Petition for Writ of Certiorari — Pennsylvania v. D. M.

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FILED

99158 3 MAR 27 2000!

NOOFFICE OF THE CLERK

IN THE

SUPREME COURT OF THE UNITED STATES

COMMONWEALTH OF PENNSYLVANIA,

Petitioner

D.M.,

Respondent

On Petition for Wnt of Certiorari to the

Supreme Court of Pennsylvania

PETITION FOR WRIT OF CERTIORARI

WILLIAM G. YOUNG

Assistant District Attorney

HUGH J. BURNS, JR.

Acting Chief, Appeals Unit

CATHERINE MARSHALL

Chief, Appeals Unit

RONALD EISENBERG

Deputy District Attorney

(Counsel of Record)

ARNOLD H. GORDON

1421 Arch Street First Asst. District Attorney

Philadelphia, PA 19102 LYNNE ABRAHAM

(215) 686-5700 District Attorney

QUESTIONS PRESENTED

1. Is information that a suspect is carrying a gun

insufficient to satisfy the reasonable suspicion standard under

Terry v. Ohio?

(Answered in the affirmative by the Supreme Court

of Pennsylvania).

2). Is the respondent's headlong flight upon seeing

police irrelevant for purposes of determining reasonable sus-

picion under Terry v. Ohio? :

(Answered in the affirmative by the Supreme Court

of Pennsylvania).

TABLE OF CONTENTS

Questions Presented

Table of Contents

Table of Authorities

Orders and Opinions Below

Jurisdiction

Constitutional and Statutory

Provisions Involved

Statement of the Case

Reasons for Granting the Writ

I. A REPORT OF A MAN WITH A GUN

SHOULD PERMIT A TERRY STOP.

IT. THE PENNSYLVANIA SUPREME

COURT'S HOLDING THAT FLIGHT

IS IRRELEVANT IN DETERMINING

REASONABLE SUSPICION UNDER

TERRY IS IN DIRECT CONFLICT

WITH THIS COURT'S DECISION IN

ILLINOIS V. WARDLOW.

Conclusion

6-18

19-24

iil

PAGE

Appendix:

Judgment and opinions of the Supreme Court

of Pennsylvania App. 1-16

Order of the Superior Court of Pennsylvania

Denying Respondent's Petition for

Reargument App. 17

Judgment and opinion of the Supenor Court

of Pennsylvania App. 18-31

Opinion of the Court of Common Pleas of

Philadelphia (suppression court) App. 32-35

TABLE OF AUTHORITIES

FEDERAL CASES

Adams v. Williams, 407 U.S. 143 (1972)

Cady v. Dombrowski, 413 U.S. 433 (1973)

Cupp v. Murphy, 412 U.S. 291 (1973)

Florida v. J.L., No. 98-1993 (appeal pending)

Illinois v. Wardlow, No. 98-1036, 2000

U.S. LEXIS 504 (decided 1/12/2000)

Maryland v. Buie, 494 U.S. 325 (1990)

Michigan v. Chesternut, 486 U.S. 567 (1988)

New York v. Quarles, 467 U.S. 649 (1984)

Omelas v. United States, 517 U.S. 690 (1996)

Sibron v. New York, 392 U.S. 40 (1968)

Terry v. Ohio, 392 U.S. 1 (1968)

Tom v. Voida, 963 F.2d 952 (7th Cir. 1992)

United States v. Bold, 19 F.3d 99(2d Cir. 1994)

United States v. Bowles, 625 F.2d 526 (Sth Cir.

1980)

PAGE

15,16

3,5,18,19

-4,6,19,22,

23, 24

United States v. Brignoni-Ponce, 422 U.S.

873 (1975)

United States v. Brown, 159 F.3d 147 (3d Cir.

998), cert. denied, 119 S.Ct. 1127 (1999)

United States v. Clipper, 973 F.2d 944 (D.C.

Cir.1992), cert. denied, 506 U.S. 1070

(1993)

United States v. Cortez, 449 U.S. 411 (1981)

United States v. DeBerry, 76 F.3d 884 (7th Cir.

1996)

United States v. Embry, 546 F.2d 552 (3d Cir.

1976), cert. denied, 430 U.S. 948 (1977)

United States v. Garcia, 516 F.2d 318 (9th Cir.

1975), cert. denied, 423 U.S. 934 (1975)

United States v. Gibson, 64 F.3d 617 (11th Cir.

