Third Circuit Court of Appeals: Unnecessary 23-minute Extension of Traffic Stop Requires Suppression of Gun and Marijuana

Zak Goldstein - Criminal Lawyer

The United States Court of Appeals for the Third Circuit has decided the case of United States v. Clark, holding that police violated Clark’s rights by questioning him and the driver of the car he was in for 23 minutes about subjects unrelated to the initial purpose of a traffic stop. The Third Circuit held that the trial court properly granted Clark’s motion to suppress a gun and marijuana found in the car because police impermissibly extended the stop for longer than was necessary to investigate the motor vehicle code violations that led to the stop. 

The Facts of Clark

Clark is an excellent example of how police body camera footage dramatically changes the analysis of routine police searches and seizures. In Clark, police in New Jersey stopped a minivan because the driver was using his cell phone while driving, did not have his headlights on, and had an obstructed view. The police asked to see the paperwork for the vehicle. The driver handed over his license and insurance card, but he could not find the van’s registration. He said the van belonged to his mother, and he offered to call his mother and ask her if she knew where to find the registration. The officer told the driver that the stop was for the three traffic violations and asked whether his license was suspended. The driver said it was not. The officer then asked if the van belonged to the driver’s mother, and the driver confirmed that it did. 

After speaking with the driver, the officer returned to his police car to run the paperwork. He confirmed that the driver’s license was valid, that the driver had a criminal record for drug charges, there were no outstanding arrest warrants for the driver, and the car was registered to a woman with the same last name and address as the driver. The officer then went back to the van and asked the driver about his criminal record. He asked whether the driver had been arrested, for what he had been arrested, and when was the last time he had been arrested. The driver confirmed he had been arrested for drug charges, most recently in 2006. The officer continued questioning the driver as to such things as where he was coming from, whether he and any warrants, and again how many times he had been arrested. 

After questioning the driver for a few minutes, mostly about his criminal record, the officer asked the driver to step out of the vehicle. The driver did so, and the officer then began asking him about Clark, the passenger. After asking a few questions about Clark, the officer walked over to the passenger’s side of the van and asked similar questions of Clark. The officer then returned to the driver and accused him of lying. He then said he smelled marijuana coming from the passenger’s side and asked Clark to get out of the car. Clark complied. The officers told him to turn around for a pat-down, and Clark then told the officers that he had a gun. The officers searched Clark and recovered a gun and a small amount of marijuana. 

Body camera footage showed that police had questioned the two men for about 23 minutes. Had the footage not been recorded, officers likely would have been able to describe the questioning as a “brief encounter,” and Clark would have had much more difficulty establishing what happened that led to the search.

The Motion to Suppress 

After police arrested Clark, the United States Attorney’s Office adopted the case. A federal grand jury indicted Clark for possession of a weapon as a convicted felon in violation of 18 U.S.C. Sec. 922(g)(1). He filed a motion to suppress the gun and the marijuana, arguing that police had impermissibly prolonged the stop beyond its original purpose without the necessary reasonable suspicion or probable cause. The District Court granted the motion to suppress, finding that police had no real basis for extensively questioning the driver about his criminal history and that the officer had no reasonable suspicion to investigate other criminal matters beyond the traffic violations. 

The Federal Appeal 

After the District Court granted the motion to suppress, the United States appealed to the Third Circuit. The Third Circuit affirmed the trial court’s decision on appeal. The Court noted that even when a stop may be lawful at its inception, as the parties agreed in this case, a stop may become illegal as it progresses. In Rodriguez v. United States, the United States Supreme Court recently held that an initially-valid traffic stop may become unlawful when it lasts longer than is necessary for police to complete the mission of the stop. The authority for the seizure ends when tasks tied to the mission are or reasonably should have been completed. In order to prolong a stop beyond that point, a police officer must have acquired additional reasonable suspicion or probable cause during the investigation to justify additional investigation and a lengthening of the stop. 

When police pull a suspect over for a traffic stop, the mission of the stop is to address the traffic violation that warranted the stop and address related safety concerns. This could include deciding whether to issue a ticket, checking the driver’s license and for any outstanding warrants against the driver, and inspecting the vehicle’s registration and insurance. These tasks are all part of ensuring roadway safety. Police may also take steps that are reasonably related to officer safety. However, not all investigation during a traffic stop qualifies as part of the traffic stop’s mission. For example, extensive questioning of the occupants of a vehicle, as occurred here, requires independent reasonable suspicion beyond the observation of a motor vehicle code violation. 

