J-A20035-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                        Appellant

                   v.

JIHAD IBRAHIM

                        Appellee                     No. 3467 EDA 2014


                 Appeal from the Order of August 11, 2014
           In the Court of Common Pleas of Philadelphia County
             Criminal Division at No.: C-51-CR-0010044-2013


BEFORE: DONOHUE, J., SHOGAN, J., and WECHT, J.

MEMORANDUM BY WECHT, J.:                       FILED SEPTEMBER 29, 2015

     The Commonwealth appeals the trial court’s August 11, 2014 order.

In that order, the trial court granted Jihad Ibrahim’s motion to suppress

evidence. For the reasons contained herein, we reverse the order, and we

remand for further proceedings.

     On July 19, 2013, Philadelphia Police Officer Joseph Marrero and his

partner observed Ibrahim riding a bicycle in the wrong direction on a one-

way street in Philadelphia.     When the officers attempted to stop him,

Ibrahim sped off on the bike.       While fleeing, Ibrahim dropped a firearm.

Ibrahim was apprehended, and charged with persons not to possess a

firearm, possessing a firearm with altered manufacturer’s number, carrying
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a concealed firearm without a license, carrying a firearm in Philadelphia, and

possession of an instrument of crime.1

       On August 11, 2014, Ibrahim presented an oral motion to the trial

court to suppress the firearm. The trial court immediately proceeded to a

hearing, at which the following testimony was elicited, as summarized by the

trial court:

       [Officer Marrero] testified that[,] on July 19, 2013[,] at
       approximately 10:20 a.m.[,] he was in an unmarked police
       vehicle in plain clothes proceeding eastbound in the 1800 block
       of Dickenson Street in South Philadelphia[,] which runs one-way
       in that direction. He observed [Ibrahim] riding on a bicycle in
       the 1700 block of Dickenson travelling westbound towards him
       approximately a half a block away.        He attempted to stop
       [Ibrahim] for a violation of the Motor Vehicle Code for riding his
       bicycle the wrong way by yelling at him [to] “Stop, stop the
       bike,” at which time he claimed [that Ibrahim] refused to stop,
       continued to pedal faster, and turned southbound onto Bouvier
       Street[,] which is one-way southbound. He followed [Ibrahim]
       without initiating his lights or siren and at the end of Bouvier
       Street, [Ibrahim] made a right-hand turn onto Tasker Street
       heading westbound, and at the corner of 18th and Tasker, about
       a quarter of a block further, [Ibrahim] jumped off of the bicycle,
       removed a firearm from his waistband and discarded it on the
       street. At that point, the officer exited his vehicle, announced
       that he was the police, ordered him to stop[,] and chased and
       apprehended him.

          Q. Did you announce yourself—at any point, did you
             announce yourself as police?

          A. Yes. Once I saw [Ibrahim] jump off of the bicycle and
             remove the object from his waistband, I announced
             police and to stop.

____________________________________________


1
       18 Pa.C.S. §§ 6105, 6110.2, 6106, 6108, and 907, respectively.



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     He then testified that he did not issue a traffic citation because
     he is not permitted to issue traffic tickets when in plain clothes
     and he did not have a citation book with him. He recovered the
     weapon from where he saw [Ibrahim] discard it.

     On cross-examination, the officer confirmed that he first saw
     [Ibrahim] when he was approximately a half a block ahead of
     him, that he only observed him going the wrong way “for a
     matter of feet,” [that he] first yelled for him to stop through his
     car window when he caught up with him on Bouvier Street, at
     which point [Ibrahim] was travelling in the correct direction,
     without announcing that he was a police officer, and that,
     therefore, there was no way for [Ibrahim] to know that he was a
     police officer; in addition, he did not intend to issue a traffic
     citation to [Ibrahim] but only to warn him. [Ibrahim] did not
     testify or present any other evidence.

Trial Court Opinion (“T.C.O.”), 1/15/2015, at 1-2 (references to the notes of

testimony omitted).

     After hearing the testimony and the argument from both parties, the

trial court determined that the stop was pretextual, and that Ibrahim’s

abandonment of the firearm was forced. See Notes of Testimony (“N.T.”),

8/11/2014, at 22. Accordingly, the trial court granted Ibrahim’s suppression

motion. Id.

