Comm. v. Thomas, 2018 PA Super 18 (Feb. 1, 2018)

This was a Commonwealth appeal out of Philadelphia.  The trial court had suppressed evidence (a gun) recovered from Thomas, which hindered the Commonwealth’s prosecution.  The relevant facts were these.

Two Philadelphia police officers were on patrol in a high-crime area of Philadelphia around 1:20 a.m.  While on patrol, a radio report was received of a “black male with a gun near 6400 Greenway Avenue.  The report indicated that the male was dressed in a blue hooded sweatshirt and blue pants or blue jeans.”  One of the officers was aware that a shooting had taken place in this area just hours before, and a homicide had occurred there just days before.

That said, the Philadelphia police officers responded to the location in their marked police car within minutes.  Upon arrival they came upon Thomas who was wearing “a black hooded sweatshirt, a black jacket, and black pants.”  Initially, the officers circled the block, and after they circled the block they noticed Thomas on the steps of a house.  They did this four or five more times and, each time, Thomas “would reverse his direction and look back at the officers.”

Ultimately, the officers pulled their patrol car up next to Thomas, who had his hands in his pockets.  One of the officers had asked Thomas to remove his hands from his pockets, but Thomas refused.  Accordingly, the officer exited the patrol car, removed Thomas’s hands from his pockets, and patted him down.  The officer “immediately felt a gun.”

In the lower court, the judge believed the stop and frisk of Thomas was unlawful.  The lower court reasoned that Thomas’s “walking up and down the street was not indicative of criminal activity,” and the officers did not point to any evidence that would suggest Thomas was armed and dangerous.  The Commonwealth, of course, disagreed.  By the Commonwealth’s estimations, these factors warranted reasonable suspicion to stop and frisk: (1) the report of a man with a gun in a high-crime area; (2) Thomas’s suspicious behavior of changing direction and watching the patrol car each of the times it circled the block; and (3) Thomas’s refusal to remove his hands from his pocket.

The Superior Court agreed.  The Court wrote, “The officers’ suspicions were aroused when they observed [Thomas] repeatedly change his direction and watch the officers closely as they continued to circle the block.”  The Court further noted that “[a]n officer is justified in insisting that a citizen not conceal his hands during an encounter with police.”  The fact that an officer asks a citizen to take their hands out of their pockets, the Court said, does not turn the encounter into a seizure for constitutional purposes.

The Court concluded: “[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.”

Personal opinion: The line of precedent that says a police officer can “ask” a person to take their hands from their pockets, even during a “mere encounter,” is problematic. A “mere encounter” between a citizen and a police officer is, by definition, an encounter where the citizen does not even need to pay the officer the time of day. A “mere encounter” loses its character as such if we expect compliance from the citizen.

Any police-citizen counter will always be fact driven, and require a fact-intensive analysis.  Here, Thomas’s act of changing his direction of travel did not help him in this case.  That standing alone is tough to justify as “innocent conduct,” particularly at 1:20 a.m.  But I’m more concerned with the future case, say, where instead of Thomas we just have a citizen walking down the street.  Presume, still, all the other facts: report of guy with gun and high-crime area, and this hypothetical citizen also doesn’t neatly match the description of the suspect, but he’s walking with his hands in his pocket.  Sure, the police can pull up to him and ask him a question.  That’s a mere encounter.  But what if he ignores them as he is permitted to do in a mere encounter?  Will the government suggest that his silence is suspicious?  Will that justify stopping him?  Can he remain silent to the request to remove his hands from his pocket?

See, silence, or noncompliance, is the hallmark of a mere encounter. But if they may, in and of themselves, raise suspicion, then the mere encounter is really a fiction, and our courts should just drop the charade and just explicitly say, “We demand citizen compliance.”  It must be one or the other.