Opinion
J-S21044-13 No. 2339 EDA 2012
2013-10-03
COMMONWEALTH OF PENNSYLVANIA Appellant v. HYKEEM CARTER Appellee
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Order July 6, 2012
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0000285-2012
BEFORE: BENDER, J., BOWES, J., and LAZARUS, J. MEMORANDUM BY LAZARUS, J.
The Commonwealth appeals from an order, entered in the Court of Common Pleas of Philadelphia County, granting Hykeem Carter's motion to suppress evidence of violations of the Uniform Firearms Act. Upon review, we affirm.
The Honorable Carolyn Nichols made the following findings of fact:
On November 9, 2011, at approximately 9:00 p.m., Officer Matthew Blaszczyk and his partner, Officer White, were on routine patrol in the area of 700 East Madison Street, near the intersection of G Street in the City and County of Philadelphia . . . . Officer Blaszczyk was familiar with the area as a known drug area and had made several arrests in the area. He also testified that he received non-specialized training from the police academy.Trial Court Opinion, 10/3/2012, at 2-3 (citations omitted).
While driving northbound on G Street, Officer Blaszczyk testified that he observed [Carter] standing on the northeast corner of the intersection. As they approached the intersection, [Carter] began to walk southbound on G Street. The officers circled back around the block and observed [Carter] again standing on the northeast corner of G Street. The officers observed a large bulge in the left pocket of [Carter]'s jacket that appeared to be weighing it down. The officers continued to circle the block 3 or 4 times, each time observing [Carter] with the bulge in his jacket pocket. Each time the officers passed [Carter], he appeared to be turning his body away from the officers so they were not able to observe the bulge in his pocket.
After observing [Carter] for approximately 10 minutes, both officers exited the vehicle and approached [him]. Officer Blaszczyk testified that he could not tell that the bulge was in fact a firearm, only that it was a sharp angle and that it appeared to weigh down the jacket. Additionally, Officer Blaszczyk did not observe [Carter] interacting with anyone in the 10 minutes they observed him. The officers conducted a pat-down for weapons, immediately felt the bulge in [Carter]'s jacket and determined it was a firearm. A Walther P-22 model handgun, which had part of its serial number altered, loaded with eight live rounds, was recovered from [Carter].
On June 5, 2012, Carter moved to suppress all physical evidence obtained by Officer Blaszczyk. Judge Nichols denied the initial motion, but then granted leave to file a motion requesting reconsideration. After additional arguments on June 6, 2012, Judge Nichols granted Carter's suppression motion. The Commonwealth timely appealed that decision.
The Commonwealth raises the following issue for our review:
Did a police officer on patrol in a high-crime neighborhood lack reasonable suspicion to frisk defendant where he observed him on a known drug corner with a weighted bulge with a sharp edge in his jacket pocket and reasonably believed the object was a gun based on more than 75 gun arrests, and defendant, fourCommonwealth's Brief, at 3.
times within a ten-minute period, turned his body to conceal the bulge and walked away, whenever the police drove by?
The Fourth Amendment to the U.S. Constitution provides, in relevant part: "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated. . . ." U.S. CONST. amend. IV. Article I, Section 8 of the Pennsylvania Constitution echoes this language. Pa. CONST. Art. I, § 8. "In deciding whether reasonable suspicion exists for an investigatory stop, our analysis is the same under both Article I, § 8 and the Fourth Amendment." Commonwealth v. Taggart, 997 A.2d 1189, 1193 (Pa. Super. 2010).
Our Supreme Court has explained:
It is well established that a police officer may conduct a brief investigatory stop of an individual if the officer observes unusual conduct which leads him to reasonably conclude, in light of his experience, that criminal activity may be afoot. Terry v. Ohio, 392 U.S. 1 (1968); Commonwealth v. Lewis, 636 A.2d 619, 623 ([Pa.] 1994). An investigatory stop subjects a person to a stop and a period of detention, but does not involve such coercive conditions as to constitute the functional equivalent of an arrest. Commonwealth v. Ellis, 662 A.2d 1043, 1047 ([Pa.] 1995). Such an investigatory stop is justified only if the detaining officer can point to specific and articulable facts which, in conjunction with rational inference derived from those facts, give rise to a reasonable suspicion of criminal activity and therefore warrant the intrusion. Commonwealth v. Murray, 331 A.2d 414, 418 ([Pa.] 1975).Commonwealth v. E.M., 735 A.2d 654, 659 (Pa. 1999).
The Supreme Court of the United States has noted that the "central inquiry" of any search and seizure analysis is "the reasonableness . . . of the particular governmental invasion of a citizen's personal security." Terry, 392 U.S. at 19. Reasonableness depends on a balance between the public interest and the accused's right to be free from arbitrary intrusion by police. Id. at 20-21. Any evidence recovered as a result of a stop made without reasonable suspicion must be suppressed. Commonwealth v. Hicks, 253 A.2d 276, 280 (Pa. 1969).
