J-A31018-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                       IN THE SUPERIOR COURT OF
                                                         PENNSYLVANIA
                            Appellant

                       v.

JOJUAN ADAMS

                            Appellee                   No. 3365 EDA 2015


                      Appeal from the Order October 7, 2015
               In the Court of Common Pleas of Philadelphia County
               Criminal Division at No(s): CP-51-CR-0000254-2015


BEFORE: BENDER, P.J.E., MOULTON, J., and FITZGERALD, J.*

MEMORANDUM BY MOULTON, J.:                             FILED MARCH 06, 2017

       The Commonwealth of Pennsylvania appeals from the October 7, 2015

order entered in the Philadelphia County Court of Common Pleas granting

Jojuan Adams’ motion to suppress physical evidence. Because we conclude

that the arresting officer had reasonable suspicion that Adams and his

companion were truant from school, we reverse the trial court’s suppression

ruling and remand for further proceedings.

       On December 23, 2014, Adams was arrested and charged with various

offenses related to his alleged possession of a firearm.        On February 3,

2015, Adams filed an omnibus pretrial motion, which included a motion to


____________________________________________


       *
           Former Justice specially assigned to the Superior Court.
J-A31018-16



suppress the firearm seized by police.1 On October 7, 2015, the trial court

held a suppression hearing.

       At that hearing, the Commonwealth’s sole witness was Officer Mark

Davis.     Officer Davis testified that around 12:30 p.m. on December 23,

2014, he was patrolling the 1500 block of 24th Street in Philadelphia, 2 in

plain clothes and in an unmarked vehicle with three other officers, when he

saw Adams riding on the handlebars of a bicycle operated by another male.

N.T., 10/7/15, at 9-10.        Officer Davis stated that the two males3 initially

drew his attention because the male “operating the bicycle had a backpack

on” and “[i]t was during school hours.”4         Id. at 10.   Officer Davis pulled
____________________________________________


       1
       Counsel of record filed this motion. Adams also filed a pro se motion
to suppress physical evidence on March 12, 2015. However, because Adams
was represented by counsel, “his pro se filing was a legal nullity.”
Commonwealth v. Ruiz, 131 A.3d 54, 56 n.4 (Pa.Super. 2015) (citing
Commonwealth v. Ellis, 626 A.2d 1137, 1139 (Pa. 1993)).
       2
        Officer Davis testified that this “specific area . . . is notorious . . . for
narcotic sales and a high concentration of shooting incidents.”                N.T.,
10/7/15, at 17. He further testified that he had patrolled that district for
more than eight years and, in that time, had made over 100 gun arrests, 15
to 20 of which were in the neighborhood where the incident occurred. Id. at
15.
       3
        At the time of the incident, Adams was 19 years old and the operator
of the bicycle was 17 years old. N.T. at 35; Cmwlth.’s Br. at 6.
       4
        On cross-examination, Officer Davis conceded that public schools
may have had a half-day and that many charter and private schools may
have been closed. N.T. at 20. When later asked by the suppression court
why he initially focused on Adams and his companion, Officer Davis again
explained “that they appeared to be young and it was during school hours.”
Id. at 23.
(Footnote Continued Next Page)


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within 15 feet of the bicycle, which was in the middle of 24th Street and

traveling southbound.         Id. at 10, 13.      He then saw the operator of the

bicycle look back at the unmarked vehicle, lean toward Adams, and “whisper

something.” Id. at 14, 24-25. After turning eastbound onto the 2300 block

of Greenwich Street, both Adams and the operator made motions towards

their waistbands:5

          [COMMONWEALTH]: And when you said that you saw the
          defendant on the handlebars at first make the motion, can
          you just show the Court what, if anything you saw him do?

          [OFFICER DAVIS]:          With his hand?

          [COMMONWEALTH]: Yes.

          [OFFICER DAVIS]: From my view, Your Honor—I was
          behind the defendant. He was riding on the bicycle like
          this (indicating).

          THE COURT: So you have your back towards me, as you
          said the defendant had his back towards you while you
          were in the vehicle.