     On September 10, 2014, the Commonwealth filed a notice of appeal,

in which the Commonwealth certified that the trial court’s suppression order

would either terminate or substantially handicap the prosecution pursuant to

Pa.R.A.P. 311(d).     On the same date, the Commonwealth filed a concise

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

even though the trial court had not yet ordered such a statement.          On




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January 15, 2015, the trial court issued the above-quoted opinion pursuant

to Pa.R.A.P. 1925(a).

      The Commonwealth raises the following issue for our consideration:

      Where [Ibrahim] drove the wrong way on a one-way street on a
      bicycle and, when ordered to stop, sped away and discarded a
      gun, did the lower court err in suppressing the gun on the
      ground that the stop was pretextual because the police wanted
      to stop [Ibrahim] for reasons unrelated to the traffic violation?

Brief for the Commonwealth at 1.

      Our standard of review is well-settled.

      We begin by noting that where a motion to suppress has been
      filed, the burden is on the Commonwealth to establish by a
      preponderance of the evidence that the challenged evidence is
      admissible. In reviewing the ruling of a suppression court, our
      task is to determine whether the factual findings are supported
      by the record. If so, we are bound by those findings. Where, as
      here, it is the Commonwealth who is appealing the decision of
      the suppression court, we must consider only the evidence of the
      defendant’s witnesses and so much of the evidence for the
      prosecution as read in the context of the record as a whole
      remains uncontradicted.

      Moreover, if the evidence supports the factual findings of the
      suppression court, this Court will reverse only if there is an error
      in the legal conclusions drawn from those findings.

Commonwealth v. Powell, 994 A.2d 1096, 1101 (Pa. Super. 2010)

(internal citations to cases and rules omitted).         With regard to the trial

court’s     legal   conclusions,   our   standard   of    review   is   de   novo.

Commonwealth v. Briggs, 12 A.3d 291, 320-21 (Pa. 2011) (citations

omitted).




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      We first note that the provisions of the Motor Vehicle Code apply with

full force in this case, even though Ibrahim was riding a bicycle instead of a

vehicle at the time that the police observed him driving in the wrong

direction down a one-way street.    See 75 Pa.C.S. § 3501(a) (“Every person

riding a pedalcycle upon a roadway shall be granted all of the rights and

shall be subject to all of the duties applicable to the driver of a vehicle by

this title, except as to special provisions in this subchapter and except as to

those provisions of this title which by their nature can have no application.”).

We now turn to the principles that govern interactions between a police

officer and a person operating a vehicle on this Commonwealth’s roadways.

      The general rule regarding the level of suspicion that a police officer

must possess before stopping a vehicle is codified at 75 Pa.C.S. § 6308(b),

which provides as follows:

      Whenever a police officer is engaged in a systematic program of
      checking vehicles or drivers or has reasonable suspicion that a
      violation of this title is occurring or has occurred, he may stop a
      vehicle, upon request or signal, for the purpose of checking the
      vehicle’s registration, proof of financial responsibility, vehicle
      identification number or engine number or the driver’s license, or
      to secure such other information as the officer may reasonably
      believe to be necessary to enforce the provisions of this title.

Id.   Although subsection 6308(b) delineates the general rule, it does not

apply in all instances because, as we have held, not all vehicle offenses

require further investigation to determine whether a motorist has committed

that offense.   Indeed, despite subsection 6308(b)’s reasonable suspicion




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standard, some offenses, by their very nature, require a police officer to

possess probable cause before he or she may conduct a traffic stop.

       In Commonwealth v. Feczko, 10 A.3d 1285 (Pa. Super. 2010) (en

banc), an en banc panel of this Court explained the requisite levels of

suspicion that a police officer must have before effectuating a stop, as

follows:

       In light of our Supreme Court’s interpretation of the current
       language of Section 6308(b), we are compelled to conclude that
       the standards concerning the quantum of cause necessary for an
       officer to stop a vehicle in this Commonwealth are settled;
       notwithstanding any prior diversity on the issue among panels of
       this Court. Traffic stops based on a reasonable suspicion: either
       of criminal activity or a violation of the Motor Vehicle Code under
       the authority of Section 6308(b) must serve a stated
       investigatory purpose.       In effect, the language of Section
       6308(b)—“to secure such other information as the officer may
       reasonably believe to be necessary to enforce the provisions of
       this title”—is conceptually equivalent with the underlying
       purpose of a Terry[2] stop.

