[J-7-2023]
IN THE SUPREME COURT OF PENNSYLVANIA
EASTERN DISTRICT
TODD, C.J., DONOHUE, DOUGHERTY, WECHT, MUNDY, BROBSON, JJ.
COMMONWEALTH OF PENNSYLVANIA, : No. 24 EAP 2022
:
Appellee : Appeal from the Judgment of
: Superior Court entered on
: December 21, 2021, at No. 560
v. : EDA 2021 (reargument denied
: February 16, 2022) vacating and
: remanding the Order entered on
KEVIN JACKSON, : February 11, 2021, in the Court of
: Common Pleas, Philadelphia
Appellant : County, Criminal Division at
: No. CP-51-CR-0000888-2020
:
: ARGUED: March 8, 2023
OPINION IN SUPPORT OF AFFIRMANCE
JUSTICE BROBSON DECIDED: September 28, 2023
In this discretionary matter, Appellant Kevin Jackson (Jackson) appeals from the
judgment of the Superior Court, which vacated a pretrial order of the Court of Common
Pleas of Philadelphia County (suppression court) and remanded the matter for further
proceedings. The suppression court granted Jackson’s motion to suppress evidence
recovered after a police officer detained Jackson via what is commonly known as a Terry
stop. 1 While the suppression court concluded that the officer lacked the requisite
reasonable suspicion to detain Jackson, the Superior Court reached the opposite
conclusion. Upon review, we agree with the Superior Court insofar as it concluded that
the police officer had reasonable suspicion to detain Jackson under the particular facts of
1 Terry v. Ohio, 392 U.S. 1 (1968).
this case. In so doing, we reiterate that an investigatory stop is lawful pursuant to Terry
if it is supported by reasonable suspicion that the detained individual was, or was about
to be, engaged in criminal activity. In making that determination, we review the totality of
the circumstances available to the detaining officer at the time of the stop to discern
whether there was a particularized and objective basis for suspecting the detained
individual of criminal activity. Accordingly, we affirm.
I. BACKGROUND
On December 10, 2019, at approximately 7:50 p.m., Philadelphia Police Officer
Christopher Swinarski (Officer Swinarski) was on routine patrol in a marked vehicle at or
near the 4900 block of Penn Street when he heard the sound of two to four gunshots.
Officer Swinarski drove his vehicle northbound on Penn Street and then turned
westbound onto Harrison Street, making his way to the location from where he believed
the gunshots emanated. At that time, Officer Swinarski encountered Jackson running
eastbound down Harrison Street on the sidewalk. Officer Swinarski exited his vehicle
and asked Jackson why he was running, and Jackson responded that he was running
“from the gunshots.” 2 (N.T., 2/11/2021, at 17, 21.) At that point, Officer Swinarski
commanded Jackson to stop. Jackson did not stop as commanded, however, leading
Officer Swinarski to chase him on foot. During the chase, Officer Swinarski observed
Jackson discard several items. Officer Swinarski eventually caught up with Jackson and
handcuffed him. Thereafter, Officer Swinarski recovered the items Jackson discarded,
which included a cell phone and a handgun. 3
2 The suppression court found that Jackson responded that he was running “because [he]
heard gunshots.” (N.T., 02/11/2021, at 51.) As correctly noted by the Superior Court,
testimony from the suppression hearing reveals that Jackson responded that he was
running “from the gunshots.” (Id. at 17, 21.)
3 According to the suppression hearing transcript,Officer Swinarski then returned to
Jackson and informed him that he was under arrest. (N.T., 02/11/2021, at 18.) Officer
(continued…)
[J-7-2023] - 2
Based on the foregoing, the Commonwealth of Pennsylvania (Commonwealth)
charged Jackson by criminal information with firearms not to be carried without a license
and carrying a firearm in public in Philadelphia without a license. 4 Jackson filed a pretrial
motion in the suppression court, seeking to suppress the Commonwealth’s evidence by
alleging that Officer Swinarski lacked the reasonable suspicion necessary to conduct a
lawful Terry stop in violation of Jackson’s right to be free from unreasonable searches
and seizures pursuant to the Fourth Amendment to the United States Constitution and
Article 1, Section 8 of the Pennsylvania Constitution. 5
The suppression court held an evidentiary hearing at which only Officer Swinarski
testified. Officer Swinarski generally explained the foregoing events leading to Jackson’s
apprehension. Of further relevance here, as to his reasoning behind ordering Jackson to
stop, Officer Swinarski explained:
[Officer Swinarski:] At that point, I told Mr. Jackson to stop. I gave him
multiple verbal commands to stop because I didn’t know if he’s injured. He
could have been shot, in shock. He could have [been] a good witness or
Swinarski also searched Jackson at that time and discovered 14 vials of suspected
marijuana. (Id.) Notably, this case concerns only the propriety of Officer Swinarski’s
initial command to Jackson to stop running.
4 See Sections 6106(a)(1) and 6108 of the Crimes Code, 18 Pa. C.S. §§ 6106(a)(1)
and 6108, respectively.
5 The Fourth Amendment to the United States Constitution provides:
The right of the people to be secure in their persons, houses, papers, and
effects, against unreasonable searches and seizures, shall not be violated,
and no Warrants shall issue, but upon probable cause, supported by Oath
or affirmation, and particularly describing the place to be searched, and the
persons or things to be seized.
Article I, Section 8 of the Pennsylvania Constitution similarly mandates:
The people shall be secure in their persons, houses, papers and
possessions from unreasonable searches and seizures, and no warrant to
search any place or to seize any person or things shall issue without
describing them as nearly as may be, nor without probable cause,
supported by oath or affirmation subscribed to by the affiant.
[J-7-2023] - 3
possibly an offender at that time. As I approached Mr. Jackson on foot, he
fled . . . .
(N.T., 02/11/2021, at 17.) On cross-examination, Jackson’s counsel questioned Officer
Swinarski further regarding Jackson running from the gunshots:
[Jackson’s counsel:] He told you he’s running from the [gun]shots that you
just heard?
[Officer Swinarski:] Yes.
[Jackson’s counsel:] And you’ve been a police officer eight years?
[Officer Swinarski:] That’s correct.
[Jackson’s counsel:] And so people begin to shoot and some people run.
That’s standard? That’s normal, right?
[Officer Swinarski:] Absolutely.
[Jackson’s counsel:] Normal behavior of people, right?
[Officer Swinarski:] Yes.
[Jackson’s counsel:] Especially—even—even people who are not involved.
When people start shooting, people run, right?
[Officer Swinarski:] That’s correct.
(Id. at 26.) Officer Swinarski also admitted that he did not witness Jackson clutching or
holding anything, or reaching toward his waistband or his pockets, nor did he witness
Jackson doing anything criminal during the pursuit. (See id. at 26-27, 31-32, 34.)
Officer Swinarski additionally explained that Jackson was not under criminal
investigation:
[Jackson’s counsel:] So, anyway, you did tell us that you expected him to
acquiesce to your command to stop, which he does not. He continues to
run, right?
[Officer Swinarski:] He continues to run.
[Jackson’s counsel:] And at that moment, he was—he was free to go. He
wasn’t under your investigation for anything. He was free to go away,
wasn’t he?
[Officer Swinarski:] When?
[Jackson’s counsel:] When that gentleman—when this citizen was running
down the street, he was not under police investigation for any criminal
activity, was he?
[Officer Swinarski:] For no—for criminal activity, no.
[J-7-2023] - 4
[Jackson’s counsel:] Okay. And then you began to pursue him, correct?
[Officer Swinarski:] After he disregarded the stop and continued to run.
[Jackson’s counsel:] And you said stop a few times, right?
[Officer Swinarski:] Yes. Multiple times.
