J-S69033-17

                                   2018 PA Super 183

    COMMONWEALTH OF                            :   IN THE SUPERIOR COURT OF
    PENNSYLVANIA                               :        PENNSYLVANIA
                                               :
                       Appellant               :
                                               :
                                               :
                v.                             :
                                               :
    TAREEK ALQUAN HEMINGWAY                    :   No. 684 WDA 2017


                      Appeal from the Order March 31, 2017
                  In the Court of Common Pleas of Blair County
              Criminal Division at No(s): CP-07-CR-0002262-2016


BEFORE:      BOWES, J., RANSOM, J., and STEVENS, P.J.E.*

DISSENTING OPINION BY STEVENS, P.J.E.:                    FILED JUNE 26, 2018

       Our society is seeing an alarming trend of law enforcement officers being

attacked.1    Given the need to balance the protection of law enforcement

officers with the constitutional rights of an individual under investigation, there

may be reasonable differences of opinion in any given set of facts.

       Here, respectfully, the police officers under the facts of this case had

every right to approach and question Appellee, especially at 2 a.m., in a high

crime area. Considering these facts, when Appellee refused to remove his
____________________________________________


1 Within just a ten-day span, there were two such attacks in Luzerne County,
Pennsylvania. On May 31, 2018, in Edwardsville, several officers were
attacked while investigating a violent domestic dispute. Officers allegedly
assaulted after domestic in Edwardsville, Times Leader, 6/1/18,
https://www.timesleader.com/news/706303/officers-allegedly-assaulted-
after-domestic-in-edwardsville. On June 9, 2018, in Hazleton, a man on an
all-terrain vehicle (ATV) attempted to run over a police officer who was
attempting to offer him assistance. Man on ATV tries to run down officer who
was there to help him, Standard Speaker, 6/11/18, at 1. A simple internet
search produces a plethora of attacks on law enforcement officers.

____________________________________
* Former Justice specially assigned to the Superior Court.
J-S69033-17



hand from his pocket, the officers found it necessary to conduct a limited

protective frisk of Appellee’s person for their personal safety. There is nothing

intrusive about the actions of the police officers in this case that justifies a

suppression order.

      Law enforcement officers should have the right to ask an individual to

take his hand out of his pocket for their safety. We must remember that police

officers in the line of duty are faced with on-the-spot decisions in a highly

stressful environment. It is perfectly reasonable to give officers some leeway

in asking an individual to remove their hands from their pockets during an

interaction.

      As the trial court erred in concluding that the police officers unlawfully

seized Appellee by approaching him and subsequently asking him to take his

hands out of his pockets to ensure their safety, I respectfully dissent.

      A police officer does not need any level of suspicion to approach an

individual and ask them questions. Commonwealth v. Baldwin, 147 A.3d

1200, 1202–1203 (Pa.Super. 2016).

      Both the United States and Pennsylvania Supreme Courts have
      held that the approach of a police officer followed by questioning
      does not constitute a seizure. Florida v. Bostick, 501 U.S. 429,
      434, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991) (police can
      approach people at random, ask questions, and seek consent to
      search) (collecting cases); Florida v. Royer, 460 U.S. 491, 497,
      103 S.Ct. 1319, 75 L.Ed.2d 229 (1983) (“law enforcement officers
      do not violate the Fourth Amendment by merely approaching an
      individual in the street or in another public place, by asking him is
      he is willing to answer some questions, [or] by putting questions
      to him if the person is willing to listen”); Commonwealth v.
      Smith, 575 Pa. 203, 836 A.2d 5, 11 (2003) (“the mere approach


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     of police followed by police questioning ... does not amount to a
     seizure”); In re D.M., 566 Pa. 445, 781 A.2d 1161, 1164 (2001)
     (“the police may approach anyone in a public place to talk to him,
     without any level of suspicion”).

Commonwealth v. Thomas, 179 A.3d 77, 82 (Pa.Super. 2018) (quoting

Commonwealth v. Coleman, 19 A.3d 1111, 1117 (Pa.Super. 2011)).

     Our courts have repeatedly held that an officer’s request that an

individual remove their hands from their pockets does not escalate a mere

encounter to an investigative detention requiring reasonable suspicion.

     An officer is justified in insisting that a citizen not conceal his
     hands during an encounter with police; an officer may make this
     reasonable request to ensure his or her own protection in case
     that individual is armed.

        This Court has stated that “if during a mere encounter, an
        individual on his own accord, puts his hands in his pocket,
        thereby creating a potential danger to the safety of a police
        officer, the officer may justifiably reach for his side arm and
        order the individual to stop and take his hand out of his
        pocket. Such reaction by a police officer does not elevate
        the mere encounter into an investigative detention because
        the officer's reaction was necessitated by the individual's
        conduct.” Commonwealth v. Carter, 779 A.2d 591, 594
        (Pa.Super. 2001).