          [OFFICER DAVIS]:          Correct. Me being the defendant right
          now.

             He was just basically going like this (indicating), moving
          his elbow up and down, and directing his hand towards his
          waistband.

          [COMMONWEALTH]: And then you indicated that after that
          you saw the other individual who was actually riding the
          bicycle do the same thing, but with his left hand; is that
          fair?
                       _______________________
(Footnote Continued)


      5
        Officer Davis testified that “over 95 percent of the gun arrests [he]
has made have been weapons without holsters that are concealed in the
front waistband.” N.T. at 15-16.



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         [OFFICER DAVIS]:    Correct.

Id. at 16.

      Officer Davis then “initiated the lights on [his] unmarked vehicle and

made a chirp sound with the siren.” Id. at 11. The operator of the bicycle

rose off the seat and began to pedal faster. Id. One of the officers yelled

for Adams and the operator to stop.     Id.   Both Adams and the operator

disregarded the order. Id. The officer yelled again for the men to stop, at

which point they turned northbound onto another street and ditched the

bicycle, running in opposite directions. Id. at 11-12. Officer Davis pursued

Adams on foot. Id. at 12. During this pursuit, Adams discarded a firearm

onto the road, which Officer Davis retrieved before continuing the chase.

Id. After chasing Adams for another two blocks, police captured him. Id.

      At the end of the hearing, the trial court granted the motion to

suppress the firearm, concluding that police lacked reasonable suspicion to

stop Adams and the operator of the bicycle based on the totality of the

circumstances and Officer Davis’s testimony. Id. at 39-40. On October 14,

2015, the Commonwealth filed a motion to reconsider, arguing that the trial

court incorrectly found no reasonable suspicion to stop Adams for a possible

firearms violation. On October 21, 2015, the Commonwealth supplemented

its motion, contending that there was also reasonable suspicion to stop




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Adams for a truancy violation under the Public School Code.6       On October

28, 2015, after a hearing,7 the trial court denied the motion to reconsider.

The Commonwealth filed a notice of appeal on November 6, 2015, certifying

that the suppression order terminates or substantially handicaps its

prosecution.8 See Pa.R.A.P. 311(d).

       The Commonwealth raises the following issue on appeal:9


____________________________________________


       6
         Section 13-1341 of the Public School Code authorizes municipal
police officers to “arrest or apprehend any child who fails to attend school in
compliance with the [Code].” 24 P.S. § 13-1341(a), (c).
       7
        The certified record does not contain any notes of testimony from
this hearing.
       8
       While the trial court did not order a concise statement of errors
complained of on appeal pursuant to Pennsylvania Rule of Appellate
Procedure 1925(b), the Commonwealth filed such a statement on November
6, 2015. The trial court did not file an opinion pursuant to Rule 1925(a).

      After the trial court denied his petition for nominal bail or house arrest
pending appeal, on January 14, 2016, Adams filed an application for bail
with this Court. On March 29, 2016, this Court ordered the trial court to
prepare a statement of reasons for denying that petition pursuant to
Pa.R.A.P. 1762(g). The trial court filed its statement on April 21, 2016,
which included a brief discussion of the facts surrounding the suppression
motion without legal analysis. This Court denied Adams’ application on May
13, 2016.
       9
         In its Rule 1925(b) statement, the Commonwealth also raised a
coordinate jurisdiction issue regarding the denial of the bicycle operator’s
motion to suppress, which was adjudicated by the Family Court Division.
However, because “the Commonwealth has been unable to confirm that the
issue of coordinate jurisdiction was preserved in the court below,” the
Commonwealth has voluntarily abandoned this issue on appeal. Cmwlth.’s
Br. at 4.



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            Where an officer ordered [Adams] and his companion to
            stop because they: (1) appeared to be of school age and
            were riding a bike in the middle of the street during school
            hours; (2) were in a high-crime area; (3) adjusted their
            waistbands; and (4) turned onto a different street after
            seeing the officer; did the lower court err in suppressing a
            gun [Adams] discarded as he fled on the basis that police
            lacked reasonable suspicion to conduct a stop?