Here, the extensive questioning of the driver regarding his criminal record and where he was coming from had nothing to do with the purpose of the stop. The questions were entirely unrelated to whether he had a driver’s license, insurance, and registration, and they had nothing to do with whether he was lawfully in possession of the car. The driver was cooperative with the officers, he provided proof of insurance and a valid driver’s license, he did not have any outstanding arrest warrants, and the police were able to confirm that the car belonged to the driver’s mother. Accordingly, the police had no basis for believing that the driver should not have been driving the car. Once police confirmed that all of the paperwork for the car was valid, they were required to either issue a ticket or let the car go. They had no authority to then turn to Clark, the passenger, and question him. By doing so, they unconstitutionally extended the length of the stop. Therefore, the District Court properly granted the motion to suppress the gun and the marijuana. This is a great case for individual privacy rights as the Third Circuit has now held that even a relatively short 23-minute stop can violate a defendant’s rights to be free from unreasonable search and seizures.

Facing criminal charges? We can help.

If you are facing criminal charges or are under investigation by the police, we can help. We have successfully defended thousands of clients against criminal charges in courts throughout Pennsylvania and New Jersey. We have successfully obtained full acquittals in cases involving charges such as Conspiracy, Aggravated Assault, and Attempted Murder. Our award-winning Philadelphia criminal defense lawyers offer a free criminal defense strategy session to any potential client. Call 267-225-2545 to speak with an experienced and understanding defense attorney today. 

Full Acquittal: Attorney Goldstein Wins Not Guilty Verdict in Attempted Murder/Carjacking Case

Criminal Defense Attorneys Zak Goldstein and Demetra Mehta

The Philadelphia criminal defense attorneys of Goldstein Mehta LLC have continued to find success on behalf of their clients in the courtroom, winning jury trials and motions to suppress in serious cases. Outside of the courtroom, we are also a source of insightful legal analysis on criminal defense issues in the news. Recently, our defense attorneys have won criminal cases involving charges ranging from Attempted Murder to DUI and Possession with the Intent to Deliver. Some of our recent wins include: 

Commonwealth v. R. R. – Jury Acquits Client of Attempted Murder, Carjacking, and Related Charges

R.R. was charged with Attempted Murder, Robbery of a Motor Vehicle (carjacking), Robbery, Aggravated Assault, Conspiracy, and related gun charges. Prosecutors alleged that R.R. and a friend robbed the complainant after a drug deal, taking his cell phone, car keys, and a small amount of money. R.R. then shot the complainant twice when the complainant tried to demand that R.R. return the car keys. The complainant, however, initially denied to police at the scene that he knew who shot him. He was then briefly interviewed by detectives at the hospital, and he again reiterated that he did not know the person who shot him. 

A few days later, after police allegedly received an anonymous tip that R.R. was the shooter in this incident, Philadelphia detectives re-interviewed the complainant. This time, he told them that R.R., a long-time friend, was the person who shot him and stole his car. A second witness also allegedly came forward a few days later and claimed to have been smoking marijuana with the complainant just before the shooting and that she was still present at the scene when R.R. shot the complainant. She called 911 right at the time of the shooting, but when police arrived at the scene, she refused to give a statement. She also did not claim that R.R. was involved in the shooting for a week or two. When she did finally give a statement, she said that she saw R.R. in the area right before the shooting, but she did not see the shooting itself. At trial, of course, she changed her story and testified that she personally saw R.R. shoot the complainant. In addition to the witness statements, police obtained cell phone records that showed that R.R. and the complainant had exchanged a number of text messages and phone calls directly before the shooting. Police also recovered the complainant’s car a few days later and held it for fingerprints and DNA .  

Based on these later statements of the complainant and the eyewitness in which they claimed that R.R. was the shooter, police arrested R.R. and charged him with Attempted Murder and related charges. R.R. rejected the Commonwealth’s plea offer and decided to proceed by way of a jury trial. At trial, Attorney Goldstein was able to successfully argue to the jury that the witnesses had fabricated their statements. Attorney Goldstein highlighted the fact that the complainant gave two separate statements right after the shooting in which he did not tell police that R.R. shot him. He also impeached the eyewitness on the fact that she did not come forward for weeks and was on probation for theft at the time that she made the statement. He also confronted her with her original statement in which she never said that she actually saw the shooting itself. Finally, Attorney Goldstein called the police department’s own DNA analyst as a witness to testify that the steering wheel and gear shift of the complainant’s car had been tested for DNA and they had been unable to match the DNA to R.R. 