1995), cert. denied; 517 U.S. 1173 (1996)

United States v. Harley, 682 F.2d 398 (2d Cir.

1992)

United States v. Haye, 825 F.2d 32 (4th Cir.

1987)

United States v. Holland, 510 F.2d 453 (9th

Cir. 1975), cert. denied, 422 U.S. 1010

(1975)

PAGE

United States v. Johnson, 741 F.2d 223 (8th

Cir. 1984) 22

United States v. Lane, 909 F.2d 895 (6th Cir.

1990), cert. denied, 498 U.S. 1093 (1991) 22

United States v. McBride, 801 F.2d 1045 (8th

Cir. 1986), cert. denied, 479 U.S. 1100

(1987) 12

United States v. Pope, 561 F.2d 663 (6th Cir.

1977) 20

United States ex rel. Richardson v. Rundle,

461 F.2d 860 (3d Cir. 1972), cert. denied,

410 U.S. 911 (1973) 21

United States v. Silva, 957 F.2d 157 (Sth Cir.

1992), cert. denied, 506 U.S. 887 (1992) 22

United States v. Wilson, 2 F.3d 226, 231 (7th

Cir. 1993), cert. denied, 511 U.S. 1054(1994) 22

Welsh v. Wisconsin, 466 U.S. 740 (1984) 16

STATE CASES

Allen v. State, 85 Md. App. 657, 584 A.2d 1279

(1991), appeal denied, 323 Md. 1, 590 A.2d

158 (1991) 15

Vil

City of St. Paul v. Vaughn, 306 Minn. 337, 237

N.W.2d 365 (1975)

Commonwealth v. Cook, 558 Pa. 50, 735 A.2d

673 (1999)

Commonwealth v. Hawkins, 547 Pa. 652, 692

A.2d 1068 (1997)

Commonwealth v. Hicks, 434 Pa. 153, 253 A.2d

276 (1969)

Commonwealth v. Jackson, 548 Pa. 484, 698

A.2d 571 (1997)

Commonwealth v. Morris, 537 Pa. 417, 644

A.2d 721 (1994), cert. denied, 513 U.S.

1031 (1994)

Dimascio v. Anchorage, 813 P.2d 696 (Alaska

App. 1991)

Hovington v. State, 616 A.2d 829 (Del. 1992)

In re J.L.G., 209 Ga. 565, 434 S.E.2d 126 (1993)

In Re D.M., 743 A.2d 422 (Pa. 1999)

J.L. v. State, 727 So. 2d 204 (Fla. 1998), cert.

granted, 120 S.Ct. 395 (1999)

People v. D.F., 933 P.2d 9 (Cole. 1997)

PAGE

2,8,9

Vill

PAGE

People v. Martinez, 80 N.Y.2d 444, 591

N.Y.S.2d 823, 606 N.E.2d 951 (1992) 22

People v. Salaman, 71 N.Y.2d 869, 527 N.Y.S.

2d 750, 522 N.E.2d 1048 (1988) 15

People v. Shabaz, 424 Mich. 42, 378 N.W.2d 451

(1985), cert. dismissed, 478 U.S. 1017 (1986) 6

People v. Smithers, 83 III. 2d 430, 47 Ill. Dec. 322,

415 N.E.2d 332 (1980) 14

People v. Souza, 9 Cal.4th 224, 36 Cal. Rptr.2d

569, 885 P.2d 982 (1994) 21

People v. Wardlow, 183 Ill. 2d 306, 701 N.E.2d

484, 233 Ill. Dec. 634 (1998), reversed, No.

98-1036, 2000 U.S. LEXIS 504 (2000) 23

Platt v. State, 589 N.E.2d 222 (Ind. 1992) 21

Scott v. Virginia, 20 Va. App. 725, 460 S.E.2d |

610 (1995) 15

State v. Anderson, 155 Wis.2d 77, 454 N.W.2d

763 (1990) ; 21

State In The Interest Of H.B., 75 N.J. 243, 381 |

A.2d 759 (1977) . 14

State v. Belton, 441 So.2d 1195 (La. 1983),

cert. denied, 466 U.S. 953 (1984) 21 ;

PAGE

State v. Blackman, 94 Md. App. 284, 617 A.2d

619 (1992) 17

State v. Butler, 331 N.C. 227, 415 S.E.2d 719

(1992) | 22

State v. Franklin, 41 Wash. App. 409, 704 P.2d

666 (1985) 14

State v. Hasenbank, 425 A.2d 1330(Me. 1981) 14

State v. Hicks, 241 Neb. 357, 488 N.W.2d 359

(1992), cert. denied, 507 U.S. 1000 (1993) 6

State v. Kuahuia, 62 Haw. 464, 616 P.2d 1374

(1980) 14

State v. Pulley, 863 S.W.2d 29 (Tenn. 1993) 15

State v. Stinnett, 104 Nev. 398, 760 P.2d 124

(1988) 22

State v. Sweet, 44 Wash. App. 226, 721 P.2d

560 (1986), appeal denied, 107 Wash.2d

1001 (1986) 21

: United States v. Bennett, 514 A.2d 414 (D.C. App.