(Id. at 30-31.)
Officer Swinarski reiterated, however, that he commanded Jackson to stop
because he believed that Jackson could have been a victim, witness, or perpetrator:
[Jackson’s counsel:] If he’d appeared injured, meaning limping or . . .
seemed like he was infirmed while he was running, you would have
documented that, right?
[Officer Swinarski:] Absolutely. . . . [A]t that time, I did not know if he was
shot or not. Like I said, somebody could be in shock. If they were—if they
were—I’ve seen many people in shock who didn’t think they were shot.
[Jackson’s counsel:] I understand that.
[Officer Swinarski:] But, like I said, he could be—he could be the victim or
the witness or possibly an offender at that time.
[Jackson’s counsel:] Or—or, four, he could be nothing and just running from
the [gun]shots?
[Officer Swinarski:] Absolutely.
(Id. at 27.) Officer Swinarski also explained that Jackson was the lone individual on the
street at the time. (Id. at 25.)
Based on the foregoing testimony, the suppression court granted Jackson’s pretrial
motion to suppress the Commonwealth’s evidence. The suppression court announced
its factual findings and legal conclusions from the bench:
[T]he point at which the officer detained the defendant was after they
first had their mere encounter. And the defendant explained his reasons for
running and he proceeded to run. At that point, the officer issued a
command for Mr. Jackson to stop. And that would trigger the investigatory
detention standard, which requires that he needed to have a reasonable
basis to issue that command to order Mr. Jackson to stop.
I find that on these facts, he did not have reasonable suspicion to
detain Mr. Jackson. 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 [gun]shots fired.
[J-7-2023] - 5
The officer made every indication that, at [that] point, he had not seen
the defendant engaging in any criminal activity, or have any reason to
suggest that the defendant had engaged in criminal activity, nor did the
officer, at that point, witness the defendant holding any objects or trying to
hide any objects. He had no reasonable suspicion to detain Mr. Jackson.
(Id. at 51-52.) Accordingly, the suppression court concluded that Officer Swinarski
conducted an unlawful Terry stop, and it suppressed the firearm and other evidence
recovered by Officer Swinarski following the detention.
In a published decision, the Superior Court vacated the suppression court’s order
and remanded for further proceedings. 6 Commonwealth v. Jackson, 271 A.3d 461
(Pa. Super. 2021). Like the suppression court, the Superior Court first recognized that,
when Officer Swinarski ordered Jackson to stop running, he commenced an investigative
detention under Terry, and Officer Swinarski, therefore, required reasonable suspicion
that Jackson was involved in criminal activity to detain him. See id. at 463-64 (citing
Terry, 392 U.S. at 30). The Superior Court also noted that “Pennsylvania courts have
consistently followed Terry in stop and frisk cases, including those in which the appellants
allege protections pursuant to Article I, [Section] 8 of the Pennsylvania Constitution.” Id.
at 464 (quoting In re D.M., 781 A.2d 1161, 1163 (Pa. 2001)). Accordingly, the Superior
Court opined that Article I, Section 8 provides no greater protections concerning
investigative detentions than the Fourth Amendment. 7
6 The Commonwealth took an interlocutory appeal as of right pursuant to Pennsylvania
Rule of Appellate Procedure 311(d) on the basis that the suppression court’s ruling
substantially handicapped its prosecution. See Pa.R.A.P. 311(d) (providing that, “[i]n a
criminal case, under the circumstances provided by law, the Commonwealth may take an
appeal as of right from an order that does not end the entire case where the
Commonwealth certifies in the notice of appeal that the order will terminate or
substantially handicap the prosecution”).
7 The Superior Court also observed that, “[w]hen reviewing an order granting suppression,
[its] scope of review only includes ‘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.’” Jackson, 271 A.3d at 463 (quoting Commonwealth v. Lindblom,
854 A.2d 604, 606 (Pa. Super. 2004), appeal denied, 868 A.2d 1198 (Pa. 2005)). Further,
(continued…)
[J-7-2023] - 6
As to its review of the investigative detention at issue, the Superior Court
explained:
In order to determine whether the police had a reasonable suspicion [when
they executed a Terry stop], the totality of the circumstances—the whole
picture—must be considered. Based upon that whole picture, the detaining
officer[] must have a particularized and objective basis for suspecting the
particular person stopped of criminal activity. [I]n determining whether the
officer acted reasonably . . . due weight must be given, not to his inchoate
and unparticularized suspicion or ‘hunch,’ but to the specific reasonable
inferences which he is entitled to draw from the facts in light of his
experience.
Id. (citations and some quotation marks omitted) (some alterations in original) (quoting In
re D.M., 781 A.2d at 1163; United States v. Cortez, 449 U.S. 411, 417-18 (1981); and
Terry, 392 U.S. at 27).
Turning to the facts of this case, the Superior Court recounted that Officer
Swinarski heard gunshots and drove his marked car toward the location from where he
believed the gunshots emanated. Arriving near that area shortly thereafter, Officer
Swinarski discovered Jackson running in Officer Swinarski’s direction and away from the
location of the gunshots. Jackson was the lone individual running on the street. Thus,
the Superior Court explained that “[t]his piqued the officer’s curiosity that . . . Jackson
might have some tie to the gunshots.” Id. The Superior Court noted that, exiting his
cruiser, Officer Swinarski “followed up on his hunch by asking . . . Jackson ‘what he was
running from,’” which the Superior Court commended as “precisely the type of continued
investigation that the Fourth Amendment demands police undertake before detaining
someone.” Id. (emphasis in original) (quoting N.T., 02/11/2021, at 17).
The Superior Court then referenced its decision of Commonwealth v. Bryant,
866 A.2d 1143 (Pa. Super.), appeal denied, 876 A.2d 392 (Pa. 2005), where it concluded
where police have “invaded the privacy of an individual without a warrant,” the Superior
Court noted that it must review whether the police possessed reasonable suspicion under
a de novo standard. Id. (citing Ornelas v. United States, 517 U.S. 690 (1996)).
[J-7-2023] - 7
that an officer has reasonable suspicion to conduct an investigative detention where the
“officer reasonably deduces that the individual is potentially ‘a perpetrator, victim, or
eyewitness of a possible shooting.’” Jackson, 271 A.3d at 464 (quoting Bryant, 866 A.2d
at 1147). In Bryant, the Superior Court explained, an officer likewise did not personally
observe a suspected, recent shooting, but the “totality of the circumstances (being in a
high-crime area, the police officer hearing gunshots and seeing three men running from
the area where [the officer] believed the gunshots originated) justified a Terry stop.” Id.
Although Jackson attempted to distinguish Bryant on the grounds that the
suppression court in the instant matter found that Jackson was not in a high-crime area
and the defendant and his companions in Bryant were the only people fleeing on a
crowded street, the Superior Court rejected Jackson’s arguments. Specifically, the
Superior Court emphasized that, prior to ordering Jackson to stop, Officer Swinarski
inferred from the totality of the circumstances that Jackson “could be the victim, the
witness, or possibly an offender at that time.” Id. (quoting N.T., 02/11/2021, at 27). That
“real-time assessment of a highly dangerous, rapidly developing situation,” the Superior
Court opined, “was well reasoned” and comported with Bryant. Id.
The Superior Court further explained:
Where an individual . . . admits to law enforcement that he is fleeing from
gunshots and is the lone person who may have more information or
connection to the shooting, this creates reasonable suspicion for the police
to stop him and further investigate. In this instance, [Officer Swinarski’s]
inference that . . . Jackson was probably connected to the active-shooter
event was quite reasonable, regardless of the neighborhood where these
events unfolded. Thus, the Commonwealth’s failure to establish the
high-crime-area factor is irrelevant.
