Com. v. Lynch

773 A.2d 1240

COMMONWEALTH of Pennsylvania, Appellee, v. Melvin LYNCH, Appellant.

Superior Court of Pennsylvania.

Submitted January 5, 2001.

Filed March 19, 2001.

Kathleen E. Martin, Philadelphia, for appellant.

Catherine L. Marshall, Asst. Dist. Atty., Philadelphia, for Com., appellee.

Before McEWEN, President Judge, CAVANAUGH, J., and FORD ELLIOTT, J.

CAVANAUGH, J.:

¶ 1 Should evidence be suppressed when, during a pursuit improperly initiated by a police officer, an appellant commits a crime and abandons evidence of that crime? We hold that it need not have been suppressed.

¶ 2 Melvin Lynch appeals the November 18, 1999, judgment of sentence imposing three to six years imprisonment, two years probation, and a fine following his conviction by a jury of carrying a firearm without a license, carrying a firearm in public, possessing an instrument of crime, possessing an offensive weapon, and simple assault.

¶ 3 On December 3, 1998, at about 10:45 p.m., Officers McBride and Ficchi of the Philadelphia Police Department received a radio call that a black male, with a dark complexion, "approximately five-eight in height, wearing a brown jacket with orange hoodie sweatshirt, orange hat, [and] blue jeans" on the corner of 13th and Webster Streets had a gun. The officers arrived on the scene in about two to three minutes and observed a group of men on the corner. Only appellant matched the description. Even though the officers were not in uniform, McBride displayed his badge as he exited the car. When the officers attempted to approach appellant for investigation, appellant ran from the officers. None of the others in the group fled. McBride chased appellant to an alley where appellant pulled a gun out of his waistband, displayed it, and turned toward the officer. Appellant proceeded to toss the gun and resume his flight. The officers apprehended appellant shortly thereafter. Subsequently, the officers returned to the alley and found the gun, a sawed-off.22 caliber revolver containing four live rounds. Appellant was not licensed to carry a gun.

¶ 4 Appellant was charged with aggravated assault, carrying a firearm without a license, carrying a firearm in public, possessing a firearm after prior conviction, possessing an instrument of crime, possessing an offensive weapon, simple assault, and recklessly endangering another person. The trial court heard appellant's motion to suppress on May 24, 1999. The court ruled that neither physical evidence of the gun nor testimony of its retrieval could be admitted. On June 22, 1999, after a motion to reconsider, the court partially reversed itself and allowed testimony regarding the recovery of the gun. On November 18, 1999, a jury found appellant guilty of carrying a firearm without a license, carrying a firearm on a public street or place, possessing an instrument of crime, possessing an offensive weapon, and simple assault. Appellant was sentenced the same day to three to six years imprisonment, two years probation, and the fine. Appellant raises one compound issue on appeal:

DID THE LOWER COURT ERR IN DENYING APPELLANT'S MOTION TO SUPPRESS PHYSICAL EVIDENCE IN VIOLATION OF HIS CONSTITUTIONAL RIGHTS AS THE POLICE OFFICERS DID NOT POSSESS PROBABLE CAUSE TO CHASE APPELLANT[,] AND IF SUCH CHASE CONSTITUTED A SEIZURE, SHOULD ANY EVIDENCE DISCARDED BY APPELLANT BE SUPPRESSED AS A RESULT OF THAT ILLEGAL SEIZURE?

¶ 5 Our standard of review for the denial of a suppression motion is

whether the factual findings are supported by the record and whether the legal conclusions drawn from those facts are correct. When reviewing rulings of a suppression court we must consider only the evidence of the prosecution and so much of the evidence for the defense as remains uncontradicted when read in the context of the record as a whole. Where the record supports the findings of the suppression court, we are bound by those facts and may reverse only if the legal conclusions drawn therefrom are in error.

Commonwealth v. Korenkiewicz, 743 A.2d 958, 962 (Pa.Super.1999) (en banc), appeal denied, 563 Pa. 659, 759 A.2d 383 (2000) (quoting Commonwealth v. Hawkins, 549 Pa. 352, 701 A.2d 492, 504-05 (1997)).

¶ 6 Appellant argues that the officers improperly chased appellant and that the pursuit constituted an illegal seizure. Appellant reasons that evidence of the abandoned gun should be suppressed as fruit of an illegal seizure. We will first address whether the officers properly pursued appellant when he fled. Since we find that they improperly gave chase, we will also address whether the intervening gun incident established probable cause for the subsequently abandoned evidence.

¶ 7 Article I, § 8 of the Pennsylvania Constitution and the Fourth Amendment of the United States Constitution afford protections against unreasonable searches and seizures. Among the protections is the requirement that an officer have reasonable suspicion before an investigatory stop. Terry v. Ohio, 392 U.S. 1, 30, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); Commonwealth v. Hicks, 434 Pa. 153, 253 A.2d 276, 280 (1969).

