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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.                             :
                                               :
                                               :
    MASON FLANDERS                             :   No. 470 EDA 2017

                     Appeal from the Order January 13, 2017
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                        No(s): CP-51-CR-0008117-2016


BEFORE:      LAZARUS, J., DUBOW, J., and PLATT, J.*

MEMORANDUM BY DUBOW, J.:                           FILED SEPTEMBER 26, 2018

        The Commonwealth of Pennsylvania appeals from the January 13, 2017

Order entered in the Philadelphia County Court of Common Pleas granting

Mason Flanders’s Motion to Suppress physical evidence and a statement he

made to police. Because we conclude that the arresting officer had reasonable

suspicion to stop Flanders for a brief investigation, we reverse the trial court’s

suppression ruling and remand for further proceedings.

        On August 17, 2016, Philadelphia Police Officer Timothy Dollarton

arrested Flanders for Carrying a Firearm without a License and Carrying a

Firearm in Public in Philadelphia.1

        Flanders filed an Omnibus Pretrial Motion on October 6, 2016, which

included a Motion to Suppress the firearm seized by Officer Dollarton.

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1   18 Pa.C.S. § 6106(a)(1) and 18 Pa.C.S. § 6108, respectively.
____________________________________
* Retired Senior Judge assigned to the Superior Court.
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       The court held a hearing on the Motion on January 13, 2017. At the

commencement of the hearing, Flanders’s counsel informed the court that

Flanders also sought to suppress statements he had made to Officer Dollarton.

       Officer   Dollarton,    a   4-year      veteran   of   the   Philadelphia   Police

Department, was the Commonwealth’s sole witness at the suppression

hearing.    He testified that on the afternoon of August 17, 2016, he was

patrolling in the area of the 6000 Block of Buist Avenue in Philadelphia in a

marked police vehicle.2 N.T., 1/13/17, at 6, 8. At approximately 3:50 PM,

while stopped at a traffic light at the intersection of Buist Avenue and 61 st

Street, he saw Flanders begin to cross the street approximately 25 feet in

front of him.3 Id. at 6-7. Officer Dollarton testified that, as soon as Flanders

started walking, he noticed a bulge on the right side of the waistband of

Flanders’s pants, in the same area where Officer Dollarton places his own

firearm. Id. at 8, 11. He testified that Flanders was walking “normal[ly],”

with both arms swinging. Id. at 8-9. Officer Dollarton then testified that

Flanders looked in the direction of the police vehicle, immediately after which

Flanders stopped swinging his right arm and held it still over the bulge. Id.

at 8-9.
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2 Officer Dollarton testified that this is a high-crime area where there are many
shootings, robberies, illegal narcotics, and gun crimes, and that he had, on
one occasion, personally observed a shooting a half block from the location of
the instant stop. N.T., 1/13/17, at 6.

3 Officer Dollarton described Flanders as wearing jeans and an untucked grey
t-shirt that was not baggy. Id. at 11-13. He described Flanders’s jeans as
“regular fit . . . not particularly baggy, not particularly tight.” Id. at 18.

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      Officer Dollarton testified that, after Flanders took a few more steps, he

again looked in Officer Dollarton’s direction, then stopped in the middle of the

crosswalk, and turned his body away from Officer Dollarton so that Flanders’s

back was facing Officer Dollarton. Id. at 9-10. Officer Dollarton testified that,

from that vantage point, he again saw the bulge in Flanders’s waistband. Id.

at 10. Officer Dollarton described Flanders as moving erratically across the

crosswalk, changing directions multiple times as he did so, all the while

holding his right arm across the area where Officer Dollarton had seen the

bulge in his waistband. Id. at 9-12.

      Officer Dollarton recounted that he then drove his patrol vehicle directly

toward Flanders, exited his vehicle, and told Flanders to put his hands on the

hood of the police vehicle. Id. at 13. Officer Dollarton testified that, without

any prompting, Flanders announced to him that he had “just found it in the

alley.” Id. Officer Dollarton explained that he believed Flanders was referring

to the firearm that Officer Dollarton suspected Flanders had in his waistband.

Id. at 14.

      Officer Dollarton testified that he then frisked Flanders in the area where

he saw the bulge and found the firearm. Id.

      At the conclusion of the hearing, the trial court granted Flanders’s

Motion to Suppress the firearm and his statement, concluding that Officer

Dollarton lacked reasonable suspicion to stop Flanders. Id. at 32-33.




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     The Commonwealth timely appealed, certifying that the suppression

order terminates or substantially handicaps its prosecution.    See Pa.R.A.P.

311(d).

     The Commonwealth raises the following issue on appeal:

     Did the lower court err in concluding that Officer Dollarton did not
     have reasonable suspicion to stop [Flanders] and therefore the
     gun he found on him and the statement [Flanders] blurted out had
     to be suppressed?

Commonwealth’s Brief at 4.

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

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 argues that the court erred as a matter of law in

granting Flanders’s Motion to      Suppress because the totality of the

circumstances indicated that Officer Dollarton had reasonable suspicion to

stop Flanders. Commonwealth’s Brief at 12-13.


