J-A20035-15

2015 PA Super 231

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellant

v.

JIHAD IBRAHIM

Appellee No. 3467 EDA 2014

Appeal from the Order of August 11, 2014

In the Court of Common Pleas of Philadelphia County

Criminal Division at No.: CP-51-CR-0010044-2013

BEFORE: DONOHUE, J., SHOGAN, J., and WECHT, J.

OPINION BY WECHT, J.: FILED NOVEMBER 06, 2015

The Commonwealth appeals the trial court’s August 11, 2014 order. 

In that order, the trial court granted Jihad Ibrahim’s motion to suppress 

evidence. For the reasons contained herein, we reverse the order, and we 

remand for further proceedings.

On July 19, 2013, Philadelphia Police Officer Joseph Marrero and his 

partner observed Ibrahim riding a bicycle in the wrong direction on a oneway street in Philadelphia. When the officers attempted to stop him, 

Ibrahim sped off on the bike. While fleeing, Ibrahim dropped a firearm. 

Ibrahim was apprehended, and charged with persons not to possess a 

firearm, possessing a firearm with altered manufacturer’s number, carrying 
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a concealed firearm without a license, carrying a firearm in Philadelphia, and 

possession of an instrument of crime.1

On August 11, 2014, Ibrahim presented an oral motion to the trial 

court to suppress the firearm. The trial court immediately proceeded to a 

hearing, at which the following testimony was elicited, as summarized by the 

trial court:

[Officer Marrero] testified that[,] on July 19, 2013[,] at 

approximately 10:20 a.m.[,] he was in an unmarked police 

vehicle in plain clothes proceeding eastbound in the 1800 block 

of Dickenson Street in South Philadelphia[,] which runs one-way 

in that direction. He observed [Ibrahim] riding on a bicycle in 

the 1700 block of Dickenson travelling westbound towards him 

approximately a half a block away. He attempted to stop 

[Ibrahim] for a violation of the Motor Vehicle Code for riding his 

bicycle the wrong way by yelling at him [to] “Stop, stop the 

bike,” at which time he claimed [that Ibrahim] refused to stop, 

continued to pedal faster, and turned southbound onto Bouvier 

Street[,] which is one-way southbound. He followed [Ibrahim] 

without initiating his lights or siren and at the end of Bouvier 

Street, [Ibrahim] made a right-hand turn onto Tasker Street 

heading westbound, and at the corner of 18th and Tasker, about 

a quarter of a block further, [Ibrahim] jumped off of the bicycle, 

removed a firearm from his waistband and discarded it on the 

street. At that point, the officer exited his vehicle, announced 

that he was the police, ordered him to stop[,] and chased and 

apprehended him. 

Q. Did you announce yourself—at any point, did you 

announce yourself as police?

A. Yes. Once I saw [Ibrahim] jump off of the bicycle and 

remove the object from his waistband, I announced 

police and to stop.

____________________________________________

1 18 Pa.C.S. §§ 6105, 6110.2, 6106, 6108, and 907, respectively. 
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He then testified that he did not issue a traffic citation because 

he is not permitted to issue traffic tickets when in plain clothes 

and he did not have a citation book with him. He recovered the 

weapon from where he saw [Ibrahim] discard it. 

On cross-examination, the officer confirmed that he first saw 

[Ibrahim] when he was approximately a half a block ahead of 

him, that he only observed him going the wrong way “for a 

matter of feet,” [that he] first yelled for him to stop through his 

car window when he caught up with him on Bouvier Street, at 

which point [Ibrahim] was travelling in the correct direction, 

without announcing that he was a police officer, and that, 

therefore, there was no way for [Ibrahim] to know that he was a 

police officer; in addition, he did not intend to issue a traffic 

citation to [Ibrahim] but only to warn him. [Ibrahim] did not 

testify or present any other evidence. 

Trial Court Opinion (“T.C.O.”), 1/15/2015, at 1-2 (references to the notes of 

testimony omitted). 

After hearing the testimony and the argument from both parties, the 

trial court determined that the stop was pretextual, and that Ibrahim’s 

abandonment of the firearm was forced. See Notes of Testimony (“N.T.”), 

8/11/2014, at 22. Accordingly, the trial court granted Ibrahim’s suppression 

motion. Id. 