       Mere reasonable suspicion will not justify a vehicle stop when the
       driver’s detention cannot serve an investigatory purpose relevant
       to the suspected violation. In such an instance, “it is encumbent
       [sic] upon the officer to articulate specific facts possessed by
       him, at the time of the questioned stop, which would provide
       probable cause to believe that the vehicle or the driver was in
       violation of some provision of the Code.” Commonwealth v.
       Gleason, 785 A.2d 983, 989 (Pa. 2001) (superseded by
       subsection 6308(b); emphasis in Gleason).

Id. at 1290-91 (citation modified; some citations omitted).



____________________________________________


2
       Terry v. Ohio, 392 U.S. 1 (1968).



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      We further elaborated upon the distinction between Motor Vehicle

Code offenses that require probable cause and those that require only

reasonable suspicion most recently in Commonwealth v. Salter, ___ A.3d

___, 2015 Pa.Super. 166 (Pa. Super. 2015).          Therein, we stated the

following:

      [W]hen considering whether reasonable suspicion or probable
      cause is required constitutionally to make a vehicle stop, the
      nature of the violation has to be considered.        If it is not
      necessary to stop the vehicle to establish that a violation of the
      Vehicle Code has occurred, an officer must possess probable
      cause to stop the vehicle. Where a violation is suspected, but a
      stop is necessary to further investigate whether a violation has
      occurred, an officer need only possess reasonable suspicion to
      make the stop. Illustrative of these two standards are stops for
      speeding and DUI. If a vehicle is stopped for speeding, the
      officer must possess probable cause to stop the vehicle. This is
      so because when a vehicle is stopped, nothing more can be
      determined as to the speed of the vehicle when it was observed
      while travelling upon a highway. On the other hand, if an officer
      possesses sufficient knowledge based upon behavior suggestive
      of DUI, the officer may stop the vehicle upon reasonable
      suspicion of a Vehicle Code violation, since a stop would provide
      the officer the needed opportunity to investigate further if the
      driver was operating under the influence of alcohol or a
      controlled substance.

Id. at *3.

      In light of these principles, our first task is to determine whether

Officer Marrero needed probable cause or reasonable suspicion to stop, or in

this case attempt to stop, Ibrahim.    To make this determination, we must

consider the language and nature of the offense that triggered Officer

Marrero’s actions. Ibrahim was travelling the wrong way down a one-way



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street, an illegal action that is governed by 75 Pa.C.S. § 3308. That section

state that “[u]pon a roadway designated for one-way traffic, a vehicle shall

be driven only in the direction designated at all or such times as shall be

indicated by official traffic-control devices.”   Id.   We have no difficulty

concluding that a police officer must possess probable cause before stopping

an individual who is violating this provision.     Like the speeding offense

described in the example from Salter, the investigation into the offense of

driving in the wrong direction on a one-way street is completed when the

officer observes a motorist doing exactly that.    No further investigation is

required, and nothing of evidentiary or investigatory value with regard to

that particular offense can be ascertained once the stop is effectuated.

Thus, section 3308, like speeding, is an offense that requires probable

cause, not reasonable suspicion, before an officer may stop the vehicle.

        Without question, Officer Marrero possessed probable cause in this

case.    To determine whether probable cause exists, we must consider

“whether the facts and circumstances which are within the knowledge of the

officer at the time of the arrest, and of which he has reasonably trustworthy

information, are sufficient to warrant a man of reasonable caution in the

belief that the    suspect has    committed or     is   committing   a crime.”

Commonwealth v. Rodriguez, 585 A.2d 988, 990 (Pa. 1991).               From a

clear vantage point, Officer Marrero observed Ibrahim driving his bicycle

westbound on a road that requires all traffic to proceed in the eastbound




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direction. No further investigation was required. The moment that Officer

Marrero observed the violation, he had probable cause to stop Ibrahim.

