In the Interest of: F.P., a Minor

• Court: Superior Court of Pennsylvania
• Decided: August 8, 2018
• Docket: 1421 EDA 2017
• Status: Unpublished

Opinion

J-S33021-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN THE INTEREST OF: F.P., A MINOR : IN THE SUPERIOR COURT OF : PENNSYLVANIA : APPEAL OF: F.P., A MINOR : : : : : : No. 1421 EDA 2017

Appeal from the Dispositional Order Entered April 25, 2017 In the Court of Common Pleas of Philadelphia County Juvenile Division at No(s): CP-51-JV-0000635-2017

BEFORE: OTT, J., McLAUGHLIN, J., and STEVENS*, P.J.E.

MEMORANDUM BY McLAUGHLIN, J.: FILED AUGUST 08, 2018

Appellant, F.P., appeals from the dispositional order adjudicating him

delinquent for violating the Uniform Firearms Act, 18 Pa.C.S.A. §§ 6101-6127.

Specifically, F.P. argues that the juvenile court erred in denying his motion to

suppress physical evidence. We affirm.

F.P. was arrested on March 31, 2017, and charged with violating 18

Pa.C.S.A. §§ 6106 (Firearms not to be carried without a license) and 6110.1

(Possession of a firearm by a minor). Prior to his adjudicatory hearing, F.P.

filed a Motion to Suppress the physical evidence against him, a handgun. On

April 10, 2017, the juvenile court held a hearing on the Motion.

At the hearing, the Commonwealth presented the testimony of

Philadelphia Police Officer Ryan Waltman. Officer Waltman testified that on

Friday, March 31, 2017, at 10:46 P.M., he was patrolling the area near 15th

Street and Allegheny Avenue, in uniform and a marked police vehicle, with his

______________________________ * Former Justice specially assigned to the Superior Court. J-S33021-18

partner. The officer testified that the area he was patrolling is a high-crime

area. He received a radio call describing two black males: one wearing a blue

jacket with blue jeans, and one wearing a gray hooded sweatshirt and black

pants. The males were reported as armed with guns in their waistbands, and

located at Broad Street and Allegheny Avenue, approximately two and one-

half blocks away from Officer Waltman.

Officer Waltman stated that the radio informed the officers that the tip

received by the police was “verified,” meaning that the person who called 911

and reported the criminal activity also provided their name and telephone

number to the 911 operator. See N.T., 4/10/17, at 8, 17-18, 24-25. The

officer testified that he did not have any information identifying the source of

the tip, or any details surrounding the origin of the tipster’s belief that the

males were armed.

Officer Waltman testified that he arrived at Broad and Allegheny within

a few minutes of receiving the call, and spotted two young men who fit the

description. One (who was later determined to be F.P.) was wearing a blue

jacket and “very, very dark jeans or pants,” and the other was wearing a gray

hooded sweatshirt and black pants. Id. at 11.

Officer Waltman stated that the suspects appeared to be violating the

curfew ordinance,1 which he believed to be 10:00 P.M. The officer was unable ____________________________________________

1 See Phila. Code § 10-303 (“Unlawful Conduct of Minors”); 53 P.S. § 13349 (authorizing police to arrest persons observed violating ordinance in city of first class).

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to say the specific day of the week on which the events occurred, but he

testified that in his recollection it was both a weekday and a school night. On

cross-examination, he agreed that it was a Friday.

The officers stopped their vehicle, exited, and “asked both males to

stop.” Id. at 12. Officer Waltman stated that he intended “to stop [F.P.] for

the curfew violation as well as fitting the [radio call].” Id. The officer testified

that he did not see anything else of note before he asked the suspects to stop,

aside from their similarity to the radio call description and the fact that they

appeared to be in violation of curfew.

After Officer Walton told the suspects to stop, F.P. turned to look in his

direction, dropped a pair of socks, began tugging at his waistband, and

continued walking away. Officer Walton gave a second verbal command to

stop, and F.P. “tugged harder” on his waistband and “took off running.” Id. at

12, 20. During the resulting chase, F.P. dropped several items, including a

nine-millimeter handgun. Officer Walton retrieved the gun and arrested F.P.

Officer Walton acknowledged that at the time of his arrest, F.P. was less than

two months shy of turning 18 years old, stood six feet tall, and weighed 230

pounds.

