# Opposition Brief — Buckno v. Pennsylvania

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1988
- **Citation:** 488 U.S. 817

## Text

(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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385017_0772%3A2. Public record. Not legal advice.