In closing, Attorney Goldstein argued that the Commonwealth had simply failed to prove its case beyond a reasonable doubt. The DNA did not match R.R., there was no other physical evidence linking him to the crime, and both the complainant and eyewitness had failed to either implicate R.R. or come forward after the shooting. Both have given multiple contradictory statements, and even the assigned detective had given testimony that was impeached through his own police reports. The jury deliberated for approximately two hours before acquitting R.R. of all charges. R.R., who had been held pending the trial, was released from custody. 

Commonwealth v. A.R. – Motion to Suppress Granted in DUI Case

Police arrested and charged A.R. with driving under the influence of marijuana and Xanax. The arresting officer claimed that he saw A.R. driving through Philadelphia with a defective center brake light, which is a violation of the motor vehicle code. Based on the defective brake light, the officer activated his lights and sirens and attempted to pull A.R. over. The officer claimed that A.R. refused to pull over for numerous blocks and seemed like he was trying to flee from the officer. Further, after A.R. did eventually pull over, the officer approached the car and immediately noticed the strong odor of marijuana coming from the vehicle. The officer further testified that A.R. had slurred speech, slow movements, was uncooperative, and admitted to smoking marijuana.

On paper, the case looked very difficult. Fortunately, A.R. retained Attorney Goldstein. Attorney Goldstein litigated a motion to suppress the statement regarding smoking marijuana and the blood test which showed the presence of marijuana and Xanax in A.R.’s blood. At the hearing on the motion, the officer testified that A.R. refused to pull over and immediately blurted out that he had been smoking weed, but the officer’s report directly contradicted his testimony. In his report, the officer specified the exact location at which he claimed he initially saw A.R. operating the car with the broken brake light and the location at which A.R. eventually pulled over. Although the officer testified that A.R. attempted to flee when the officer activated his lights and sirens, Attorney Goldstein was able to use a map of the area to show that in reality, A.R. had pulled over within two or three blocks at most of first coming into contact with the police officer. Given that A.R. actually pulled over within two or three blocks, the testimony that A.R. refused to pull over simply did not make any sense.

Further, the officer eventually admitted that he had not even waited for A.R. to roll down the window but had instead immediately opened the car door himself. Attorney Goldstein argued at the motion to suppress hearing that the Philadelphia Municipal Court judge should reject the officer’s testimony as not credible because of the obvious contradiction provided by the map and find that the officer engaged in an illegal search of the car when he opened the car door himself without giving A.R. the opportunity to roll the window down. Attorney Goldstein also called the police officer who conducted the blood draw at the police station an hour or two after the arrest to testify that he had not recorded any observations of intoxication or odor of marijuana on the report that this second officer created when he came into contact with A.R.

The Municipal Court judge agreed with Attorney Goldstein and granted the motion to suppress. Without the critical blood evidence and incriminating statement, prosecutors had no choice but to withdraw all charges. 

Commonwealth v. K.H. – Judge Acquits Client of Drug Charges Following Bench Trial

Police charged K.H. with Possession with the Intent to Deliver, Knowing and Intentional Possession of a Controlled Substance, Conspiracy, and Possessing an Instrument of Crime. Prosecutors alleged that K.H. and another man sold drugs in Kensington. Philadelphia narcotics officers claimed that they set up surveillance from a vehicle parked down the block and began watching as the alleged buyers approached. The officer claimed that the buyers would each hand money to K.H.’s co-defendant, who was standing on the sidewalk, and then K.H., who was standing in an alley, would hand small items consistent with narcotics packaging to the alleged buyers. As the alleged buyers exited the block, back up officers would arrive and take them into custody. Police successfully stopped four of the five alleged buyers and found that they had drugs on them. Concluding that K.H. and the co-defendant must have been selling drugs, police then moved in to search the alley, the abandoned house nearby, and to arrest the defendants.

Police arrested K.H. and found that he had $40 on him. They arrested the co-defendant, who tried to run. They also found drugs which matched those found on the alleged buyers in the alley, and they found a shotgun in a nearby abandoned house which the surveillance officer claimed that he had seen K.H. briefly enter and exit. K.H. was arrested after walking in and out of a different house on the corner of the block. Officers claimed that they entered and searched both the abandoned house and the house which K.H. had walked out of right before being arrested. 

K.H. immediately retained Goldstein Mehta LLC for his defense. At the preliminary hearing, recognizing that the case would become significantly less serious if K.H. were not facing gun charges, our criminal defense attorneys focused on getting the Possessing Instrument of Crime charge which stemmed from the discovery of the shotgun in the abandoned house dismissed. Attorney Goldstein extensively cross-examined the police witnesses on whether they had ever seen K.H. in possession of the gun, whether the gun was out in the open in the abandoned house, and whether police had attempted to obtain fingerprints or DNA from the shotgun. Because the shotgun was hidden, police never saw K.H. in possession of it, and police had not bothered to conduct any forensic testing on the gun, Attorney Goldstein was successfully able to move for the dismissal of the gun charge. Attorney Goldstein also cross-examined the main police officer on the location from which he was supposedly watching the drug sales, which would become extremely important at trial. 

