious/furtive movements

combined with nervousness, Reppert, 814 A.2d at 1199.           I find that the

facts available to police at the time of the intrusion in the case at bar are

less compelling than were present in DeWitt and Reppert and that this

case is indistinguishable from Wiley.    The Majority differentiates this case

from Wiley based upon three factors: (1) “this case involves multiple tips”;

(2) “[Officer Schmid] did not enter the barbershop with his weapon drawn”;

and (3) “[Noel] moved his hand to where police could not see it when they

asked if anyone had called to report a person with a gun.”         Maj. at 12.

However, the first factor relied upon by the Majority flies in the face of its

later conclusion, stated above, “that the number of anonymous tips received

provides [no] greater indicia of reliability than a single tip.”   Maj. at 19.

Furthermore, whether Officer Schmid had his gun drawn upon entering the

barbershop has no bearing on whether he had a reasonable suspicion that

Noel was armed. Finally, my review of the record does not find support for



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the implication the Majority makes in its third differentiating factor – that

Noel slipped his hand under the barber’s cape immediately following and in

response to the police asking if anyone called about seeing a man with a

gun. The record does not reflect that Noel made any physical movements

upon Officer Schmid’s entry into the barbershop and announcement of the

reason for police presence.   Rather, he slipped his hand underneath the

barber’s cape during Officer Schmid’s approach and, as stated above, the

record provides no indication of whether Noel was aware the police were

approaching him.

     Our Supreme Court has held:

               If the police respond to an anonymous call that a
           particular person at a specified location is engaged in
           criminal activity, and upon arriving at the location
           see a person matching the description but nothing
           more, they have no certain knowledge except that
           the caller accurately described someone at a
           particular location.... [T]he fact that a suspect
           resembles the anonymous caller’s description does
           not corroborate allegations of criminal conduct, for
           anyone can describe a person who is standing in a
           particular location at the time of the anonymous call.
           Something more is needed to corroborate the caller’s
           allegations of criminal conduct.

                                  *     *   *

               The fact that the subject of the call was alleged to
           be carrying a gun, of course, is merely another
           allegation, and it supplies no reliability where there
           was none before. And since there is no gun
           exception to the Terry requirement for reasonable
           suspicion of criminal activity, in the typical
           anonymous caller situation, the police will need an



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            independent basis to        establish   the   requisite
            reasonable suspicion.

Jackson, 698 A.2d at 574-75 (citation omitted). My review of the record

reveals that the police did not sufficiently corroborate the anonymous tips to

provide the police with an independent basis to establish a reasonable

suspicion that Noel was armed. Therefore, I would find no error in the trial

court’s decision to suppress the evidence recovered from Noel and

respectfully dissent from the Majority’s contrary conclusion.




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