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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
SHAUN JACKSON,
Appellee No. 1678 EDA 2015
Appeal from the Order Entered May 19, 2015
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0012272-2014
BEFORE: BENDER, P.J.E., PANELLA, J., and STEVENS, P.J.E.*
DISSENTING MEMORANDUM BY STEVENS, P.J.E.:FILED SEPTEMBER 16, 2016
I respectfully disagree with the Majority’s conclusion the suppression
court did not err in granting Appellee’s suppression motion. Because I
believe the Commonwealth has met its burden of persuasion that the
suppression court’s decision constituted a legal error, I dissent.
The record reveals that Officers Smith and Dill were acting upon
information received directly from the Victim that a bearded, African-
American male who was approximately twenty-eight years old and wearing a
black hoodie and black pants had just broken into a car at 1127 East Tioga
Street and was heading eastbound. Within five minutes, the officers
encountered Appellee who matched the description the Victim had provided
to police walking alone in the 3400 block of Kensington Avenue which
*Former Justice specially assigned to the Superior Court.
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location was within a block of 1127 East Tioga Street and consistent with the
direction of travel in which the Victim had indicated the perpetrator was
proceeding. Officer Smith testified that when he made contact with
Appellee, Officer Smith “just casually said, “Hey, can I, you know, speak to
you a minute?” And [Appellee] applied [sic] and stopped.” N.T., 5/8/15, at
14. Officer Smith explained to Appellee why he was being detained, asked
him for identification, and directly questioned whether Appellee “had
anything on his person that [Officer Smith] needed to be concerned about.”
At that time, Appellee indicated he was armed and informed Officers
Smith and Dill a firearm was in his right, rear pants pocket. N.T., 5/8/15, at
14-15. Shortly thereafter, the Victim indicated Appellee was not the person
involved in the vehicle theft, and Appellee was placed under arrest for
firearms violations. No other individuals present in the vicinity matched the
flash description broadcast over police radio. Id. at 19.
Thus, the officers possessed at least the minimum level of objective
justification necessary to create the reasonable suspicion to justify a stop of
Appellee as part of their investigation of the theft of the Victim’s vehicle. It
is axiomatic that:
[a]n officer who lacks the level of information required for
probable cause to arrest need not “simply shrug his shoulders
and allow a crime to occur or a criminal to escape.” Adams v.
Williams, 407 U.S. 143, 145, 92 S.Ct. 1921, 32 L.Ed.2d 612
(1972). Where an officer reasonably suspects that criminal
activity is afoot, the officer may temporarily freeze the status
quo by preventing the suspect from leaving the scene in order to
ascertain his identity and gather additional information. Terry v.
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Ohio, 392 U.S. 1, 21, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).
The officer may also conduct a quick frisk for weapons if he
reasonably fears that the person with whom he is dealing may
be armed and dangerous. Id. The question of whether
reasonable suspicion existed at the time of an investigatory
detention must be answered by examining the totality of the
circumstances to determine whether there was a particularized
and objective basis for suspecting the individual stopped of
criminal activity. United States v. Cortez, 449 U.S. 411, 417,
101 S.Ct. 690, 66 L.Ed.2d 621 (1981). There is no ready test for
determining reasonableness other than by balancing the need to
search or seize against the invasion to which the search or
seizure entails. Terry, 392 U.S. at 21, 88 S.Ct. 1868. Police are
generally justified in stopping an individual when relying on
information transmitted by a valid police bulletin. United States
v. Hensley, 469 U.S. 221, 232, 105 S.Ct. 675, 83 L.Ed.2d 604
(1985).
In re D.M., 556 Pa. 160, 164, 727 A.2d 556, 557–58 (1999).
The Majority agrees with the suppression court’s acknowledgement
that Appellee’s race, clothing and direction of travel matched the general
description of the thief that the Victim had provided police and which was
transmitted subsequently via police radio. Notwithstanding, the Majority
stresses that the Victim’s description lacked “particularly unique”
characteristics, such as skin tone, physical markings, height or weight, and
that Officer Smith never testified as to whether Appellee had a beard, as the
Victim had indicated. However, the absence of unique characteristics in the
flash description is of no moment, for it is possible that Appellee neither had
any or, if he did, that his dark clothing concealed them. Requiring such
detail would severely hamper law enforcement in the performance of their
duties in cases such as this. In addition, officers initially observed Appellee
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from behind wearing a black hooded jacket, black sweatpants and black
sneakers and upon this basis decided to make contact with him.
In Commonwealth v. Hawkins, 547 Pa. 652, 692 A.2d 1068 (1997)
officers stopped the appellant based upon an anonymous caller’s tip, and the
Majority relies upon that case for its discussion of the relationship between
an accurate description of a suspect and evidence of criminal conduct in the
within matter. Here, it is the Victim who made the report, not an
anonymous source.1 Our Supreme Court has stressed that a report from the
crime victim imparts a “a high degree of reliability to the report. In re
D.M., 556 Pa. at 165, 727 A.2d at 558. In addition, this Court has found
that knowing the identity of the informant sufficiently heightens the
reliability of the information, for where the informant’s identity is known, he
or she risks prosecution for giving false information to police. See
Commonwealth v. Cruz, 21 A.3d 1247, 1251 (Pa.Super. 2011) citing
Commonwealth v. Altadonna, 817 A.2d 1145, 1152 (Pa.Super. 2003);
Commonwealth v. Hayward, 756 A.2d 23, 34 (Pa.Super. 2000).
Moreover, the Majority fails to recognize the time constraints the
police officers were under. While the Majority recognizes there was an
assertion there was an attempted break-in to the car, by the time the police
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1
The suppression court compounded its error by its confusion over whether
the source was anonymous. The record is clear the source was never
anonymous.
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officers would have tried to verify further the crime, the perpetrator could
have been long gone.
Clearly, the record shows there was an assertion of a crime, a physical
description reasonably identifying Appellant, and a stop close in time and
place to the crime location. Therefore, the police officers had reasonable
suspicion to stop Appellant.
Moreover, Appellee’s compliance with the officers’ request for
identification and the lack of evasive behavior on his part are not
determinative of whether police possessed reasonable suspicion briefly to
detain Appellee at the outset. Indeed, this Court has found that the
detention and limited investigation of a suspect is not rendered illegal even
though his activity is consistent with innocent behavior. See
Commonwealth v. White, 516 A.2d 1211 (Pa.Super. 1986). Rather, this
Court views the circumstances through the eyes of a trained officer, not an
ordinary citizen. Commonwealth v. Kemp, 961 A.2d 1247, 1255
(Pa.Super. 2008) (en banc).
Appellee’s behavior must be considered along with the totality of the
circumstances, including the fact that he is a black male who was alone
wearing a black hooded jacket and black sweatpants and traveling
eastbound within a block of the reported car theft when Officers Smith and
Dill spotted him moments later. Relying upon the radio dispatch based upon
information from the victim, the officers did not simply stop Appellee on a
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mere hunch; the fact that they had not verified prior thereto whether a
break-in had occurred does not detract from their reasonable suspicion that
criminal activity may be afoot.
As I would find the suppression court improperly applied the law to the
facts herein and its resultant legal conclusions were erroneous, I would
reverse and remand for trial.
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Com. v. Jackson, S.
Combined Opinion