Id. at 464-65 (emphasis added). Accordingly, the Superior Court concluded that the
suppression court erroneously held that Officer Swinarski initiated an unconstitutional
Terry stop when he directed Jackson to stop running so that he could investigate the
gunshots further. As a result, the Superior Court vacated the suppression court’s order
[J-7-2023] - 8
and remanded for the suppression court to determine whether Officer Swinarski’s actions
following the lawful Terry stop were likewise constitutional.
II. ISSUE
Jackson filed a petition seeking this Court’s discretionary review, which we granted
to consider the following issue, as stated by Jackson:
Did the Superior Court err, and enter a ruling which conflicts with holdings
of the Pennsylvania Supreme Court, the United States Supreme Court, and
other panels of the Pennsylvania Superior Court when it held that the
[suppression] court committed an error of law when it suppressed evidence
recovered after a person was seized by police even though the officer did
not suspect the individual stopped of criminal activity?
Commonwealth v. Jackson, 283 A.3d 175 (Pa. 2022) (per curiam) (alteration in original).
III. ARGUMENTS
Jackson contends that the Superior Court erroneously vacated the suppression
court’s holding and issued an opinion that conflicts with the precedent of the United States
Supreme Court, this Court, and other decisions of the Superior Court, when it held that
Officer Swinarski had reasonable suspicion to detain Jackson. This is particularly so,
Jackson insists, where the Superior Court recognized the correct standard for reasonable
suspicion to conduct a Terry stop—i.e., that “the detaining officers must have a
particularized and objective basis for suspecting the particular person stopped of criminal
activity”—but misapplied that standard and failed to acknowledge certain “dispositive”
facts in this matter. (Jackson’s Br. at 22, 31 (emphasis in original) (quoting Jackson,
271 A.3d at 464).) Jackson specifically faults the Superior Court for ignoring Officer
Swinarski’s admissions at the suppression hearing that Jackson’s conduct was not
unusual or suspicious, that Jackson engaged in absolutely normal behavior by running
from gunshots, and that he did not suspect Jackson of being involved in criminal activity
[J-7-2023] - 9
in concluding that Officer Swinarski had a reasonable basis for suspecting Jackson of
criminal activity. 8
Jackson further emphasizes that the location was not a high-crime area and that
he was not fleeing from police at the time of the stop; rather, he was a lone individual
already running away from a dangerous situation and toward Officer Swinarski after
hearing gunshots. Jackson adds that he even answered Officer Swinarski’s question as
he was running. Jackson also argues that the Superior Court’s reliance on Bryant is
erroneous insofar as the Superior Court misinterpreted that case to allow for the detention
of an individual based on any lesser standard than that required under Terry and its
progeny. Jackson further reiterates that Bryant is factually distinguishable from the
instant matter and instead directs this Court’s attention to Commonwealth v. Rohrbach,
267 A.3d 525 (Pa. Super. 2021), arguing that it compels the same outcome in this case.
In sum, Jackson insists that the Superior Court’s decision in the instant case
dispenses with the proper requirement for reasonable suspicion and conflicts with
volumes of state and federal case law establishing that an officer must have a
particularized and reasonable suspicion of criminal activity relative to a particular
individual to conduct a Terry stop. According to Jackson, “condoning officers to order
people who are not suspected of criminal activity to stop as they flee from danger is
dangerous, counter-productive[,] and unconstitutional.” (Jackson’s Br. at 40.) For those
reasons, Jackson urges this Court to reverse the decision of the Superior Court.
8 Jackson points out that the Commonwealth has the burden at a suppression hearing of
proving, by a preponderance of the evidence, that the challenged evidence was not
obtained in violation of a defendant’s rights. (Jackson’s Br. at 30 (citing In re L.J., 79 A.3d
1073, 1086 (Pa. 2013)).) He also notes that it is well-settled in Pennsylvania that
“contraband discarded during an unlawful pursuit must be suppressed.” (Id. (quoting
Commonwealth v. Taggart, 997 A.2d 1189, 1196 (Pa. Super. 2010), appeal denied,
17 A.3d 1254 (Pa. 2011)).)
[J-7-2023] - 10
The Commonwealth responds first by recognizing that an investigatory stop is
lawful “where the police officer reasonably suspects that the person apprehended is
committing or has committed a criminal offense.” (Commonwealth’s Br. at 9-10 (quoting
Interest of T.W., 261 A.3d 409, 417 (Pa. 2021)).) Contrary to Jackson’s assertions, the
Commonwealth contends that the Superior Court correctly held, pursuant to the foregoing
standard, that Officer Swinarski possessed the requisite reasonable suspicion to detain
Jackson. The Commonwealth points to the following specific facts:
Officer Swinarski was on patrol in an area of Philadelphia that had seen a
large increase in gun violence. The officer heard multiple gunshots and
drove in the direction of the gunfire. As he did so, he saw [Jackson] running
down the street coming from the direction of the [gun]shots. [Jackson] was
the only pedestrian in the area. As [Officer Swinarski] explained, no other
people were “out” at the time.[9] Officer Swinarski stopped his car, got out,
and asked [Jackson] why he was running. [Jackson] told the officer he was
running from the gunshots.
(Id. at 10 (citation and footnotes omitted).) Adding that the incident occurred after dark,
the Commonwealth insists that these circumstances provided a sufficient basis for Officer
Swinarski to stop Jackson for a brief investigation in relation to the apparent shooting that
had just occurred. The Commonwealth references Bryant and several other cases from
various jurisdictions in support of its argument, relying particularly upon the Supreme
Court of Ohio’s decision in State v. Hairston, 126 N.E.3d 1132 (Ohio), cert. denied,
140 S.Ct. 390 (2019). The Commonwealth also asserts that Jackson’s reliance on
Rohrbach is misplaced because that case is factually distinguishable.
Additionally, the Commonwealth attacks any reliance on the suppression court’s
conclusion that the area was not a “high-crime area” as “pure semantics.”
9 The Commonwealth emphasizes that, although it may be normal behavior for people to
run from gunshots, this is not a situation where Officer Swinarski saw a large group of
people running from gunshots and randomly selected one person from that group to
detain. Instead, Jackson was the only person running on the street. (Commonwealth’s
Br. at 20.)
[J-7-2023] - 11
(Commonwealth’s Br. at 16.) While conceding that Officer Swinarski “did not intone the
magic words ‘high-crime area,’” the Commonwealth emphasizes that he explained that
the locality had seen “a large increase in gun violence,” which is a more detailed and
useful description particularly given that Officer Swinarski stopped Jackson based upon
his potential involvement in a shooting. (Id. (quoting N.T., 02/11/2021, at 20).) Thus, the
Commonwealth urges that Officer Swinarski’s more detailed description should not
undermine the conclusion that Officer Swinarski had reasonable suspicion to detain
Jackson. Noting that the existence of a “high-crime area” is not necessary to establish
reasonable suspicion, but is sometimes relevant for purposes of analyzing the probability
of whether a person’s conduct is linked to criminal activity, the Commonwealth explains
that Jackson’s conduct of running down the street was clearly related to criminal activity
here because, inter alia, his own words established that he was running from the gunshots
and not for some other non-criminal reason. The Commonwealth submits that “the fact
that [Jackson] was running as a direct result of a crime that had just occurred provided a
more compelling reason to suspect him of criminal conduct than if he had simply been
running in a location that had a reputation for being a ‘high-crime area,’ but where the
police had no knowledge of any actual crime having recently been committed.” (Id. at 19.)