1985) 22

STATUTES

28 U.S.C. 8 1257(a)

18 Pa.C.S. 8 6110.1(a)

MISCELLANEOUS

LaFave, Search and Seizure (West, 1987)

PAGE

ORDERS AND OPINIONS BELOW

The December 27, 1999 order and majority and dis-

senting opinions of the Supreme Court of Pennsylvania,

which reversed the Superior Court of Pennsylvania, are

reproduced at App. 1. The January 30, 1998 order of the

Superior Court of Pennsylvania denying respondent's petition

for reargument is reproduced at App. 17. The November 19,

1997, order and opinion of the Superior Court affirming the

denial of respondent's suppression motion and his adjudica-

tion of delinquency is reproduced at App. 18. The opinion of

the suppression court, the Court of Common Pleas of Phila-

delphia, Juvenile Division, is reproduced at App. 32.

STATEMENT OF JURISDICTION

This 1s a state criminal prosecution in which respon-

dent filed a motion to suppress an illegal handgun in the tral

court, the Philadelphia Court of Common Pleas, Juvenile

Division, on the ground that police lacked reasonable susp1-

cion to conduct a Terry stop. On October 2, 1996, the trial

court denied suppression and subsequently adjudicated

respondent delinquent for carrying a firearm without a

license, carrying a firearm on a public street, and possession

of a firearm by a minor.

Respondent appealed to the intermediate state appel-

late court, the Superior Court of Pennsylvania, which

affirmed the suppression ruling and adjudication of delin-

quency on November 19, 1997. Respondent filed a petition

for reargument which was denied by the Superior Court on

January 30, 1998. Respondent then filed a petition for allow-

ance of appeal in the Supreme Court of Pennsylvania, which

the Court granted. After bnefing and oral argument the

Pennsylvania Supreme Court, on December 27, 1999,

reversed the decision of the Superior Court. It held that the

Fourth Amendment did not permit a stop and frisk where an

anonymous report was made that a particularly described per-

son was Carrying a gun at a specific location, even after

police observed that respondent matched the description of

the reported gunman and was at the exact location reported.

The Court further held that the additional fact that respondent

fled immediately after police arrived was irrelevant because

neither the tip itself, nor the officer's observations corroborat-

ing the tip, had been sufficient to arouse suspicion.

The opinion of the Pennsylvania Supreme Court

refers to both the Fourth Amendment and the similarly-

worded Article I, § 8 of the state constitution. However, the

opinion includes no plain statement that the decision was

based on an independent state ground and, in fact, explicitly

stated that the inquiry for determining the existence of rea-

sonable suspicion for a Terry stop is the same under the

Fourth Amendment and the state constitution. In Re D.M.,

743 A.2d 422, 425 (Pa. 1999)("In determining whether rea-

sonable suspicion exists for a Terry stop, the inquiry is the

same under Article I, Section 8 of the Pennsylvania Constitu-

tion or the Fourth Amendment of the United States Constitu-

tion"). This is entirely consistent with prior decisions in

which the Pennsylvania Supreme Court has repeatedly held

that, in the area of stop and frisk, the state constitution is en-

tirely coextensive with the Fourth Amendment. See Com-

monwealth v. Cook, 558 Pa. 50, 735 A.2d 673, 675 (1999);

Commonwealth v. Jackson, 548 Pa. 484, 698 A.2d 571, 573

(1997); Commonwealth v. Mormis, 537 Pa. 417, 644 A.2d

721, 724 n.3 (1994), cert. denied, 513 U.S. 1031 (1994);

Commonwealth v. Hicks, 434 Pa. 153, 253 A.2d 276 (1969).

1 Ad

This Court has jurisdiction to review the final judg-

ment of the Supreme Court of Pennsylvania based on its con-

struction of the federal Fourth Amendment pursuant to 28

U.S.C. § 1257(a).

