PA Superior Court: Stop Illegal Even Though Defendant in High Crime Area and Sweating in 86 Degree Weather

Zak T. Goldstein, Esquire - Criminal Defense Lawyer

The Pennsylvania Superior Court has decided the case of Commonwealth v. Anderson, holding that the defendant was illegally stopped by the police because they did not have reasonable suspicion to stop him. The police did not have reasonable suspicion to detain him solely because he was in a high crime area and sweating in very hot weather. This conclusion seems obvious, but a panel of the Superior Court had initially overruled the trial court’s order granting a motion to suppress. Fortunately, an en banc panel of the Superior Court granted re-argument and reconsidered.

Commonwealth v. Anderson

A Harrisburg, PA police officer was driving an unmarked vehicle with four other uniformed and armed police officers through a fried chicken store’s parking lot that was known to the officers as a high crime, high drug area. One of the officers observed the defendant on the ground next to a pick up truck. He appeared to be crawling on the ground, but he was not doing anything illegal. The officers approached the defendant and noticed that he was sweating a lot. Of course, it was 86 degrees outside with 67% humidity. The officers asked the defendant if he was okay. He responded that he had dropped something on the ground. The police then left him alone for a little bit.

The defendant entered the fried chicken restaurant. After he went inside, the officers noticed that the driver’s side window of the truck was down. They believed that to be uncommon in this section of the city. They also noticed that the truck was not parked within the lines of the parking space, leading to speculation that the driver could have been intoxicated. The officers continued to watch the defendant while he was inside the restaurant. They noticed that he did not order food, but he did purchase a soda. He also appeared to be pacing while inside.

The defendant exited the restaurant. He looked at the officers and then began to walk in the other direction. The officers approached the defendant again and asked to speak with him. One of the officers asked for ID, and the defendant provided his identification card. With the identification still in his possession, the officer then specifically asked the defendant if he was on parole and if there was anything illegal on his person. The defendant responded that he was on parole but that he did not have anything on his person. Notably, the officers did not document that the defendant was profusely sweating nor exhibiting signs of being under the influence during this second encounter with the defendant.

Apparently unsatisfied with the defendant’s answers, one of the officers asked for permission to search the defendant. The defendant gave verbal consent to search him. The officer searched the defendant’s pockets and found nothing of significance. He then swept over the defendant’s groin region and felt a hard and distinct bulge and, according to the officer, “it was immediately apparent to me that he had a substantial amount of crack cocaine down the front of his pants.” The officer would later testify that “before [the crack] was recovered, I remember specifically saying to my partner, he has an ounce of crack down his pants. And sure enough, we removed 28.3 grams of crack cocaine.” At this point, the officers decided to place the defendant under arrest. The defendant attempted to flee, but he was tackled a few feet away and was subsequently arrested and charged with various drug offenses.

The defendant filed a motion to suppress. Specifically, the defendant argued that the officers lacked both reasonable suspicion and probable cause when the first stopped him. Additionally, the defendant argued that his consent to the officers’ search was not knowingly, voluntarily, or intelligently made. At the motion to suppress hearing, the officers testified to the above facts. Additionally, the defendant testified and stated that one of the officers had patted him down before he even went into the restaurant. Also, he said that after he left the restaurant, the officers patted him down again and rubbed and grabbed his testicles and penis. He also disputed that he ran because he said the officers had a K-9 unit on scene during these interactions.

At the conclusion of the hearing, the suppression court granted the defendant’s motion to suppress. The suppression court found the testifying officer to be credible, but the court found that the officers had exceeded the scope of consent that the defendant had granted to him. Specifically, the court said that “there was nothing in the verbal exchange between the officer and the defendant as to what the officer was looking for, or where the officer intended to search” and thus a reasonable person would not have expected the officer to search his groin area. Additionally, the suppression court found that the second interaction with the police began as a mere encounter and then escalated into an investigative detention and that the officers lacked reasonable articulable suspicion that would have justified that stop. The Commonwealth then filed a timely appeal.

The Pennsylvania Superior Court’s First Decision

In its first decision, the Pennsylvania Superior Court reversed the trial court and remanded the matter for further proceedings. In this initial non-precedential decision, the majority concluded that both interactions involving the defendant and the police were mere encounters. The majority held that the defendant’s consent was not the product of an illegal detention and that the officers had not exceeded the scope of the defendant’s consent.

The dissent agreed with the trial court and opined that the encounter had escalated from a mere encounter to an investigative detention. The defendant then filed an application for re-argument en banc, arguing that the majority erred in concluding that the police were not performing an investigative detention and that the officers exceed the scope of his consent. The Superior Court granted the defendant’s request and withdrew the three-judge panel decision issued in this matter.

The Pennsylvania Superior Court’s Decision  

The Pennsylvania Superior Court affirmed the suppression court’s order. Regarding the first interaction with the defendant, no one disputed that the initial contact with the officers was a mere encounter. Therefore, the Superior Court analyzed the second encounter to determine whether or not a reasonable person would have felt free to leave. Based on its review of the record, the Superior Court found that the interactions between the defendant and the officers was not a mere encounter. The Court reached this conclusion because the officers asked him if he had identification on him and whether he had anything illegal on his person and therefore a reasonable person would not have felt free to leave in this situation. Further, the Superior Court held that officers did not have reasonable articulable suspicion to stop the defendant in the first place. The en banc panel of the Superior Court found that the evidence that was presented at the suppression hearing showed that the officers had “nothing more than a ‘hunch’ that something was amiss.” The fact that the defendant was present in a high crime area, near a truck  (that had windows down) that was not parked properly, and that the fact that the defendant was sweating in 86 degree weather was not sufficient to establish the requisite reasonable suspicion necessary to justify an investigative detention. Further, because the defendant was illegally stopped in the first place, his consent to search was invalidated. It was almost important that police had possession of his identification. Therefore, the suppression order stands, and the Commonwealth will not be able to use the evidence that was suppressed in its trial against the defendant.    

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