Opposition Brief — Buckno v. Pennsylvania

(2) JOSEPH F. SPANIOL, aR,

NO. 87-1737

IN THE SUPREME COURT OF THE UNITED STATES

COMMONWEALTH OF PENNSYLVANIA,

Respondent

versus

DAVID G. BUCKNO,

Petitioner

RESPONDENT'S BRIEF IN OPPOSITION

TO PETITION FOR A WRIT OF CERTIORARI

TC THE SUPREME COURT

OF PENNSYLVANIA - EASTERN DISTRICT

Richard R. Tomsho

Deputy District Attorney

Office of the District Attorney

Lehigh County Courthouse

P.O.. Box 1548

Allentown, Pennsylvania 18105

(215) 820-3100

QUESTIONS PRESENTED FOR REVIEW

WAS THE DEFENDANT INITIALLY ILLEGALLY

ARRESTED AND DETAINED WHEN THE VEHICLE IN

WHICH HE WAS A PASSENGER WAS STOPPED BY

THE POLICE ON THE BASIS OF A RADIO

BROADCAST AND IF AN ILLEGAL DETENTION

OCCURRED, DOES THAT ARREST OR DETENTION

VITIATE THE SUBSEQUENT SUMMARY CHARGE OF

DISORDERLY CONDUCT BROUGHT AGAINST HIM?

WAS THE DEFENDANT ILLEGALLY ARRESTED

WITHOUT PROBABLE CAUSE AFTER BEING

TRANSPORTED FROM THE SCENE OF HIS

ORIGINAL DETENTION AND, IF SO, DOES THAT

ALLEGED ILLEGAL ARREST VITIATE THE

SUMMARY CHARGE OF DISORDERLY CONDUCT

WHICH WAS BROUGHT AGAINST HIM?

ARE THE ACTIVITIES ENGAGED IN BY THE

DEFENDANT WHICH FORM THE BASIS OF THE

SUMMARY CHARGE OF DISORDERLY CONDUCT

FILED AGAINST HIM PROTECTED BY THE FIRST

AMENDMENT OF THE CONSTITUTION OF THE

UNITED STATES OF AMERICA?

Questions Presented for Review ........ i

Table of CitationS ...... cee eeeeeecees iii

Statement of the CaS€ .....c ce eceeeeees 1

Summary of the Argument .........eeee0. 5

AFGUMONE cccccccccccccccccccccccccccccs 11

COMBLUBLOR cccccccccccscccccesscccecere

POE BOGS ede ce eSSSsecccccccsecccsecs A-1

ii

TABLE OF CITATIONS

Pages

United States v. Taylor, 797

Po 4G S563 (ALE CAF. L5G) cccccccs 13

United States v. Fouche, 776

Po BOWO Chee CEs BPO ep cccccccece 13

United States v. Birmley, 529

Poms BOS COE Gals BPlOp ctccccccccs 13

United States v. Crews, 445

U.S. 463, 474, 100 S.Ct. 1244,

1251, 63 L.Ed.2d 537, 547 (1980)... 14,15,20

Gernstein v. Pugh, 420 U.S.

103, 119, 95 S.Ct. 854, 865,

43 L.Ed.2d 54, 68 (1975).........-. 14,15,20

Commonwealth v. Kidd, 296 Pa.

Super. 393, 442 A.2d 826 (1982).... 19

Commonwealth v. Hughes, 270 Pa.

Super. 108, 410 A.2d 1272 (1979)... 19

Houston v. Hill, 482 U.S.

, 96 L.Ed.2d 398, 107

i. Pe eT TrrerreryerrerrrrrTey 21,23

Gooding v. Wilson, 405 U.S. 518,

31 L.Ed.2d 408, 92 S.Ct. 1103 (1972). 21

Chaplinsky v. New Hampshire, 315

U.S. 568, 86 L.Ed 1031, 62 S.Ct.