No other evidence was presented by either party. At the conclusion of

the hearing, the court denied the Motion. In its Rule 1925(a) opinion, the court

explained that it found that no investigative detention or investigatory stop

had occurred. Trial Court Opinion, filed Aug. 1, 2017, at 5. In the court’s view,

Officer Waltman had attempted to perform an investigative detention, but

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“F.P. tugged at his waistband and fled before the officer could approach.” Id.

at 9; see also id. at 5.

Despite holding that no investigatory stop had occurred, the court also

found that Officer Waltman had reasonable suspicion to justify a detention of

F.P., based on the combination of the officer’s beliefs that F.P. was violating

the city curfew ordinance and that F.P. had a gun.

Regarding the firearm possession, the court found that “the totality of

circumstances were close to meeting the reasonable suspicion threshold that

F.P. possessed a gun.” Id. at 6. The court determined that the tip received by

Officer Waltman was not anonymous, as the testimony indicated that the 911

dispatcher was “able to identify the caller and obtain a call-back phone

number.” Id. at 6. In examining the totality of the circumstances, the court

considered the non-anonymous tip, the appearance of two males matching

the radio call’s clothing description within two minutes and two and a half

blocks of the given location, the Officer’s knowledge of the area as a high-

crime area, and the Officer’s observation of F.P. tugging at his waistband and

taking flight.

Regarding curfew, contrary to Officer Waltman’s belief, Philadelphia’s

curfew ordinance prohibits minors 13 years old and older from being in any

public place on weekdays, barring exceptions not applicable here, after 10:30

P.M. See Phila. Code § 10-303. The ordinance specifies that Fridays are to be

considered weekend days, which extends the curfew for minors 13 years old

and older to midnight. Id. at §§ 10-302, 10-303. However, the court found

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that although Officer Waltman was mistaken about the application of the

ordinance, as a curfew of midnight, and not 10:00 P.M., applied to F.P., the

officer was able to detain F.P. based on his “good faith belief” that F.P. was

violating curfew. The court found that “it would be unfair to ask a police officer,

responding to a ‘verified’ radio call of ‘two males with a gun’” to determine

which curfew would apply “to the two possibly-armed minors he is about to

encounter.” Id. at 4-5.

The court stressed that it was the combination of suspicions of both

crimes that justified the Officer’s actions, and that “F.P.’s youthful appearance

only further added to the suspicion” created by the circumstances supporting

gun possession. Id. at 6. The court concluded that “the instant matter has

unprovoked flight in a high-crime area, matching descriptions provided by a

known tipster, tugging at the waistband, and a good faith belief that the

individuals were violating the City’s curfew ordinance.” Id. at 10.

After it denied the Motion, the court held an adjudicatory hearing, at

which the firearm was admitted as evidence. The court found that F.P. violated

the Uniform Firearms Act, and adjudicated him delinquent. The court

thereafter committed F.P. to a juvenile facility.

F.P. filed a timely notice of appeal, and raises the following issue:

Did the lower court err by denying [F.P.]’s [M]otion to [S]uppress where the police did not have reasonable suspicion to stop [F.P.] based on what police described as a “verified” radio call, but actually amounted to no more than an anonymous tip, and the court erroneously relied on the officer’s “good faith belief” that

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[F.P.] was violating a curfew law to find that the officer possessed reasonable suspicion?

F.P.’s Br. at 3.

F.P. argues that the police lacked reasonable suspicion to stop him

because the tip received by police was anonymous, the police did not

corroborate the tip with independent observations, and there is no “good faith”

exception to the exclusionary rule. See F.P.’s Br. at 10-15.

Our standard of review on appeal of the denial of a motion to suppress

is “to determine whether the record supports the suppression court's factual

findings and the legitimacy of the inferences and legal conclusions drawn from

those findings.” Commonwealth v. Griffin, 24 A.3d 1037, 1041 (Pa.Super.

2011) (citation omitted). If the record supports the factual findings of the

suppression court, we reverse “only if there is an error in the legal conclusions

drawn from those factual findings.” Id.

