[J-7-2023] [OISA: Brobson, J.]
IN THE SUPREME COURT OF PENNSYLVANIA
EASTERN DISTRICT
COMMONWEALTH OF PENNSYLVANIA, : No. 24 EAP 2022
:
Appellee : Appeal from the Judgment of
: Superior Court entered on
: December 21, 2021 at No. 560 EDA
v. : 2021 (reargument denied February
: 16, 2022) vacating and remanding
: the Order entered on February 11,
KEVIN JACKSON, : 2021 in the Court of Common Pleas,
: Philadelphia County, Criminal
Appellant : Division at No. CP-51-CR-0000888-
: 2020.
:
: ARGUED: March 8, 2023
OPINION IN SUPPORT OF REVERSAL
JUSTICE WECHT DECIDED: September 28, 2023
It’s 8:00 pm. in a Philadelphia neighborhood. You just finished a great dinner with
your oldest and dearest friend. The wine was good, too. You stagger and stumble just a
bit as you walk out of the restaurant and into the cool night air. You turn onto the sidewalk
and begin the trek to your apartment five blocks away. Your mind wanders back to the
meal, the wine, and the company.
BANG!
BANG!
BANG!
Gunshots. Three of them erupt from the alley across the street. You don’t have
time to look and see who fired them. There is only one thought in your head: RUN! You
take off.
Around the corner, a police officer patrols the dark streets in a marked cruiser. A
routine, boring shift suddenly transforms into an adrenaline-fueled commotion as the
three loud pops pierce the tranquil night air. The officer activates the siren and emergency
lights, hits the accelerator, and speeds off in the direction of the gunshots.
The police car squeals to a stop when the officer sees you racing around the
corner, fleeing the area from where the gunshots rang out. You are not bleeding. You
are not holding a gun. You do not toss anything aside. You are not pointing, screaming,
or calling for help. Your singular focus is getting away from the danger.
The officer calls out to you. Although he heard the same shots that you heard, he
asks you why you are running. You tell the truth: “I am running from the gunshots!” You
don’t stop. You don’t ask for help. You just want to put as much distance as possible
between you and the deadly gunfire.
Today’s Opinion in Support of Affirmance (“OISA”) declares that, because you are
running away, it is reasonable for a police officer to suspect that you are the shooter. The
OISA would hold that, because you are alone and you did not stop to ask for help, you
have “connected” yourself to “the criminal activity at issue.” 1 Through the OISA’s eyes,
your objectively reasonable, expected, and normal reaction to a dangerous situation was,
to the contrary, criminally suspicious. Police officers would be free to seize and
investigate you, notwithstanding the absence of any objective indicia that you were in any
way involved in the suspected crime.
Per today’s decision, had you been with someone else, instead of on your own,
the police officer could not have stopped you, presumably even if that other person also
was fleeing from the dangerous situation. Or, had you merely asked the police officer for
help, instead of getting as far away as possible from an active shooter, the officer could
1 See OISA at 22.
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not have stopped you. But you were alone, and you passed the officer by in your frantic
effort to protect yourself. Thus, according to the OISA, you are a suspect.
This holding pushes the Terry 2 stop far beyond what the Supreme Court of the
United States intended it to be: a limited exception to the requirement that police officers
must have probable cause before arresting an individual. The sweeping law enforcement
tool that the OISA endorses today would be unrecognizable to the Justices that decided
Terry in 1968. Our Constitutions do not permit such expansive police power. I dissent.
Before Terry, the analytical framework for ascertaining whether an interaction
between the police and a private individual was constitutionally reasonable 3 was
“relatively simple and straightforward.” 4 The sole inquiry was whether the interaction was
an arrest supported by probable cause. 5 A “seizure” for Fourth Amendment purposes
was treated as synonymous with an “arrest,” and “the requirement of probable cause . . .
was treated as absolute.” 6 Probable cause embodied “the best compromise that has
been found for accommodating [the] often opposing interests” in “safeguard[ing] citizens
from rash and unreasonable interferences with privacy” and in “seek[ing] to give fair
2 Terry v. Ohio, 392 U.S. 1 (1968).
3 The Fourth Amendment provides: “The right of the people to be secure in their
persons . . . against unreasonable searches and seizures, shall not be violated, and no
Warrants shall issue but upon probable cause . . . .” U.S. CONST. amend IV. The Fourth
Amendment is applicable to the states via the Fourteenth Amendment. See Mapp v.
Ohio, 367 U.S. 643 (1961). It has become well-entrenched in the United States Supreme
Court’s precedents that the “touchstone of the Fourth Amendment is reasonableness,”
Florida v. Jimeno, 500 U.S. 248, 250 (1991), and that “[r]easonableness, in turn, is
measured in objective terms by examining the totality of the circumstances.” Ohio v.
