The PA Superior Court has recently decided the case of Commonwealth v. Hemingway, No. 684 WDA 2017 (June 26, 2018), holding that the trial court did not commit error when it determined that a police officer’s request for Hemingway to remove his hands from his pockets while the officer was investigating a noise complaint in the area was not supported by reasonable suspicion. Hemingway’s subsequent arrest for possession of drugs – even after fleeing from the officer – was therefore unlawful and the suppression of evidence proper.

Police responded to a noise complaint “in a high crime area.” No information or description was given regarding any person involved in the noise complaint.

After arriving at the location, officers observed Hemingway and another man conversing with two women in a car. Hemingway had his hand in his pocket. Although Hemingway and his companion were not inside the building that was the address of the complaint, the officers were concerned that “if they responded to the noise complaint first, the men would not be there when they got outside.” Therefore, they approached Hemingway and one of the officers ordered him to remove his hand from his pocket. The other officer then ordered him to put his hands on his head and stated that he would be conducting a pat-down search.

Rather than comply, Hemingway immediately fled on foot. After a foot chase, the officers recovered Hemingway’s shoe and, near the shoe, they found four bags of a white powdery substance, later identified as cocaine. Hemingway was arrested and subsequently charged with possession with intent to deliver a controlled substance (“PWID”), resisting arrest, escape, and disorderly conduct. Prior to trial, he filed a Motion to Suppress the evidence based on an improper search, arguing that “the police officers did not have reasonable suspicion to justify their initial attempt to stop and frisk [him] based upon his mere presence in a high crime area and the fact that he had his hand in his pocket.”

The Superior Court first outlined the encounters that occur between citizens and police officers. First is the “mere encounter” which involves a “request for information.” It need not be supported by any level of suspicion and, accordingly, carries no official compulsion to stop and respond. Next is the “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. During an investigative detention, “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.” The last interaction is the arrest, or “custodial detention,” which must be supported by probable cause.

With respect to Hemingway’s case, the Court focused on situations when an officer confronts a person with their hands in their pockets, noting that “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, the Court also noted that “the conclusion we may draw from such precedent is that it is a fact-specific inquiry.” As an example, the Court drew a distinction between the case at hand and cases where, when in response to police questioning, a person puts his hands in his pockets and is ordered to remove them, noting that the latter encounter does not escalate to a seizure. The Court also added that for the purposes of this analysis, “a police officer is not permitted to create a dangerous situation and then use the self-created danger as the basis for escalating an encounter into a seizure.”

After outlining the applicable law, the Court reviewed the facts of the instant case finding that the initial interaction between officers and Hemingway was not a mere encounter. As noted above, a mere encounter constitutes a request for information but carries no official compulsion to stop and respond.

Here, Hemingway had his hand in his pocket when the officers initiated the encounter. The officers did not ask him whether he was armed nor did they ask him for any information at all. In fact, “the interaction commenced with [the officer’s] command that [Hemingway] remove his hands from his pocket.” Accordingly, “the initial interaction was not a ‘mere encounter,’ but was, instead, an investigative detention that must have been supported by reasonable suspicion.

Having concluded that the interaction was an investigative detention that had to be supported by reasonable suspicion, the Court set out to determine if reasonable suspicion was present when the officer asked Hemingway to remove his hands from his pockets. Upon doing so, the Court found that Hemingway’s actions of speaking to a woman on the street in a high crime area with his hands in his pockets, did not provide the requisite reasonable suspicion sufficient for such a detention. Accordingly, the officer’s command for him to remove his hands from his pockets was improper. In other words, “any potential danger in the interaction initiated by police was manufactured by the officer himself.”

In further support of this conclusion, the Court noted that there was no description of the suspects at all (no race, gender or clothing). Additionally, the officers were responding to a noise complaint, with no reports of weapons. Lastly, Hemingway’s conduct did not necessitate the officer’s reaction: Hemingway was simply speaking to two women, with his hands in his pockets.

Based on these “fact-specific circumstances,” the Court concluded that “the police initiated this interaction without reasonable suspicion” and it was therefore proper for the trial court to have suppressed the evidence.

Lastly, for those that would argue that Hemingway’s flight – in addition to the previously-mentioned activity – created a “reasonable suspicion,” the Court concluded that “whatever happened after the request [for Hemingway to remove his hands] was of no moment, as the critical point in the interaction was [the officer’s] improper command.

CASE LINK: http://www.pacourts.us/assets/opinions/Superior/out/Opinion%20%20Affirmed%20%2010359772439773908.pdf?cb=1

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