¶ 8 Our supreme court has interpreted Article I, § 8 protection more broadly than the Fourth Amendment and has found that a seizure occurs when an officer gives chase. Compare California v. Hodari D., 499 U.S. 621, 629, 111 S.Ct. 1547, 113 L.Ed.2d 690 (1991), with Commonwealth v. Matos, 543 Pa. 449, 672 A.2d 769, 776 (1996). Under Pennsylvania law, any items abandoned by an individual under pursuit are considered fruits of a seizure. Matos, 672 A.2d at 770. Those items may only be received in evidence when an officer, before giving chase, has at least the reasonable suspicion necessary for an investigatory stop. Id. at 771.¹ Stated another way, when one "is unconstitutionally seized by the police, i.e. without reasonable suspicion or probable cause, any subsequent flight with the police in pursuit continues the seizure and any contraband discarded during the pursuit is considered a product of coercion and is not admissible against the individual." Commonwealth v. Wimbush, 561 Pa. 368, 750 A.2d 807, 810 n. 5 (2000). ¶ 9 In deciding whether reasonable suspicion exists for an investigatory stop, our analysis is the same under both Article I, § 8 and the Fourth Amendment. Commonwealth v. McClease, 750 A.2d 320, 324 (Pa.Super.2000). See also Commonwealth v. Jackson, 548 Pa. 484, 698 A.2d 571, 573 (1997) (stating that "Pennsylvania has always followed Terry in stop and frisk cases").

The fundamental inquiry is an objective one, namely, whether "the facts available to the officer at the moment of the [intrusion] `warrant a man of reasonable caution in the belief' that the action taken was appropriate." This assessment, like that applicable to the determination of probable cause, requires an evaluation of the totality of the circumstances, with a lesser showing needed to demonstrate reasonable suspicion in terms of both quantity or content and reliability.

Commonwealth v. Zhahir, 561 Pa. 545, 751 A.2d 1153, 1156 (2000) (quoting Terry, 392 U.S. at 21-22, 88 S.Ct. 1868) (citations omitted).

¶ 10 Among the factors to be considered in forming a basis for reasonable suspicion are tips, the reliability of the informants, time, location, and suspicious activity, including flight. Commonwealth v. Freeman, 563 Pa. 82, 757 A.2d 903, 908 (2000) (noting that "nervous, evasive behavior such as flight is a pertinent factor in determining reasonable suspicion"); Zhahir, 751 A.2d at 1157 (stating that the expectation of criminal activity in a given area and nervous or evasive behavior are factors); Commonwealth v. Albert, 2001 PA Super 3, ¶ 13 (pointing to the reliability of an informant's tip as well as time and place as factors in determining reasonable suspicion); Commonwealth v. Pizarro, 723 A.2d 675, 680 (Pa.Super.1998) (finding that flight and presence in heavy drug-trafficking areas are factors).

¶ 11 While a tip can be a factor, an anonymous tip alone is insufficient as a basis for reasonable suspicion. Wimbush, 750 A.2d at 811; Jackson, 698 A.2d at 572. Such anonymous tips must be treated with particular suspicion. Jackson, 698 A.2d at 573. Likewise, presence in a high crime area alone or flight alone does not form the basis for reasonable suspicion. Commonwealth v. Cook, 558 Pa. 50, 735 A.2d 673, 677 (1999). However, a combination of these factors may be sufficient. See Zhahir, 751 A.2d at 1157 (noting that suspicious conduct corroborates an anonymous tip); Cook, 735 A.2d at 677 (stating that circumstances which alone would be insufficient may combine to show reasonable suspicion); Commonwealth v. Cottman, 764 A.2d 595 (Pa.Super.2000) (finding that the officer's experience, appellant's presence in a high crime area, furtive movements, and flight established reasonable suspicion); Pizarro, 723 A.2d at 680 (finding that flight along with presence in heavy drug-trafficking area may demonstrate reasonable suspicion).

¶ 12 In the instant case, the informant gave a detailed description including gender, race, complexion, height, color of jacket, kind and color of sweatshirt, color of hat, kind of pants, and exact location. Such a description could not easily identify one other than the described individual. See Cook, 735 A.2d at 678 (explaining that absence of a description can sometimes be fatal to finding reasonable suspicion). However, the informant failed to identify himself. Therefore, the tip alone is insufficient to show reasonable suspicion. Wimbush, 750 A.2d at 811.

¶ 13 Our supreme court in Zhahir found that even where the source of a tip was unknown, it could be verified through suspicious conduct in a high crime area. Zhahir, 751 A.2d at 1157. The court stated that suspicious conduct in an area associated with criminal activity provided independent corroboration of the essential allegation of the information and, thus, suggested that criminality may have been afoot. See Illinois v. Wardlow, 528 U.S....