On September 10, 2014, the Commonwealth filed a notice of appeal, 

in which the Commonwealth certified that the trial court’s suppression order 

would either terminate or substantially handicap the prosecution pursuant to 

Pa.R.A.P. 311(d). On the same date, the Commonwealth filed a concise 

statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b), 

even though the trial court had not yet ordered such a statement. On 
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January 15, 2015, the trial court issued the above-quoted opinion pursuant 

to Pa.R.A.P. 1925(a). 

The Commonwealth raises the following issue for our consideration:

Where [Ibrahim] drove the wrong way on a one-way street on a 

bicycle and, when ordered to stop, sped away and discarded a 

gun, did the lower court err in suppressing the gun on the 

ground that the stop was pretextual because the police wanted 

to stop [Ibrahim] for reasons unrelated to the traffic violation?

Brief for the Commonwealth at 1. 

Our standard of review is well-settled. 

We begin by noting that where a motion to suppress has been 

filed, the burden is on the Commonwealth to establish by a 

preponderance of the evidence that the challenged evidence is 

admissible. In reviewing the ruling of a suppression court, our 

task is to determine whether the factual findings are supported 

by the record. If so, we are bound by those findings. Where, as 

here, it is the Commonwealth who is appealing the decision of 

the suppression court, we must consider only the evidence of the 

defendant’s witnesses and so much of the evidence for the 

prosecution as read in the context of the record as a whole 

remains uncontradicted. 

Moreover, if the evidence supports the factual findings of the 

suppression court, this Court will reverse only if there is an error 

in the legal conclusions drawn from those findings. 

Commonwealth v. Powell, 994 A.2d 1096, 1101 (Pa. Super. 2010) 

(internal citations to cases and rules omitted). With regard to the trial 

court’s legal conclusions, our standard of review is de novo. 

Commonwealth v. Briggs, 12 A.3d 291, 320-21 (Pa. 2011) (citations 

omitted).
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We first note that the provisions of the Motor Vehicle Code apply with 

full force in this case, even though Ibrahim was riding a bicycle instead of a 

vehicle at the time that the police observed him driving in the wrong 

direction down a one-way street. See 75 Pa.C.S. § 3501(a) (“Every person 

riding a pedalcycle upon a roadway shall be granted all of the rights and 

shall be subject to all of the duties applicable to the driver of a vehicle by 

this title, except as to special provisions in this subchapter and except as to 

those provisions of this title which by their nature can have no application.”). 

We now turn to the principles that govern interactions between a police 

officer and a person operating a vehicle on this Commonwealth’s roadways.

The general rule regarding the level of suspicion that a police officer 

must possess before stopping a vehicle is codified at 75 Pa.C.S. § 6308(b), 

which provides as follows:

Whenever a police officer is engaged in a systematic program of 

checking vehicles or drivers or has reasonable suspicion that a 

violation of this title is occurring or has occurred, he may stop a 

vehicle, upon request or signal, for the purpose of checking the 

vehicle’s registration, proof of financial responsibility, vehicle 

identification number or engine number or the driver’s license, or 

to secure such other information as the officer may reasonably 

believe to be necessary to enforce the provisions of this title.

Id. Although subsection 6308(b) delineates the general rule, it does not 

apply in all instances because, as we have held, not all vehicle offenses 

require further investigation to determine whether a motorist has committed 

that offense. Indeed, despite subsection 6308(b)’s reasonable suspicion 
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standard, some offenses, by their very nature, require a police officer to 

possess probable cause before he or she may conduct a traffic stop.

In Commonwealth v. Feczko, 10 A.3d 1285 (Pa. Super. 2010) (en 

banc), an en banc panel of this Court explained the requisite levels of 

suspicion that a police officer must have before effectuating a stop, as 

follows:

In light of our Supreme Court’s interpretation of the current 

language of Section 6308(b), we are compelled to conclude that 

the standards concerning the quantum of cause necessary for an 

officer to stop a vehicle in this Commonwealth are settled; 

notwithstanding any prior diversity on the issue among panels of 

this Court. Traffic stops based on a reasonable suspicion: either 

of criminal activity or a violation of the Motor Vehicle Code under 

the authority of Section 6308(b) must serve a stated 

investigatory purpose. In effect, the language of Section 

6308(b)—“to secure such other information as the officer may 

reasonably believe to be necessary to enforce the provisions of 

this title”—is conceptually equivalent with the underlying 

purpose of a Terry[

2

] stop. 

