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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA             :           IN THE SUPERIOR COURT OF
                                                               PENNSYLVANIA
                      Appellant


                 v.


    TERREL PATRICK DIXON                     :           No. 1320 WDA 2018


              Appeal from the Order Entered, September 11, 2018,
               in the Court of Common Pleas of Allegheny County,
              Criminal Division at No(s): CP-02-CR-0011754-2017.

BEFORE:     OTT, J., KUNSELMAN, J., and MUSMANNO, J.

MEMORANDUM BY KUNSELMAN, J.:                                 FILED AUGUST 01, 2019

        The Commonwealth appeals from the order granting Terre! Patrick

Dixon's motion to suppress evidence obtained by police incident to                  a

warrantless search conducted as part of     a    stop and frisk. We affirm.

        The suppression court stated its findings of fact as follows.

        [Officer] Michael Catanzaro, an 18[ -]year veteran of the
        Wilkinsburg Police Department, was assigned to pick up a [police]
        vehicle from a department mechanic on September 12, 2017. He
        was traveling in an unmarked vehicle and in plain clothes.
        At approximately 11:45 a.m., Officer Catanzaro was driving
        through the 900 block of Stoner Way when he observed two black
        males standing in the back yard [sic] of 921 Ross Avenue. Officer
        Catanzaro did not recognize either of the males, although
        subsequently it was determined that      .Dixon
                                                     .   .  was from that
                                                               .   .   .


        area.
        As Officer Catanzaro approached, the two males walked away
        from the back yard [sic], so he radioed the patrol officers to stop
        and talk to [Dixon].
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        Officer Catanzaro testified that he noticed [Dixon] "tap" his right
        side in a manner he thought was consistent with carrying a
        concealed weapon.
        There [were] no active calls for assistance in that specific area,
        and no recent known criminal activity. The only testimony was
        that there were several cases that were assigned to the Criminal
        Investigations Division, including burglaries and a robbery that
        occurred in that general area. Additionally, Officer Catanzaro
        testified that he executed a search warrant one block over
        approximately two months prior.
        When the patrol unit stopped [Dixon], [he] appeared nervous, and
        looked about the area from side to side. For this reason, Officer
        Catanzaro directed that Officer Granger conduct a pat down to
        determine whether [Dixon] was armed.
        It was unknown to Officer Catanzaro whether [Dixon]               had a
        license to carry a concealed weapon, and [he] stated that [Dixon]
        "appeared to be someone that would not be eligible to possess a
        permit to carry a firearm concealed." Officer Catanzaro did not
        elaborate on this statement, but it is implied in the testimony that
        it was due to [Dixon] not attaining the age of 21 at the time of the
        offense.
Trial Court Opinion, 9/11/18, at 1-2 (citations to the record and formatting

omitted).

        When Officer Granger performed the pat down on Dixon, he discovered

a   firearm in his waistband. The police arrested Dixon and charged him with       a


single count of firearms not to be carried without    a   license.'

        Dixon filed   a   motion to suppress the evidence. A suppression hearing

was held on May 24, 2018, and on August 13, 2018, the suppression court

orally granted Dixon's motion. The Commonwealth petitioned the court to

issue findings of fact and          conclusions of law, and filed     a   motion for



'   18 Pa.C.S.A. §    6106(a)(1).
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reconsideration.    On September 11, 2018, the suppression court issued its

written findings of fact and conclusions of law, and entered an order granting

suppression on the basis that the facts, as provided by Officer Cantanzaro's

testimony at the suppression hearing, did not establish "the requisite

reasonable suspicion that criminal activity was afoot to stop and frisk [Dixon]."

Trial Court Opinion, 9/13/18, at 2.      That same day, the suppression court

denied the Commonwealth's motion for reconsideration.

        The   Commonwealth filed    a   timely notice of appeal.        Both the

Commonwealth and the trial court complied with Pa.R.A.P. 1925.                The

Commonwealth raises one issue on appeal: "Whether the trial court erred in

finding that the police officer did not have reasonable suspicion to believe

[Dixon] was carrying an unlawful firearm, and therefore, lacked grounds to

stop and search him?" Commonwealth's Brief at 4.

        When, as here, police have acted without   a   warrant, "determinations of

reasonable suspicion and probable cause should be reviewed de novo on

appeal."      Ornelas v. United States, 517 U.S. 690, 699 (1996).          But "a

reviewing court should take care both to review findings of historical fact only

for clear error and to give due weight to inferences drawn from those facts by

resident judges and local law enforcement officers." Id.

