I know I told a few of you about an e-mail we received from our chief counsel concerning if police in PA had the authority to stop a citizen based on the only information being the person was carrying a firearm. It took me some research, but that e-mail is based on this Superior Court case, I thought some members would appreciate if I posted it here:
IN THE SUPREME COURT OF PENNSYLVANIA
COMMONWEALTH[/b] OF PENNSYLVANIA
No. 50 E.D. Appeal Docket 1996
Appeal from the December 15, 1995
order of the Superior Court at No.
2955 Philadelphia 1994, affirming
the order of the Court of Common
Pleas of Philadelphia County, M.R.
No. 94-8421, which denied a writ of
imposition of defendant's judgment
November term, 1993
349 Pa.Super. 615,
503 A.2d 48 (1985)
ARGUED: December 12, 1996
OPINION ANNOUNCING THE JUDGMENT OF THE COURT
MR. CHIEF JUSTICE FLAHERTY
DECIDED: April 22, 1997
This case concerns whether a police radio broadcast that a man of a
particular description is carrying a gun may serve as the justification for a
search of that person and the seizure of the gun he is carrying when the
arresting officer is unable to authenticate the telephone message on which the
radio broadcast was based or provide an independent basis for the stop and
On November 19, 1993,a Philadelphia police officer responded to a radio
call that there was a man with a gun at Sydenham and York Streets.
was described as a black male wearing a blue cap, black jeans and a gold or
When the officer arrived, he observed Hawkins[/b], who fitted the
He then stopped and frisked Hawkins[/b], finding a .22 caliber
revolver in his waistband.
At the suppression hearing, the officer stated that
he did not know the source of the information contained in the radio call.
other testimony established the source of the call or the basis for the
On May 25, 1994, Hawkins[/b] was convicted of a violation of the Uniform
and sentenced to twenty-one months probation.
A writ of
certiorari in the court of common pleas was denied and Hawkins[/b] appealed to
On July 20, 1994, Superior Court, in a memorandum opinion,
affirmed the conviction. This court granted allocatur.
The existing law with respect to searches such as the one conducted in
this case is based on Terry v[/b]. Ohio, supra, which held that police are
authorized under the Fourth Amendment to stop and temporarily detain citizens
short of an arrest when they can point to "specific and articulable facts"
causing them to have a reasonable suspicion that "criminal activity may be
392 U.S. at 21, 30, 88 S.Ct. at ___, ___, 20 L.Ed.2d at 905-06, 911;
Commonwealth[/b] v[/b]. Melendez, ___ Pa. ___, 676 A.2d 226, 228 (1996); Commonwealth[/b]
v[/b]. Hicks, 434 Pa. 153, 160, ___ A.2d ___, ___ (1969). If police reasonably
believe that they may be in danger, they may conduct a limited pat-down search
of the suspect's outer garments for weapons.
Ybarra v[/b]. Illinois, 444 U.S. 85,
92-93, 100 S.Ct. 338, 62 L.Ed.2d 238, 246 (1979); accord, Commonwealth[/b] v[/b].
Thus, before police may briefly detain a person, there must
be reasonable suspicion of criminal conduct, and before police may pat down for
weapons, there must be a reasonable belief that the suspect is presently armed
The initial question with which any analysis of this case
must begin, therefore, is whether the police officer had grounds for reasonable
suspicion that criminal activity was afoot.
1 18 Pa.C.S. §§ 6106, 6108.
2 Commonwealth[/b] v[/b]. Melendez, ___ Pa. ___, 676 A.2d. 226, 230 (1996) makes it clear that the
requirements of Terry are also the requirements of Art. I, § 8 of the Pennsylvania Constitution, and we
decide the present case on the basis of Art. I, § 8 of the Pennsylvania Constitution, which 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.
When police receive an anonymous call alleging that a person of a
particular description is carrying a gun at a particular location and the
police broadcast this information to radio patrol cars, neither the police
dispatcher nor the officers in the cars know whether the information is
It may be a prank call.
For this reason, in Commonwealth[/b] v[/b]. Queen,
536 Pa. 315, 320, 639 A.2d 443 (1994), we held that "a stop and frisk may be
supported by a police radio bulletin only if evidence is offered at the
suppression hearing establishing the articulable facts which support the
To hold otherwise would be to sanction police
interference with citizens upon less than the reasonable suspicion of criminal
activity required by Terry.
