J-S44018-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                         Appellant

                    v.

RICO GREEN

                         Appellee                   No. 1878 WDA 2013


                 Appeal from the Order November 14, 2013
            In the Court of Common Pleas of Allegheny County
            Criminal Division at No(s): CP-02-CR-0003610-2013


BEFORE: BENDER, P.J.E., LAZARUS, J., and OTT, J.

MEMORANDUM BY LAZARUS, J.                          FILED AUGUST 08, 2014

       The Commonwealth of Pennsylvania appeals from the order of the

Court of Common Pleas of Allegheny County granting Rico Green’s motion to

suppress all evidence obtained after Green was stopped by police on the

streets of Pittsburgh. After careful review, we reverse.

       On September 13, 2012, Officers Mark Goob, Edward Fallert and

Michael Hoffman were on plain-clothes duty in an unmarked car driving

toward the Northview Heights neighborhood of Pittsburgh due to recent

complaints of drug activity and gun violence. While driving, Officer Fallert

observed Green walking on the sidewalk toward their vehicle. Officer Fallert

testified that Green was wearing a white t-shirt and sweatpants with an

elastic waistband, and stated that he thought Green might be carrying a

gun.   Officer Goob then noticed a bulge in the front section of Green’s
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waistband, and Officer Fallert slowed the vehicle, eventually coming to a

stop. Green stopped walking, and Officers Goob and Hoffman jumped out of

the vehicle.

      Officer Goob started walking toward Green, displaying his badge, and

stated, “Hey, Pittsburgh Police, can you come here for a second.” Trial Court

Opinion, 11/13/14, at 2. Green stopped and looked around for a moment

from his stationary position. Officer Goob moved closer to Green, and was

able to see the bulge more clearly. Officer Goob then asked Green if he was

carrying a gun, but Green did not respond. Officer Goob advised Green that

he was going to pat him down.      Officer Goob then touched the bulge on

Green’s waistband, and “his tactile sense [told] him that it [was] the ‘handle

of a gun.’” Id. Officer Hoffman then handcuffed Green, and Officer Goob

lifted Green’s t-shirt to reveal a Smith and Wesson firearm loaded with nine

bullets.

      On July 3, 2013, Green filed a timely pre-trial motion to suppress all

evidence. On July 24, 2013, the court held an evidentiary hearing on the

motion, and on November 14, 2013, the court granted the motion.           The

Commonwealth filed a timely Notice of Appeal on November 26, 2013. On

December 4, 2013, the court ordered the Commonwealth to file a concise

statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b),

and the Commonwealth did so on December 24, 2013.

      On appeal, the Commonwealth raises the following issue:




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      Whether the suppression court erred in concluding that the
      police did not have reasonable suspicion to approach [Green],
      who displayed a bulge in his waistband that the officers believed
      was a firearm, to inquire whether he possessed a firearm, but
      then patted him down when [Green] did not answer the officer’s
      question regarding the presence of the gun?

Brief of Appellant, at 4.

      When reviewing a trial court’s order granting a motion to suppress, our

standard of review is as follows:

      [W]e 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. Gutierrez, 36 A.3d 1104, 1107 (Pa. Super. 2012).

Before reviewing the issue presented by the Commonwealth, this case

warrants an inquiry into the level of police-citizen interaction involved.

Fourth Amendment jurisprudence recognizes three levels of police-citizen

encounters:

      The first [level of interaction] is the “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.




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Commonwealth v. Bryant, 866 A.2d 1143, 1146 (Pa. Super. 2005). The

trial court held, and all parties agree, that Green’s encounter with the police

began as a mere encounter, when Officer Goob stated, “Hey, Pittsburgh

Police, can you come here for a second,” and then rose to the level of an

investigative detention when Officer Goob informed Green that he was going

to pat him down. Trial Court Opinion, 11/13/14, at 5; Brief of Appellant, at

12; Brief of Appellee, at 8, 18, 25. Based on the undisputed fact that Green

was subject to an investigative detention, the Commonwealth was required

to prove that the officers had reasonable suspicion of criminal activity at the

time they patted Green down. Id. at 1146.