        Because Dixon prevailed at the suppression hearing "we consider only

the evidence of [Dixon] and so much of the evidence for the Commonwealth

as remains uncontradicted when read in the             context of the suppression


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hearing record as         a   whole." Commonwealth v. Lukach, 195 A.3d 176, 183

(Pa. 2018) (citations and quotation marks                 omitted). As for the subject matter,

"our scope of review           is   limited to the factual findings and legal conclusions of

the suppression court."                 In re    L.1., 79 A.3d 1073, 1080 (Pa. 2013).

Additionally, citing to L.1., this Court has said "our scope of review from                    a


suppression ruling is limited to the evidentiary record that was created at the

suppression hearing." Commonwealth v. Cruz, 166 A.3d 1249, 1254 (Pa.

Super. 2017), appeal denied, 180 A.3d 1207 (Pa. 2018).

        Generally, "searches and seizures conducted outside the judicial

process,     without prior approval by judge or magistrate, are per se

unreasonable under the Fourth Amendment-subject only to                      a   few specifically

established and well delineated exceptions."                    Commonwealth v. Wilson,
655 A.2d 557, 560 (Pa. Super. 1995) (citations and quotation marks omitted).

One recognized exception is where an officer has reasonable suspicion to

believe that criminal activity is afoot, and that an individual might be armed

and dangerous.         Terry        v. Ohio, 392 U.S. 1, 30, (1968). When this threshold

is   satisfied, the officer "is entitled for the protection of himself and others in

the area to conduct            a    carefully limited search of the outer clothing of such

persons in an attempt to discover weapons which might be used to assault

him." Id. Such        a   "limited search"      is   commonly referred to as an investigatory

detention or     a   Terry stop.




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         For an investigatory detention to be legal under        Terry, the officer's

reasonable suspicion of criminal activity must be supported by specific and

articulable observations "of suspicious or irregular behavior on behalf of the

particular [individual] stopped."      Commonwealth v. Martinez, 588 A.2d
513, 515 (Pa. Super. 1991) (citations omitted). Reasonable suspicion is             a   less

stringent standard than probable cause. See Commonwealth v. Conrad,

892 A.2d 826, 829 (Pa. Super. 2006).           Nevertheless, in order to establish

reasonable suspicion, the officer "must be able to articulate something more

than an inchoate and unparticularized suspicion or hunch." United States v.

Sokolow, 490        U.S. 1, 7 (1989) (citations and quotation marks omitted).            In

order to determine whether an officer had reasonable suspicion to lawfully

initiate an investigatory detention, we look to the totality of the circumstances.

Commonwealth v. Semuta, 902 A.2d 1254, 1259                  (Pa. Super. 2006).

         The Commonwealth argues that the suppression court erred in finding

that the officers lacked reasonable suspicion to justify the investigatory

detention     and    the   limited   search   of   Dixon's    person      for weapons.

Commonwealth's Brief at 21.             According    to   the Commonwealth,             the

investigatory detention and search were supported by Officer Cantanzaro's

testimony that (1) he had 18 years of experience as                  a   police officer in

Wilkinsburg; (2) he observed two unfamiliar males standing in the backyard

of   a   "high crime area;" (3) while he drove past, he noticed, through his

rearview mirror, one of the males "tap" his waistband in         a   manner consistent


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with someone concealing            a       firearm; (4) after Officer Granger had stopped

Dixon, Dixon appeared nervous and looked about the area from side to side

indicating an intent to flee; and (5) Dixon appeared to be too young to possess

a    valid license to carry    a   concealed firearm.            Id. at 23-24; see also       N.T.

Suppression, 5/24/18, at 57, 59, 60, 62, 63.

        In support of its argument, the Commonwealth relies upon several cases

in which    this Court determined that there was reasonable suspicion to justify

an    investigatory detention. See Commonwealth v. Carter, 105 A.3d 765,

774-75 (Pa. Super 2014) (finding reasonable suspicion where police observed

the defendant in    a   high crime area, walking away from                a   known drug corner,

with    a   weighted and angled bulge in his coat pocket, and repeatedly

attempting to conceal the bulge in his pocket once alerted to police presence);

Commonwealth v. Foglia, 979 A.2d 357, 361                            (Pa. Super 2009) (finding

reasonable suspicion where police received an anonymous tip that                         a    man

dressed in black possessed             a   firearm at   a   location known for its high volume

of drugs and weapons, and upon arrival at the location, police observed                   a   man

dressed in black who engaged in evasive behavior by walking away from the

police and looking over his shoulder before sitting down behind some

females); and Commonwealth v. Stevenson, 894 A.2d 759, 764 (Pa. Super

2006) (finding reasonable suspicion where police officers were standing

behind an individual in    a   convenience store and observed that his pocket was

bulging and weighted down as if it contained                     a   firearm, and the individual


