The Pennsylvania Superior Court recently decided the case of Commonwealth v. Hemingway, and it has significant repercussions for criminal defendants who want to litigate a motion to suppress.
The Facts of Commonwealth v. Hemingway
The facts of this case were as follows: Altoona Police Department patrolmen Joseph Detwiler and Derek Tardive responded to a noise complaint “in a high crime area.” No information or description was given regarding any person involved in the noise complaint. Once at the location, officers observed Mr. Hemmingway and another man speaking with two women in a car. Mr. Hemmingway had his hand in his pocket, and neither he nor the man he was with were inside the building where the noise complaint originated. Despite the fact that the noise complaint came from inside the building and the men were distinctly outside of the building, the officers decided to investigate the men because they were concerned that “if they responded to the noise complaint first, the men would not be there when they got outside."
Officer Detwiler ordered Mr. Hemingway to remove his hand from his pocket. Officer Tardive ordered Mr. Hemingway to put his hands on his head and stated that he would be conducting a pat-down search. Rather than comply, Mr. Hemingway immediately fled on foot. After the foot chase, the officers recovered Mr. Hemingway’s shoe. Near the shoe, they found four bags of a white powdery substance, later identified as cocaine. Mr. Hemingway was arrested and charged with possession with intent to deliver a controlled substance (“PWID”), resisting arrest, escape, and disorderly conduct.
The Motion to Suppress
In November 2016, Mr. Hemingway’s defense attorney filed a suppression motion, arguing police officers did not have reasonable suspicion to justify their initial attempt to stop and frisk. This motion argued Mr. Hemingway’s mere presence in a high crime area and the fact that he had his hand in his pocket did not reasonable suspicion make. In February 2017, the suppression court convened a hearing at which Officer Detwiler testified, and at which Officer Tardive’s preliminary hearing testimony was read into the record.
On March 17, 2017, the suppression court granted the motion to suppress, finding that Mr. Hemmingway was subjected to an unlawful investigative detention as the officers lacked reasonable suspicion that criminal activity was afoot.
The Criminal Appeal
Not liking this opinion, the Commonwealth appealed, seeking relief by arguing the following points: 1) the suppression court erred in concluding that Officers Detwiler and Tardive did not possess reasonable suspicion that criminal activity may be afoot and that the defendant was armed and dangerous, and 2) the suppression court erred in suppressing controlled substances that were not found pursuant to a search of defendant, but were discarded by him before or during his struggle with police.
In support of its arguments, the Commonwealth cited the following facts: 1) that the time of the encounter was 2:00 a.m.; 2) the area was a high crime area; 3) Appellee’s interactions with the vehicle were consistent with drug transactions; 4) Appellee “shoved his hand into his pocket when he made eye contact with the officers.
Before delving into its analysis of the sort of encounter Mr. Hemingway had with these officers the court noted: “ [t]here are three types of encounters between law enforcement officials and private citizens.” 1) A “mere encounter” which need not be supported by any level of suspicion but carries no official compulsion to stop or respond. 2) An “investigative detention” which must be supported by reasonable suspicion and subjects the suspect to a stop and a period of detention, but it does not have the coercive conditions that would constitute an arrest. (The courts determine whether reasonable suspicion exists by examining the totality of the circumstances.) 3) An arrest, or “custodial detention,” which must be supported by probable cause.
In Mr. Hemingway’s case, the court had to determine 1) the type of encounter and corresponding level of suspicion required to support that encounter; and 2) whether the facts supported said level of suspicion.
Previously the Superior Court has found that “to determine whether a mere encounter rises to the level of an investigatory detention, [it] must discern whether, as a matter of law, the police conducted a seizure of the person involved. To decide whether a seizure has occurred, a court must consider all the circumstances surrounding the encounter to determine whether the demeanor and conduct of the police would have communicated to a reasonable person that he or she was not free to decline the officer’s request or otherwise terminate the encounter.” Commonwealth v. Reppert, 814 A.2d 1196, 1201–1202 (Pa. Super. 2002). Therefore, the focal point of its inquiry in this case would be if, considering the circumstances surrounding the incident, a reasonable person innocent of any crime, would have thought he was being restrained had he been in the defendant’s shoes.
