J-S44018-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O. P. 65.37 COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellant

v.

RICO GREEN Appellee No. 1878 WDA 2013

Appeal from the Order November 14, 2013 In the Court of Common Pleas of Allegheny County Criminal Division at No(s): CP-02-CR-0003610-2013

BEFORE: BENDER, P.J.E., LAZARUS, J., and OTT, J. MEMORANDUM BY LAZARUS, J. FILED AUGUST 08, 2014 The Commonwealth of Pennsylvania appeals from the or der of the Court of Common Pleas of Allegheny County granting R ico Green’s motion to suppress all evidence obtained after Green was stopped by police on the streets of Pittsburgh. After careful review, we reverse

. On September 13, 2012, Officers Mark Goob, Edward Fa llert and Michael Hoffman were on plain-clothes duty in an unmar ked car driving toward the Northview Heights neighborhood of Pittsbur gh due to recent complaints of drug activity and gun violence. While dr iving, Officer Fallert observed Green walking on the sidewalk toward their vehicle. Officer Fallert testified that Green was wearing a white t-shirt and sweatpants with an elastic waistband, and stated that he thought Green mig ht be carrying a gun. Officer Goob then noticed a bulge in the front section of Green’sJ-S44018-14

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waistband, and Officer Fallert slowed the vehicle, eve ntually coming to a stop. Green stopped walking, and Officers Goob and Ho ffman jumped out of

the vehicle. Officer Goob started walking toward Green, displaying his badge, and stated, “Hey, Pittsburgh Police, can you come here for a second.” Trial Court Opinion, 11/13/14, at 2. Green stopped and looked a round for a moment from his stationary position. Officer Goob moved closer to Green, and was able to see the bulge more clearly. Officer Goob then asked Green if he was carrying a gun, but Green did not respond. Officer Go ob advised Green that he was going to pat him down. Officer Goob then touch ed the bulge on Green’s waistband, and “his tactile sense [told] him tha t it [was] the ‘handle of a gun.’” Id. Officer Hoffman then handcuffed Green, and Officer G oob

lifted Green’s t-shirt to reveal a Smith and Wesson fi rearm loaded with nine

bullets. On July 3, 2013, Green filed a timely pre-trial mot ion to suppress all evidence. On July 24, 2013, the court held an eviden tiary hearing on the motion, and on November 14, 2013, the court granted the motion. The Commonwealth filed a timely Notice of Appeal on Nove mber 26, 2013. On December 4, 2013, the court ordered the Commonwealth to file a concise statement of errors complained of on appeal pursuant t o Pa.R.A.P. 1925(b), and the Commonwealth did so on December 24, 2013. On appeal, the Commonwealth raises the following issue:J-S44018-14

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Whether the suppression court erred in concluding that th e police did not have reasonable suspicion to approach [Gre en], who displayed a bulge in his waistband that the office rs believed was a firearm, to inquire whether he possessed a firearm , but then patted him down when [Green] did not answer the officer’s question regarding the presence of the gun? Brief of Appellant, at 4. When reviewing a trial court’s order granting a moti on to suppress, our

standard of review is as follows: [W]e are required to determine whether the record sup ports the suppression court’s factual findings and whether the lega l conclusions drawn by the suppression court from those findin gs are accurate. In conducting our review, we may only e xamine the evidence introduced by appellee along with any ev idence introduced by the Commonwealth which remains uncontrad icted. Our scope of review over the suppression court’s factual fi ndings is limited in that if these findings are supported by t he record we are bound by them. Our scope of review over the suppr ession court’s legal conclusions, however, is plenary. Commonwealth v. Gutierrez , 36 A.3d 1104, 1107 (Pa. Super. 2012). Before reviewing the issue presented by the Commonweal th, this case warrants an inquiry into the level of police-citizen i nteraction involved. Fourth Amendment jurisprudence recognizes three levels of police-citizen

encounters: The first [level of interaction] is the “mere encounter ” (or request for information) which need not be supported b y any level of suspicion, but carries no official compulsion to stop or respond. The second, an “investigative detention” must be supported by reasonable suspicion; it subjects a suspect to a stop and period of detention, but does not involve s uch coercive conditions as to constitute the functional equivalent of arrest. Finally, an arrest or “custodial detention” must be supp orted by probable cause.J-S44018-14