FOO CEE 6 666 656 0466666660666 60060608 21,24

iii

Commonwealth v. Pringle, 304 Pa.

Super. 67, 450 A.2d 103 (1982)......

Hess v. Indiana, 414 U.S. 105,

38 L.Ed.2d 303, 94 S.Ct.

326 (IGT S pic civcccdcsocccécccccecses

Cohen v. California, 403 U.S.

15, 29 L.Ed.2d 284, 91 S.Ct.

1780 (1970)... ccc cccccccccccccccccees

iv

II. STATEMENT OF THE CASE

During the early morning hours of

February 19, 1983, Officer Charles Higgins of

the Allentown Police Department was on patrol

in a Police Vehicle when at approximately

3:12 a.m. he received a radio communication

indicating that a robbery had occurred and

that the perpetrators of the robbery, four

males in a white vehicle, had fled the scene

of the robbery. (A. 3) While proceeding to

the scene of what was initially reported as a

robbery, Officer Higgins observed a vehicle

matching the description given over the radio

and occupied by four males "sliding sideways

through the Eighth Street underpass." and

stopped the vehicle. (A. 3) One of the

occupants of the vehicle was Mr. Buckno, the

Petitioner herein. (A. 4) Subsequent to the

stop of the vehicle, a second radio

¥

* MOPNOR EAT 8

broadcast was received by Officer Higgins and

the other officers indicating that the nature

of the incident underlying the initial

communication was not a robbery, but rather,

a "disorderly assault." (A. 4)

Mr. Buckno and his three companions were

transported by the police back to the address

from which the complaint was made and it was

determined that there had been some type of

altercation between Mr. Buckno, his

companions, and two women who the four men

had met earlier in the evening. (A. 5-6,

14) Officer Higgins and his partner, Officer

Burns, attempted to question the two women

who were the original complainants regarding

the facts and circumstances of the incident

and the initial radio dispatch and advised

the women of their right to file a "private

prosecution." (A. 6, 13-14) The

conversation between the two police officers

took place in the corridor of an apartment

building at approximately 3:30 a.m. (A. 7,

14) During the course of Officer Higgins'

interview with the two women Mr. Buckno was

"arrogant" and shouting obscenities and

yelling at the women "you fucking bitches."

(A. 6, 14) On several occasions Officer

Higgins requested Mr. Buckno to remain quiet

and he failed to do so. (A. 6) After

Officer Higgins and Officer Burns completed

their discussion with the two women, they

proceeded outside in the company of Mr.

Buckno and Officer Higgins requested Mr.

Buckno to "go and get proper identification"

Since Mr. Buckno did not have any written

verification of his identity. (A. 6) This

further conversation between Officer Higgins

and Mr. Buckno transpired in the parking of

the apartment building where there were

balconies from the building overlooking the

parking lot and other surrounding apartment

buildings. (A. 7) The tone of Mr. Buckno's

voice out in the parking lot was "loud." (A.

7) When Officer Higgins insisted that he

needed verification of Mr. Buckno's address,

he turned towards the Officer and stated

"Fuck you." (A. 7) At that point in time

Mr. Buckno was placed under arrest for

Disorderly Conduct and Public Drunkenness.

IIl. SUMMARY OF THE ARGUMENT

The initial stop of the vehicle in which

Mr. Buckno was a passenger and detention of

the occupants of that vehicle was proper

under the circumstances of this case in view

of the information which the police had

available to them at the time of the stop. A

radio communication was received by them

indicating that a robbery had occurred

involving four men in a white vehicle.

Shortly after that radio communication,

Officer Higgins observed a white vehicle with

four male occupants while he was in transit

to the scene of the reported robbery. He

observed the vehicle "sliding sideways

through the Eighth Street underpass" at

approximately 3:00 a.m. in the morning.

While the initial report of a robbery proved

to be false, the facts available to the

police at the time of the stop and detention

were sufficient to establish probable cause.

