concluding that an officer’s initial interaction with defendant was a mere encounter where the officer was responding to an anonymous call that individuals were passing around a firearm, arrived at the scene in full uniform and a marked police vehicle, did not brandish a weapon, asked to speak to the defendant, who initially refused, and asked defendant to stop two or three times
How later courts described this case
- concluding that an officer’s initial interaction with defendant was a mere encounter where the officer was responding to an anonymous call that individuals were passing around a firearm, arrived at the scene in full uniform and a marked police vehicle, did not brandish a weapon, asked to speak to the defendant, who initially refused, and asked defendant to stop two or three times
- finding that a mere encounter occurred when a uniformed officer got out of his police vehicle and asked the appellee multiple times to come talk to him, especially because the officer did not brandish his weapon, engage in an overwhelming show of force, tell the appellee he was not free to leave, or obstruct the appellee’s movements
- concluding that defendant’s motion to suppress should have been denied where initial encounter was a mere encounter and the officer properly arrested defendant after observing defendant reach into his waistband, remove a firearm, and discard it
- holding defendant was not “seized” during his initial interaction with officer, where officer responded to radio call in marked cruiser and saw Appellee walk away from group of males; officer exited his vehicle and told Appellee to “come here,” but Appellee refused and continued to walk away; officer then observed Appellee remove object and place it in nearby flowerpot; object later recovered was firearm
Written by the judges who cited it.
The opinion
J. A10031/17
2017 PA Super 290
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
v. : No. 1225 EDA 2016
:
NAIM NEWSOME :
Appeal from the Order, March 21, 2016,
in the Court of Common Pleas of Philadelphia County
Criminal Division at No. CP-51-CR-0010217-2015
BEFORE: DUBOW, J., SOLANO, J., AND FORD ELLIOTT, P.J.E.
OPINION BY FORD ELLIOTT, P.J.E.: FILED SEPTEMBER 07, 2017
The Commonwealth appeals1 from the March 21, 2016 order granting
the omnibus pre-trial suppression motion filed by appellee, Naim Newsome.
After careful review, we reverse the suppression order and remand for
proceedings consistent with this opinion.
The relevant facts and procedural history of this case, as gleaned from
the certified record, are as follows. On the evening of September 22, 2015,
Lieutenant Robert Brockenbrough, a 23-year veteran of the Philadelphia
Police Department, responded to an anonymous radio call that a group of
five to seven males was gathered outside the 2000 block of Croskey Street
1
The Commonwealth certified, pursuant to Pa.R.A.P. 311(d), that the trial
court’s March 21, 2016 order will terminate or substantially handicap the
prosecution.
J. A10031/17
in Philadelphia and passing around a gun. (Notes of testimony, 3/17/16 at
4-6, 10.)2 When Lieutenant Brockenbrough arrived at the scene, he
observed a group of men huddled together and two of the individuals leave
the group and walk to the other side of the street. (Id. at 6-7.) One of the
men, who was later identified as appellee, began to walk southbound down
Croskey Street. (Id.) Lieutenant Brockenbrough exited his marked police
vehicle and asked appellee “to come here” so he could talk to him, but
appellee refused and continued walking down Croskey Street. (Id. at 8-9,
18.) At that point, Lieutenant Brockenbrough was in the process of radioing
officers in an approaching police wagon to stop appellee, when he observed
appellee reach into his waistband, remove an object that looked like a
handgun, and place it in a nearby flowerpot. (Id. at 9-10, 20.)
Lieutenant Brockenbrough testified that he was approximately 8 to 10 feet
away from appellee at this point. (Id. at 10.) One of the officers in the
police wagon, Officer Muhammad, subsequently recovered the firearm. (Id.
at 9.)
Lieutenant Brockenbrough testified that he approached appellee and
the other individuals on the evening in question, in part, because he believed
that they were in violation of Philadelphia’s 10:30 p.m. curfew. (Id. at 9,
11, 18.) Lieutenant Brockenbrough also acknowledged on
2
The record reflects that the transcript of the March 17, 2016 suppression
hearing is incorrectly dated March 21, 2016.
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J. A10031/17
cross-examination that he did not observe a bulge or weapon on appellee’s
person and did not see him make any suspicious movements as he was
following him down the street. (Id. at 17-19.)
Appellee was subsequently arrested and charged with unlawful
possession of a firearm, firearms not to be carried without a license, and
carrying a firearm on public streets or public property in Philadelphia. 3 On
October 30, 2015, appellee filed an omnibus pre-trial motion to suppress
the firearm, contending that Lieutenant Brockenbrough lacked reasonable
suspicion to stop or question him and that this stop constituted an unlawful
seizure. (See “Omnibus Pre-Trial Motion,” 10/30/15 at 2-3, ¶ II.) On
March 17, 2016, the trial court conducted a hearing on appellee’s
suppression motion. Following the hearing, the trial court granted appellee’s
suppression motion on March 21, 2016. The record reflects that the trial
court did not make any findings of fact or author an opinion in support of its
March 21, 2016 order. However, the trial court did note that “there wasn’t a
credibility issue[]” with respect to testimony of Lieutenant Brockenbrough,
who was the only witness who testified at the suppression hearing. (See
notes of testimony, 3/21/16 at 3.) This timely appeal followed.4
3
18 Pa.C.S.A. §§ 6105, 6106, and 6108, respectively.
4
Although not ordered to do so, the Commonwealth filed a concise
statement of errors complained of on appeal, in accordance with
Pa.R.A.P. 1925(b), that same day. The trial court did not file a Rule 1925(a)
opinion, and Judge Brown is no longer on the bench.