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Commonwealth v. Bryant , 866 A.2d 1143, 1146 (Pa. Super. 2005). The trial court held, and all parties agree, that Green’s encounter with the police began as a mere encounter, when Officer Goob stated, “H ey, Pittsburgh Police, can you come here for a second,” and then rose t o the level of an investigative detention when Officer Goob informed Gr een that he was going to pat him down. Trial Court Opinion, 11/13/14, at 5; Brief of Appellant, at 12; Brief of Appellee, at 8, 18, 25. Based on the u ndisputed fact that Green was subject to an investigative detention, the Commonwe alth was required to prove that the officers had reasonable suspicion of cr iminal activity at the time they patted Green down. Id. at 1146. In evaluating whether an officer possessed reasonable suspi cion to conduct a search, the trial court must: [E]xamin[e] the totality of the circumstances to determ ine whether there was a particularized and objective basis f or suspecting the individual stopped of criminal activity . Thus, to establish grounds for reasonable suspicion, the officer wh ose impressions formed the basis for the stop must articulate specific facts which, in conjunction with reasonable inference der ived from those facts, led him reasonably to conclude, in ligh t of experience, that criminal activity was afoot. Commonwealth v. Cottman , 764 A.2d 595, 598-99 (Pa. Super. 2000). Further, “when assessing the reasonableness of an officer’ s decision to frisk a suspect during an investigatory detention, an appell ate court does not consider the officer’s unparticularized suspicion or hunch, but rather the specific reasonable inferences which he is entitled to draw from the facts inJ-S44018-14

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light of his experience.” Commonwealth v. Stevenson , 894 A.2d 759, 772 (Pa. Super. 2006) (quotations omitted). Here, the trial court based its conclusion that Officers G oob and Fallert lacked reasonable suspicion to conduct the search on the be lief that the officers failed to prove the requisite training and ex perience to determine that: 1) the encounter took place in a high crime area ; or 2) that Green possessed an illegal firearm based on the bulge in his pa nts. We disagree. At trial, Officers Goob and Fallert both testified tha t they received Top Gun training 1 , and Officer Fallert testified that he also received t raining from the Bureau of Alcohol, Tobacco and Firearms (ATF) in charact eristics of armed individuals, how they conceal their weapons and their mannerisms. N.T. Suppression Hearing, 7/24/13, at 23, 38-39. Both Off icers Goob and Fallert also testified that they have made thousands of gun arr ests throughout their respective twelve and twenty years of experience on the police force. Id. Further, Officers Goob and Fallert testified that they had experience in the particular neighborhood of Northview Heights, g iven their assignment to a team charged with combating the high levels of drug and gun activity present there. Id. at 23. The evidence of record in the instant case is

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1 The Top Gun training program is a drug enforcement training program designed for the investigator and prosecutor that highl ights various stages of a typical drug investigation from the time the initi al information is received through the resulting search warrants. Pennsylvania Nar cotic Officers’ Association, available at www.pnoa.org/topgun.html (last visited on 7/17/2014).J-S44018-14

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almost identical to that which was present in Stevenson , supra , and which this Court deemed sufficient to establish requisite trai ning and experience. As such, the record does not support the trial court’s dete rmination that Officers Goob and Fallert lacked the necessary training a nd experience to identify gun-related criminal activity. Gutierrez , supra. Accordingly, we must turn to whether the officers had re asonable suspicion to conduct the search, based on their training and experience. At trial, Officer Fallert testified that while driving t he unmarked police vehicle, he observed Green walking on the sidewalk and saw “a bulge consistent with when [he] tuck[s] [his] firearm into [his] waistband.” N.T. Suppression Hearing, 7/24/13, at 40. He stated that the way Gr een was carrying the gun is the “most common way people carry illegal firearms.” Id. Further, he testified that Green did not appear to be of legal a ge to carry a firearm. Id. At trial, Officer Goob testified that after Officer Fa llert alerted him that he believed Green was carrying a gun, he exited the vehi cle, and once he was within a few feet of Green, he “could see the object in his waistband more clearly, and it resembled a handgun . . . so [he] asked him if he was

armed.” Id. At that point, Officer Goob advised Green that he w as going to pat him down. As such, this is the point at which Offi cer Goob was required to have reasonable suspicion of criminal activity. Bryant , supra. Based on this testimony, Officers Goob and Fallert bot h offered “specific and articulable facts” to support their “objectiv e and particularized” suspicion that Green was in possession of a firearm. Cottman , supra.J-S44018-14

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Accordingly, the trial court erred in granting Green’s motion to suppress, as the record does not support the trial court’s finding t hat Officers Goob and Fallert lacked reasonable suspicion to conduct the search. Gutierrez , supra. Order reversed. Case remanded for proceedings consistent with the dictates of this memorandum. Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 8/8/2014Circulated 07/22/2014 01:33 PMCirculated 07/22/2014 01:33 PMCirculated 07/22/2014 01:33 PMCirculated 07/22/2014 01:33 PMCirculated 07/22/2014 01:33 PMCirculated 07/22/2014 01:33 PMCirculated 07/22/2014 01:33 PMCirculated 07/22/2014 01:33 PMCirculated 07/22/2014 01:33 PMCirculated 07/22/2014 01:33 PMCirculated 07/22/2014 01:33 PMCirculated 07/22/2014 01:33 PMCirculated 07/22/2014 01:33 PMCirculated 07/22/2014 01:33 PMCirculated 07/22/2014 01:33 PMCirculated 07/22/2014 01:33 PM