Robinette, 519 U.S. 33, 39 (1996).
4 Dunaway v. New York, 442 U.S. 200, 208 (1979).
5 Id.
6 Id. (footnotes and citations omitted).
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leeway for enforcing the law in the community’s protection.” 7 “The standard of probable
cause thus represented the accumulated wisdom of precedent and experience as to the
minimum justification necessary to make the kind of intrusion involved in an arrest
reasonable under the Fourth Amendment” and applies “to all arrests, without the need to
balance the interests and circumstances involved in particular situations.” 8
Simply put, prior to 1968, the Fourth Amendment to the United States Constitution
did not recognize, let alone countenance, concepts such as an “investigative detention.”
“Reasonable suspicion” did not exist in the constitutional rubric. Then came Terry.
The facts of Terry are well-known. Terry and another man were standing at the
intersection of two streets in Cleveland, Ohio. Their loitering piqued the investigative
senses of an experienced police officer. 9 The officer kept his well-trained eye on the pair
until one of them walked along the street, looked in a store window, continued on, turned
around, and then peered into the same store window on the way back. 10 Once the first
man returned to the corner, the other walked along the same street and looked in the
same window. Alternating one at a time, the men did this five or six times each. A third
man joined the pair, spoke briefly with them, and then walked off. Terry and his cohort
continued to pace on the street for a short while longer, and then walked away in the
direction of the third man. The officer followed, and saw the two meet the third man.
The officer contemplated the actions that he had just observed and concluded that
the men were “casing a job, a stick up.”11 The officer decided to investigate further.
7 Brinegar v. United States, 338 U.S. 160, 176 (1949).
8 Dunaway, 442 U.S. at 208 (internal quotations and citation omitted).
9 Terry, 392 U.S. at 5.
10 Id. at 6.
11 Id.
[J-7-2023] [OISA: Brobson, J.] - 4
Fearing that the trio was armed, the officer believed that “direct action” was necessary. 12
He approached the group, identified himself as a police officer, and asked them to identify
themselves. When Terry mumbled something, the officer grabbed him, spun him around
to face the other two suspects, patted the outside of Terry’s clothing, and found a pistol. 13
The officer’s actions would change law enforcement tactics and constitutional law forever.
Terry’s challenge to the seizure of the pistol eventually reached the Supreme Court
of the United States, which addressed the “narrow question” of “whether it is always
unreasonable for a policeman to seize a person and subject him to a limited search for
weapons unless there is probable cause for an arrest.” 14 The question presented the
Court with two competing interests. On one hand, the Court recognized, law enforcement
officials must have flexibility in order to address the “rapidly unfolding and often
dangerous situations on city streets.” 15 On the other hand, the “traditional jurisprudence
of the Fourth Amendment” strictly circumscribed police authority, and previously had
imposed “a severe requirement of specific justification for any intrusion” upon a person’s
protected privacy interests. 16 The Court sought to strike a balance between these two
important interests.
The Court “emphatically reject[ed]” the notion that the stop and frisk at issue did
not rise to the level of a seizure for Fourth Amendment purposes. 17 To the contrary, the
Court emphasized, even a brief, investigative detention “is a serious intrusion upon the
12 Id. at 6-7.
13 Id. at 7.
14 Id. at 15.
15 Id. at 10.
16 Id. at 11.
17 Id. at 16.
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sanctity of the person, which may inflict great indignity and arouse strong resentment.” 18
However, that an investigatory detention constituted a seizure did not mean that the
officer first had to obtain a search warrant. This newly sanctioned type of police conduct
differed significantly from that which traditionally had been subject to the warrant
requirement. Such unplanned investigative detentions were an “entire rubric of police
conduct—necessarily swift action predicated upon the on-the-spot observations of the
officer on the beat—which historically has not been, and as a practical matter could not
be, subjected to the warrant procedure.”19 Thus, the Court explained, the “conduct
involved in this case must be tested by the Fourth Amendment's general proscription
against unreasonable searches and seizures,” not against the warrant requirement. 20
For a detention predicated upon something less than probable cause to be
reasonable, the Court ruled, a law enforcement officer must be able to “point to specific
and articulable facts which, taken together with rational inferences from those facts,
reasonably warrant that intrusion.” 21 The Court further explained that judges must assess
those facts “against an objective standard: would the facts available to the officer at the
moment of the seizure or the search warrant a man of reasonable caution in the belief
that the action taken was appropriate?” 22
After identifying and evaluating the interests on both sides of the case, i.e., the
needs of law enforcement in addressing evolving and dangerous situations versus the
privacy interests of individuals, the Court concluded that the “proper balance” of those
18 Id. at 17.
19 Id. at 20.
20 Id.
21 Id. at 21 (footnote omitted).
22 Id. at 21-22 (internal quotation marks, citations, and footnote omitted).
[J-7-2023] [OISA: Brobson, J.] - 6
interests required the recognition of a “narrowly drawn authority to permit a reasonable
search for weapons for the protection of the police officer, where he has reason to believe
that he is dealing with an armed and dangerous individual, regardless of whether he has
probable cause to arrest the individual for a crime.” 23 Thus, the Terry stop and frisk was
born.