Now, a mere encounter is a “request for information.” It does not need supported by any level of suspicion and, carries no official compulsion to stop or respond. However, in order to conduct a pat-down of a person, police must have reasonable suspicion: A police officer is entitled to conduct a limited search of an individual to detect weapons if the officer observes unusual and suspicious conduct on the part of the individual which leads the officer to reasonably believe that criminal activity is afoot and that the person may be armed and dangerous.
In Pennsylvania, there is some precedent regarding police requests that defendants remove their hands from their pockets, and the level of encounter resulting from such orders. However, in this case, the Court concluded that although it could draw from such precedent, every incident is a fact-specific inquiry and partially dependent on the timing of the request. In Martinez, two police officers in an unmarked vehicle pulled up alongside the defendant, requested that she come over to them, turn around, take her hands from her jacket, and put them on the car. See Martinez, 588 A.2d at 515. The officers exited the vehicle and approached Martinez from either side, preventing her from leaving. Id. The Martinez Court thus concluded that she had been seized for Fourth Amendment purposes and that reasonable suspicion was necessary to justify the stop. Id. at 515-16.
The Pennsylvania Superior Court has previously stated in the case of Commonwealth v. Carter that if, during a mere encounter, an individual on his own accord, puts his hands in his pocket, he or she has created 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 or her 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.
The Pennsylvania Supreme Court, in Commonwealth v. Zhahir, has also recognized that when police officers are investigating an allegation of narcotics trafficking in a high crime area, they are justified in asking a defendant, who matches a police description, to remove his hands from his pockets. Similarly, in Commonwealth v. Coleman, police officers were dispatched to a robbery in progress involving two black males wearing green hooded jackets covered by black coats. Police saw a man who they believed matched the flash description, and the officer inquired if he had a gun. In response, Coleman fumbled with his hands in his pockets. The officer then ordered Coleman to take his hands out of his pockets. Coleman refused, so the police took him to a police van, and two knives were recovered from his pockets. In this case, the court concluded that the officer’s request did not constitute a seizure and that the combination of 1) the description of the robber and 2) Coleman’s refusal to remove his hands from his pockets was sufficient to justify an investigative detention and protective frisk.
This is different when a police officer creates his own dangerous situation and then uses that self-created danger as a basis for escalating the encounter into a seizure. See Carter, 779 A.2d at 594 (noting that telling suspect to put his hands in his pockets, then ordering him to take them out, police officer manufactured danger himself.)
In Mr. Hemingway’s case, the Superior Court decided that the initial interaction between officers and the defendant was not a mere encounter. Because, as noted above, a mere encounter constitutes a request for information and carries no official compulsion to stop and respond. As noted above the police may not manufacture their own dangerous situation to escalate a mere encounter into a seizure. Here, the defendant already had his hands in his pockets when the officers initiated the encounter. The Superior Court ruled that the interaction commenced with Officer Detwiler’s command that the defendant remove his hands from his pocket. Thus, the initial interaction was not a “mere encounter,” but was, instead, an investigative detention that must be supported by reasonable suspicion.
In this case the officers had no description of any suspects; they only had a complaint about noise. There was no report that anyone was armed with a weapon, nor was Mr. Hemingway’s behavior particularly suspicious. When the police arrived, Mr. Hemingway was speaking to two women, and his hands happened to be in his pockets. For these reasons the Superior Court declined to overturn the findings and rulings of the trial court.
As I wrote above this case does have some repercussions for defendant’s hoping to successfully litigate a motion to suppress. First, it re-establishes that the police may not manufacture a crisis and then use that to escalate their interaction with a suspect. Second, absent other indicators of danger, a suspect having his or her hands in his or her pockets when the police first encounter them is not, by itself an indication of danger. That written, the court was clear that these interactions are to be treated on a case-by-case basis.
What that means for anyone facing a possessory crime is that they should immediately contact an attorney in order to prepare a defense. Once an issue like this is missed, it is very difficult to revive on appeal or even though a PCRA. If you are facing criminal charges, we can help. We offer a free criminal defense strategy session to every potential client. Call 267-225-2545 to speak with an award-winning defense attorney today.