The Commonwealth also contests Jackson’s claim that Officer Swinarski expressly
conceded in his testimony that he did not suspect Jackson of being involved in criminal
activity and submits that, in any event, “such a concession would be irrelevant because
the question of whether an officer had reasonable suspicion to stop someone ‘is an
objective one.’”10 (Id. at 22 (quoting Commonwealth v. Holmes, 14 A.3d 89, 96
10 In disputing whether Officer Swinarski actually conceded that Jackson was not
suspected of criminal activity in his testimony, the Commonwealth notes that the
exchange between Jackson’s counsel and Officer Swinarski went as follows:
(continued…)
[J-7-2023] - 12
(Pa. 2011)).) Thus, viewing the facts of this case objectively, the Commonwealth insists
that an officer in Officer Swinarski’s position could reasonably suspect Jackson of
involvement in criminal activity, regardless of Officer Swinarski’s subjective beliefs.
(Id. at 23 (quoting Brigham City, Utah v. Stuart, 547 U.S. 398, 404 (2006) (“An action is
‘reasonable’ under the Fourth Amendment, regardless of the individual officer’s state of
mind, as long as the circumstances, viewed objectively, justify [the] action.” (some internal
quotation marks omitted) (emphasis and alteration in original))).) 11
[Jackson’s counsel:] When that gentleman—when this citizen was running
down the street, he was not under police investigation for any criminal
activity, was he?
[Officer Swinarski:] For no—for criminal activity, no.
(Commonwealth’s Br. at 22 n.9 (quoting N.T., 02/11/2021, at 31).) “Given the awkward
wording of the question,” the Commonwealth submits that Officer Swinarski may not have
understood what Jackson’s counsel meant by “under police investigation.” (Id.) In any
event, the Commonwealth notes that Officer Swinarski testified twice that Jackson was
“possibly an offender,” thereby dispelling any doubt as to whether Officer Swinarski
suspected Jackson of being involved in criminal activity. (Id. (quoting N.T., 02/11/2021,
at 17, 27).)
11 Alternatively, the Commonwealth argues that Officer Swinarksi’s investigative detention
of Jackson would be constitutional under the law applicable in other contexts, such as
those involving the detention of witnesses or victims of criminal activity or DUI
checkpoints. See, e.g., Commonwealth v. Beaman, 880 A.2d 578 (Pa. 2005) (applying
three-prong balancing test to determine whether sobriety checkpoint was unconstitutional
seizure in violation of Fourth Amendment to United States Constitution and Article I,
Section 8 of Pennsylvania Constitution); Illinois v. Lidster, 540 U.S. 419 (2004) (applying
same balancing test to suspicionless driving checkpoint set up in search for suspect in
fatal hit-and-run incident); State v. Fair, 302 P.3d 417, 431 (Or. 2013) (“[I]t is permissible
under [Article I, Section 9 of the Oregon Constitution] for officers to stop and detain
someone for on-the-scene questioning whom they reasonably suspect can provide
material information about a crime’s commission.”).
[J-7-2023] - 13
IV. DISCUSSION 12
A. Reasonable Suspicion
Given the nature of the parties’ constitutional arguments as well as the Superior
Court’s decision, we first consider Terry stops generally and the reasonable suspicion
standard necessary for a police officer to conduct an investigative detention. The Fourth
Amendment to the United States Constitution and Article I, Section 8 of the Pennsylvania
Constitution contain similar text, both mandating that the people be free from
“unreasonable searches and seizures” and that any intrusion by the government, whether
federal or state, upon persons, houses, papers, and effects or possessions, be supported
by “probable cause.” U.S. Const., amend. IV; Pa. Const. art I, § 8. By necessity, Terry—
which “involved a brief, on-the-spot stop on the street and a frisk for weapons”—
represents an exception to the probable cause requirement:
Terry for the first time recognized an exception to the requirement that
Fourth Amendment seizures of persons must be based on probable
cause. . . . [S]ince the intrusion involved in a “stop and frisk” was so much
less severe than that involved in traditional “arrests,” the Court declined to
stretch the concept of “arrest”—and the general rule requiring probable
12 As noted by the Superior Court, we review determinations of reasonable suspicion de
novo on appeal. Ornelas, 517 U.S. at 699 (“We therefore hold that as a general matter
determinations of reasonable suspicion and probable cause should be reviewed de novo
on appeal. Having said this, we hasten to point out that a reviewing court should take
care both to review findings of historical fact only for clear error and to give due weight to
inferences drawn from those facts by resident judges and local law enforcement
officers.”). Jackson is likewise correct that the Commonwealth bears the burden at a
suppression hearing of proving “by a preponderance of the evidence that the challenged
evidence is admissible.” Commonwealth v. DeWitt, 608 A.2d 1030, 1031 (Pa. 1992);
Pa.R.Crim.P. 581(H). Moreover,
[w]hen reviewing rulings of a suppression court, we must consider only the
evidence of the prosecution and so much of the evidence for the defense
as remains uncontradicted when read in the context of the record as a
whole. Where the record supports the findings of the suppression court, we
are bound by those facts and may reverse only if the legal conclusions
drawn therefrom are in error.
Commonwealth v. E.M., 735 A.2d 654, 657 (Pa. 1999) (citation omitted).
[J-7-2023] - 14
cause to make arrests “reasonable” under the Fourth Amendment—to
cover such intrusions. Instead, the Court treated the stop-and-frisk intrusion
as a sui generis “rubric of police conduct[.]”
Dunaway v. New York, 442 U.S. 200, 208-09 (1979) (citation omitted). As the United
States Supreme Court has explained,
a “stop and frisk” [i]s constitutionally permissible if two conditions are
met. First, the investigatory stop must be lawful. That requirement
is met in an on-the-street encounter, Terry determined, when the
police officer reasonably suspects that the person apprehended is
committing or has committed a criminal offense. Second, to proceed
from a stop to a frisk, the police officer must reasonably suspect that
the person stopped is armed and dangerous.
Arizona v. Johnson, 555 U.S. 323, 326-27 (2009).
As indicated above, this case concerns only the investigatory stop, not a frisk. In
this regard, Terry permitted such an intrusion under circumstances “where a police officer
observes unusual conduct which leads him reasonably to conclude in light of his
experience that criminal activity may be afoot.” Terry, 392 U.S. at 30 (emphasis added).
In Cortez, although recognizing that reasonable suspicion is an “elusive concept,” the
United States Supreme Court emphasized that “[a]n investigatory stop must be justified
by some objective manifestation that the person stopped is, or is about to be, engaged in
criminal activity.” Cortez, 449 U.S. at 417 (citing, inter alia, Brown v. Texas, 443 U.S. 47,
51 (1979) (“[T]he Fourth Amendment requires that a seizure must be based on specific,
objective facts indicating that society’s legitimate interests require the seizure of the
particular individual, or that the seizure must be carried out pursuant to a plan embodying
explicit, neutral limitations on the conduct of individual officers.”)); see also United States
v. Goodrich, 450 F.3d 552, 560 (3d Cir. 2006) (recognizing that “an officer cannot conduct
a Terry stop simply because criminal activity is afoot” and that, “[i]nstead, the officer must
have a particularized and objective basis for believing that the particular person is
suspected of criminal activity” (emphasis in original) (quoting United States v. Brown,
159 F.3d 147, 149 (3d Cir. 1998), cert. denied, 525 U.S. 1184 (1999))). The Cortez
[J-7-2023] - 15
decision further advised that “the detaining officers must have a particularized and
objective basis for suspecting the particular person stopped of criminal activity” based on
“the whole picture.” Cortez, 449 U.S. at 417-18. The United States Supreme Court
continued:
The idea that an assessment of the whole picture must yield a
particularized suspicion contains two elements, each of which must be
present before a stop is permissible. First, the assessment must be based
upon all the circumstances. The analysis proceeds with various objective
observations, information from police reports, if such are available, and
consideration of the modes or patterns of operation of certain kinds of
lawbreakers. From these data, a trained officer draws inferences and
makes deductions—inferences and deductions that might well elude an
untrained person.