Given its familiarity in modern police practice, it is all too easy to forget that Terry
created an exception to the Fourth Amendment’s requirements. Terry is not the general
rule. 24 It is even easier to overlook the fact that the Supreme Court steadfastly “has been
careful to maintain” the exception’s “narrow scope.”25 Indeed, Terry’s “application of [a]
balancing test led the Court to approve this narrowly defined less intrusive seizure on
grounds less rigorous than probable cause, but only for the purpose of a pat-down for
weapons.” 26 It is precisely because of the limited applicability of this “narrowly defined”
seizure that the OISA correctly recognizes that Terry stops exist for the purposes of
confirming or dispelling criminal suspicions, not for identification of potential victims of a
crime or interrogation of potential witnesses. 27 The Supreme Court has made it
abundantly clear that Terry stops pass constitutional muster only when “criminal activity
23 Id. at 27.
24 See Ybarra v. Illinois, 444 U.S. 85, 93 (1979) (explaining that “[t]he Terry case
created an exception to the requirement of probable cause”); Dunaway, 442 U.S. at 208-
09 (“Terry for the first time recognized an exception to the requirement that Fourth
Amendment seizures of persons must be based on probable cause.”); id. at 210
(“Because Terry involved an exception to the general rule requiring probable cause, this
Court has been careful to maintain its narrow scope.”).
25 Ybarra, 444 U.S. at 93 (quoting Dunaway, 442 U.S. at 210).
26 Dunaway, 442 U.S. at 210 (emphasis added).
27 See OISA at 21 (“[W]e examine the totality of the circumstances at issue to
determine whether there were particularized and objective grounds upon which to suspect
that the individual detained was, or was about to be engaged in criminal activity.”)
(emphasis added).
[J-7-2023] [OISA: Brobson, J.] - 7
may be afoot,” 28 or, stated otherwise, when the objective circumstances indicate that “the
person stopped is, or is about to be, engaged in criminal activity.” 29 Investigative
detentions are a “sui generis rubric of police conduct” 30 enabling a pat down for weapons
while police officers conduct a brief investigation into suspected criminal activity. 31 They
are not boundless law enforcement tools to be deployed at the whim or convenience of a
police officer.
In Commonwealth v. Bryant, 32 our Superior Court pushed Terry far beyond its
intended limits. There, a police officer heard six gunshots and saw three men running
from the general vicinity whence the shots had originated. 33 As the three men rounded a
corner and emerged onto a street, the officer noticed that no one else on that well-
populated street was running. The officer pursued the three men and conducted a Terry
stop, during which the officer found narcotics in Bryant’s front pants pocket. 34
The Superior Court held that the officer possessed reasonable suspicion to stop
Bryant because he “could have concluded reasonably that [Bryant] was a perpetrator,
victim, or eyewitness of a possible shooting.” 35 The Supreme Court of the United States
28 Terry, 392 U.S. at 30.
29 United States v. Cortez, 449 U.S. 411, 417 (1981) (citations omitted).
30 Dunaway, 442 U.S. at 209 (citations and quotation marks omitted).
31 See Brown v. Texas, 443 U.S. 47 (1979) (limiting Terry stops to situations in which
a suspect “engaged or had engaged in criminal conduct”).
32 866 A.2d 1143 (Pa. Super. 2005).
33 Id. at 1144-45.
34 Id. at 1145.
35 Id. at 1147 (emphasis added).
[J-7-2023] [OISA: Brobson, J.] - 8
has never endorsed such sweeping police authority. 36 Nor has this Court. To do so
would transform Terry from the narrow, sui generis exception into a limitless power that
threatens to strip the constitutionally protected privacy rights of all persons who find
themselves somewhere near an area in which a suspected crime has occurred.
The OISA rightly rejects the Superior Court’s reliance upon Bryant in this case.