K.H. then elected to proceed to a bench trial in which the trial judge, instead of a jury, makes the decision as to guilt. At the bench trial, the narcotics officers testified to roughly the same story that they had provided at the preliminary hearing. They claimed that K.H. provided small objects, which later turned out to be drugs, to five alleged buyers. They also claimed that they were successfully able to stop and arrest four of those five buyers and recover the drugs which K.H. had allegedly sold.

On cross-examination, however, Attorney Goldstein was able to use photographs of the crime scene to establish that the officer would not have been able to see into the alley to see who was actually making the drug sales from the location in which he said he was parked at the preliminary hearing. Attorney Goldstein also successfully established that the officer had searched the corner property on the street without a search warrant. Although the officer tried to claim that he could legally search the property without a warrant because the property was abandoned, Attorney Goldstein used photographs of the house and K.H.’s lease for the property to show that the property was not abandoned and police had entered the house without a warrant. Finally, Attorney Goldstein introduced character evidence which showed the judge that K.H. had never been arrested before and had an excellent reputation in the community for being a peaceful, law-abiding citizen. After recognizing that K.H. had no prior record, had not been found in actual possession of any drugs, and that the abandoned house was not actually abandoned, the trial judge found that she had reasonable doubt as to whether K.H. was actually the person in the alley. The judge found K.H. Not Guilty of all charges despite the fact that police claimed to have seen him selling drugs to five separate people. 

Attorney Goldstein Quoted in Philly.com Articles on Indecent Assault and Impact of #MeToo Movement on Criminal Defense Strategies

In addition to winning cases in the courtroom, our attorneys are often asked for analysis of criminal defense issues by the media. For example, Attorney Goldstein was recently quoted in two separate articles in the Philadelphia Inquirer. 

In one article, Attorney Goldstein was asked to provide insight on how attorneys are responding to the #MeToo Movement in sexual assault cases. You can read the article here. 

In the other article, Attorney Goldstein was asked to comment on the potential charges a person could face for groping a stranger in public and whether the victim would face charges if he or she responded by punching the groper. You can read the article here. 

Facing criminal charges? We can help.

If you are under investigation or facing criminal charges in Pennsylvania or New Jersey, we can help. Our award-winning Philadelphia criminal defense lawyers have successfully defended thousands of clients in state and federal courts throughout PA and NJ. We are experienced and understanding defense attorneys with the skill and ability to help you with your case, and we are not afraid to take a case to trial. We offer a free 15-minute criminal defense strategy session to each potential client. Call 267-225-2545 to speak with a criminal defense attorney today.   

PA Superior Court: Violation of Philadelphia Police Directives Does Not Require Suppression of Drugs

Philadelphia Criminal Defense Lawyer Zak T. Goldstein, Esquire

The Pennsylvania Superior Court has decided the case of Commonwealth v. McCleary, holding that suppression of the evidence is not required when Philadelphia Police Officers violate their own police department’s directives. In McCleary, the Court reversed the decision of the trial court and ruled that drugs recovered by the police officers may be admissible at trial even though police did not follow department protocol related to obtaining consent to a search of a private home. 

The Facts of Commonwealth v. McCleary

In McCleary, Philadelphia police officers responded to a radio call for a burglary in progress at a certain address. When they arrived at that address, they walked into the eventual-defendant’s house through an open door. In the living room, they found the defendant speaking with two other police officers. The arriving officers relieved the two who had already arrived and tried to figure out what was going on.

The defendant told the police officers that a woman who was present on the scene had tried to break into his home and that he had a valid Protection from Abuse (“PFA”) order against her. The woman responded that she lived there, had the right to be present in the home, and that she had belongings in the second-floor bedroom which would prove that she lived there. The officers did not take any steps to verify if the defendant in fact had a valid PFA.

Instead, the officers asked the defendant if they could see if the woman had belongings in the second-floor bedroom. The defendant twice told them that they could. The officers then walked upstairs to the bedroom. In the bedroom, they found in plain view a scale, a sandwich bag with marijuana, a box of unused drug packaging, eleven bags of crack cocaine, and clear plastic Ziploc bags. The defendant told the officers that the drugs belonged to him. The officers arrested him and charged him with Possession with the Intent to Deliver.