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J. A10031/17
The Commonwealth raises the following issue for our review:
Where a police officer investigating a report of a
group of men with a gun asked [appellee] to stop to
talk, and [appellee] declined to do so, but discarded
a gun as he walked away, did the [trial] court err in
concluding that the officer had “seized” [appellee]
before he produced the gun?
Commonwealth’s brief at 4.
Our standard of review in addressing a trial court’s order granting a
suppression motion is well settled.
When the Commonwealth appeals from a
suppression order, we follow a clearly defined
standard of review and 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.
The suppression court’s findings of fact bind an
appellate court if the record supports those findings.
The suppression court’s conclusions of law, however,
are not binding on an appellate court, whose duty is
to determine if the suppression court properly
applied the law to the facts.
Our standard of review is restricted to establishing
whether the record supports the suppression court’s
factual findings; however, we maintain de novo
review over the suppression court’s legal
conclusions.
Commonwealth v. Korn, 139 A.3d 249, 253-254 (Pa.Super. 2016)
(internal citations and quotation marks omitted), appeal denied, 159 A.3d
933 (Pa. 2016).
“Both the Fourth Amendment of the United States Constitution and
Article 1, Section 8 of the Pennsylvania Constitution guarantee individuals
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J. A10031/17
freedom from unreasonable searches and seizures.” Commonwealth v.
Bostick, 958 A.2d 543, 550 (Pa.Super. 2008), appeal denied, 987 A.2d
158 (Pa. 2009) (citation and internal quotation marks omitted). “To secure
the right of citizens to be free from such intrusions, courts in Pennsylvania
require law enforcement officers to demonstrate ascending levels of
suspicion to justify their interactions with citizens to the extent those
interactions compromise individual liberty.” Commonwealth v. Reppert,
814 A.2d 1196, 1201 (Pa.Super. 2002) (citation omitted). Courts in this
Commonwealth have recognized three types of interactions between
members of the public and the police: a mere encounter, an investigative
detention, and a custodial detention.
A mere encounter between police and a citizen need
not be supported by any level of suspicion, and
carr[ies] no official compulsion on the part of the
citizen to stop or to respond. An investigatory stop,
which subjects a suspect to a stop and a period of
detention . . . requires a reasonable suspicion that
criminal activity is afoot. A custodial search is an
arrest and must be supported by probable cause.
Commonwealth v. Kendall, 976 A.2d 503, 506 n.2 (Pa.Super. 2009)
(citations and internal quotation marks omitted).
“Reasonable suspicion is a less stringent standard than probable cause
necessary to effectuate a warrantless arrest, and depends on the
information possessed by police and its degree of reliability in the totality of
the circumstances.” Commonwealth v. Brown, 996 A.2d 473, 477 (Pa.
2010). An appellate court must give weight “to the specific, reasonable
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J. A10031/17
inferences drawn from the facts in light of the officer’s experience and
acknowledge that innocent facts, when considered collectively, may permit
the investigative detention.” Id. (citation omitted). We are mindful of the
fact that,
the totality of the circumstances test does not limit
our inquiry to an examination of only those facts that
clearly indicate criminal conduct. Rather, even a
combination of innocent facts, when taken together,
may warrant further investigation by the police
officer.
Commonwealth v. Hughes, 908 A.2d 924, 927 (Pa.Super. 2006) (citations
and internal quotations omitted).
In this matter, the Commonwealth argues that the trial court
improperly suppressed the firearm in question based on the erroneous
assumption that Lieutenant Brockenbrough “seized” appellee when he
approached him and asked him to stop and talk. (Commonwealth’s brief at
9.) In support of this contention, the Commonwealth maintains that
“[b]ecause [Lieutenant Brockenbrough] did not brandish his weapon, use an
authoritative tone, or otherwise indicate [appellee] was not free to leave, his
mere use of the word ‘stop’ did not amount to a seizure.” (Id. at 5, 10-12.)
Courts in this Commonwealth have long recognized that “in assessing
the lawfulness of citizen/police encounters, a central, threshold issue is
whether or not the citizen-subject has been seized.” Commonwealth v.
Williams, 73 A.3d 609, 613 (Pa.Super. 2013) (citation and brackets
omitted), appeal denied, 87 A.3d 320 (Pa. 2014).