     Coleman, 19 A.3d at 1117 (quoting Commonwealth v. Carter,
     779 A.2d 591, 594 (Pa.Super. 2001) (noting that the fact that the
     officer asked the appellant to take his hands out of his pockets did
     not turn the encounter into a seizure)).                 See also
     Commonwealth v. Blair, 860 A.2d 567, 573 (Pa.Super. 2004)
     (finding that interaction remained a mere encounter when an
     officer approached a parked car and asked its occupants to show
     their hands).

Thomas, 179 A.3d at 83.




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      During a mere encounter, however, an officer may recognize the need

to conduct a protective frisk of an individual if he reasonably believes the

person is armed and dangerous. This Court has held:

      [w]hen an officer is justified in believing that the individual whose
      suspicious behavior he is investigating at close range is armed and
      presently dangerous to the officer or to others[,] the officer may
      conduct a pat down search to determine whether the person is in
      fact carrying a weapon. Terry [v. Ohio, 392 U.S. 1, 24, 88 S.Ct.
      1868, 20 L.Ed.2d 889 (1968)]. “The purpose of this limited search
      is not to discover evidence of crime, but to allow the officer to
      pursue his investigation without fear of violence.” Adams v.
      Williams, 407 U.S. 143, 146, 92 S.Ct. 1921, 32 L.Ed.2d 612
      (1972).

Commonwealth v. Simmons, 17 A.3d 399, 403 (Pa.Super. 2011) (quotation

marks omitted). Further, “the court must be guided by common sense

concerns that give preference to the safety of the police officer during

an encounter with a suspect where circumstances indicate that the suspect

may have, or may be reaching for, a weapon.”               Commonwealth v.

Stevenson, 894 A.2d 759, 772 (Pa.Super. 2006) (citation omitted) (emphasis

in original).

      In Thomas, police officers were on patrol when they received a report

of a black male with a gun in a high crime area in Philadelphia. When the

officers arrived at the reported location, they observed a black male, later

identified as the appellee, walking eastbound on Greenway Avenue. After the

officers circled the block in their patrol car four or five times, the officers

observed the appellee repeatedly reverse his direction and look back at the

officers each time they passed by.


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      Although the appellee did not meet the exact description outlined in the

dispatch report, the officers believed the appellee’s behavior was suspicious

and approached him. Appellee had his hands in his pockets but refused the

officers’ request to remove them.      At that point, the officers conducted a

limited protective frisk of the appellee’s person for their personal safety.

      The Thomas Court reversed the lower court’s decision to suppress the

evidence and rejected its finding that the officers lacked the requisite suspicion

to approach the appellee, ask him to show his hands, and conduct a brief

protective frisk. Thomas, 179 A.3d at 84. First, the Thomas court found

the officers’ request for the appellee to remove his hands from his pockets did

not escalate the encounter into an investigative detention. See Coleman,

supra; Blair, supra.       Second, the Thomas Court determined that the

appellee’s refusal to remove his hands from his pockets justified a brief

protective frisk of his person for the officers’ protection.

      Specifically, this Court found that “[i]t was reasonable for [the officers]

to infer that Appellee may have been armed and dangerous, given his refusal

to show his hands and his evasive movements in response to police presence

in an area specifically known for high levels of crime and violence.” Thomas,

179 A.3d at 83-84.       See Commonwealth v. Hall, 713 A.2d 650, 653

(Pa.Super. 1998), rev'd on other grounds, 565 Pa. 92, 771 A.2d 1232 (2001)

(finding although that officer’s request that the defendant to remove his hands

from his pockets did not constitute a seizure, the defendant's persistence in




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J-S69033-17



keeping his hands concealed escalated the encounter into one where the

totality of the circumstances justified a frisk).

      Similarly, in the instant case, the record shows when the officers first

approached Appellee on foot, they asked Appellee to take his hand from his

pocket for their safety. At this point, the interaction between Appellee and

the officers remained a mere encounter, and the officer’s request to see

Appellee’s hands did not turn the encounter into an investigative detention.

See Thomas, supra; Coleman, supra; Blair, supra.

      Thereafter, Appellee refused to comply with officers’ request to remove

his hand from his pocket. This suspicious behavior, along with the fact that

the officers had encountered Appellee at approximately 2 a.m. in a high crime

area, demonstrates that the officers were justified in attempting to perform a

pat-down of Appellee for their personal safety as they reasonably believed

that Appellee was armed and dangerous. See Thomas, supra; Hall, supra.