Mere reasonable suspicion will not justify a vehicle stop when the 

driver’s detention cannot serve an investigatory purpose relevant 

to the suspected violation. In such an instance, “it is encumbent 

[sic] upon the officer to articulate specific facts possessed by 

him, at the time of the questioned stop, which would provide 

probable cause to believe that the vehicle or the driver was in 

violation of some provision of the Code.” Commonwealth v. 

Gleason, 785 A.2d 983, 989 (Pa. 2001) (superseded by 

subsection 6308(b); emphasis in Gleason). 

Id. at 1290-91 (citation modified; some citations omitted). 

____________________________________________

2 Terry v. Ohio, 392 U.S. 1 (1968).
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We further elaborated upon the distinction between Motor Vehicle 

Code offenses that require probable cause and those that require only 

reasonable suspicion most recently in Commonwealth v. Salter, ___ A.3d 

___, 2015 Pa.Super. 166 (Pa. Super. 2015). Therein, we stated the 

following:

[W]hen considering whether reasonable suspicion or probable 

cause is required constitutionally to make a vehicle stop, the 

nature of the violation has to be considered. If it is not 

necessary to stop the vehicle to establish that a violation of the 

Vehicle Code has occurred, an officer must possess probable 

cause to stop the vehicle. Where a violation is suspected, but a 

stop is necessary to further investigate whether a violation has 

occurred, an officer need only possess reasonable suspicion to 

make the stop. Illustrative of these two standards are stops for 

speeding and DUI. If a vehicle is stopped for speeding, the 

officer must possess probable cause to stop the vehicle. This is 

so because when a vehicle is stopped, nothing more can be 

determined as to the speed of the vehicle when it was observed 

while travelling upon a highway. On the other hand, if an officer 

possesses sufficient knowledge based upon behavior suggestive 

of DUI, the officer may stop the vehicle upon reasonable 

suspicion of a Vehicle Code violation, since a stop would provide 

the officer the needed opportunity to investigate further if the 

driver was operating under the influence of alcohol or a 

controlled substance. 

Id. at *3. 

In light of these principles, our first task is to determine whether 

Officer Marrero needed probable cause or reasonable suspicion to stop, or in 

this case attempt to stop, Ibrahim. To make this determination, we must 

consider the language and nature of the offense that triggered Officer 

Marrero’s actions. Ibrahim was travelling the wrong way down a one-way 
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street, an illegal action that is governed by 75 Pa.C.S. § 3308. That section 

state that “[u]pon a roadway designated for one-way traffic, a vehicle shall 

be driven only in the direction designated at all or such times as shall be 

indicated by official traffic-control devices.” Id. We have no difficulty 

concluding that a police officer must possess probable cause before stopping 

an individual who is violating this provision. Like the speeding offense 

described in the example from Salter, the investigation into the offense of 

driving in the wrong direction on a one-way street is completed when the 

officer observes a motorist doing exactly that. No further investigation is 

required, and nothing of evidentiary or investigatory value with regard to 

that particular offense can be ascertained once the stop is effectuated. 

Thus, section 3308, like speeding, is an offense that requires probable 

cause, not reasonable suspicion, before an officer may stop the vehicle.

Without question, Officer Marrero possessed probable cause in this 

case. To determine whether probable cause exists, we must consider 

“whether the facts and circumstances which are within the knowledge of the 

officer at the time of the arrest, and of which he has reasonably trustworthy 

information, are sufficient to warrant a man of reasonable caution in the 

belief that the suspect has committed or is committing a crime.” 

Commonwealth v. Rodriguez, 585 A.2d 988, 990 (Pa. 1991). From a 

clear vantage point, Officer Marrero observed Ibrahim driving his bicycle 

westbound on a road that requires all traffic to proceed in the eastbound 
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direction. No further investigation was required. The moment that Officer 

Marrero observed the violation, he had probable cause to stop Ibrahim.