The process does not deal with hard certainties, but with
probabilities. Long before the law of probabilities was articulated as such,
practical people formulated certain common sense conclusions about
human behavior; jurors as factfinders are permitted to do the same—and
so are law enforcement officers. Finally, the evidence thus collected must
be seen and weighed not in terms of library analysis by scholars, but as
understood by those versed in the field of law enforcement.
The second element contained in the idea that an assessment of the
whole picture must yield a particularized suspicion is the concept that the
process just described must raise a suspicion that the particular individual
being stopped is engaged in wrongdoing. Chief Justice Warren, speaking
for the Court in Terry[,] said that, “[t]his demand for specificity in the
information upon which police action is predicated is the central teaching of
this Court’s Fourth Amendment jurisprudence.”
Id. at 418 (emphasis omitted) (quoting Terry, 392 U.S. at 21 n.18).
With respect to the nature of the inquiry being an objective one considering the
totality of the circumstances, the United States Supreme Court in Terry explained:
[I]n justifying the particular intrusion the police officer must be able to point
to specific and articulable facts which, taken together with rational
inferences from those facts, reasonably warrant that intrusion. The scheme
of the Fourth Amendment becomes meaningful only when it is assured that
at some point the conduct of those charged with enforcing the laws can be
subjected to the more detached, neutral scrutiny of a judge who must
evaluate the reasonableness of a particular search or seizure in light of the
[J-7-2023] - 16
particular circumstances. And in making that assessment it is imperative
that the facts be judged 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?
Terry, 392 U.S. at 21-22 (footnotes omitted). Indeed, more generally, the United States
Supreme Court has observed that “reasonableness”—the “touchstone of the Fourth
Amendment”—is “predominantly an objective inquiry.” Ohio v. Robinette, 519 U.S. 33, 39
(1996) (quoting Florida v. Jimeno, 500 U.S. 248, 250 (1991)); Ashcroft v. al-Kidd,
563 U.S. 731, 736 (2011) (quoting Indianapolis v. Edmond, 531 U.S. 32, 47 (2000)).
We ask whether “the circumstances, viewed objectively, justify [the
challenged] action.” Scott v. United States, 436 U.S. 128, 138 . . . (1978).
If so, that action was reasonable “whatever the subjective intent” motivating
the relevant officials. Whren v. United States, 517 U.S. 806, 814 . . . (1996).
This approach recognizes that the Fourth Amendment regulates conduct
rather than thoughts, Bond v. United States, 529 U.S. 334, 338[] n.2
. . . (2000); and it promotes evenhanded, uniform enforcement of the law,
Devenpeck v. Alford, 543 U.S. 146, [153-54] . . . (2004).
Ashcroft, 563 U.S. at 736 (emphasis and one alteration in original). With little exception,
the United States Supreme Court has made clear that, if an intrusion is objectively
reasonable, the subjective beliefs or motives of an officer are of no import to the
analysis. 13 See, e.g., Scott, 436 U.S. at 138 (“We have . . . held that the fact that the
officer does not have the state of mind which is hypothecated by the reasons which
provide the legal justification for the officer’s action does not invalidate the action taken
as long as the circumstances, viewed objectively, justify that action.”); Whren, 517 U.S.
at 813 (recognizing that United States Supreme Court has been “unwilling to entertain
Fourth Amendment challenges based on the actual motivations of individual officers” and
13 Such exceptions include “special-needs and administrative-search cases.” Ashcroft,
563 U.S. at 736. Additionally, “programmatic purposes may be relevant to the validity of
Fourth Amendment intrusions undertaken pursuant to a general scheme without
individualized suspicion,” such as “suspicionless vehicle checkpoints set up for the
purpose of detecting illegal narcotics.” Id. at 737-38 (emphasis omitted) (quoting
Edmond, 531 U.S. at 45-46).
[J-7-2023] - 17
that “[s]ubjective intentions play no role in ordinary, probable-cause Fourth Amendment
analysis”); Bond, 529 U.S. at 338 n.2 (“The parties properly agree that the subjective
intent of the law enforcement officer is irrelevant in determining whether that officer’s
actions violate the Fourth Amendment.”); Illinois v. Rodriguez, 497 U.S. 177, 183-86
(1990) (holding that officer’s mistake of fact does not invalidate warrantless entry of home
under Fourth Amendment so long as mistake is reasonable); Heien v. North Carolina,
574 U.S. 54, 60-61, 66 (2014) (holding that reasonable suspicion can rest on “mistaken
understanding of the scope of a legal prohibition” if mistake of law—just as mistake of
fact—is “objectively reasonable” and that Court “do[es] not examine the subjective
understanding of the particular officer involved” (emphasis in original)); Brigham, 547 U.S.
at 404-05 (observing that “officer’s subjective motivation is irrelevant” to Fourth
Amendment reasonableness analysis and, thus, concluding it did not matter whether
officers’ warrantless entry into home was made “to arrest respondents and gather
evidence against them or to assist the injured and prevent further violence”); United
States v. Knights, 534 U.S. 112, 121-22 (2001) (holding that warrantless search of
probationer’s apartment that was supported by reasonable suspicion and authorized by
probation condition comported with Fourth Amendment and explaining that, “[b]ecause
[the Court’s] holding rests on ordinary Fourth Amendment analysis that considers all the
circumstances of a search, there is no basis for examining official purpose” of search).
Moreover, it is axiomatic that reasonable suspicion requires more than “a mere
‘hunch’” but “considerably less than proof of wrongdoing by a preponderance of the
evidence, and obviously less than is necessary for probable cause.” Navarette v.
California, 572 U.S. 393, 397 (2014) (some internal quotation marks omitted) (quoting
Terry, 392 U.S. at 27; United States v. Sokolow, 490 U.S. 1, 7 (1989)); see also United
States v. Arvizu, 534 U.S. 266, 274 (2002) (“Although an officer’s reliance on a mere
[J-7-2023] - 18
[]‘hunch’[] is insufficient to justify a stop, the likelihood of criminal activity need not rise to
the level required for probable cause, and it falls considerably short of satisfying a
preponderance of the evidence standard.” (internal citations omitted)). Rather,
[t]he Fourth Amendment does not require a policeman who lacks the
precise level of information necessary for probable cause to arrest to simply
shrug his shoulders and allow a crime to occur or a criminal to escape. On
the contrary, [T]erry recognizes that it may be the essence of good police
work to adopt an intermediate response. A brief stop of a suspicious
individual, in order to determine his identity or to maintain the status quo
momentarily while obtaining more information, may be most reasonable in
light of the facts known to the officer at the time.
Adams v. Williams, 407 U.S. 143, 145-46 (1972) (citation omitted). In this regard, the
United States Supreme Court also has “consistently recognized that reasonable suspicion
‘need not rule out the possibility of innocent conduct.’” Navarette, 572 U.S. at 403 (quoting
Arvizu, 534 U.S. at 277). Terry involved “ambiguous” conduct that “was by itself lawful”
and “susceptible of an innocent explanation” but “also suggested that the individuals
were” about to engage in criminal activity. Illinois v. Wardlow, 528 U.S. 119, 125 (2000).
In allowing brief detentions “to resolve the ambiguity[,] . . . Terry accepts the risk that
officers may stop innocent people.” Id. at 125-26 (citation omitted); see also Gomez v.