In any event, even if probable cause did not

exist when the initial stop and detention

were made, any illegality in the stop and

detention does not vitiate the subsequent

charge of Disorderly Conduct brought against

Mr. Buckno.

Mr. Buckno was subsequently arrested

after being transported back to the location

were the events occurred which resulted in

the initial police broadcast. At that

location, in addition to attempting to

ascertain the identity of the four male

occupants including Mr. Buckno, the police

interviewed the two female complainants to

determine the exact nature of the incident

giving rise to the radio communication of a

robbery. During the course of this

interview, which occurred at approximately

A ee

a ere es

3:00 a.m. in the morning in the corridor of

an apartment building, Mr. Buckno was loud,

unruly and continued to shout obscenities in

spite of instructions from the investigating

officers for him to remain quiet. One of the

investigating officers requested Mr. Buckno

to provide verification of his identity and

address in the form of documentation and his

was unable to do so. The conversation

between Mr. Buckno and the investigating

officer, Officer Higgins, continued into the

parking lot of the apartment building and Mr.

Buckno continued to be loud and unruly

shouting obscenities. When Officer Higgins

indicated that he wished to take Mr. Buckno

to his home in order to obtain proper

identification, Mr. Buckno shouted "Fuck you"

and Officer Higgins placed him under arrest

for Disorderly Conduct and Public

Drunkenness.

———

Taken as a totality, Mr. Buckno's conduct

on the evening in question both inside the

apartment building as well as outside in the

parking lot established probable cause for

his arrest on the charge of Disorderly

Conduct. However, even if one assumes for

the sake of argument that Mr. Buckno's

"arrest" occurred by virtue of Officer

Higgins's insistence that Mr. Buckno return

to his home to produce proper identification,

and if one assumes further that this "arrest"

was without probable cause, the illegality of

the police conduct does not nullify the

validity of the summary charge of Disorderly

Conduct since the controlling decisions of

this Court do not call for dismissal of the

criminal charges of a defendant because of an

illegal arrest.

The conduct engaged in by Mr. Buckno on

the night in question is not conduct

protected under the First Amendment of the

United States Constitution. The facts

indicate that at approximately 3:30 a.m. for

a period of approximately fifteen minutes Mr.

Buckno engaged in a course of loud and unruly

behavior inside the corridor of an apartment

building and outside the apartment building

in the parking lot. During the course of

this episode, he shouted obscenities at no

one in particular and also directed

obscenities. at the two female complainants

who were being interviewed by the

investigating police officers. Focusing upon

one vignette of this entire incident occuring

between Mr. Buckno and Officer Higgins, the

Petitioner attempts to ignore the entire

course of conduct he engaged in on the

evening in question. Under the applicable

decision of this Court, the loud and unruly

behavior engaged in by Mr. Buckno is not

protected by the First Amendment and,

therefore, the citation issued to him for

Disorderly Conduct was justified.

10

IV. ARGUMENT

The initial stop of the automobile and

detention of its occupants was based upon a

radio communication received by Officer

Higgins. On February 19, 1983, at

approximately 3:00 a.m. in the morning,

Officer Higgins received a radio

communication indicating that a robbery had

occurred and that the perpetrators were four

males in a white vehicle. (A. 3) Officer

Higgins proceeded to drive towards the area

of the reported robbery and while he was

proceeding to that location he observed a

vehicle matching the description given over

the radio with four male occupants driving

erratically. (A. 3) On the basis of that

information, Officer Higgins and his fellow

police officers stopped the vehicle occupied

by Mr. Buckno and detained all four

11

—————7~ reer

occupants.