      In evaluating whether an officer possessed reasonable suspicion to

conduct a search, the trial court must:

      [E]xamin[e] the totality of the circumstances to determine
      whether there was a particularized and objective basis for
      suspecting the individual stopped of criminal activity. Thus, to
      establish grounds for reasonable suspicion, the officer whose
      impressions formed the basis for the stop must articulate specific
      facts which, in conjunction with reasonable inference derived
      from those facts, led him reasonably to conclude, in light of
      experience, that criminal activity was afoot.

Commonwealth v. Cottman, 764 A.2d 595, 598-99 (Pa. Super. 2000).

Further, “when assessing the reasonableness of an officer’s decision to frisk

a suspect during an investigatory detention, an appellate court does not

consider the officer’s unparticularized suspicion or hunch, but rather the

specific reasonable inferences which he is entitled to draw from the facts in




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light of his experience.”       Commonwealth v. Stevenson, 894 A.2d 759,

772 (Pa. Super. 2006) (quotations omitted).

       Here, the trial court based its conclusion that Officers Goob and Fallert

lacked reasonable suspicion to conduct the search on the belief that the

officers failed to prove the requisite training and experience to determine

that: 1) the encounter took place in a high crime area; or 2) that Green

possessed an illegal firearm based on the bulge in his pants. We disagree.

At trial, Officers Goob and Fallert both testified that they received Top Gun

training1, and Officer Fallert testified that he also received training from the

Bureau of Alcohol, Tobacco and Firearms (ATF) in characteristics of armed

individuals, how they conceal their weapons and their mannerisms.           N.T.

Suppression Hearing, 7/24/13, at 23, 38-39. Both Officers Goob and Fallert

also testified that they have made thousands of gun arrests throughout their

respective twelve and twenty years of experience on the police force. Id.

       Further, Officers Goob and Fallert testified that they had experience in

the particular neighborhood of Northview Heights, given their assignment to

a team charged with combating the high levels of drug and gun activity

present there.      Id. at 23.     The evidence of record in the instant case is
____________________________________________


1
  The Top Gun training program is a drug enforcement training program
designed for the investigator and prosecutor that highlights various stages of
a typical drug investigation from the time the initial information is received
through the resulting search warrants. Pennsylvania Narcotic Officers’
Association, available at www.pnoa.org/topgun.html (last visited on
7/17/2014).



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almost identical to that which was present in Stevenson, supra, and which

this Court deemed sufficient to establish requisite training and experience.

As such, the record does not support the trial court’s determination that

Officers Goob and Fallert lacked the necessary training and experience to

identify gun-related criminal activity. Gutierrez, supra.

      Accordingly, we must turn to whether the officers had reasonable

suspicion to conduct the search, based on their training and experience. At

trial, Officer Fallert testified that while driving the unmarked police vehicle,

he observed Green walking on the sidewalk and saw “a bulge consistent with

when [he] tuck[s] [his] firearm into [his] waistband.”       N.T. Suppression

Hearing, 7/24/13, at 40. He stated that the way Green was carrying the gun

is the “most common way people carry illegal firearms.”       Id.   Further, he

testified that Green did not appear to be of legal age to carry a firearm. Id.

At trial, Officer Goob testified that after Officer Fallert alerted him that he

believed Green was carrying a gun, he exited the vehicle, and once he was

within a few feet of Green, he “could see the object in his waistband more

clearly, and it resembled a handgun . . . so [he] asked him if he was

armed.” Id. At that point, Officer Goob advised Green that he was going to

pat him down. As such, this is the point at which Officer Goob was required

to have reasonable suspicion of criminal activity. Bryant, supra.

      Based on this testimony, Officers Goob and Fallert both offered

“specific and articulable facts” to support their “objective and particularized”

suspicion that Green was in possession of a firearm.        Cottman, supra.

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Accordingly, the trial court erred in granting Green’s motion to suppress, as

the record does not support the trial court’s finding that Officers Goob and

Fallert lacked reasonable suspicion to conduct the search.       Gutierrez,

supra.

     Order reversed.      Case remanded for proceedings consistent with the

dictates of this memorandum. Jurisdiction relinquished.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/8/2014




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