Commonwealth v. Shine

CERCONE, President Judge Emeritus,

Dissenting.

¶ 1 Because I believe that the stop and frisk of Appellant were improper, I must respectfully dissent.

¶ 2 This case is factually similar to Commonwealth v. Hawkins3, 547 Pa. 652, 692 A.2d 1068 (1997), and Commonwealth v. Jackson, 548 Pa. 484, 698 A.2d 571 (1997), therefore an examination of these cases is in order. In Hawkins, “a Philadelphia police officer responded to a radio call that there was a man with a gun at Sydenham and York streets. The suspect was described as a black male wearing a blue cap, black jeans and a gold or brownish coat.” Hawkins, at 655, 692 A.2d at 1070. The source of the information provided over the police radio was an anonymous tip. When the officer arrived, he observed a man, Hawkins, who fit the radio description. He stopped Hawkins and conducted a pat-down search, which revealed a handgun concealed on Hawkins’ person. Hawkins appealed the denial of his suppression motion.

¶ 3 On appeal, the Supreme Court reiterated the well settled rule of law that police are permitted to subject citizens to an investigative detention, or Terry4 stop,

when they can point to specific and ar-ticulable facts causing them to have a reasonable suspicion that criminal activity may be afoot. If police reasonably believe that they may be in danger, they may conduct a limited pat-down search of the suspect’s outer garments for weapons. Thus, before police may briefly detain a person, there must be reasonable suspicion of criminal conduct, and before police may pat-down for weapons, there must be a reasonable belief that the suspect is presently armed and dangerous. The initial question ... is whether the police officer had grounds for reasonable suspicion that criminal activity was afoot.

Hawkins at 655-56, 692 A.2d at 1069-70.

¶ 4 Recognizing the inherent unreliability of anonymous tips, the Supreme Court explained that

[i]f the police respond to an anonymous call that a particular person at a specified location is engaged in criminal activity, and upon arriving at the location see a person matching the description but nothing more, they have no certain knowledge except that the caller accurately described someone at a particular location. The fact that a suspect resembles the anonymous caller’s description does not corroborate allegations of criminal conduct ... Something more is needed to corroborate the ... allegations ... The fact that the subject of the call was alleged to be carrying a gun, of course, is merely another allegation, and it supplies no reliability where there was none before.

Id., at 656, 692 A.2d at 1070. An allegation that a suspect is carrying a gun does not provide an exception to the requirement of reasonable suspicion of criminal activity. Id. Our Supreme Court held that *175the tip was anonymous and therefore unreliable, and the police had no other reason to believe that Hawkins was involved in criminal activity. No independent evidence was provided which would form the basis for reasonable suspicion to stop and frisk Hawkins, therefore the judgment of sentence was reversed.

¶ 5 In Jackson, “at approximately 10:23 p.m., a Philadelphia police officer received a police radio report of a man in a green jacket carrying a gun. Other than the location, no additional details were provided.” Jackson, at 487, 698 A.2d at 572. The officer responded and observed a number of individuals at the specified location, but only Jackson fit the radio description. The officer immediately conducted a pat-down search of Jackson, during which a small box containing illegal drugs fell to the ground. Jackson appealed the trial court’s denial of his suppression motion. On appeal, our Supreme Court examined the legality of the stop and frisk. The Court reiterated the reasonable suspicion standard enunciated in Hawkins, and reaffirmed that the “officer’s suspicion must be reasonable, and based on specific, articula-ble facts and reasonable inferences drawn from those facts in light of the officer’s experience.” Id. at 489, 698 A.2d at 573. Again, the Court recognized the unreliability of anonymous tips and explained that they “should be treated with particular suspicion.” Id. at 490, 698 A.2d at 573. The tip “may have been a mere prank call ... [or] may have been based on no more than the caller’s unparticularized hunch.” Id. at 490, 698 A.2d at 574. A Terry stop may be based upon information provided by an anonymous tip provided it is corroborated by independent police work. Id. Finding the circumstances of Jackson indistinguishable from Hawkins, the Court reviewed its holding in Hawkins, and explained that an allegation that a black man wearing certain clothing at a certain location was carrying a gun was insufficient to provide reasonable suspicion even when those details were corroborated by the police. Therefore, the police should have investigated further “by means not constituting a search and seizure.” Jackson, at 493, 698 A.2d at 575. The fact that the suspect is alleged to be carrying a gun is merely another allegation and provides no reliability to the information. “There is no gun exception to the Terry requirement for reasonable suspicion of criminal activity.” Id., quoting Hawkins, supra, at 657, 692 A.2d at 1070. The police in Jackson failed to discover additional information which would establish reasonable suspicion that the suspect was involved in, or about to commit a crime, thus the stop and frisk was illegal.