The determination of whether or not

probable cause existed for the stop of the

vehicle in question and detention of its four

occupants must be based upon the collective

knowledge of all the police officers involved

in this transaction. The information

available to Officer Higgins immediately

prior to the stop was the location of an

alleged robbery, the description of a

vehicle, the number of perpetrators allegedly

involved in the robbery and the gender of the

perpetrators. Shortly after receiving the

radio communication and while proceeding to

the scene of the alleged robbery, Officer

Higgins observed a vehicle matching the

description of the vehicle given out in the

radio report and that vehicle was being

operated in an erratic fashion. Under these

circumstances, Officer Higgins properly

12

relied on the radio communication to make the

stop and that radio communication provided

probable cause for both the initial stop of

the vehicle as well as the initial detention

of its occupants. United States v. Taylor,

797 F.2d 1563 (11th Cir. 1986); United States

v. Fouche, 776 F.2d 1398 (9th Cir. 1985);

United States v. Birmley, 529 F.2d 103 (6th

Cir. 1976).

In the instant case, the initial report

of a robbery as made by the complaintants to

the police was untrue. (A. 9) However, the

record indicates that a robbery complaint was

actually made to the police and the police in

reliance on that robbery complaint made the

radio dispatch which resulted in the stop and

detention of Mr. Buckno and his three

companions. The good faith reliance of the

police upon a report by a private citizen as

to the occurrence to a robbery should not

13

flaw an otherwise valid stop and detention if

the individuals stopped and detained meet the

description of the suspects identified in the

radio communication.

Moreover, even if the original stop and

detention was without probable case, an

illegal arrest does not bar a subsequent

prosecution or prevent a subsequent

conviction. United States v. Crews, 445 U.S.

463, 474, 100 S.Ct. 1244, 1251, 63 L.Ed.2d

537, 547 (1980); Gernstein v. Pugh, 420 U.S.

103, 119, 95 S.Ct. 854, 865, 43 L.Ed.2d 54,

68 (1975). In United States v. Crews, Supra,

this Court had before it a case in which the

appellant argued that his illegal arrest

barred his prosecution because his presence

during the proceedings against him resulted

from the illegal arrest. In rejecting this

argument, this Court wrote:

"An illegal arrest, without more, has

never been viewed as a bar to subsequent

14

prosecution, nor as a defense to a valid

conviction." Crews, supra at 547.

In Gernstein v. Pugh, supra, this Court

had before it a case in which the respondents

by way of a class action challenged the

procedures of the State of Florida in making

an initial determination of whether probable

cause to arrest existed in a given case.

While the challenged Florida procedures were

found to be unconstitutional, this Court

noted that the arrest of a defendant without

probable cause "does not void a subsequent

conviction." Gernstein v. Pugh, supra at

68. Therefore, in the instant case, even if

one assumes for the sake of argument that the

initial stop in detention of Mr. Buckno was

constitutionally infirm, that infirmity does

not invalidate his subsequent conviction on

the summary charge of Disorderly Conduct.

After Mr. Buckno and his companions were

15

stopped and detained, they were transported

by members of the Allentown Police Department

back to the apartment of the two female

complainants who falsely reported a robbery.

At the time the men were taken back to

confront the women, Officer Higgins was of

the understanding based upon a later radio

broadcast that the incident involved a

"disorderly assault." (A. 4) After arriving

at the apartment, the police officers

interviewed the two female complaintants in

an effort to determine exactly what had

occurred. During the course of that

interview, which occurred in a public

corridor of the apartment building, Mr.

Buckno yelled obscenities towards the female

complaintants as well as towards no one in

particular. (A. 6, 14) After the police

officers completed their interview of the two

women, Officer Higgins attempted to get

16

written verification from Mr. Buckno of his

identity and address and he indicated to them

that he did not have such identification on

his person. (A. 6) The conversation continued

outside the apartment building in the parking

lot and the police indicated to Mr. Buckno

that they wanted to take him to get proper

identification. (A. 6) He responded loudly

with further obscenities in the parking lot

outside the apartment building and eventually

told Officer Higgins "Fuck you." (A. 7) At

that point in time, Mr. Buckno was placed

under arrest for Disorderly Conduct and

Public Drunkenness. (A. 7)

The summary offense of disorderly conduct

is defined at Section 5503 of the Crimes Code

of the Commonwealth of Pennsylvania, 18 Pa.