Motion to Suppress the Drugs

The defendant filed an omnibus pre-trial motion to suppress his statements and the drugs. The trial court held a hearing on the motion to suppress and ultimately granted the motion to suppress. The trial judge found that police violated with Philadelphia Police Department Directive 5.7, Sections 12 through 16, which address the procedure by which Philadelphia Police Officers are expected to obtain valid consent to search a home. The court found that the officers violated their own police directives by failing to obtain signed consent, failing to inform the defendant of his right to refuse consent, failing to consult with a supervisor, and failing to verify the defendant’s valid PFA and arrest the woman who was alleged violating it. The trial court granted the motion to suppress and ruled that the evidence would be inadmissible at trial, thereby essentially excluding the Commonwealth’s entire case.

The Commonwealth’s Appeal

The Commonwealth appealed to the Superior Court. In the appeal, the Commonwealth argued that Philadelphia Police Directives do not have the force of law. The Commonwealth argued that because police are not required by law or the constitution to follow them, the remedy for a violation of the directives should not be suppression of the evidence.

The Superior Court agreed with the Commonwealth’s arguments. It found that exclusion of the evidence via a successful Motion to Suppress is only required where the Government has violated a person’s right to be free from an unreasonable search and seizure as provided by the Fourth Amendment to the United States Constitution and Article I Section 8 of the Pennsylvania Constitution. Exclusion is not automatically warranted simply because the police failed to comply with a Rule of Criminal Procedure or the police department’s directives or regulations. Instead, suppression is only required when the police violate the constitution or certain statutes.

When can police search a home without a warrant? 

The Superior Court held that the question was not whether police violated their directives; instead, the question which the trial court should have addressed was whether the police obtained constitutionally valid consent to search the property. Although law enforcement officers must ordinary obtain a search warrant prior to searching a home, there are some exceptions to this rule. One of the main exceptions to the warrant requirement is consent. If you tell the police that they can search your house, then they do not have to get a warrant prior to doing so. 

How will a court decide if police voluntarily obtained consent to search a home? 

In evaluating consent, previous appellate decisions have suggested that courts consider the following factors:

1. the presence or absence of police excesses;

2. whether there was physical contact;

3. whether police directed the citizen’s movements;

4. police demeanor and manner of expression;

5. the location and time of the interdiction;

6. the content of the questions and statements

7. the existence and character of the initial investigative detention, including its degree of coerciveness;

8. the degree to which the transition between the traffic stop/investigative detention and the subsequent encounter can be viewed as seamless, thus suggesting to a citizen that his movements may remain subject to police restraint; and

9. whether there was an express admonition to the effect that the citizen-subject is free to depart, which is a potent, objective factor.

Here, the Court evaluated the factors and found that there was nothing coercive about the police request to see the rest of the home. Certainly, they should have followed their directives, but their failure to do so did not rise to the level of a constitutional violation. Accordingly, the Superior Court reversed the decision of the trial court and ruled that the drugs may be admissible in the prosecution for Possession with the Intent to Deliver.

Notably, one of the three judges on this panel dissented, arguing that the trial court had in fact found that the police officers simply were not credible on the issue of whether they truly obtained consent. The trial court simply considered the violation of the directives as part of analyzing whether the police were telling the truth. This is important because once the defense files a motion to suppress in Pennsylvania, the Commonwealth must produce sufficient evidence to show that it is more likely than not that the police complied with the United States and Pennsylvania Constitutions during the search and/or interrogation. If the trial judge finds that the police are not credible, then the judge may grant the motion to suppress for that reason even if what the police claim they did was legal. Thus, on remand, the defense may still argue that the judge found that the police were not credible and that the judge should clarify his or her opinion. However, it is clear that as a matter of law, a violation of the Philadelphia Police Department’s Directives does not automatically result in suppression of the evidence.

Facing criminal charges? We can help.

Philadelphia Criminal Lawyers

If you are facing criminal charges, we can help. We have successfully defended thousands of clients at the trial and appellate level in courts throughout Pennsylvania and New Jersey. We know the law and the defenses that will work in your case, and we recognize the types of defenses and arguments that are going to withstand appellate scrutiny. We offer a free 15-minute criminal defense strategy session to each potential client. Call 267-225-2545 to speak with an experienced and understanding defense attorney today.

PA Superior Court Finds Police Command to Remove Hands from Pockets Requires Reasonable Suspicion

Criminal Defense Attorney Demetra Mehta, Esq.

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. 

Goldstein Mehta LLC Criminal Defense Attorneys

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.