      Moreover, I cannot agree with the Majority’s assertion that the Officer

Detwiler had no right to command Appellee to stop concealing his hand as

“[a]ny potential danger in the interaction initiated by police was manufactured

by Officer Detwiler himself.”      Majority, at 9.   The Majority’s position is

unsupported by the aforementioned precedent, and its reliance on this Court’s

decision in Carter is misplaced. In Carter, the officer pulled his firearm on

the appellee and told him to remove his hand from his pocket; however, the

officer admitted on cross-examination that he had initially told the defendant




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to place his hand in his pocket.    This Court questioned the validity of the

officer’s belief that the defendant was armed and dangerous:

      Since it was the officer who told Appellee to put his hand in his
      pocket, we find it absurd that the officer would then argue that he
      became concerned for his safety when Appellee complied with his
      directive. A police officer cannot for instance, ask an individual to
      pick up a gun lying on the floor, and then claim that he was afraid
      for his safety because the individual picked up the gun. A police
      officer is not permitted to create a dangerous situation and then
      use the self-created danger as the basis for escalating an encounter
      into a seizure.

Carter, 779 A.2d at 594.     This Court found that the officer escalated the

situation into an investigative detention when he reached for his weapon and

ordered the appellee to show his hands.

      Moreover, the Carter panel went on to clarify that its conclusion would

have been different had the appellee put his hand in his pocket without being

prompted by the officer.     The Carter panel explained that the officer’s

response in reaching for his side arm and ordering the appellee to show his

hands would not have escalated the encounter into an investigative detention

as the officer would have reasonably feared for his safety as the appellee could

have been retrieving a weapon from his pocket.

      There is nothing in the record in the instant case to suggest the police

officers directed Appellee to put his hands in his pockets. Thus, the decision

in Carter does not support the Majority’s conclusion.

      In this same manner, I disagree with the Majority’s suggestion that an

officer has no right to ask an individual to remove his hands from his pockets



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J-S69033-17



without escalating an interaction from a mere encounter to an investigative

detention. Permitting an officer to request that an individual not conceal his

hands during an interaction promotes officer safety and allows the officer to

pursue the interaction with less apprehension of violence.

      When an individual refuses to comply with a reasonable request to

remove his hands from his pocket and the circumstances lead an officer to

believe that the individual is armed and dangerous, the police officer should

have the right to do a brief pat-down search of that individual for the police

officer’s personal safety. We should not create a policy that says otherwise.

      As a result, consistent with the aforementioned precedent, Appellee’s

refusal to comply with the officer’s request to refrain from concealing his hands

in his pocket gave the officer reason to believe that Appellee could have a

weapon and justified the subsequent protective frisk.

      Further, if this Court were to uphold the constitutionality of the frisk of

Appellant’s person, the officers were also justified in pursuing Appellee after

he fled the scene. Our courts have held that a police officer’s pursuit of a

fleeing suspect constitutes a seizure under Article 1, Section 8 of the

Pennsylvania Constitution, which provides broader protection than the Fourth

Amendment of the United States Constitution. Commonwealth v. Matos,

543 Pa. 449, 461–62, 672 A.2d 769, 775–76 (1996); California v. Hodari

D., 499 U.S. 621, 111 S.Ct. 1547, 113 L.Ed.2d 690 (1991) (holding that a

police officer’s pursuit of a fleeing suspect does not automatically trigger the

protection of the Fourth Amendment). Therefore, “any items abandoned by

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J-S69033-17



an individual under pursuit are considered fruits of a seizure. Those items may

only be received in evidence when an officer, before giving chase, has at least

the    reasonable      suspicion     necessary   for   an   investigatory   stop.”

Commonwealth v. Taggart, 997 A.2d 1189, 1193 (Pa.Super. 2010)

(quoting In re M.D., 781 A.2d 192, 197 (Pa.Super. 2001)).

       Appellee’s unprovoked flight in a high crime area gave the officers

reasonable suspicion to pursue and stop him. Our Supreme Court has held

that “unprovoked flight in a high crime area is sufficient to create a reasonable

suspicion to justify a Terry stop under the Fourth Amendment.” In re D.M.,

566 Pa. 445, 450, 781 A.2d 1161, 1164 (2001) (citing Illinois v. Wardlow,

528 U.S. 119, 120 S.Ct. 673, 145 L.Ed.2d 570 (2000)).2 Thus, the trial court

erred in holding that the police lacked reasonable suspicion to justify their

initial attempt to stop and frisk Appellee.3

       For the foregoing reasons, I dissent.

____________________________________________


2 To justify an investigative detention based a suspect’s unprovoked flight in
a high crime area, “the suspect must know he is running from law enforcement
before a reasonable suspicion can attach.” Commonwealth v. Washington,
51 A.3d 895, 898 (Pa.Super. 2012). There is no question that Appellee
recognized the officers as law enforcement as they were in full uniform,
arrived in a marked patrol car, and identified themselves as officers.

3  Appellee’s suppression motion solely alleged that the officers lacked
reasonable suspicion to support their attempt to stop and frisk him. Appellee
does not challenge the propriety of the officers’ search of his person. Thus, it
is not necessary to review this issue. See Commonwealth v. Freeman, 128
A.3d 1231, 1241–42 (Pa.Super. 2015) (reiterating that a suppression motion
must “state[] specifically and with particularity the evidence sought to be
suppressed, the grounds for suppression, and the facts and events in support
thereof”).

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