C.S.A. Section 5503, as follows:

"(a) Offense defined.-A person is

guilty of disorderly conduct if, with

intent to cause public inconvenience,

17

annoyance or alarm, or recklessly

creating a risk thereof, he:

(1) engages in fighting or

threatening, or in violent or

tumultuous behavior;

(2). makes unreasonable noise;

(3) uses obscene language, or makes

an obscene gesture; or

(4) creates a hazardous or

physically offensive condition by

any act which serves no legitimate

purpose of the actor.

(b) Grading.-An offense under this

section is a misdemeanor of the third

degree if the intent of the actor is to

cause substantial harm or serious

inconvenience, or if he persists in

disorderly conduct after reasonable

warning or request to desist. Otherwise

disorderly conduct is a summary offense.

(c) Definition.-As used in this section

the word "public" means affecting or

likely to affect persons in a place to

which the public or a substantial a

substantial group has access; among the

places included are places of business or

amusement, any neighborhood, or any

premises which are open to the public.

The citation issued to Mr. Buckno references

all four subdivisions of subsection (a). The

18

a

above cited statutory provision has been

interpreted by the courts of the Commonwealth

of Pennsylvania to permit a conviction for

disorderly conduct in the absence of specific

intent to create public inconvenience,

annoyance or alarm if the actor's conduct

recklessly creates a risk of causing such

public inconvenience, annoyance or alarm.

Commonwealth v. Kidd, 296 Pa. Super. 393, 442

A.2d 826 (1982); Commonwealth v. Hughes, 270

Pa. Super. 108, 410 A.2d 1272 (1979). In the

instant case, Mr. Buckno engaged in the

shouting of obscenities in the public

corridor of an apartment building at

apprcaimately 3:30 a.m. in the morning and

later continued shouting those obscenities in

the parking area immediately outside the

apartment building. Under these facts,

Officer Higgins clearly had probable cause to

arrest Mr. Buckno for disorderly conduct.

19

The Respondent appears to contend in the

alternative that his arrest occurred sometime

prior to the final words in the parking lot

because Officer Higgins requested that Mr.

Buckno accompany him to his home in order to

obtain proper identification. Assuming for

the sake of argument that Respondent's

characterization of when his arrest occurred

is correct, and assuming further that his

contention that the arrest was without

probable cause, under the decisions of this

Court in Gernstein v. Pugh, supra, and United

States v. Crews, supra, the illegal detention

of Mr. Buckno does not invalidate the charge

of Disorderly Conduct brought against him by

Officer Higgins.

The parameters of the constitutional

protection to be afforded to an individual

under the First Amendment in the type of

Situation presented by the instant case have

20

g

been set forth by this Court in the prior

decisions of Houston v. Hill, 482 U.S. P

96 L.Ed.2d 398, 107 S.Ct. , Gooding v.

Wilson, 405 U.S. 518, 31 L.Ed.2d 408, 92

S.Ct. 1103 (1972), Chaplinsky v. New

Hampshire, 315 U.S. 568, 86 L.Ed 1031, 62

S.Ct. 766 (1942). It should be noted

initially that in this case Mr. Buckno is not

presently challenging the constitutionality

cf the statute under which he was convicted

and he has not raised such a challenge at any

prior point in these proceedings before the

State Trial and Appellate Courts.