But the OISA would not go far enough. Rather than merely “disapprov[ing] of the Superior
Court’s decision” that “permits a police officer to detain an individual that merely has ‘more
information’ about or a ‘connection to” a criminal event,” 37 I would expressly overrule this
aspect of Bryant. As evidenced by the Superior Court’s continued reliance upon that
case, Bryant is no mere harmless misstatement of the law. That court is invoking Bryant’s
unsupportable—and unconstitutional—premise as a substantive legal basis to uphold
seizures that, as I discuss below, are not otherwise supported by the necessary
reasonable suspicion. This error must be corrected. Even though Jackson does not
make a serious push to have Bryant overruled, his silence is no impediment to our ability
to excise from the law books a case that serves no legitimate purpose and causes serious
constitutional harm to boot. We recently have acknowledged that a “precedent may be
so questionable as to warrant overruling even when the parties have not raised the
36 Professor Wayne R. LaFave, who some call the “reigning expert on the law of
search and seizure,” WAYNE R. LAFAVE, SEARCH AND SEIZURE: A TREATISE ON THE FOURTH
AMENDMENT, 4 SEARCH & SEIZURE § 9.2 n.a0 (6th ed.), explains that, although Terry stops
originally were permissible for the purpose of preventing crime, the exception has been
extended to allow stops for the purposes of crime investigation and detection. Id. § 9.2(a)
The Supreme Court of the United States has not yet extended Terry any further.
Professor LaFave notes, however, that it might be “sensible” to permit Terry stops to
freeze a possible scene and to ascertain a person’s identity, or to determine if that person
has “knowledge of material aid” in the investigation. Id. § 9.2(b) (citing the Model Code
of Pre-Arraignment Procedure § 110.2(1)(b)(1975)). Neither the Supreme Court of the
United States nor this Court ever has endorsed such an expansive use of Terry stops.
37 OISA at 28 (quoting Commonwealth v. Jackson, 271 A.3d 461, 464-65 (Pa. Super.
2021)).
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point.”38 Bryant is one of those glaring mistakes that must be overruled before it can do
any more damage to the constitutional rights of Pennsylvanians. While the OISA’s
“disapproval” of Bryant is a step in the right direction, a complete and final repudiation is
necessary in order to ensure that the Superior Court’s problematic ruling is never again
used to justify an invalid Terry stop.
Nonetheless, up to this point in its analysis, the OISA adheres to the Supreme
Court’s recurrent admonitions that Terry be treated as a narrow exception to the Fourth
Amendment’s general rule. All of that changes when the OISA turns to the question of
whether reasonable suspicion existed in this case to detain Jackson. The OISA views
the facts of this case in a highly elastic manner, so as to venture the assertion that
somehow Jackson “connect[ed] himself to the criminal activity at issue.” 39 Although the
OISA is correct that reasonable suspicion does not require “absolute certainty,” 40 and
that, at times, and without any wrongdoing by law enforcement, detentions based upon
38 Commonwealth v. Alexander, 243 A.3d 177, 196 (Pa. 2020) (citation omitted). See
also Commonwealth v. Ortiz, 197 A.3d 256, 262 (Pa. 2018) (Wecht, J., dissenting):
As I have explained in the past, both for the Court and individually, [that a
party has not expressly asked that a precedent be overruled] should not be
a categorical impediment to overruling indefensible, unsustainable, or
conflicting case law. See William Penn Sch. Dist. v. Pennsylvania Dep't of
Educ., 170 A.3d 414, 447 n.49 (Pa. 2017) (“We would encourage the
perpetuation of poorly reasoned precedent were we to permit ourselves to
revisit the soundness of our case law only when expressly invited to do so
based upon a given party's tactical decision of whether to attack adverse
case law frontally . . . or to attempt more finely to distinguish the adverse
decisions. The scope of our review is not so circumscribed.”); accord,
Commonwealth v. Cagey, 179 A.3d 458, 473 n.7 (Pa. 2018) (Wecht, J.,
concurring).
Id. at 262 n.1 (citations modified).
39 OISA at 22.
40 Id. at 21 (emphasis omitted).
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reasonable suspicion may ensnare innocent people, 41 it does not follow that the
Constitution allows every stop that emanates from even the slightest whiff of criminal
activity.
While not quite as rigorous a standard as probable cause, 42 reasonable suspicion
requires more than simply a police officer (or a court) with a “hunch.” 43 An investigative
detention must be “justified at its inception” with “specific and articulable facts” (and with
the reasonable inferences that can be drawn from those facts) that warrant the belief that
the detainee is involved in criminal activity. 44 Typically, the determination of reasonable
suspicion happens on the street during rapidly evolving circumstances. For this reason,
courts cannot demand “scientific certainty,” and instead must rely upon the detaining
officer’s “common sense judgments and inferences about human behavior.” 45 However,
“in making such judgments and drawing such inferences, officers must weigh the totality
of the circumstances,” including “the presence of additional facts [that] might dispel
reasonable suspicion.” 46
There is no dispute that the gunshots heard by Officer Swinarski in this case gave
rise to a reasonable suspicion that a crime had been committed. As the OISA notes, in
41 Id. at 19 (citing Illinois v. Wardlow, 528 U.S. 119, 125-26 (2000)).
42 Kansas v. Glover, ___ U.S. ___, 140 S. Ct. 1183, 1188 (2020) (explaining that
reasonable suspicion always has been a “less demanding” standard that “can be
established with information that is different in quantity or content than that required to
establish probable cause”) (quoting Alabama v. White, 496 U.S. 325, 330 (1990)).