When evaluating a suppression order, we must determine whether the factual findings of the suppression court are supported by the record. Commonwealth v. Hernandez, 935 A.2d 1275, 1280 (Pa. 2007). Where the record supports the factual findings of the suppression court, an appellate court may only reverse when the suppression court's legal conclusions are in error. Id. The Commonwealth does not challenge Judge Nichols' factual findings as quoted above, and so we examine this case for legal error only. See id.
In the instant case, Officer Blaszczyk knew the following: 1) Carter was standing at a known "drug corner" (N.T. Suppression Hearing, 6/5/2012, at 5); 2) Carter initially walked away as Officer Blaszczyk and his partner approached ( Id. at 4), and subsequently turned his body away from the officers as they passed by on at least three more occasions ( Id. at 5); and 3) Carter had a bulge with a sharp angle in his pocket ( Id. at 5).
Based on these facts, Officer Blaszczyk did not have an articulable, reasonable suspicion to justify a Terry stop. For the Terry stop to have been legitimate, the Commonwealth must show how Carter's actions created a reasonable suspicion that Carter was committing a crime before the stop and subsequent frisk. As Judge Nichols noted in her trial court opinion, "Carter's action in moving around to prevent the officer from viewing the content of his pocket is innocent activity in nature and certainly cannot . . . lead the officer to believe that criminal activity was afoot." Trial Court Opinion, 10/23/2012, at 7. This Court has found that "[a] police officer's observation of a citizen's nervous demeanor and furtive movements, without more, establishes nothing more than a 'hunch,' employing speculation about the citizen's motive in the place of fact." Commonwealth v. Reppert, 814 A.2d 1196, 1206 (Pa. Super. 2002); see also Commonwealth v. Carter, 779 A.2d 591, 595 (Pa. Super. 2001) (reasonable suspicion may not be based on educated hunch).
In a case similar to this one, this Court held that police did not have a reasonable suspicion where the defendant was present in a "high drug" and "high crime" area, and walked away when he saw the police approach. In re J.G., 860 A.2d 185, 187-89 (Pa. Super. 2004). The J.G. Court distinguished between merely walking away from police, as Carter did in the instant case, and outright flight. Id. at 189 (distinguishing Commonwealth v. Jefferson, 853 A.2d 404 (Pa. Super. 2004), where court held presence in a high crime area coupled with headlong flight at the sight of officers relevant to reasonable suspicion analysis).
In another, also similar, case, the defendant was standing on a corner with several other people and walked quickly away upon seeing the police approach while "holding her hands in the front of her coat, leaning forward, as if to be holding something." Commonwealth v. Martinez, 588 A.2d 513, 515 (Pa. Super. 1991) (internal quotations removed). Our Supreme Court has also found that furtive movements in conjunction with several other factors were insufficient to justify a Terry stop. See Commonwealth v. DeWitt, 608 A.2d 1030, 1034 (Pa. 1992) (no reasonable suspicion where, as police approached vehicle in high crime area, they observed occupants engage in furtive movements, turn off lights, and attempt to drive away). Accordingly, the facts on the record are legally insufficient to justify a Terry stop, and we must affirm the decision of the suppression court. Hicks, 253 A.2d at 280.
Instantly, the dissenting author has contravened our scope of review by re-weighing the evidence presented at Carter's suppression hearing and determining that the trial court's legal conclusions were in error. An appellate court defers to the credibility determinations made by the trial court hearing the suppression evidence so long as its findings are supported by the record. Commonwealth v. Walker, 874 A.2d 667, 671 (Pa. Super. 2005) (citations omitted).
Here, the trial court heard the testimony of Officer Blaszyzyk, firsthand, and had the opportunity to assess his credibility when weighing the facts and concluding whether he had reasonable suspicion to justify a Terry stop. The trial judge simply did not believe that the officer's observation of Carter's actions legitimately led him to conclude that criminal activity was afoot. The court's decision is supported by the fact that it is not reasonable for an officer to conclude that criminal activity is afoot when an individual walks away from and turns one's body away from an officer in a high crime area, while having a suspected bulge in his pocket. See Martinez, supra at 516 (stop unlawful in drug area where facts known to officer prior to ordering defendant to place hands on hood of police car were that defendant was talking with group of people on street corner at 12:20 A.M., defendant walked away rapidly after looking in direction of unmarked police vehicle, and defendant's jacket appeared to have suspicious "bulge" in it).
Order affirmed.
BOWES, J., files a Dissenting Memorandum. Judgment Entered. ________________
Prothonotary