In seeking to persuade this Court to

review the alleged First Amendment issue, the

Respondent appears to argue in the

alternative that the statement "Fuck you"

made by Mr. Buckno to Officer Higgins in the

apartment complex parking lot is protected

under the First Amendment and, therefore,

21

cannot be the basis for his prosecution

and/or the evidence relating to the foregoing

utterance is insufficient to sustain the

conviction. The second contention does not

raise an issue of Constitutional diminsions

and, therefore, does not provide a basis for

review by this Court. The second argument

advanced by Mr. Buckno is related to the

first in that he attempts to limit the focus

of the inquiry in this case to the momentary

exchange between himself and Officer Higgins

in the parking lot of the apartment complex

while ignoring the fifteen to twenty minutes

of unruly and boisterous conduct which

preceeded the incident between himself and

Officer Higgins in the parking lot. If the

incident in question is viewed as a totality,

it is clear that the conviction was

consistent with the evidence presented and

not violative of any constraints arising from

22

the First Amendment of the United States

Constitution.

In Houston v. Hill, supra, this Court

noted: "The freedom verbally to challenge

police action is not without limits, of

course; we have recognized that 'fighting

words' which 'by their very utterance inflict

injury or tend to incite an immediate breach

of the peace' are not constitutionally

protected." Houston v. Hill, supra, at 413,

n.10. In Commonwealth v. Pringle, 304 Pa.

Super. 67, 450 A.2d 103 (1982), the Superior

Court of Pennsylvania examined language

similar to that used by Mr. Buckno in light

of the decisions of this Court relied upon by

the Respondent. Specifically, in the Pringle

case, the defendant referred to the police

officers as "goddamn fucking pigs." Pringle,

Supra, at 105. The Superior Court went on to

write that "[e]ven if the words in issue

23

would not be considered obscene, they

certainly constituted 'fighting words' and

created a risk of public inconvenience,

annoyance, alarm and the incitation of

lawless behavior." The Superior Court went

on to cite the Chaplinsky decision of this

Court in support of its conclusion that the

language utilized by the defendant

constituted "fighting words."

In the instant case, the conduct of Mr.

Buckno cannot be viewed in a vacuum. As is

clear from the facts of this rather brief

incident as discussed at length above,

Officer Higgins' decision to cite Mr. Buckno

for the summary offense of Disorderly Conduct

was precipitated not only by the brief

exchange in the parking lot, but rather,

resulted from a continuous course of conduct

engaged in by Mr. Buckno for a period of

approximately twenty minutes prior to Officer

24

Higgins informing him that he was under

arrest for Disorderly Conduct. The continued

course of conduct of Mr. Buckno under the

circumstances of this case is not the type of

verbal expression examined by earlier

decisions of this Court where the use of

language similar to that employed by Mr.

Buckno was found to be entitled to First

Amendment protection. Compare: Hess v.

Indiana, 414 U.S. 105, 38 L.Ed.2d 303, 94

S.Ct. 326 (1973); Cohen v. California, 403

U.S. 15, 29 L.Ed.2d 284, 91 S.Ct. 1780

(1970). For these reasons, none of the

decisions of any of the state courts

considering this matter are inconsistent with

the prior decisions of this Court with

respect to the First Amendment issue which

the Respondent attempts to raise herein.

25

V. CONCLUSION

Under the facts of this case, the state

courts considering this matter have not

rendered a decision on any issue which is in

conflict with any prior decision of this

Court. And, on the contrary, the decisions

of the state courts considering this matter

on all levels are consistent with the prior

decisions of this Court. Moreover, this case

presents no hitherto unresolved issue of law

justifying the exercise by this Court of its

discretion to consider Respondent's appeal.

The facts indicate that in both instances Mr.

Buckno's detention by the police was proper

and even if his detention was determined to

be illegal on one or both occassions, such

alleged illegality does not vitiate his

conviction for the summary offense of

Disorderly Conduct. The First Amendment

26

issue which Respondent attempts to\raise is

in reality a challenge to the sufficiency of

the evidence presented to the trial court

below and, therefore, does not justify review

by this Court under the applicable rules and

law. It is therefore respectfully requested

that Respondent's Petition for a Writ of

Certiorari be denied.

William H. Platt

District Attorney

oS

Richard R/ Tomsho

Deputy District Attorney

CXR

Emil W. Kantra II

Assistant District Attorney

27