43 Id. at 1187 (emphasizing that a “mere hunch does not create reasonable
suspicion”) (quoting Prado Navarette v. California, 572 U.S. 393, 397 (2014) (some
quotation marks omitted)).
44 Terry, 392 U.S. at 20, 21.
45 Wardlow, 528 U.S. at 125.
46 Glover, 140 S. Ct. at 1191; see also Interest of T.W., 261 A.3d 409, 429 (Pa. 2021)
(Dougherty, J., concurring).
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Philadelphia, the sound of gunfire within city limits presents compelling evidence of, at
the very least, a violation of the City’s no-discharge ordinance, even setting aside the
possibility of a violent crime in progress. 47 However, the mere presence of criminal
activity does not provide law enforcement officers carte blanche authority to detain
anyone near the scene of that activity. There must also exist a reasonable suspicion that
the person sought to be detained was involved in that criminal activity. As this Court
explained in Commonwealth v. Hicks, “[t]he individualized nature of the justification for
the seizure is central to the Terry doctrine, inherent in the requirement that an
investigative detention must be premised upon specific and articulable facts particular to
the detained individual.” 48 And, as always, in reviewing whether the officer was justified
in detaining a particular individual, we must evaluate the totality of the circumstances. 49
With regard to the facts that we may review in performing this totality assessment,
our standard of review is well-settled. Because Jackson prevailed before the suppression
court, we are bound by the suppression court’s factual findings, so long as they are
supported by the record, 50 and we consider only those facts that support Jackson, as the
47 See OISA at 22, n.15. Although I agree with the OISA that the sound of gunfire is
sufficient evidence of criminal activity in this case, it is critical to highlight that this will not
always be the case. For instance, rural areas or smaller towns might not share the strict
regulations that may prevail in urban areas. Alternatively, the sounds of gunfire might
emanate from a nearby shooting range or from hunting grounds. The point is that gunfire
should not, ipso facto, be treated as evidence of criminality in all instances. Like all
assessments of reasonable suspicion, the totality of the circumstances must be
considered, and that includes the circumstances surrounding the gunfire, such as time,
location, and local regulations. Not all sounds of gunfire are the same.
48 208 A.3d 916, 938 (Pa. 2019).
49 Id. at 927 (citing Cortez, 449 U.S. at 417-18).
50 Commonwealth v. Yandamuri, 159 A.3d 503, 516 (Pa. 2017) (citation omitted).
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prevailing party, and those of the Commonwealth that are uncontradicted. 51 It was 8
o’clock at night in Philadelphia. Officer Swinarski was on patrol when he heard gunshots.
The officer turned his cruiser around and headed in the direction of the shots. Notably,
the location was not a “high crime area.” 52 Officer Swinarski saw Jackson running on a
sidewalk. Jackson was not looking back. Jackson did not have a gun in either hand. He
was not bleeding, limping, or otherwise displaying any signs of injury. His clothes were
not tattered or torn so as to suggest he had been involved in any fight or struggle. He did
not reverse course or change direction upon seeing the police officer. Instead, Jackson
replied to Officer Swinarski when the officer asked why he was running. Jackson appears
to have told Officer Swinarski the truth. Jackson said that he was “running from the
gunshots.”53 Suffering no obvious injuries, and presumably wanting to continue putting
as much distance between himself and the gunshots, Jackson kept running, even though
51 Commonwealth v. Mason, 247 A.3d 1070, 1080 (Pa. 2021) (citing Commonwealth
v. Brown, 996 A.2d 473, 476 (Pa. 2010)). The OISA gets the standard of review
backwards. Rather than viewing the facts in favor of Jackson, the prevailing party below,
the OISA instead employs a standard of review that emphasizes the Commonwealth’s
evidence. See OISA at 14 n.12 (quoting Commonwealth v. E.M., 735 A.2d 654, 657 (Pa.
1999)). This is plainly erroneous. See Summers v. Certainteed Corp., 997 A.2d 1152,
1160 (Pa. 2010) (emphasizing that appellate courts must utilize the correct standard of
review).