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

The Fourth Amendment to the United States Consti-

tution 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 af-

firmation, and particularly describing the

place to be searched, and the persons or things

to be seized.

STATEMENT OF THE CASE

The Commonwealth of Pennsylvania seeks certiorari

for a determination of whether an anonymous report of a

"man with a gun” is sufficient to justify a Terry stop where

police confirm both the description and location of the

alleged gunman as stated in the report. This same issue was

argued before this Court in Flonda v. J.L., No. 98-1993 on

February 29 of this year, and this Court's ruling in J.L. will

be determinative of this issue and resolve a split among the

jurisdictions that have considered this issue.

The Commonwealth turther seeks review of the Penn-

sylvania Supreme Court's determination that flight is not a

relevant factor under Terry v. Ohio, 392 U.S. 1 (1968), which

is in direct conflict with this Court's recent decision in IIli-

nois v. Wardlow, No. 98-1036, 2000 U.S. LEXIS 504

(decided January 12, 2000). Regardless of the outcome in

J.L., the Pennsylvania Supreme Court's Fourth Amendment

analysis is fatally flawed under Wardlow.

The facts of this case are as follows. On June 24,

1996, at about 6:00 p.m., Philadelphia Police Officer Christo-

pher Frazier received a call over police radio instructing him

to investigate a report of a male on the corner of 28th Street

and Cecil B. Moore Avenue who possibly had a handgun.

The suspect was described as a black male, wearing a white

T-shirt, blue jeans and white sneakers. Upon receiving this

call, Officer Frazier was only a block away and arrived at the

reported location within approximately four seconds. The

officer immediately noticed that respondent was the only

male on the comer and that he matched precisely the descrip-

tion broadcast over police radio (N.T. 10/2/96, 4-6).

Officer Frazier, who was in uniform, got out of his

police vehicle and asked respondent to "come here."

Respondent, however, immediately ran away from the offi-

cer. Officer Frazier pursued him and was soon joined by

another officer, who approached respondent from the oppo-

site direction. Cornered between the two officers, respondent

hesitated, but eventually complied, when Officer Frazier

instructed him to put his hands in the air. The officer then

ordered respondent to place his hands against a parked car

and, for his own safety, conducted a pat-down search of

respondent's outer clothing. While doing so, Officer Frazier

felt a hard object in respondent's crotch area, which he imme-

diately recognized as a handgun. A silver .32 caliber hand-

gun with a brown gnip fell out of respondent's nght pant leg

and was recovered by Officer Frazier. Respondent was then

placed under arrest (N.T. 10/2/96, 6-8).

The Pennsylvania Supreme Court held that the offi-

cers violated the Fourth Amendment. In analyzing the above

facts under Terry, the Court applied its previously adopted

view of Terry, which precludes police from relying on an

anonymous tip, even though the tip provides a physical

description of the suspect and an exact location where he can

be found, which information is subsequently confirmed by

police. The Court reasoned that, absent a "firsthand" obser-

vation of suspicious conduct, the police cannot make a Terry

stop. In Re D.M., 743 A.2d at 425-426. As for respondent's

flight from police, conduct this Court has held to be a signifi-

cant factor under Terry, the Pennsylvania Supreme Court

glibly observed, "[i]n the absence of any factors indicating

that the officer suspected cnminal activity was afoot, the

‘additional factor’ of flight is not relevant to the determina-

tion of reasonable suspicion." 743 A.2d at 426 (emphasis

added).

Pennsylvania is one of a few jurisdictions that hold

that police may not respond to an anonymous report of a

"man with a gun" by making a Terry stop of a person found

to match the description of the gunman at the exact location

contained in the report. These jurisdictions purport to refuse

to adopt a "gun exception" to the requirements of Terry. The

vast majority of jurisdictions that have considered this issue,

however, view the report of a gun as a natural component of

the reasonable suspicion analysis, and have found that police

may make a Terry stop under such circumstances. This very

issue is currently before this Court in Florida v. J.L., No.

98-1993, and was argued on February 29, 2000.

With its decision in this case, moreover, the Pennsyl-

vania Supreme Court has also departed from the majority of

jurisdictions that view flight as an important, even critical,

factor in determining reasonable suspicion, clecting instead

to consider a suspect's flight from police to be largely irrele-

vant under the Terry analysis.' That view, however, has been

repudiated by this Court in its recent decision in Illinois v.