Cmwlth.’s Br. at 4.

       The Commonwealth challenges the trial court’s order granting Adams’

motion to suppress. Our standard of review on such matters is well-settled:

            When the Commonwealth appeals from a suppression
            order, this Court follows a clearly defined scope and
            standard of review. We consider only the evidence from
            the defendant’s witnesses together with the evidence of
            the prosecution that, when read in the context of the
            entire record, remains uncontradicted. This Court must
            first determine whether the record supports the factual
            findings of the suppression court and then determine the
            reasonableness of the inferences and legal conclusions
            drawn from those findings. In appeals where there is no
            meaningful dispute of fact, as in the case sub judice, our
            duty is to determine whether the suppression court
            properly applied the law to the facts of the case.

Commonwealth v. Arthur, 62 A.3d 424, 427 (Pa.Super. 2013) (internal

citations and quotation marks omitted).

       The Commonwealth’s lead argument on appeal is that Officer Davis

was justified in stopping Adams because he had reasonable suspicion that

Adams and his companion were truant under the Public School Code.10
____________________________________________


       10
         At oral argument before this Court, the Commonwealth also
asserted that Officer Davis possessed reasonable suspicion to stop Adams
and his companion based on a possible violation of section 3504 of the
Vehicle Code, which prohibits bicycle passengers from riding on the
(Footnote Continued Next Page)


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According to the Commonwealth, Officer Davis possessed reasonable

suspicion because he saw “two young men on the street at 12:30 in the

afternoon, one of whom was wearing a backpack, at a time when school was

generally in session.”11 Cmwlth.’s Reply Br. at 2.

      In response to the Commonwealth’s truancy argument, Adams asserts

that Officer Davis lacked reasonable suspicion because the incident occurred
                       _______________________
(Footnote Continued)

handlebars. See 75 Pa.C.S. § 3504. However, because the Commonwealth
did not raise this issue in its brief, we decline to address it. See Pa.R.A.P.
2116(a) (“No question will be considered unless it is stated in the statement
of questions involved or is fairly suggested thereby.”); Commonwealth v.
Pantalion, 957 A.2d 1267, 1270 n.6 (Pa.Super. 2008) (finding waiver
where appellant failed to support issue with argument or citation to
authority) (citing Pa.R.A.P. 2119(a)).
      11
         The Commonwealth also argues that the trial court erred in finding
that Officer Davis lacked reasonable suspicion to stop Adams based on a
firearm violation. Specifically, it contends that the pre-seizure actions of
Adams and his companion, including whispering to each other, turning onto
a side street, and adjusting their waistbands, all in a high-crime area,
combined to provide Officer Davis with reasonable suspicion that they were
engaged in criminal activity.

      Given our disposition of this case, we need not address this argument.
Nevertheless, we note that the trial court rejected it based on a record that
included a physical re-enactment by Officer Davis of the movements of
Adams and his companion. In particular, Officer Davis explained that
because of his position behind the bicycle, he could only see the suspects
moving their elbows up and down. While the Commonwealth contends that
such motions are indicative of concealing a weapon, and cites several cases
in which “waistband adjustment” has supported a finding of reasonable
suspicion, see Cmwlth.’s Br. at 10-11, those motions are in no way
talismanic. That is particularly so where, as here, the suppression court
observes the officer’s re-enactment of the motions in question, something
that cannot be fully captured in a paper record on appeal.




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on December 23, 2014 and the “Commonwealth failed to establish . . . that

school was actually in session when the officers encountered [Adams] and

his companion.” Adams’ Br. at 13. Adams argues that the Commonwealth’s

lynchpin case, In re C.C.J., 799 A.2d 116 (Pa.Super. 2002), “only applies

‘during a time when school was in session’” and because Officer Davis “did

not think it was actually school hours,” admitted that “many charter and

private schools had the day off,” and thought “Philadelphia public schools

had a half day on that date[,] . . . . [t]he record does not actually support a

finding that the two men were stopped during school hours.” Adams’ Br. at

13. (quoting C.C.J., 779 A.2d at 121).

