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IT IS ALWAYS A GOOD IDEA TO SHOW POLICE YOUR HANDS (especially if you don’t want them to find the gun in your pocket).

The PA Superior Court has decided the case of Commonwealth v. Kareem Thomas, No. 2164 EDA 2016 (February 1, 2018), holding that it was error for the trial court to have granted Thomas’s suppression Motion because the officers had reasonable suspicion to seize Thomas and conduct a limited pat-down when he failed to show them his hands, bolstering their belief that he was armed and dangerous.

In this case, police received a call for a black male with a gun near 6400 Greenway Avenue in Philadelphia. The report indicated that the male was dressed in a blue hooded sweatshirt and blue pants or blue jeans. The responding officer was familiar with the area and knew it to be a high-crime area due to numerous homicides and shootings. He and his partner arrived in the area and observed a black male (Thomas) wearing a black hooded sweatshirt, a black jacket, and black pants who would reverse his direction and look back at the officers each time they passed him (they circled the block four or five times to watch his activities).

The last time the officers circled the block, they observed Thomas walk across the street at which point they pulled the patrol car up next to him. Thomas, who had his hands in his pockets, was asked to remove them. But, when the officer asked to see his hands, he refused to remove his hands from his pockets. The officer got out of his patrol car, removed Thomas’s hands from his pockets, and patted him down. During the pat-down, the officer immediately felt a gun as he touched Thomas’s right front jacket pocket. The gun was removed from Thomas’s pocket and he was placed under arrest.

Thomas filed a Motion to Suppress the seizure of the gun, claiming he was subjected to an unreasonable search and seizure as the officers did not have reasonable suspicion to stop and frisk him. The Motion was granted by the trial court which found that the officers did not observe Thomas participating in criminal activity nor did they articulate any reason to suggest Thomas was armed and dangerous. Lastly, the trial court emphasized that the officer’s description of Thomas walking up and down the street was not indicative of criminal activity.

The Commonwealth filed an appeal to the Superior Court, claiming that the pat-down of Thomas was lawful since “(1) the officers responded to a report of a man with a gun in an area of high crime and gun related violence, (2) the officers observed [Thomas] suspiciously change direction and watch their patrol car each of the four or five times they circled the block, and (3) [Thomas] refused their request to remove his hands from his pocket.”

The Superior Court first summarized the levels of interaction between citizens and police as set forth in search and seizure jurisprudence: (1) the MERE ENCOUNTER; (2) the INVESTIGATIVE DETENTION; and, (3) the CUSTODIAL DETENTION. As noted by the Court, each level of interaction requires different levels of justification. The MERE ENCOUNTER (or request for information) need not be supported by any level of suspicion and, carries no official compulsion to stop or to respond. The INVESTIGATIVE DETENTION must be supported by reasonable suspicion and subjects a suspect to a stop and a period of detention. It does not involve such coercive conditions as to constitute the functional equivalent of an arrest. Finally, a CUSTODIAL DETENTION (or “arrest”) must be supported by probable cause.

The Superior Court further explained that “an officer may conduct a limited search, i.e., a pat-down of the person stopped, if the officer possesses reasonable suspicion that the person stopped may be armed and dangerous.” And, “the court must be guided by common sense concerns that give preference to the safety of the police officer during an encounter with a suspect where circumstances indicate that the suspect may have, or may be reaching for, a weapon.”

In applying the above jurisprudence to the facts of this case, the Court noted that the police had responded to a report of a black male with a gun in area of high crime and violence. And, “although [Thomas] did not match the exact description of the suspect provided in the radio call, the officers’ suspicions were aroused when they observed [him] repeatedly change his direction and watch the officers closely as they continued to circle the block in their patrol car.” Accordingly, the Court concluded that Thomas was not “seized” when the officers pulled their patrol car up next to him as he stood on a public street.

Significantly, the Court also concluded that the interaction remained a MERE ENCOUNTER, even after the officer requested that Thomas remove his hands from his pockets. According to the Court, the officer’s request did not move the interaction from a MERE ENCOUNTER to an INVESTIGATIVE DETENTION simply because the officer insisted that Thomas not conceal his hands during the encounter. Instead, the Court noted that “an officer may make this reasonable request to ensure his or her own protection in case that individual is armed.”

That said, Thomas’s refusal to comply with the request immediately elevated the MERE ENCOUNTER to an INVESTIGATIVE DETENTION, justifying the limited pat-down for weapons. In so concluding, the Court stated that Thomas’s “refusal to comply with [the officer’s] request to remove his hands from his pockets justified the frisk of his person for the protection of the officers, so that they could pursue their investigation without fear of violence.” It was therefore “reasonable for [the officer] to infer that [Thomas] may have been armed and dangerous, given his refusal to show his hands and his evasive movements in response to police presence in an area specifically known for high levels of crime and violence.”

Accordingly, the Superior Court reversed the trial court’s decision, holding that the officers had reasonable suspicion to seize Thomas and conduct a limited pat-down based on their belief that he was armed and dangerous.

CASE LINK: http://www.pacourts.us/assets/opinions/Superior/out/Opinion%20%20ReversedRemanded%20%2010341409232594187.pdf?cb=1 

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