Wardlow, No. 98-1036, 2000 U.S. LEXIS 504 (2000), which

made clear that flight from police is a suspicious circum-

stance which Is a pertinent factor in determining the exis-

tence of reasonable suspicion.

REASONS FOR GRANTING THE WRIT

I. A REPORT OF A MAN WITH A GUN SHOULD

PERMIT A TERRY STOP.

It hardly needs to be said that police can approach a

person for investigation if they are aware of articulable facts

that would support reasonable suspicion of criminal activity.

They may briefly stop the person in order to investigate fur-

ther; and may frisk for weapons if they reasonably suspect

that the person may be armed and dangerous. Adams v. Wil-

liams, 407 U.S. 143 (1972): Terry v. Ohio, 392 US. 1

(1968).

Reasonable suspicion is supposed to be a "common-

sense, non-technical" concept. Omelas v. United States, 517

U.S..690, 695 (1996): United States v. Cortez, 449 U.S. 411,

A similar view of flight has been expressed by a few other

jurisdictions. See e.g., State v_ Hicks, 241 Neb. 357, 488 N.W.2d

359 (1992). cert. denied. S07 LS 1000 (1993): People v. Shabaz,

424 Mich. 42, 378 N.W.2d 451 (19S). cert. dismissed, 478 U.S.

1017 (1986).

417-418 (1981). Common sense would seem to advise that,

in today's world, a report of a gun would add significantly to

the reasonable suspicion analysis. In many jurisdictions

courts have so held.

But in a few states where the question has been

addressed, courts have concluded that a report of a gun 1s

completely irrelevant to the decision to make a Terry stop.

Pennsylvania 1s in the forefront of this minonty view.

In the landmark case of Commonwealth v. Hawkins, 547 Pa.

652, 692 A.2d 1068 (1997), a then-plurality of the Pennsyl-

vania Supreme Court abjured the notion that the presence of

a gun supports suspicion of criminal activity. The Court ndi-

culed fears of "maniacs who may spray schoolyards with

gunfire," and dismissed the contrary view as "radical" "fanci-

ful" "shocking" and "histrionic." It complained that a report

of a man with a gun might be nothing more than a "prank,"

since "anyone can describe a person who Is standing in a par-

ticular location" and claim that they have a gun. It further

noted that concealed guns are not illegal in Pennsylvania --

that is, if the gunman is licensed. The Court concluded that

there is "no gun exception" to Terry. 692 A.2d at 1070-1071.°

The dissent responded to the plurality’s mdicule of the no-

tion that "maniacs" might attack a school by pointing out that, in

March 1997, a group of heavily armed men shot 11 police officers

and 6 innocent bystanders while robbing a bank. In February

1997 a gunman opened fire at the Empire State Building, wound- ~

ing 7 people. 692 A.2d at 1071.

All of this of course occurred long before the April 1999

tragedy 1n Littleton, Colorado, in which two armed students went

on a lethal rampage at a high school.

These sentiments commanded a majority in Com-

monwealth v. Jackson, 548 Pa. 484, 698 A.2d 571 (1997). In

that case, which was deemed "factually indistinguishable

from Hawkins," the Court rejected the notion that "police

have reasonable suspicion to conduct a stop and frisk pursu-

ant to Terry v. Ohio ... based solely on an anonymous tip that

a person matching the suspect's description is carrying a

gun." The Court explained that the danger of firearms was

"already factored into the balance" of Terry, and so adds

nothing to the reasonable suspicion analysis. To hold other-

wise would be "in reality to overrule Terry[.]" 698 A.2d at

575.

Florida has followed Pennsylvania's lead. In J.L. v.

State, 727 So.2d 204 (Fla. 1998), cert. granted, 120 S.Ct. 395

(1999), the Supreme Court of Florida, in a per curiam ruling,

"join[ed] the Supreme Court of Pennsylvania in rejecting"

the supposed "firearm exception" to Terry. 727 So.2d at 209.”

This Court granted the State of Florida's petition for writ of | -

In reaching its interpretation of Terry, the Florida Supreme

Court quoted with approval the Pennsylvania Supreme Court's

scorn for the notion that the likely presence of a gun should be

weighed in the reasonable suspicion analysis:

[I]t 1s 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 unde-

tected. Even if the Constitution of Pennsylvania

would permit such invasive activity as the Com-

monwealth proposes - which it does not - such

activity seems more likely to endanger than to

(Continued)

;

{

;

certiorari, and heard argument on the case on F ebruary 29,

2000.