      Adams also argues that the record is silent regarding Officer Davis’s

“subsequent assumptions regarding their age.”       Id. at 14.   According to

Adams, the fact that Officer Davis only testified that Adams and his

companion’s possible ages initially attracted his attention “leaves open the

possibility that, after following them for a while, [Officer Davis] no longer

suspected that the[y] might be truant because he got a better look at them

or because he remembered the date.” Id.

      The investigation of possible criminal activity invariably brings police

officers in contact with members of the public.           Depending on the

circumstances, a police-citizen encounter may implicate the citizen’s liberty

and privacy interests as embodied in both the federal constitution, see U.S.




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Const. amend. IV,12 and our state constitution, see Pa. Const. art. I, § 8.13

The law recognizes three distinct levels of interaction between police officers

and citizens: (1) a mere encounter; (2) an investigative detention, often

described as a Terry stop, see Terry v. Ohio, 392 U.S. 1 (1968); and (3) a

custodial detention.      See Commonwealth v. Jones, 874 A.2d 108, 116

(Pa.Super. 2005).

       “A mere encounter can be any formal or informal interaction between

an officer and a citizen, but will normally be an inquiry by the officer of a

citizen.     The hallmark of this interaction is that it carries no official

compulsion to stop or respond,” Commonwealth v. DeHart, 745 A.2d 633,
____________________________________________


       12
            The Fourth Amendment to the United States Constitution provides:

            The right of the people to be secure in their persons,
            houses, papers, and effects, against unreasonable
            searches and seizures, shall not be violated, and no
            Warrants shall issue, but upon probable cause, supported
            by Oath or affirmation, and particularly describing the
            place to be searched, and the persons or things to be
            seized.
       13
          Our Supreme Court has held that “the Fourth Amendment [of the
United States Constitution] and Article I, [Section] 8 [of the Pennsylvania
Constitution] are coterminous for Terry [v. Ohio, 392 U.S. 1 (1968)]
purposes.” Commonwealth v. Chase, 960 A.2d 108, 118 (Pa. 2008).
Article I, Section 8, of the Pennsylvania Constitution provides:

            The people shall be secure in their persons, houses, papers
            and possessions from unreasonable searches and seizures,
            and no warrant to search any place or to seize any person
            or things shall issue without describing them as nearly as
            may be, nor without probable cause, supported by oath or
            affirmation subscribed to by the affiant.



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636 (Pa.Super. 2000) (internal citations and quotations omitted), and

therefore   need   not   be   justified   by   any   level   of   police   suspicion.

Commonwealth v. Polo, 759 A.2d 372, 375 (Pa. 2000). “In contrast, an

‘investigative detention’ . . . carries an official compulsion to stop and

respond . . . . Since this interaction has elements of official compulsion it

requires reasonable suspicion of unlawful activity.”         DeHart, 745 A.2d at

636.   Finally, “a custodial detention occurs when the nature, duration and

conditions of an investigative detention become so coercive as to be,

practically speaking, the functional equivalent of an arrest.” Id. This level

of interaction requires that the police have probable cause to believe that

the person so detained has committed or is committing a crime.                   See

Commonwealth v. Ellis, 662 A.2d 1043, 1047 (Pa. 1995) (citing

Dunaway v. New York, 442 U.S. 200 (1979)).

       Both Adams and the Commonwealth agree that when Officer Davis

activated his lights, he initiated an investigative detention of Adams and his

companion.    See N.T. at 32-33.          Therefore, we examine the facts and

circumstances that existed at the moment Officer Davis activated his lights

to determine whether he had reasonable suspicion to detain Adams.               This

Court has stated the following regarding reasonable suspicion:

             [T]o establish grounds for reasonable suspicion, the
         officer must 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. The
         question of whether reasonable suspicion existed at the

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J-A31018-16


         time [the officer conducted the stop] must be answered by
         examining the totality of the circumstances to determine
         whether the officer who initiated the stop had a
         particularized and objective basis for suspecting the
         individual stopped. 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 stop warrant a man of reasonable caution in the belief
         that the action taken was appropriate.