The Superior Court reasoned that because the officer arrived within three
minutes of receiving the call, because Hawkins[/b] fitted the description of the
man on the radio broadcast, and because Hawkins[/b] allegedly had a gun, there was
"sufficient corroboration" of the phone call to give the officer reasonable
suspicion that Hawkins[/b] was "armed and dangerous."
Superior Court erroneously
believed that these factors were sufficient to justify the search of appellant
and the seizure of his gun.
If the police respond to an anonymous call that a particular person at a
specified location is engaged in criminal activity, and upon arriving at the
location see a person matching the description but nothing more, they have no
certain knowledge except that the caller accurately described someone at a
As the United States Supreme Court observed in Illinois
v[/b]. Gates, 462 U.S. 213, 103 S. Ct. 2317, 76 L.Ed.2d 527 (1983), the fact that a
suspect resembles the anonymous caller's description does not corroborate
3. Although it is not part of this case, the police might also justify an investigative stop based
on a tip if they knew the identity of the person giving the tip and the basis of his knowledge. See
Illinois v[/b]. Gates, 462 U.S. 213, 103 S. Ct. 2317, 76 L.Ed.2d 527 (1983) (an informant's veracity,
reliability, and basis of knowledge are "highly relevant" in determining whether the informant has
provided reasonable suspicion of criminal activity); Commonwealth[/b] v[/b]. Queen, supra.
Additionally, if the tip is anonymous, police may reasonably rely on it if is predictive of the
suspect's behavior. See Alabama v[/b]. White, 496 U.S. 325, 110 S.Ct. 2412, 110 L.Ed.2d 301 (1990).
allegations of criminal conduct, for anyone can describe a person who is
standing in a particular location at the time of the anonymous call.
more is needed to corroborate the caller's allegations of criminal conduct.
The fact that the subject of the call was alleged to be carrying a gun, of
course, is merely another allegation, and it supplies no reliability where
there was none before.
And since there is no gun exception to the Terry
requirement for reasonable suspicion of criminal activity, in the typical
anonymous caller situation, the police will need an independent basis to
establish the requisite reasonable suspicion.
The Commonwealth[/b] takes the radical position that police have a duty to
stop and frisk when they receive information from any source that a suspect has
Since it is not illegal to carry a licensed gun in Pennsylvania,
difficult to see where this shocking idea originates, notwithstanding the
Commonwealth's fanciful and histrionic references to maniacs who may spray
schoolyards with gunfire and assassins of public figures who may otherwise go
Even if the Constitution of Pennsylvania would permit such
invasive police activity as the Commonwealth[/b] proposes -- which it does not --
such activity seems more likely to endanger than to protect the public.
Unnecessary police intervention, by definition, produces the possibility of
conflict where none need exist.
Contrary to the Commonwealth's view, the public will receive its full
measure of protection by police who act within the restraints imposed on them
by Art. I, § 8 of the Constitution of Pennsylvania and this court's relevant
Upon receiving unverified information that a certain person is
engaged in illegal activity, the police may always observe the suspect and
conduct their own investigation.
If police surveillance produces a reasonable
suspicion of criminal conduct, the suspect may, of course, be briefly stopped
4 In all parts of Pennsylvania, persons who are licensed may carry concealed firearms. 18 Pa.C.S.
§ 6108. Except in Philadelphia, firearms may be carried openly without a license. See Ortiz v[/b].
Commonwealth[/b], ___ Pa. ___, ___, 681 A.2d 152, 155 (1996) (only in Philadelphia must a person obtain a
license for carrying a firearm whether it is unconcealed or concealed; in other parts of the
Commonwealth[/b], unconcealed firearms do not require a license).
and questioned (the Terry investigative stop), and, if the officer has
reasonable fear for his safety, police may pat down the suspect's outer
garments for weapons.
In this case, the police acted on an anonymous tip and had no basis for
believing that the tip was reliable.
They also had no independent reason to
believe that the suspect may have been involved in criminal activity.
Queen requires that "a stop and frisk may be supported by a police radio
bulletin only if evidence is offered at the suppression hearing establishing
the articulable facts which support the reasonable suspicion."
536 Pa. at 320,
___ A.2d at ___.
Here, no facts were offered which supported the suspicion
created by the anonymous call.
The judgment of sentence must, therefore, be
5 We do not address the scenario in which the officer has an independent reason to believe that a
crime (carrying an unlicensed gun) may be in progress, inquires as to whether the gun is licensed and
the person does not answer.
Mr. Justice Nigro concurs in the result.
Madame Justice Newman files a dissenting opinion in which Mr. Justice