     The trial court held that the violation that Officer Marrero observed

was de minimis, and that further observation was necessary before he could

attempt to stop Ibrahim. This simply is not true. The statutory language of

the offense does not include a provision setting forth how long a person

must travel in the wrong direction before a violation occurs.           To the

contrary, the offense occurs at the moment the motorist actually travels in

the wrong direction. Hence, it is of no moment whether an officer observes

a person travelling for one yard, ten yards, or one hundred yards.       Upon

observing the violation, a police officer has probable cause to stop the

offending motorist.

     The trial court relies upon Gleason for the proposition that an officer

must observe a person committing an offense for a sustained period of time

before making a vehicle stop.    This reliance is entirely misplaced.    First,

Gleason involved a DUI. Our Supreme Court held that a police officer had

to observe a motorist for a sustained period of time to determine whether

probable cause existed to stop the driver to investigate a DUI. However, as

noted above, Gleason was superseded by subsection 6308(b).        Thus, the

probable cause analysis set forth in Gleason has no bearing on this case.

Second, and more importantly, DUI is one of the crimes that requires

reasonable suspicion, not probable cause. In other words, a suspected DUI

often necessitates further investigation, whereas driving the wrong way on a

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one-way street does not.        The two crimes require different levels of

suspicion, and nothing about the offense committed by Ibrahim required any

additional investigation or any sustained observation by the police officer.

Gleason simply has no application here, nor is there any justification for

granting Ibrahim’s motion based upon the trial court’s characterization of the

violation of the Motor Vehicle Code as de minimis.

      The trial court also concluded that the traffic stop was pretextual.

That is, the trial court believed that Officer Marrero used the alleged de

minimis traffic stop as an unjustified basis for stopping Ibrahim to

investigate some other crime. We observe nothing in the record to support

this conclusion.   At no point during the suppression hearing did Ibrahim

suggest any other crime or set forth any other reason why Officer Marrero

wanted to investigate him. To the contrary, the record demonstrates only

that Officer Marrero observed Ibrahim clearly violate a provision of the Motor

Vehicle Code, and that Officer Marrero attempted to stop Ibrahim based only

upon that violation. The record does not support any contention that Officer

Marrero stopped Ibrahim for any other reason.

      Finally, the trial court held that, because the stop was illegal, Ibrahim’s

abandonment of the firearm was forced. As a general rule, when a person

abandons property, the police may recover that property and use it as

evidence against a defendant.       However, the abandonment cannot be the

result of illegal police conduct.   Commonwealth v. Byrd, 987 A.2d 786,

791 (Pa. Super. 2009). In other words, if an individual abandons property

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during the course of an unconstitutional vehicle stop, we will consider the

abandonment to be forced, and the evidence recovered therefrom must be

suppressed. In this case, however, Officer Marrero had probable cause to

stop Ibrahim.      The stop was not unconstitutional.           Consequently, Ibrahim

was not forced to abandon the gun, and it cannot be suppressed.

        Our standard of review require us to review the legal conclusions

drawn by the trial court de novo. Having done so, it is apparent that the

trial   court   erroneously      held    that      Officer   Marrero’s   actions   were

unconstitutional.     To the contrary, Officer Marrero had probable cause to

stop Ibrahim. We vacate the trial court’s order, and we remand this case for

proceedings consistent with our holding.

        Order reversed. Case remanded. Jurisdiction relinquished.3




____________________________________________


3
      The Commonwealth has filed a motion requesting this Court to
consider its untimely filed reply brief to be timely. The Commonwealth’s
reply brief was due on June 11, 2015. The Commonwealth did not file its
reply brief and the motion until June 18, 2015.          In the motion, the
Commonwealth asserts boilerplate averments of essentially being too busy
to comply timely with this Court’s filing deadlines. The Commonwealth adds
no specific information regarding the due dates or names of any of the other
cases that have prevented the timely filing of its reply brief. Moreover, the
Commonwealth does not explain why it did not file its motion at an earlier
date. The Commonwealth having set forth what appear to be merely
boilerplate allegations, we deny the motion. We have not considered the
Commonwealth’s untimely reply brief in any way in deciding this case.



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/29/2015




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