United States, 597 A.2d 884, 890 (D.C. 1991) (“[S]uspicious conduct by its very nature is
ambiguous, and the principal function of the investigative stop is to quickly resolve that
ambiguity” (quoting State v. Anderson, 454 N.W.2d 763, 766 (Wis. 1990))). Moreover,
“officers, like jurors, may rely on probabilities in the reasonable suspicion context.”
Kansas v. Glover, 140 S.Ct. 1183, 1190 (2020).
Turning to our own precedent, as the Superior Court acknowledged, this Court
follows Terry and its progeny in assessing the constitutionality of investigative detentions.
See In re D.M., 781 A.2d at 1163 (“Pennsylvania courts have consistently followed Terry
in stop and frisk cases, including those in which the appellants allege protections pursuant
[J-7-2023] - 19
to Article 1, Section 8 of the Pennsylvania Constitution.”). 14 In accord with that precedent,
this Court has repeatedly observed that the analysis is based on an objective view of the
totality of the circumstances. See, e.g., Holmes, 14 A.3d at 96 (“The determination of
whether an officer had reasonable suspicion that criminality was afoot so as to justify an
investigatory detention is an objective one, which must be considered in light of the totality
of the circumstances.”); Commonwealth v. Chase, 960 A.2d 108, 120 (Pa. 2008)
(“Reasonable suspicion sufficient to stop a motorist must be viewed from the standpoint
of an objectively reasonable police officer.”); Commonwealth v. Rogers, 849 A.2d
1185, 1189 (Pa. 2004) (“In order to determine whether the police officer had reasonable
suspicion, the totality of the circumstances must be considered.”); Commonwealth v.
Zhahir, 751 A.2d 1153, 1156-57 (Pa. 2000) (explaining that “[t]he fundamental inquiry
[relative to reasonable suspicion] is an objective one” that “requires an evaluation of the
totality of the circumstances, with a lesser showing needed to demonstrate reasonable
suspicion in terms of both quantity or content and reliability” (citations omitted)).
In this vein, our Court has similarly recognized that the subjective motives or beliefs
of an officer do not factor into the “reasonableness” of a detention that is objectively based
on reasonable suspicion. See Chase, 960 A.2d at 120 (citing Whren and observing that,
“if police can articulate a reasonable suspicion of a Vehicle Code violation, a constitutional
inquiry into the officer’s motive for stopping the vehicle is unnecessary” and further
explaining that “even stops based on factual mistakes generally are constitutional if the
mistake is objectively reasonable”). We have likewise emphasized the significance of the
requirement that reasonable suspicion be particularized to the individual to be detained.
See Commonwealth v. Hicks, 208 A.3d 916, 938 (Pa.) (“The individualized nature of the
14 It is worth noting that Jackson does not argue that the Pennsylvania Constitution affords
him greater protection than the United States Constitution under the circumstances
presented.
[J-7-2023] - 20
justification for a 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.”), cert. denied, 140 S.Ct. 645 (2019); In re D.M., 781 A.2d
at 1163 (“Based upon that whole picture the detaining officers must have a particularized
and objective basis for suspecting the particular person stopped of criminal activity.”
(quoting Cortez, 449 U.S. at 417-18)). Further, we have opined that “reasonable
suspicion does not require that the activity in question must be unquestionably criminal
before an officer may investigate further.” Rogers, 849 A.2d at 1190.
Based on the foregoing, we take this opportunity to reiterate that, in determining
whether an officer has reasonable suspicion to conduct an investigative detention, we
examine the totality of the circumstances at issue to discern 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. But we emphasize that reasonable
suspicion is not an exact science that requires absolute certainty that an individual was
or was about to be involved in criminal activity, as that would undermine Terry’s purpose
as an investigative tool that requires an even lesser showing than probable cause. For
that reason, we allow officers to rely on probabilities and their experience to make
split-second decisions to investigate and prevent crime and to promote their own safety—
so long as their suspicion of criminal activity is articulable, objectively reasonable, and
particularized to the individual to be detained based on the circumstances as a whole.
Furthermore, if reasonable suspicion supports the investigative detention based on an
objective view of the totality of the circumstances, we do not inquire into the subjective
views of an officer in conducting an investigative detention. With that made clear, we
proceed to consider the investigative detention at issue in this case.
[J-7-2023] - 21
B. Officer Swinarski’s Investigative Detention of Jackson
As previously described, Officer Swinarski heard gunshots while he was on routine
patrol and began to travel toward the direction from which he believed they emanated.
Shortly thereafter, Officer Swinarski encountered a single individual—Jackson—running
from what he believed to be the source of the gunshots. Officer Swinarski then asked
Jackson what he was doing, at which point Jackson responded that he was “running from
the gunshots,” thereby connecting himself to the criminal activity at issue. 15 Notably,
Jackson continued on his way after responding to Officer Swinarski and gave no
indication that he sought Officer Swinarski’s protection or aid during the interaction
leading up to the stop. Based on these facts and the rational inferences gleaned
therefrom, we would conclude that Officer Swinarski had a particular and objective basis
for suspecting that Jackson may have just committed a criminal offense, thereby justifying
a seizure of Jackson for purposes of conducting an investigatory detention under Terry
and its progeny.
In reaching our conclusion, we find this case to be more akin to Hairston and
Bryant than Rohrbach. In Hairston, two police officers were responding to an unrelated
call one evening when they heard gunshots nearby and traveled to where they believed
the gunshots originated. Hairston, 126 N.E.3d at 1134-35. That location was an area
15 While gunshots may not in every circumstance indicate criminal activity, it would be
unreasonable for a police officer in Officer Swinarski’s position not to suspect that the
sound of gunshots in an area where the possession and discharge of firearms are
regulated strongly suggests that a crime—and a potentially serious crime—likely occurred
or was occurring and to proceed to investigate. See, e.g., Sections 6106(a)(1) and 6108
of the Crimes Code; Phila. Code § 10-810(1) (prohibiting discharge of firearms recklessly
and without reasonable cause); Phila. Code § 10-814(2) (prohibiting, inter alia, acquisition
or transfer of any firearm in Philadelphia without license); and Phila. Code § 10-818(2)
(providing that, generally, “[n]o person shall carry a firearm upon the public streets or
upon any public property at any time” without license). Indeed, the parties do not dispute
that the sound of gunshots in this matter was indicative of criminal activity as opposed to
some other non-criminal event.
[J-7-2023] - 22
outside of an elementary school where drug activity and other crimes were known to take
place at night. Id. at 1135. Roughly 30 to 60 seconds after hearing the gunshots, the
officers observed the defendant, who was the only person in the area, walking across a
street and talking on a cellphone. Id. The officers detained the defendant and discovered
a firearm on his person. Id. The Supreme Court of Ohio concluded that the “cumulative
facts” demonstrated that the officers possessed reasonable suspicion to detain the
defendant given that the officers “personally heard the sound of [close-by] gunshots” and
did not rely on secondhand information or radio dispatch; one officer “knew from personal
experience that crime often occurred at night in the area where” the investigative
detention occurred; the investigative detention occurred at night; and, “most important[ly,]
. . . the stop occurred very close in time to the gunshots and [the defendant] was the only
person in the area from which the shots emanated.” Id. at 1136. Notably, the Ohio
Supreme Court faulted the lower court for reaching the opposite conclusion by “focusing
on individual factors in isolation rather than on the totality of the circumstances.”
Id. at 1137. The Ohio Supreme Court emphasized that, while the court below “may have
been correct in concluding that none of the individual factors that the state relied on was
sufficient in itself to create a reasonable suspicion,” the facts when taken together and
viewed “through the eyes of a reasonable police officer” did create the requisite
reasonable suspicion to stop the defendant “to see if he was the source of or had
information about the gunshots.” Id.