52 See Notes of Testimony (“N.T.”), 2/11/2021, at 52 (suppression court ruling: “I do
not find that this was a high-crime area. I don’t believe evidence was on the record to
support that determination. All we have here is an individual on the street, engaging in
running, and he -- and with good reason because there had been shots fired.”). As our
jurisprudence currently stands, the location at which a police officer seizes a person
matters. If it matters that some areas are “high crime areas,” then, just as importantly, it
has to matter that the area involved in this case is not a “high crime area.” Thus, not only
must we consider the trial court’s rejection of Officer Swinarski’s testimony regarding the
character of the area as part of a totality of the circumstances assessment; we are bound
by it.
53 Id. at 17.
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Officer Swinarski then chose to demand that Jackson stop. At precisely that moment,
Jackson was seized for purposes of Article I, Section 8 of the Pennsylvania Constitution. 54
Considering all of these circumstances, I discern no error in the trial court’s
conclusion that reasonable suspicion was lacking to justify the seizure. None of these
facts connect Jackson in any way to criminal activity. The only objectively reasonable
conclusion that can be drawn from these facts is that Jackson was, as he stated, running
away from the gunshots. Nothing about Jackson’s behavior, or the police officer’s
observations of him, suggest that Jackson was the person that fired the shots minutes
before, or that he was in any way involved in the shooting. The only reasonable inference
that can be drawn from the officer’s initial observation is that Jackson was near (not even
at) the scene of a crime. It has long been the law of Pennsylvania that a person’s
presence at or near a crime scene, without more, is not evidence of that person’s
participation in that crime. 55 Proximity may “have aroused speculation or suspicion on
the officers’ part but [does] not meet the standard and quality of evidentiary proof required
to satisfy the mandate of” our Constitution. 56
Nor did Jackson’s decision not to stop after briefly responding to Officer Swinarski
give rise to reasonable suspicion. The initial interaction between the officer and Jackson
was a “mere encounter.” As such, Jackson was not required to stop. 57 Jackson was well
within his constitutional rights to run right past the officer and continue his attempt to get
54 See Commonwealth v. Jones, 378 A.2d 835, 839 (Pa. 1977) (holding that a seizure
occurs upon a command to stop from a police officer).
55 See Commonwealth v. Goslee, 234 A.2d 849, 851 (Pa. 1967).
56 Id. (quoting Commonwealth v. One 1958 Plymouth Sedan (Plaza), 211 A.2d 536,
540 (Pa. 1965)).
57 See Commonwealth v. Ellis, 662 A.2d 1043, 1047 (Pa. 1995) (citing Florida v.
Royer, 460 U.S. 491 (1983); Florida v. Bostick, 501 U.S. 429 (1991)).
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away from the gunshots. Doing what our Constitutions permit is not evidence of criminal
behavior; a person may not constitutionally be punished for exercising his rights. 58
Jackson’s failure to stop and converse further with the officer adds nothing to the
reasonable suspicion calculus.
Our task here is to review the totality of the circumstances, not just those facts or
circumstances that might now suggest a link, however tenuous, to the criminal activity at
issue. That totality necessarily includes “the presence of additional facts [that] might
dispel reasonable suspicion.” 59 There are many such facts. Despite this constitutional
command, the OISA disregards all of them. After hearing gunshots and seeing Jackson
running, Officer Swinarski apparently had a hunch that Jackson was the shooter. Maybe
the hunch was good. Maybe the hunch was bad. Either way, there was no evidence to
elevate that hunch into a legally actionable level of suspicion. The officer did not see
Jackson with a gun. Jackson was not covered in blood. Jackson made no incriminating
statements, nor did he otherwise inculpate himself. He did not flee at the sight of the
officer. These circumstances should have eliminated any hunch that Officer Swinarski
may have harbored. The totality of the circumstances points to only one conclusion:
Jackson was doing precisely what he said he was doing, running from gunshots. There
is nothing criminal about that.
In reaching the opposite conclusion, the OISA casts aside the fact that running
from gunshots is a normal, indeed instinctive, human reaction. The OISA excludes this
consideration because Jackson relies upon Officer Swinarski’s testimony that he (the
58 See generally Commonwealth v. Rivera, ___ A.3d ___, 2023 WL 4095438, at *19
(Pa. 2023) (Wecht, J., concurring) (explaining that constitutional rights are stripped of
their force and meaning if a person is punished for exercising them).
59 Glover, 140 S. Ct. at 1191; see also Interest of T.W., 261 A.3d 409, 429 (Pa. 2021)
(Dougherty, J., concurring).
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officer) also believed that running from gunshots is “normal.”60 The OISA is correct that
a law enforcement officer’s subjective beliefs or intentions are irrelevant in a reasonable
suspicion analysis. We are required to examine the facts and circumstances available to
the officer at the time of the interaction objectively, not as the officer interpreted them in
his mind. 61 That does not mean that we must ignore a fact that also is objectively and
obviously true, just because it is (unsurprisingly) consistent with the officer’s subjective
beliefs.