¶ 6 In the instant case, the only description provided to the police officer by the anonymous tip was that there were “two black males” on the street carrying guns. This description is much more skeletal than those given to the officers in Hawkins and Jackson who were at least provided with a description of the suspect’s clothing. Upon arriving at the specified location in a residential area of Philadelphia, the officer observed Appellant and another man who were, indeed, both black males and who, therefore, fit the vague description. As held in Jackson and Hawkins, the fact that a suspect resembles a description does not corroborate an allegation of criminal conduct; more information is required. Additional evidence corroborating a suspect’s involvement in criminal activity is required before a stop will be justified. Commonwealth v. Hayward, 756 A.2d 23, 32 (Pa.Super.2000).

¶ 7 The officer testified that he saw Appellant standing close to another man “making gestures with his face.” N.T. Suppression Hearing, 3/26/99, at 7. Appellant was leaning toward the other man, his *176hands were at Ms sides and no weapon was visible. Id. at 8, 18. The officer could not hear what was being said between the men, but he knew there was conversation because he saw Appellant’s mouth moving. Id. at 8-9, 18. He stated that he believed he was witnessing a fight or a disturbance. Id. at 9. He also observed a female trying to push between the two men. Id. The officer testified that he believed the female was trying to separate the men and prevent them from fighting. Id. at 10. The officer exited his vehicle intending to find out what was going on and to check for weapons. Id. at 15. He told the men to separate, wMch they did. Id. at 11. Appellant then began to walk away but was told by the officer to come back. Id. at 13-14. Appellant stopped, and the officer went over to him and immediately conducted a pat-down search and seized a handgun he felt in Appellant’s pocket. Id. at 14, 17.

¶ 8 Contrary to the belief expressed in the concurring opinion, I do not characterize the interaction between the two men as “innocuous.” I simply say that it might have been merely a discussion, the testimony was unclear. The men may well have been arguing, and that argument may have been heated; however, no matter how heated a verbal argument may be, it does not provide corroboration for an allegation of criminal conduct. The criminal conduct alleged by the anonymous tipster "in this case was gun possession.5 The tipster did not claim that the men were fighting or causing a disturbance, only that they had guns. The question then is whether the observance of a verbal exchange or argument provides sufficient independent evidence to corroborate an allegation of criminal activity. In other words, does the observance logically lead to the conclusion that illegal gun possession, or any criminal activity, is afoot? The majority opines that the anonymous tip coupled with the observation of the “heated argument” justified the stop and frisk. I cannot agree. Even in its most damaging light, an examination of the totality of the circumstances reveals only that two black men were arguing loudly on the street. They were not engaged in a physical altercation, nor were weapons visible. I fail to see how this observation supports the conclusion that the two men “had been actively involved in the commission of a crime or would be actively involved in the commission of a crime in the immediate future.” Hayward at 35. Although one’s neighbors may not appreciate it, discussions and arguments on public streets do occur. Such discussions or arguments, even when loud, do not implicate criminal activity without additional evidence to corroborate such an inference. Should an observance of such a discussion or argument be deemed sufficient to justify a stop and frisk, all black men standing on the street discussing the weather or the state of the turf at Veteran’s Stadium, or engaged in a debate or argument on any topic would be subject to a stop and frisk.

¶ 9 The majority further opines that the officer’s observance coupled with the knowledge that someone reported armed men at that location justified the stop. However, as stated above, an allegation that a suspect is armed and at a particular location is merely an allegation and provides no reliability to the anonymous information. Indeed, as the Supreme Court in Jackson explained:

The Commonwealth contends ... that the degree of danger to the police and the public from armed criminals is so great that if an anonymous caller pro*177vides a physical description of the individual, an accurate location and an allegation that the individual is armed, a Terry stop is justified. That argument •will not withstand constitutional scrutiny. The danger to the police and public from firearms was already factored into the balance when the requirement of reasonable suspicion was articulated in Terry.

Jackson, at 492, 698 A.2d at 575; See also Florida v. J.L., 529 U.S. 266, 120 S.Ct. 1375, 146 L.Ed.2d 254 (2000) (United Stated Supreme Court unanimous decision holding that anonymous tip that suspect had a gun provided no means by which to test informant’s credibility. The fact that the tip was correct does not suggest that the officer had reasonable suspicion, prior to frisk, to stop the suspect. A tip must be shown to be reliable in its assertion of illegality not just in its tendency to identify a specific person.)

¶ 10 Based on the Pennsylvania Supreme Court’s holdings in Hawkins and Jackson, I believe that the officer lacked reasonable suspicion to stop Appellant. Further, because the stop was illegal, the subsequent frisk was also illegal.