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began to suspiciously adjust his clothing and contents of his pocket while

continuously looking back over his shoulder at the officers)

        However, those cases are factually distinguishable from this case. Here,

Officer Cantanzaro did not testify that he observed any bulge in Dixon's

clothing, nor did he state that any aspect of Dixon's clothes appeared to be

weighted down.        Rather, Officer Cantanzaro testified       that he became

suspicious of Dixon because he placed his hand on "his front waist area." See

N.T. Suppression,   5/24/18, at 66. Notably, Officer Cantanzaro conceded that

Dixon was not carrying anything in his hands that was suspicious, and that he

did not see Dixon commit any crime as he passed.         Id. Officer Cantanzaro
further conceded that he was not    in the area to conduct any   investigation, and

the officers received no active calls or anonymous tips regarding suspicious

individuals or activity in that area at that particular time.   Id. at   73.

        Moreover, while the Commonwealth contends that Dixon was in            a   high

crime area, the suppression court made no such finding.2 Additionally, the




2   The suppression record does not reflect  high volume of cases in this area.
                                              a
Indeed, Officer Cantanzaro testified only that "several cases were assigned to
the Criminal Investigations Division, including burglaries and a robbery that
occurred in that general area." See N.T. Suppression, 5/24/18, at 58. He
also testified that he made one narcotics related arrest and executed one
search warrant nearby roughly two months prior to Dixon's arrest. Id.



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suppression court made no finding that Dixon walked away in           a   suspicious or

evasive manner.3

          Although the Commonwealth argues that Officer Cantanzaro's testimony

regarding Dixon's nervous disposition and youthful appearance should be

considered as part of the totality of the circumstances that justified the stop,

we cannot include these observations in our analysis because they occurred

after Officer Granger       stopped Dixon.      See Martinez, 588 A.2d at 516

(holding that the totality of the circumstances analysis must be limited to the

facts known to the officers     prior to initiating   the stop).

          Even if Officer Cantanzaro reported to Officer Granger that he saw a

firearm protruding from Dixon's waistband, or what appeared to be the outline

of    a   firearm concealed by Dixon's clothing, the officers would still lack

reasonable suspicion in order to justify an investigatory detention.                 See

Commonwealth v. Hicks, 208 A.3d 916, 949                  (Pa. 2019) (concluding     that

there was no reasonable suspicion to justify an investigatory detention where

the police received   a   report that an individual exited his vehicle with   a   firearm

visible in his waistband, and subsequently pulled his shirt over the firearm to




3  The suppression record supports the absence of such a finding because
Officer Cantanzaro merely testified that, as he was driving past Dixon in an
unmarked police car, while in plain clothes, he saw "the lead male walk away
first in a hurried manner." See N.T. Suppression, 5/24/18, at 59; see also
Commonwealth v. Key, 789 A.2d 282, 289-90 (Pa. Super. 2001) (holding
that merely walking away from the police does not provide reasonable
suspicion).
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conceal it as he walked into         a   gas station).     According to Hicks, the mere

possession of     a   concealed firearm in public is not enough to establish

reasonable suspicion because such rule "allows                  a   police officer to base the

decision to detain    a   particular individual upon an inchoate and unparticularized

suspicion or hunch that the individual is unlicensed and therefore engaged in

wrongdoing.      Id. at 946 (internal quotations and citations omitted).
        In our view, this case is factually similar to Martinez, where this Court

determined that reasonable suspicion was not established where the facts

known to the officers prior to initiating the investigatory detention established

only "that Martinez was talking with          a   group of people on        a   street corner at

12:20 A.M., she walked away quite rapidly after looking in the direction of an

unmarked police vehicle, and her jacket appeared to have                    a   bulge in it."   Id.
at 516 (internal quotation marks omitted). This Court held that these facts

did    not amount to reasonable suspicion that Martinez was armed and

dangerous or that criminal activity was afoot.            Id.       The observations by police

in    this case are even less than those at issue in Martinez, since Officer

Cantanzaro merely observed Dixon in               a   backyard, touch his waistband, and

begin to quickly walk down the street.

        Limiting our analysis to the facts known to Officer Cantanzaro prior to

directing Officer Granger to initiate an investigative detention of Dixon, we

agree with the suppression court's determination that the evidence was

insufficient to establish    a   reasonable suspicion that criminal activity was afoot.


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See Hicks, supra; Martinez, supra. Accordingly, we affirm the suppression

court's order granting Dixon's motion to suppress the evidence.

         Order affirmed.



Judgment Entered.

     4           199       -




Joseph D. Seletyn,
Prothonotary



Date: 8/1/2019




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