The trial court held that the violation that Officer Marrero observed 

was de minimis, and that further observation was necessary before he could 

attempt to stop Ibrahim. This simply is not true. The statutory language of 

the offense does not include a provision setting forth how long a person 

must travel in the wrong direction before a violation occurs. To the 

contrary, the offense occurs at the moment the motorist actually travels in 

the wrong direction. Hence, it is of no moment whether an officer observes 

a person travelling for one yard, ten yards, or one hundred yards. Upon 

observing the violation, a police officer has probable cause to stop the 

offending motorist. 

The trial court relies upon Gleason for the proposition that an officer 

must observe a person committing an offense for a sustained period of time 

before making a vehicle stop. This reliance is entirely misplaced. First, 

Gleason involved a DUI. Our Supreme Court held that a police officer had 

to observe a motorist for a sustained period of time to determine whether 

probable cause existed to stop the driver to investigate a DUI. However, as 

noted above, Gleason was superseded by subsection 6308(b). Thus, the 

probable cause analysis set forth in Gleason has no bearing on this case. 

Second, and more importantly, DUI is one of the crimes that requires 

reasonable suspicion, not probable cause. In other words, a suspected DUI 

often necessitates further investigation, whereas driving the wrong way on a 
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one-way street does not. The two crimes require different levels of 

suspicion, and nothing about the offense committed by Ibrahim required any 

additional investigation or any sustained observation by the police officer. 

Gleason simply has no application here, nor is there any justification for 

granting Ibrahim’s motion based upon the trial court’s characterization of the 

violation of the Motor Vehicle Code as de minimis. 

The trial court also concluded that the traffic stop was pretextual. 

That is, the trial court believed that Officer Marrero used the alleged de 

minimis traffic stop as an unjustified basis for stopping Ibrahim to 

investigate some other crime. We observe nothing in the record to support 

this conclusion. At no point during the suppression hearing did Ibrahim 

suggest any other crime or set forth any other reason why Officer Marrero 

wanted to investigate him. To the contrary, the record demonstrates only 

that Officer Marrero observed Ibrahim clearly violate a provision of the Motor 

Vehicle Code, and that Officer Marrero attempted to stop Ibrahim based only 

upon that violation. The record does not support any contention that Officer 

Marrero stopped Ibrahim for any other reason.

Finally, the trial court held that, because the stop was illegal, Ibrahim’s 

abandonment of the firearm was forced. As a general rule, when a person 

abandons property, the police may recover that property and use it as 

evidence against a defendant. However, the abandonment cannot be the 

result of illegal police conduct. Commonwealth v. Byrd, 987 A.2d 786, 

791 (Pa. Super. 2009). In other words, if an individual abandons property 
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during the course of an unconstitutional vehicle stop, we will consider the 

abandonment to be forced, and the evidence recovered therefrom must be 

suppressed. In this case, however, Officer Marrero had probable cause to 

stop Ibrahim. The stop was not unconstitutional. Consequently, Ibrahim 

was not forced to abandon the gun, and it cannot be suppressed. 

Our standard of review require us to review the legal conclusions 

drawn by the trial court de novo. Having done so, it is apparent that the 

trial court erroneously held that Officer Marrero’s actions were 

unconstitutional. To the contrary, Officer Marrero had probable cause to 

stop Ibrahim. We reverse the trial court’s order, and we remand this case 

for proceedings consistent with our holding.

Order reversed. Case remanded. Jurisdiction relinquished.3 

____________________________________________

3 The Commonwealth has filed a motion requesting this Court to 

consider its untimely filed reply brief to be timely. The Commonwealth’s 

reply brief was due on June 11, 2015. The Commonwealth did not file its 

reply brief and the motion until June 18, 2015. In the motion, the 

Commonwealth asserts boilerplate averments of essentially being too busy 

to comply timely with this Court’s filing deadlines. The Commonwealth adds 

no specific information regarding the due dates or names of any of the other 

cases that have prevented the timely filing of its reply brief. Moreover, the 

Commonwealth does not explain why it did not file its motion at an earlier 

date. The Commonwealth having set forth what appear to be merely 

boilerplate allegations, we deny the motion. We have not considered the 

Commonwealth’s untimely reply brief in any way in deciding this case. 
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 11/6/2015