Similarly, in Bryant, two police officers were on routine patrol in a vehicle around
8 p.m. “when they heard six ‘popping’ sounds” that the officers believed were gunshots.
Bryant, 866 A.2d at 1144. Moments later, the officers observed the defendant and two
other males running from the general vicinity of where the possible gunshots originated,
which the officers knew to be a high-crime area. Id. at 1144-47. The individuals had
[J-7-2023] - 23
turned a corner onto a crowded street where no one else was running. Id. at 1144-45.
One of the officers detained the individuals and, while conducting a subsequent pat-down
of the defendant, discovered narcotics. Id. at 1145. The Superior Court concluded that
the objective facts before the officer at the time he conducted the investigative detention—
i.e., the defendant running from the location of gunshots heard by the officer in the
evening in a high-crime area and on a street where no one else was running—were
sufficient to establish reasonable suspicion. Id. at 1146-47. Specifically, the Superior
Court opined that a reasonable officer in that position could have concluded that the
defendant was “a perpetrator, victim, or eyewitness of a possible shooting,” thereby
justifying a Terry stop “for the purpose of determining [the defendant’s] identity and
maintaining the status quo while obtaining more information.” Id. at 1147.
In Rohrbach, the defendant parked his vehicle in a gym parking lot that was known
for “high-drug activity.” Rohrbach, 267 A.3d at 527. Although the owner of the lot had
made reports to police about suspicious vehicles/activity in the lot before and the police
regularly patrolled the lot, the owner did not make a report on the date in question, nor
had he described the defendant’s vehicle to police in the past. Id. Two state troopers
entered the lot in their marked vehicle where they discovered the defendant parked in a
“not well-lit area,” so the troopers drove toward the passenger side of the defendant’s
vehicle to investigate for a possible overdose or someone needing assistance. Id. Upon
noticing the troopers, the defendant began backing out of the parking spot. Id. The
troopers then honked their car horn, which all parties to the case agreed constituted a
seizure for an investigative detention. Id. at 527, 528 n.2. After the defendant stopped
his vehicle, the troopers approached on foot and discovered the smell of marijuana
emanating from the vehicle. Id. at 527. The officers ultimately searched the vehicle and
discovered a cannabis cigarette. Id.
[J-7-2023] - 24
On appeal, the Superior Court concluded that the troopers lacked reasonable
suspicion to detain the defendant because the troopers did not have a particularized basis
for suspecting the defendant of criminal activity. Rather, because the troopers relied on
vague reports of random criminal conduct police had received in the past and not any
specific report about the defendant’s vehicle, the Superior Court opined that there was
“as much likelihood that [the troopers’] car (or anyone else’s) fit the owner’s reports. On
these facts, no one had reasonable grounds to stop the troopers’ cruiser for an
investigative detention, any more than the troopers had reasonable grounds to stop [the
defendant’s] for one.” Id. at 529. Thus, as the Superior Court emphasized, there was no
particularized connection between the alleged criminal activity that occurred in the parking
lot and the defendant. Rather, the troopers had only observed the defendant’s “car pull
away from them in a high-crime area,” which was insufficient to support reasonable
suspicion to detain the defendant. Id. at 529-30.
The particularized nature of the reasonable suspicion standard is evident in
Hairston and Bryant. The officers in Hairston witnessed the defendant, the lone individual
in the area, walking away from the location of gunshots less than a minute after the
gunshots were personally heard by the officers. Likewise, the officers in Bryant viewed
the defendant and two individuals running from the location of gunshots onto a crowded
street where no one else was running moments after the officers heard the gunshots. In
this case, Officer Swinarski witnessed Jackson running from the location of gunshots
shortly after he heard them, Jackson was the lone individual running on the street, and
Jackson explained that he was running from the gunshots. Thus, this is not a case like
[J-7-2023] - 25
Rohrbach where the criminal activity in question lacked a sufficient connection to the
defendant. 16
In support of his argument that Officer Swinarski lacked reasonable suspicion to
detain him, Jackson relies heavily on Officer Swinarski’s testimony at the suppression
hearing, wherein, Jackson contends, Officer Swinarski conceded that Jackson engaged
in “normal” conduct and that he did not suspect Jackson of criminal activity at the time of
their encounter. (See N.T., 02/11/2021, at 26, 30-31.) In other words, Jackson asks this
Court to assess the constitutionality of the investigative detention here based on Officer
Swinarski’s subjective beliefs or motives in the heat of the moment. Jackson’s request,
however, is not in accord with the precedent outlined above, which teaches that the
constitutionality of the detention here must be judged through an objective lens. Having
concluded that reasonable suspicion supported Officer Swinarski’s command to Jackson
to stop under an objective view of the facts as a whole, Officer Swinarski’s subjective
beliefs or intentions do not factor into our reasonable suspicion analysis. See Brigham,
16 Insofar as Hairston, Bryant, and Rohrbach considered the level of crime in the area at
issue in the reasonable suspicion analysis, we reiterate that the suppression court found
that the area where Officer Swinarski encountered Jackson was not a high-crime area
and that the Superior Court found the high-crime-area factor to be irrelevant to its
analysis. Notably, in so doing, the Superior Court observed that the use of this factor has
garnered criticism. See Jackson, 271 A.3d at 465 n.4 (citing cases for, inter alia, “criticism
that the high-crime-area factor is an illogical restriction on the powers of police in
low[-]crime areas” and “depriv[es] citizens of equal protections of the constitution”). On
this point, the Pennsylvania District Attorneys Association (Association) has filed an
amicus curiae brief in support of the Commonwealth, wherein it insists that “[c]ourts can
consider whether a stop occurs in a ‘high[-]crime area[]’ when determining whether an
officer possessed reasonable suspicion to initiate a stop” pursuant to applicable
precedent and that this Court should reject any suggestion that the high-crime-area factor
is no longer viable. (See Association’s Br. at 5.) For their part, the parties do not contest
the validity of the high-crime-area factor generally but, instead, dispute whether that factor
is present or otherwise required to be present in this case for purposes of establishing
reasonable suspicion. Like the Superior Court, we do not find that the high-crime-area
factor is determinative of the reasonable suspicion analysis in this case, and, therefore,
we will not address it further in this Opinion.
[J-7-2023] - 26
547 U.S. at 404 (“An action is ‘reasonable’ under the Fourth Amendment, regardless of
the individual officer’s state of mind, ‘as long as the circumstances, viewed objectively,
justify [the] action.” (emphasis and alteration in original) (quoting Scott, 436 U.S. at 138));
see also Whren, Bond, Heien, and Rodriguez. Thus, even accepting that Officer
Swinarski conceded that he did not subjectively believe Jackson was engaged in criminal
activity leading up to the stop—which is not at all clear when viewing his testimony as a
whole, see supra at pages 4-5—that concession does not invalidate the stop.
Furthermore, we agree with the Superior Court that Officer Swinarski was
evaluating in real time a potentially “highly dangerous, rapidly developing situation.”