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        The Fourth Amendment of the United States Constitution and Article 1,

Section 8 of our state Constitution protect citizens from unreasonable searches

and seizures. In re D.M., 781 A.2d 1161, 1163 (Pa. 2001). “To secure the

right of citizens to be free from . . . [unreasonable searches and seizures],

courts in Pennsylvania require law enforcement officers to demonstrate

ascending levels of suspicion to justify their interactions with citizens as those

interactions become more intrusive.” Commonwealth v. Beasley, 761 A.2d

621, 624 (Pa. Super. 2000). Our Supreme Court has defined three levels of

interaction between citizens and police officers: (1) mere encounter, (2)

investigative detention, and (3) custodial detention. See Commonwealth v.

Boswell, 721 A.2d 336, 340 (Pa. 1997) (OAJC). Here, the parties and the

court agree that Officer Dollarton subjected Appellant to an investigative

detention.

        When evaluating the legality of investigative detentions, Pennsylvania

has adopted the holding of Terry v. Ohio, 392 U.S. 1 (1968), wherein the

United States Supreme Court held that police may conduct an investigatory

detention if they have reasonable suspicion that criminal activity is afoot.

        “When conducting a Terry analysis, it is incumbent on the suppression

court to inquire, based on all of the circumstances known to the officer ex

ante,    whether   an   objective   basis   for   the   seizure   was   present.”

Commonwealth v. Carter, 105 A.3d 765, 769 (Pa. Super. 2014). In order

to justify an investigative detention, a police officer must be able to identify




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“specific and articulable facts” leading her to suspect that criminal activity is

afoot. Terry, 392 U.S. at 21.

       In determining whether an officer’s stop of a defendant was supported

by reasonable suspicion, the court must consider the totality of the

circumstances, and give due weight to the reasonable inferences the officer

drew from the facts based upon his experience. Commonwealth v. Foglia,

979 A.2d 357, 360 (Pa. Super. 2009) (en banc).4 “[E]ven a combination of

innocent facts, when taken together, may warrant further investigation by the

police officer.” Id. (citation omitted). See also Carter, 105 A.3d at 771-72

(concluding that the suppression court undermined the “totality of the

circumstances” approach that should be used to determine whether a police

officer had reasonable suspicion by evaluating individual factors in isolation).

       The suppression court is not foreclosed from concluding that a police

officer had reasonable suspicion even where the defendant’s conduct was

equally consistent with innocent activity. Carter, 105 A.3d at 772. See also

Commonwealth v. Davis, 102 A.3d 996, 1000 (Pa. Super. 2014) (explaining

that although the item weighing down the defendant’s pocket could have been

something other than a gun, that did not mean that it was unreasonable for




____________________________________________


4 In Foglia, the totality of the circumstances supporting the officer’s
reasonable suspicion included the appellant’s presence in a high crime area,
common knowledge that offenders hide firearms in waistbands, and the
experienced officer’s observation of hand movements associated with
secreting of a weapon. Foglia, 979 A.2d at 361-62.

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the police officer to suspect, based on the totality of the circumstances, that

it was a gun).

      Moreover, reasonable suspicion is “considerably less than proof of

wrongdoing by a preponderance of the evidence.” Navarette v. California,

134 S.Ct. 1683, 1687 (2014). See also Commonwealth v. Fink, 700 A.2d

447, 449 (Pa. 1997) (explaining that reasonable suspicion is less than a

“certainty, a preponderance, or even a fair probability.”).

      Here, the suppression court found that Officer Dollarton lacked

reasonable suspicion to subject Flanders to a non-custodial investigative stop

based on two facts: (1) that the Commonwealth did not offer evidence “to

refute the fact that there is no law that makes it illegal, when you’re in the

middle of a crosswalk, to change your mind and change direction;” and (2)

that “there is no legal requirement for someone to move their arms when they

walk.” Supp. Ct. Op., 5/24/17, at 5-6. The court nonetheless concluded that,

viewing the facts “in their totality,” Officer Dollarton “did not have reasonable

suspicion that [Flanders] was engaged in criminal activity, or that [he] may

have been in possession of a weapon in furtherance of criminal activity.” Id.

      We disagree that the trial court reviewed the facts “in their totality”

before granting the Motion to Suppress.

      While changing directions in a crosswalk and holding one’s arm still

across one’s waistband may not alone support a finding of reasonable

suspicion, contrary to the suppression court’s conclusion, those two

circumstances do not represent the totality of the circumstances. Rather, the

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totality of the circumstances included the fact of the area’s high crime rate,

Officer Dollarton’s 4-plus years of experience, his prior observation of a

shooting within a block of the instant location, and his observation of a bulge

in Flanders’s waistband.     Combined with Flanders’s suspicious behaviors

described   above,   these   circumstances    supported   Officer   Dollarton’s

reasonable suspicion that criminal activity was afoot.

      Given the totality of the circumstances, we conclude that the

suppression court erred as a matter of law in finding that Officer Dollarton

lacked reasonable suspicion to conduct an investigatory stop of Flanders.

Accordingly, we reverse and remand the case for further proceedings

consistent with this Memorandum.

      Order reversed. Case remanded. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/26/18




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