Commonwealth v. Basinger, 982 A.2d 121, 125 (Pa.Super. 2009)

(internal citations and quotation marks omitted; alterations in original). If

Officer Davis did not have reasonable suspicion, “then the contraband

discarded by [Adams] during the chase are the fruits of an illegal seizure

and subject to suppression.”    In re M.D., 781 A.2d 192, 197 (Pa.Super.

2001) (internal quotation and citations omitted).

      We conclude that Officer Davis possessed reasonable suspicion to

detain Adams on a suspicion of truancy.      In C.C.J., we found that “police

had the requisite reasonable suspicion that criminal activity was afoot in that

they observed C.C.J., who appeared to be of school age youth, on a public

street during a time when school was in session,” and “the apparent age of

C.C.J. was sufficient to warrant the investigatory detention.”    799 A.2d at

121. Here, although Officer Davis was unsure whether all schools were open

at the time of the stop, the record establishes that he believed that Adams

was of school age and on public streets while school may have been in

session. N.T. at 10, 13, 20. While it is true that some schools may have




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been closed on December 23 for the winter holiday, 14 reasonable suspicion

does not require certainty. Considering that “the level of suspicion [required

to instigate a Terry stop] is considerably less than proof or wrongdoing by a

preponderance of the evidence,” United States v. Sokolow, 490 U.S. 1, 7

(1989), and “Terry, by its very nature, ‘accepts the risk that officers may

stop innocent people,’” Commonwealth v. Carter, 105 A.3d 765, 769 n.4

(Pa.Super. 2014) (quoting Illinois v. Wardlow, 528 U.S. 119, 126 (2000)),

we conclude that Officer Davis possessed reasonable suspicion to believe

that Adams and his companion were truant and, therefore, could briefly stop

them to determine if whether they were of mandatory school age and, if so,

whether their schools were in session that day.15
____________________________________________


       14
        Adams’ counsel argues that because the day in question was two
days before Christmas, the Commonwealth was required to present evidence
that school was open that day. However, that is not the standard by which
we measure reasonable suspicion. Rather, we consider the totality of the
circumstances, “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.” Commonwealth v. Zahrir, 751
A.2d 1153, 1156 (Pa. 2000) (quoting Terry, 392 U.S. at 21-22)).

      We also note that, though it is not in the record, Philadelphia Public
Schools were in session on December 23, 2014. See School Year Calendar:
2014-2015, http://www.philasd.org/calendar/2014_2015/ (last visited Jan.
30, 2017).
       15
         Adams also contends that the Commonwealth cannot use truancy as
a basis for reasonable suspicion because Officer Davis stopped Adams with a
gun violation in mind.     Adams’ Br. at 13-14.      However, we examine
reasonable suspicion through an objective lens that discards the officer’s
subjective intent.    Commonwealth v. Foglia, 979 A.2d 357, 361
(Pa.Super. 2009) (quoting Maryland v. Macon, 472 U.S. 463, 470-71
(Footnote Continued Next Page)


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      Because Officer Davis had reasonable suspicion to stop Adams when

he activated the lights on his vehicle, we conclude that Adams did not

abandon the firearm in response to illegal police conduct.    Therefore, the

trial court should not have suppressed the firearm. See Commonwealth v.

Ibrahim, 127 A.3d 819, 825 (Pa.Super. 2015), app. denied, 138 A.3d 3

(Pa. 2016).

      Order reversed. Case remanded. Jurisdiction relinquished.

       President Judge Emeritus Bender joins in the memorandum.

      Justice Fitzgerald concurs in the result.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/6/2017




                       _______________________
(Footnote Continued)

(1985)) (noting that Fourth Amendment inquiries “turn on an objective
assessment of the officer’s actions in light of the facts and circumstances
confronting him at the time,” rather than “the officer’s actual state of mind
at the time the challenged action was taken”).



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