While we are prohibited from including in our assessment specifically what Officer
Swinarski believed constitutes “normal” behavior, we are not required to disregard the
fact that, objectively, running from a dangerous situation (here, gunfire) is normal, rational,
reasonable, and non-criminal behavior. Our review is not as circumscribed as the OISA
makes it out to be. In fact, it is fair to say that it would be objectively abnormal for a person
not to run from such a situation. If nothing more, the fact that Jackson’s behavior
conformed to what would constitute objectively normal behavior under the circumstances
underscores the absence of facts or circumstances linking Jackson to the criminal activity.
His behavior strongly suggests just the opposite.
Ultimately, the OISA rests its decision that reasonable suspicion existed in this
case upon two circumstances, neither of which is convincing. First, the OISA emphasizes
that Jackson was a “single individual” running from the gunshots. 62 This emphasis is
perplexing. The OISA fails to explain how or why Jackson’s solitude is relevant to the
reasonable suspicion calculus. It is objectively reasonable behavior for a civilian to run
60 See OISA at 26 (quoting N.T., 2/11/2021, at 26, 30-31).
61 See Terry, 392 U.S. at 21 (mandating that “it is imperative that the facts be judged
against an objective standard”).
62 OISA at 22 (emphasis in original).
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from the sound or sight of gunfire. For some unexplained reason, however, the OISA
requires that a person who flees from a dangerous situation must first stop to find a
partner or assemble a group, lest that person become a criminal suspect. The OISA
offers no convincing rationale for this arbitrary and irrelevant distinction. I fail to discern
how, without more, being alone or being with others makes any difference for purposes
of reasonable suspicion, or how this case would have been any different if Jackson
happened to be running alongside one or more others. Had Jackson been accompanied,
would today’s OISA rule that Officer Swinarski was bound to let them leave unimpeded
because they were together instead of alone? Merely to put the question is to reveal the
absurdity of the OISA’s premise.
It is unsurprising that the OISA cannot cite a case from this Court to support its
emphasis upon Jackson being unaccompanied in service of its reasonable suspicion
determination. I know of no such case, nor has my research turned one up. The OISA’s
efforts must also have proved unavailing, because, for support of its holding, the OISA
invokes two non-binding cases, 63 one from Ohio, State v. Hairston, 64 and one from our
own Superior Court, Bryant, a case that the OISA disapproves. In any event, these cases
do not stand for the proposition that a person’s solitude alone contributes to reasonable
suspicion. In fact, only one of the cases involved a person who was alone at the time of
his apprehension.
In Hairston, while on patrol, two police officers heard gunshots and immediately
drove in the direction of the sounds. Within a minute of hearing the shots, the officers
63 See Koken v. Reliance Ins. Co., 893 A.2d 70, 83 (Pa. 2006) (noting that decisions
of our sister states are not binding on this Court); Marion v. Bryn Mawr Trust Co., 288
A.3d 76, 93 (Pa. 2023) (“Finally, and in any case, it is axiomatic that Superior Court
decisions and lower federal court cases do not bind this Court.”).
64 126 N.E.3d 1132 (Ohio 2019).
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observed Hairston walking alone, talking on a cell phone. The officers immediately
detained and frisked Hairston, finding a gun. 65 The Ohio Supreme Court ultimately ruled
that reasonable suspicion existed under those circumstances. 66 In Bryant, however,
when police officers heard six gunshots and proceeded to the area from which the sounds
emanated, they saw two males running in a high-crime area on a crowded street upon
which no one else was running. 67 It is troubling that the OISA finds it pertinent to the
existence of reasonable suspicion in this case that Jackson was alone, notwithstanding
the fact that the cases which the OISA cites provide no support for that proposition.
Indeed, Hairston involved only one person, while Bryant involved two.
Second, the OISA stresses the fact that Jackson did not seek Officer Swinarski’s
aid or protection as he ran away from the gunshots. This factor fares no better in the
analysis than the first. The OISA does not explain convincingly how this leads to the
conclusion that Jackson was involved in the criminal activity, does not provide any on-
point, binding cases that stand for this dubious contention, and does not demonstrate that
the cases upon which it does rely—Hairston and Bryant—warrant finding relevance in this
fact. An objectively reasonable person fleeing from a dangerous, active shooter might
well decide in the moment that putting as much distance as possible between himself or
herself and the shooter is the safest option. Others might decide instead that stopping to
seek assistance from a police officer might be the safest option. There is no reason to
believe, and the OISA offers none, that a person’s choice of one course of action over the
other implicates that person in criminal activity. There is nothing inherently criminal or
suspicious about Jackson’s decision not to stop and ask Officer Swinarski for help.