Jackson, 271 A.3d at 464. In concluding that Officer Swinarski had the requisite
reasonable suspicion to conduct an investigative detention of Jackson, we observe that
Officer Swinarski was not required to rule out the possibility that Jackson was engaging
in innocent conduct—as a mere witness or victim of criminal activity or otherwise—prior
to the stop. Nonetheless, we are quick to underscore that, as this case falls under the
Terry paradigm, it “does not implicate a scenario involving ‘special needs, beyond the
normal need for law enforcement[]’ [or other situation] such as would dispense with the
requirement of individualized suspicion.” Hicks, 208 A.3d at 937 (quoting Edmond,
531 U.S. at 37). The United States Supreme Court has never sanctioned the investigative
detention of a witness or a victim under Terry. Cf. Terry, 392 U.S. at 34 (White, J.,
concurring) (“There is nothing in the Constitution which prevents a policeman from
addressing questions to anyone on the streets. Absent special circumstances, the person
approached may not be detained or frisked but may refuse to cooperate and go on his
way.”); Wardlow, 528 U.S. at 125 (“[W]hen an officer, without reasonable suspicion or
probable cause, approaches an individual, the individual has a right to ignore the police
and go about his business.”). Thus, while Terry does not require an officer to rule out the
[J-7-2023] - 27
possibility that the individual is a mere witness to or victim of criminal activity prior to
detaining the individual for purposes of an investigative detention, and a lawful
investigative detention may ultimately bear out those facts, it is not enough for the
circumstances to establish a reasonable suspicion that the individual is only a witness or
victim. It is axiomatic that an investigative detention under Terry requires individualized
suspicion that the person detained is engaged in criminal activity. As such, we disapprove
of the Superior Court’s decision to the extent that it suggests that Terry permits a police
officer to detain an individual that merely has “more information” about or a “connection
to” a criminal event, Jackson, 271 A.3d at 464-65, absent an objective basis for
suspecting that the particular individual is or is about to be involved or engaged in criminal
activity. 17
Relatedly, we acknowledge that some facts presented in this case—such as
running from gunshots—may be viewed as innocent in and of themselves. In this vein,
our decision should not be interpreted as holding that a police officer will have reasonable
suspicion to conduct an investigative detention in every circumstance where the officer
encounters an individual or individuals running from the sound or location of gunshots.
As we recognized in Hicks, per se rules necessarily detract from the evaluation of the
totality of the circumstances and the particularized focus on the individual that are
necessary for an investigative detention under Terry and Cortez. See Hicks, 208 A.3d
at 939 (“Such is a danger of per se rules, pursuant to which the totality of the
circumstances inquiry—the whole picture—is subordinated to the identification of one,
single fact.”). But where certain facts will not establish reasonable suspicion when taken
17 Additionally, because we conclude that reasonable suspicion existed to support Officer
Swinarski’s investigative detention of Jackson under Terry, we need not address the
Commonwealth’s alternative argument that the detention was proper under the law
applicable to other contexts as referenced supra note 11.
[J-7-2023] - 28
alone, those same facts may establish reasonable suspicion in the aggregate. See
Commonwealth v. Cook, 735 A.2d 673, 677 (Pa. 1999); Terry, 392 U.S. at 22 (explaining
that officer discharged “legitimate investigative function” when approaching individuals,
noting that officer observed individuals engage in “a series of acts, each of them perhaps
innocent in itself, but which taken together warranted further investigation”); Arvizu,
534 U.S. at 277-78 (“Undoubtedly, each of these factors alone is susceptible of innocent
explanation . . . . Taken together, we believe they sufficed to form a particularized and
objective basis for . . . stopping the vehicle, making the stop reasonable within the
meaning of the Fourth Amendment.”). As such, while the individual facts of this case may
not have supported a finding of reasonable suspicion standing alone, we conclude that,
based on the totality of the circumstances of this case viewed under an objective lens,
Officer Swinarski possessed the reasonable suspicion necessary to detain Jackson.
At the outset of his Opinion in Support of Reversal, Justice Wecht pens a story to
set the stage for his ensuing legal analysis. OISR at 1-2. In his story, Justice Wecht
evaluates the reasonableness of a Terry stop from the perspective of “you,” the reader,
who recently concluded a meal with friends and a bottle (or two, or three) of Cabernet
Sauvignon. Toward the end of the evening, as the reader exits the establishment, gunfire
erupts, prompting the reader to flee the area. The reader’s entirely understandable effort
to run away from the gunshots, however, is briefly interrupted by a police officer who is
not running away from the gunshots, but toward them at risk to his/her personal safety.
For Justice Wecht, the reader would clearly find this stop unreasonable and, thus,
unconstitutional. See id. at 2-3. Stated otherwise, the responding officer’s effort to detain
briefly the reader to assess the situation violated the reader’s constitutional right to be
free from an unreasonable seizure. After all, the reader was not involved in the gunshots
directly and was engaging in perfectly innocent and understandable conduct. The law,
[J-7-2023] - 29
however, does not evaluate the reasonableness of a temporary detention from the
perspective of an innocent person. In Justice Wecht’s tale, the responding police officer
did not know “you,” the reader, were an innocent bystander, let alone a wine enthusiast.
It is axiomatic that entirely innocent people may be caught up in a Terry stop. The police
officer also did not know whether the reader was fleeing the gunshots for safety or fleeing
them to avoid apprehension by law enforcement. The law does not require a police officer
to resolve this question before making a Terry stop. The question, for Fourth Amendment
purposes, is not whether the innocent person reasonably fleeing gunshots would feel
inconvenienced, burdened, or violated. The question, instead, is whether, from the
perspective of the police officer, there was reasonable suspicion to believe that “you” may
have been involved in the criminal activity.
As we stressed in Hicks, moreover, the individualized nature of reasonable
suspicion is central to the Terry regime. Here, because Jackson was the lone individual
running directly from the location of a crime just after it occurred and admitted to running
because of the gunshots, there can be no doubt that Officer Swinarski could suspect
Jackson of the purported criminal activity and not anyone else. The Supreme Court of
Ohio similarly emphasized this point in Hairston. Thus, contrary to Justice Wecht’s
suggestions, these points are salient to our objective review of the totality of the
circumstances of this case. Indeed, appellate courts must be vigilant to avoid viewing
facts in isolation when making reasonable suspicion determinations; for example, that
Jackson did not have blood on his clothes; that Jackson did not ask for help from Officer
Swinarski; that Jackson was the lone individual on the street; or that Jackson responded
to Officer Swinarski that he was “running from the gunshots.” Each fact alone may be
insufficient for reasonable suspicion, but our standard of review requires that we consider
the totality of the circumstances at issue. When doing so, it becomes clear that an officer
[J-7-2023] - 30
in Officer Swinarski’s position could reasonably have suspected Jackson of criminal
activity, despite that his conduct could be also be viewed as normal. 18
V. Conclusion
Under the Fourth Amendment to the United States Constitution and Article I,
Section 8 of the Pennsylvania Constitution, and pursuant to Terry and its progeny, an
officer’s investigative detention of an individual must be supported by reasonable
suspicion. In analyzing whether an officer possessed the requisite reasonable suspicion
to justify the detention, we view the totality of the circumstances to determine whether the
officer had a particularized and objective basis for suspecting that the detained individual
was, or was about to be, engaged in criminal activity. Because we agree with the Superior
Court that Officer Swinarski had a particular and objective basis for suspecting Jackson
of criminal activity under the totality of the circumstances presented, we would affirm the
order of the Superior Court.
Chief Justice Todd and Justice Mundy join this opinion in support of affirmance.
18 Justice Wecht overstates the breadth of this opinion. OISR at 19 (“The impact of
today’s decision cannot be overstated. The sad reality is that mass shootings are familiar
in today’s society. . . . All persons fleeing from those situations now are in danger of
having their privacies invaded . . . . Terry was never intended to apply in this manner.”).
This case does not concern a mass flight from the area of a mass shooting; it concerns a
“focused, limited, individualized detention[]” that was intended to be “brief in duration and
narrow in scope”—i.e., precisely how the United States Supreme Court intended Terry to
apply. Id. If circumstances such as those suggested by Justice Wecht come before this
Court, we are well-equipped to determine whether the detaining officer had reasonable
suspicion based on an objective review of the totality of the circumstances that the
detainee was, or was about to be, engaged in criminal activity.
[J-7-2023] - 31
Commonwealth v. Jackson, K., Aplt.
Combined Opinion