¶ 11 However, even assuming arguendo, that the stop was proper, I must disagree that the officer had sufficient reason to believe that Appellant was armed and dangerous, thus justifying a pat-down search for weapons. The officer testified that he conducted the pat-down search for safety reasons. N.T., supra, at 14. When the prosecutor asked why he was worried about his safety, the officer replied: “If someone, somebody is aggravated, or if they have a weapon and they may have been involved in an argument — there’s a lot of weapons out there, at which time I patted him down and he had a handgun in his pocket.” Id. The fact that there are weapons “out there” does not suggest that Appellant was armed. The fact that Appellant and the other man were engaged in what may have been an argument does not suggest that either man was armed. The discussion, though perhaps heated, was verbal and not physical. There was no evidence that a physical altercation had occurred or was about to occur. No weapons were visible and Appellant’s arms were at his sides. Again, an allegation that an unidentified person is armed is merely an allegation, and not reliable. The situation did not suggest the presence of weapons.

¶ 12 The majority quotes Commonwealth v. Zhahir, 561 Pa. 545, 555, 751 A.2d 1153, 1158 to support its holding that the immediacy of the situation justified the search. I disagree. In Zhahir, the officers were confronted with a situation wherein, while investigating an allegation of narcotics trafficking, they confronted the suspect in a high crime area of Philadelphia. The suspect was acting suspiciously in that he appeared to discard something when he saw the officers and then retrieve it when he believed they had gone. The officers testified that this behavior was consistent with one dealing narcotics. When approached by the officers, the suspect turned toward them with his hand in his pocket. Believing that he might have been reaching for a weapon, the officer grabbed his hand and pocket. The Supreme Court reasoned that in light of Zhahir’s suspicious behavior in response to the police presence, his presence in a high crime area, and the fact that he turned toward the officers with his hand in his pocket, the officer was justified in suspecting that Zhahir might have been retrieving a weapon. Clearly, the immediacy of that situation justified a pat-down search. In the instant case, however, Appellant was engaged in a verbal exchange, but stopped speaking and separated from the other *178man when told to do so by the officer. He did not reach for a weapon, nor did he indicate that he had a weapon. He did not act in an aggressive manner which might suggest that the conversation would escalate into a physical confrontation which might involve a weapon.

¶ 13 The majority also cites Commonwealth v. Patterson, 405 Pa.Super. 17, 591 A.2d 1075 (1991) for the proposition that a weapons search of a defendant who was observed creating a disturbance in the early morning was justified because “the police may reasonably believe themselves to be in danger when the hour is late or the location desolate.” Id. at 1078. Patterson is factually distinguishable from the instant case. In Patterson, the police had received numerous calls complaining about drug sales at a specific house. The police corroborated these tips by observing five persons approach and bang on the back door of the house within a two hour time span. None of the people could explain their presence at a reputed crack house between 2:30 and 4:30 a.m. Patterson was the sixth person to approach the house that morning and was observed creating a disturbance by banging on the rear door. The officers conducted a pat-down search and discovered a handgun in Patterson’s waistband. As our Court held “The combination of the neighbors’ reports and the suspicious heavy foot traffic during the wee hours of the morning in the dark back alley of a suspected crack house is sufficient to justify a stop.” Id. This Court further held that the subsequent frisk was justified because it took place in the middle of the night in the back alley behind a reputed crack house, and our Court took judicial notice that drug dealers are likely to be armed and dangerous. Id. No such circumstances existed in the case sub judi-ce. I agree that midnight may be considered late and I agree that Officer Davis was alone; however, the circumstances of this case do not give rise to the conclusion that Appellant was armed and dangerous.

¶ 14 As the United States Supreme Court said in Terry:

Where a police officer observes unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot and that the persons which whom he is dealing may be armed and presently dangerous, where in the course of investigating this behavior he identifies himself as a policeman and makes reasonable inquiries, and where nothing in the initial stages of the encounter serves to dispel his reasonable fear for his own safety, he is entitled for the protection of himself and others in the area to conduct a carefully limited search of the outer clothing of such persons in an attempt to discover weapons which might be used to assault him.

Terry at 30-31, 88 S.Ct. at 1884-85.

¶ 15 I do not believe that Officer Davis observed unusual and suspicious conduct which would lead him to believe that Appellant was armed and presently dangerous. He failed to make the reasonable inquiries mentioned in Terry which may have dispelled his fear for his safety. Indeed, he testified that he exited his vehicle intending to check for weapons. A reasonable answer to any question posed by the officer may have served to alleviate his fear prior to conducting the pat-down search. Police must point to specific and articulable facts indicating that the suspect is armed and dangerous, otherwise the phrase “for our own protection” becomes meaningless. Patterson at 1078.

¶ 16 I believe Officer Davis lacked reasonable suspicion to believe that Appellant was armed and dangerous, thus the search was illegal.

*179¶ 17 Accordingly, for the foregoing reasons, I respectfully dissent.

. Hawkins is a plurality opinion; however, because its reasoning is adopted in Commonwealth v. Jackson, supra, I find it instructive and particularly relevant to this discussion.

. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).

. Keeping in mind that gun possession in and of itself is not illegal, I presume the tipster was alleging a violation of the Uniform Firearms Act.