65 Id. at 1135.
66 Id. at 1136.
67 Bryant, 866 A.2d at 1144-45.
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Not only do Hairston and Bryant fail to support the two primary bases for the OISA’s
conclusion; both cases are also readily distinguishable and non-binding. 68 Start with
Hairston. It is a crucial, if not determinative, distinction that the detention in that case
occurred in a high-crime area, 69 whereas the area in which Jackson was apprehended
was not. Hairston was found walking from the scene talking on a cellular phone less than
a minute after the shooting. Jackson, on the other hand, was running from the area and
told Officer Swinarski that he was fleeing from gunshots.
Aside from the sound of gunshots, there is little in common between Hairston and
this case, and certainly not enough to incorporate that non-binding Ohio decision into our
own case law. In addition to Hairston’s factual dissimilarities, I would assign no legal
value to its rationale. Neither the OISA nor the Ohio Supreme Court explains how the
objectively innocuous behavior of walking down a street while talking on a phone is in any
way indicative of being involved in criminal conduct. The result of Hairston, and of today’s
decision, is to create a bubble of presumptive criminality that allows police to detain
anyone within the proximity of a shooting, regardless of the objective reasonableness of
the citizen’s behavior or how little that behavior demonstrates involvement in criminal
activity. We should reject Hairston outright, not welcome it with open arms.
Bryant is even more dissimilar—and just as non-binding—as Hairston. In Bryant,
two men were seen rounding a corner in a high-crime area shortly after gunshots rang
out. They were the only two people running on a crowded street immediately after the
shots were heard. Their disparate behavior relative to the others on the street reasonably
raised the police officers’ suspicions. Nothing like that occurred here. Jackson was not
the sole runner amidst a crowd of non-runners. He was the only person on the street,
68 See supra n.61.
69 Hairston, 126 N.E. 3d at 1136.
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and he did nothing objectively to indicate that he was involved in the shooting. Even if
we were bound by the Superior Court’s decision in Bryant (which, of course, we are not),
it would compel no particular conclusion, as the facts of that case differ significantly from
those in the record before this Court.
The impact of today’s decision cannot be overstated. The sad reality is that mass
shootings are now endemic, and perhaps epidemic, in our society. There are shootings
at shopping malls, supermarkets, schools, movie theaters, and day care facilities. All
persons fleeing from those attacks now are in danger of having their privacies invaded
unless they happen to satisfy the heretofore unstated, arbitrary criteria that might satisfy
today’s OISA. Terry was never intended to apply in this manner. Terry stops were meant
to be focused, limited, individualized detentions that are brief in duration and narrow in
scope. Terry did not validate what today’s OISA would approve. Rather than demanding
the specific and articulable individual grounds necessary to justify the “serious intrusion
upon the sanctity of the person [that] may inflict great indignity and arouse strong
resentment,” the OISA accepts artificial and legally untethered conjectures and hunches.
Unsurprisingly, given its inability to connect what happened in this case to any
reasonable criminal suspicion, the OISA provides little substantive retort to my criticism
of its conclusions. Instead, the OISA chooses to tilt at the hypothetical with which I began
this opinion. Here again, the OISA misses the mark. The purpose of such a rhetorical
device is not to spin a good yarn. The purpose is to show just how far the OISA analysis
would reach. Thus, while the OISA labors to distinguish my opening scenario, the fact
remains that, distilled to its essence, the case before this Court involves an identical set
of core facts: the sound of gunshots, a police officer lacking any knowledge of who fired
the shots, and a person running alone from the vicinity whence those shots emanated,
without asking for help. Those facts are indistinguishable from the present case. The
[J-7-2023] [OISA: Brobson, J.] - 20
OISA cannot (and does not) explain why Jackson is a criminal suspect, while the “you” in
my opening hypothetical is not.
The OISA shrugs off the obvious parallels between my hypothetical diner and
Jackson by leaning once again upon the “axiomatic” feature of the law that “entirely
innocent people may be caught up in a Terry stop.”70 It is one thing when an innocent
person is seized by police officers who possess a constitutionally adequate level of
reasonable suspicion. It is a different thing entirely to facilitate seizures of innocent people
by refusing to hold police to the Terry standard. And that is where the OISA would now
take us.
The sound of gunshots induces immediate and instinctive fear and anxiety. Unlike
soldiers and police officers, civilians do, and should, run from those sounds. After today,
such instinctive flight turns citizens into criminal suspects. The OISA’s protestations
notwithstanding, 71 that result is far more broad than what Terry, the Fourth Amendment,
and Article I, Section 8 of the Pennsylvania Constitution permit.
Justice Donohue joins this opinion in support of reversal.
70 OISA at 30.
71 Id. at 31 n.18.
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