Both federal and state constitutional jurisprudence categorize three

levels of interaction between police officers and citizens: (1) mere encounters,

(2) investigative detentions, and (3) full arrests. Commonwealth v. Young,

162 A.3d 524, 528 (Pa.Super. 2017). First, a “mere encounter can be any

formal or informal interaction between an officer and a citizen, but will

normally be an inquiry by the officer of a citizen.” Id. The encounter is

consensual, meaning that there is no obligation by the citizen to stop or

respond, and it need not be supported by any level of suspicion by the police.

Id. at 529. Second, an “investigative detention,” or “investigative stop,”

“subjects a suspect to a stop and a period of detention, but does not involve

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such coercive conditions as to constitute an arrest.” Commonwealth v.

Fuller, 940 A.2d 476, 479 (Pa.Super. 2007). An investigative detention must

be supported by reasonable suspicion of criminal activity. Id. Third, a

“custodial detention,” or full arrest, must be supported by probable cause.

Commonwealth v. Lyles, 97 A.3d 298, 302 (Pa. 2014).

Whether an investigative detention has occurred is an objective

“determination of whether a reasonable person would have felt free to leave

or otherwise terminate the encounter.” Lyles, 97 A.3d at 303. “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.” Commonwealth v. Newsome, 170 A.3d 1151, 1155

(Pa.Super. 2017) (citation omitted). A court must examine “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.” Id.

If an officer approaches a person in public and requests information, but

does not convey that compliance is required, a seizure has not occurred, as

“such individual still maintains the right to ignore the police and go about his

business.” Lyles, 97 A.3d at 303 (internal quotation marks and citation

omitted). For example, requests for identification or verbal commands that

individuals show their hands in the presence of the investigating officers do

not of themselves elevate a police interaction above a mere encounter. See

Commonwealth v. Williams, 73 A.3d 609, 615 (Pa.Super. 2013) (“[A]n

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arresting officer’s request for identification does not, by itself, transform his

mere encounter with an individual into an unconstitutional investigatory

detention”); Commonwealth v. Coleman, 19 A.3d 1111, 1116 (Pa.Super.

2011) (holding that interaction was mere encounter where police questioned

defendant on the street and asked him to raise his hands).

Even when a police officer tells an individual to “stop,” such an

interaction does not necessarily equate to a seizure, particularly when the

individual does not stop. Newsome, 170 A.3d at 1156. In Newsome, an

officer responded to an anonymous radio call that several individuals were

passing around a firearm, and approached the individuals while in full uniform

and a police vehicle. Id. at 1152-53. The officer asked one of the individuals

“to come here” to talk to him; on cross-examination the officer stated that he

told the defendant to “stop” several times. Id. at 1153, 1155-56. The officer

did not engage his siren or lights, did not brandish his weapon, did not obstruct

the defendant’s pathway, and did not tell the defendant that he was not free

to leave. Id. at 1156. The defendant kept walking, and discarded a firearm in

a flowerpot, at which point he was arrested. Id. at 1153, 1156. We held that

the police officer had not substantially impaired the defendant’s liberty of

movement, and that the defendant had not been seized prior to discarding the

firearm. Id. at 1156; see also Coleman, 19 A.3d at 1116 (concluding that

officer’s testimony that he “stopped” defendant referred to his asking

defendant a question rather than indicating the officer forced the defendant

to remain).

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Howeover, pursuant to Pennsylvania law, which provides greater

protection than its federal counterpart, “a seizure occurs when an officer gives

chase” to a fleeing suspect. In re M.D., 781 A.2d 192, 196 (Pa.Super. 2001).

Therefore, any items abandoned by an individual being pursued by the police

may only be admissible as evidence when the police possess reasonable

suspicion prior to giving chase. Id.

In the instant case, two uniformed police officers got out of a marked

police cruiser; Officer Walton approached F.P. and told him to stop. F.P. did

not stop, but grabbed at his waistband, dropped a pair of socks, and continued

walking. Officer Walton again told F.P. to stop, at which point F.P. began to

run. Officer Walton then gave chase.

We conclude that F.P. was not subjected to an investigatory detention

when Officer Walton first told him to stop. As in Newsome, Officer Walton

approached F.P. and told him to stop, but did not indicate that compliance was

required. The officer did not impede F.P.’s way, activate his police lights, or

brandish a weapon. Moreover, as in Newsome, F.P. kept walking. However,

after Officer Walton again asked F.P. to stop, F.P. began to run, and Officer

Walton pursued him; it was at that moment that Officer Walton “seized” F.P.