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J. A10031/17
To guide the crucial inquiry as to whether or not a
seizure has been effected, the United States
Supreme Court has devised an objective test
entailing a determination of whether, in view of all
surrounding circumstances, a reasonable person
would have believed that he was free to leave. In
evaluating the circumstances, the focus is directed
toward whether, by means of physical force or show
of authority, the citizen-subject’s movement has in
some way been restrained.
Id. at 613-614 (citations omitted).
The Pennsylvania Supreme Court has instructed this court to view “all
circumstances evidencing a show of authority or exercise of force, including
the demeanor of the police officer, the manner of expression used by the
officer in addressing the citizen, and the content of the interrogatories or
statements.” Commonwealth v. Parker, A.3d , 2017 WL 1548932,
*4 (Pa.Super. May 1, 2017), citing Commonwealth v. Mendenhall, 715
A.2d 1117, 1119 (Pa. 1998). This court has also set forth the following
non-exclusive list of factors:
the number of officers present during the
interaction; whether the officer informs the citizen
they are suspected of criminal activity; the officer’s
demeanor and tone of voice; the location and timing
of the interaction; the visible presence of weapons
on the officer; and the questions asked. Otherwise
inoffensive contact between a member of the public
and the police cannot, as a matter of law, amount to
a seizure of that person.
Id., citing Commonwealth v. Collins, 950 A.2d 1041, 1047 n.6 (Pa.Super.
2008) (en banc) (citation omitted).
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J. A10031/17
Instantly, in granting appellee’s suppression motion, the trial court
evidently found that Lieutenant Brockenbrough’s interaction with appellee
constituted an unlawful “seizure,” or at minimum an unconstitutional
investigative detention. The trial court placed the following reasoning on the
record in support of its March 21, 2016 order:
THE COURT: Well, I guess basically I find that
[Lieutenant Brockenbrough] . . . did not have
probable cause or reasonable suspicion to have
stopped [appellee] when he stopped him based on
an anonymous radio call that was made about five
males passing around a gun.
Notes of testimony, 3/21/16 at 3. For the following reasons, we disagree.
Our review of the record in this matter reveals that
Lieutenant Brockenbrough’s initial interaction with appellee was a mere
encounter that developed into a lawful investigative detention only after he
observed appellee discard the firearm at issue. On the evening in question,
Lieutenant Brockenbrough responded to an anonymous radio call that
several individuals were passing around a firearm in an area in Philadelphia
known for shootings. (Notes of testimony, 3/17/16 at 5-6.) Upon arriving
at the scene, Lieutenant Brockenbrough exited his police vehicle and “asked”
appellee “to come here” so he could talk to him, but appellee refused and
continued walking down the street. (Id. at 8-9.) Lieutenant Brockenbrough
testified that he approached appellee to both investigate the radio call and
because he believed appellee to be in violation of Philadelphia’s curfew. (Id.
at 9, 11.)
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J. A10031/17
Although Lieutenant Brockenbrough was in full uniform at the time of
this encounter and arrived to the scene in a marked police vehicle, he did
not engage the vehicle’s siren or lights. (Id. at 8.) Additionally, there was
no evidence suggesting Lieutenant Brockenbrough brandished his weapon or
engaged in an overwhelming show of force. Lieutenant Brockenbrough did
not tell appellee that he was not free to leave, nor was there any evidence
presented that he positioned himself in a manner that obstructed appellee’s
ability to continue walking down Croskey Street. (Id. at 9.) Although
Lieutenant Brockenbrough acknowledged on cross-examination that he
“asked [appellee] to stop” two or three times, there was no evidence that
Lieutenant Brockenbrough threatened any consequences for non-compliance
or used an authoritative tone. (Id. at 19.) Moreover, appellee felt no
compulsion to stop and told Lieutenant Brockenbrough as much as he
continued to walk away. (Id. at 9, 18-19.) Only thereafter did
Lieutenant Brockenbrough make an arrest after observing appellee
voluntarily discard a firearm as he continued walking down the street. (Id.
at 9-10.)
Based on the foregoing, the totality of the circumstances presented in
this case fails to support a conclusion that appellee had been seized during
his initial encounter with Lieutenant Brockenbrough. Although it is well
settled in this Commonwealth that an anonymous call by itself does not
provide reasonable suspicion or probable cause sufficient to support a
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J. A10031/17
seizure, see, e.g., Commonwealth v. Ranson, 103 A.3d 73, 78 (Pa.Super.
2014), appeal denied, 117 A.3d 296 (Pa. 2015), it would amount to a
dereliction of a police officer’s duties if he failed to investigate a report of
individuals passing around a firearm in an area known for shootings.
Clearly, Lieutenant Brockenbrough’s request of appellee that he “come here”
so he could talk to him was not a substantial impairment on appellee’s
liberty of movement, particularly considering Lieutenant Brockenbrough’s
legitimate concerns for the safety of the community and his sound belief that
appellee may have been in violation of Philadelphia’s curfew.
Accordingly, we conclude that the trial court erred in granting
appellee’s omnibus pre-trial motion to suppress the firearm in question.
Order reversed. Case remanded for further proceedings consistent
with this opinion. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/7/2017
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