M.D., 781 A.2d at 196. We therefore consider whether Officer Walton had

reasonable suspicion to stop F.P. before he gave chase.

“Reasonable suspicion exists only where the officer is able to articulate

specific observations which, in conjunction with reasonable inferences derived

from those observations, led him reasonably to conclude, in light of his

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experience, that criminal activity was afoot and that the person he stopped

was involved in that activity.” Commonwealth v. Chambers, 55 A.3d 1208,

1215 (Pa.Super. 2012). “[W]hether the facts available to the officer at the

moment of intrusion” amount to reasonable suspicion is an objective inquiry,

see id., and is based on the totality of the circumstances. Commonwealth

v. Ranson, 103 A.3d 73, 77 (Pa.Super. 2014)

We have found no authority, and the Commonwealth has not suggested

any, to support the trial court’s contention that where a police officer suspects

an individual of involvement in two completely unrelated crimes, but the

officer’s suspicion regarding both crimes is unreasonable, the unreasonable

suspicion aggregates to create reasonable suspicion sufficient to justify

detaining an individual. Nor can we countenance such a result in this case,

where crimes related to gun possession are not indicative of curfew violation,

and vice versa. See Commonwealth v. Stevenson, 832 A.2d 1123, 1130-

32 (Pa.Super. 2003) (examining each ground for stopping separately where

officer stopped vehicle on three unrelated grounds—suspected driving without

a license, illegal drug activity, and a parking violation). However, we are not

bound by the trial court’s legal conclusion that the uncontradicted facts of the

case do not support a finding that Officer Walton had reasonable suspicion

that F.P. was involved in either gun possession or curfew violation, separately.

Notwithstanding the trial court’s erroneous reasoning, we affirm

because under the objective totality of the circumstances, the officer had

reasonable suspicion that F.P. illegally possessed a firearm. Although certain

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factors considered by the police, taken alone, may not establish reasonable

suspicion, a combination of the same factors may be sufficient. M.D., 781

A.2d at 197. “[U]nprovoked flight in a high crime area is sufficient to create a

reasonable suspicion to justify” an investigative detention. In re D.M., 781

A.2d 1161, 1164 (Pa. 2001). Similarly, flight coupled with an anonymous tip

that an individual possesses a firearm is sufficient. Id. Finally, an anonymous

tip that an individual possesses a firearm may be corroborated with evasive

behavior and touching of the waistband. Commonwealth v. Foglia, 979 A.2d

357, 359, 361 (Pa.Super. 2009) (en banc).

Here, at that time he began to chase F.P., Officer Walton’s suspicions

were aroused not only due to the information he received on the radio—which

announced that the tip was received from a “verified” source—but by his

personal knowledge that F.P. was located in a high crime area and his

independent observations that F.P. was tugging at his waistband and had

taken flight upon approach by the police. See Foglia, 979 A.2d at 359, 361;

D.M., 781 A.2d at 1164. Under the totality of the circumstances, Officer

Walton’s suspicions that F.P. possessed a gun were objectively reasonable,

and he was justified in stopping F.P. to investigate.2 ____________________________________________

2 F.P. argues that because the Commonwealth did not present any evidence regarding the origin of the tip or the basis of the tipster’s knowledge, the court should have treated the tip as anonymous, and therefore unreliable. See Florida v. J.L., 529 U.S. 266, 271 (2000) (holding that “the bare report of an unknown, unaccountable informant who neither explained how he knew about the gun nor supplied any basis for believing he had inside information about

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Because we conclude that the police had reasonable suspicion to stop

F.P. to investigate gun possession, we need not address whether Officer

Walton was permitted to stop F.P. based on reasonable suspicion that F.P. was

violating the curfew ordinance.

For the aforementioned reasons, we hold the juvenile court did not err

in denying F.P.’s motion to suppress, and we affirm the adjudication of

delinquent.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 8/8/18

____________________________________________

[the defendant]” was unreliable and insufficient to give rise to reasonable suspicion). Given the combination of factual circumstances present, we need not determine whether Officer Walton’s receipt of the radio call alone, gave rise to reasonable suspicion.

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