Cases like Hawkins, Jackson, and J.L. are the minor-

ity view. Most federal courts have followed reasoning simi-

lar to that in United States v. Clipper, 973 F.2d 944 (D.C.

Cir. 1992), cert. denied, 506 U.S. 1070 (1993)(anonymous

tip that suspect in green jacket and black hat was carrying a

gun). There the Court recognized that a police officer inves-

tigating a "man with a gun" call is on the horns of a dilemma.

"He must either stop and search the individual or at best fol-

low him through the streets ... hoping he [will] commit a

crime, or at least brandish the weapon, out of doors, where

the police can intervene." For the Court in Clipper,

This element of imminent danger distin-

guishes a gun tip from one involving posses-

sion of drugs. If there is any doubt about the

reliability of an anonymous tip in the latter

case, the police can limit their response to sur-

veillance or engage in "controlled buys."

Where guns are involved, however, there is

the risk that an attempt to "wait out" the sus-

pect might have fatal consequences.

973 F.2d at 951.

The notion that a report of a man with a gun should

not be considered suspicious because some people may be

(Continued) i

protect the public.

727 So.2d at 209, quoting Hawkins, 692 A.2d at 1071.

licensed to carry firearms overlooks the reality that only a

very small portion of the population in Philadelphia is

licensed to carry a gun. In this regard, the dissenting justices

in Commonwealth v. Hawkins, supra made the following

observations:

co ihe het atl 1 Se bis ib

The Majority implies that a tip that a man is

Carrying a gun Is not an allegation of cnminal

activity in Pennsylvania. However, an over-

whelming majority of Pennsylvanians are not

licensed to carry concealed weapons. In 1995,

there were 569,817 licenses to carry concealed

firearms in Pennsylvania, which represents

between 3-5% of the population. Further-

more, this "man with a gun" call occurred in

Philadelphia, where a person must have a li-

cense to carry a firearm, whether it is con-

cealed or unconcealed. 18 Pa.C.S. § 6108...

Less than one percent (1%) of the population

of Philadelphia is licensed to carry a con-

cealed firearm.

Id., 692 A.2d at 1075-1076 (Newman, J., dissenting)

(footnotes omitted). Given that less than one percent of the

population in Philadelphia is licensed to carry a gun, a report

of a""man with a gun" at least gives rise to a reasonable

probability, indeed, almost a certainty, that the person

reported to be carrying a gun is unlicensed. Accord United -

States v. Bold, 19 F.3d 99, 104 (2d Cir. 1994) (upholding

stop and frisk of man with a gun; observing that while it is

certainly possible to obtain a gun license in New York, the

overwhelming majority of people there are not licensed to

carry handguns).*

The courts have also considered the argument that

"anyone with a grudge” could "fabricate a tip whose neutral

details" would be easily corroborated. But such pranksters

run the risk of prosecution, and it is sophistry to suggest that

fabrications are the norm. United States v. Clipper, 973 F.2d

at 951. Where a gun may be present, the reasonable choice is

for the police to stop and frisk the suspect.’

. In addition to the statistical improbability that a person

carrying a concealed handgun on a public street in Philadelphia

had a valid gun license, the nature of the tip itself gives rise to a

reasonable inference that the gun was, at some point, not safely

concealed on respondent's person, but was being brandished in a

manner to cause the person making the anonymous report to be

sufficiently alarmed to feel the need to call the police. It 1s cer-

tainly reasonable for an officer responding to such a call to con-

clude that the most likely basis for the information he received

over police radio would be the tipster's having personally observed

the gun being displayed by respondent.

It should also be noted that respondent was a juvenile at

the time of his arrest and, under Pennsylvania law, it is illegal per

se for a minor to possess a gun. See 18 Pa.C.S. § 6110.1(a).

: It must also be recalled that reasonable suspicion focuses

on the facts as they appear to the officer at the time of the stop, not

as they would appear after investigation in depth. The possibility

that seemingly reliable information might be false -- e.g., that citi-

zens living in high-crime areas are routinely calling police as a

"prank," as if they did not have any real crime to report -- has no

more bearing on the analysis than the possibility that suspicious

(Continued)

conduct might have an innocent explanation:

Clearly, the officers were not required to

rule out all possibility of innocent behavior before

initiating a brief stop ... The test is founded on

suspicion, not probable cause. Even if it was

equall probable that the vehicle and its occupants

were innocent of any wrongdoing, police officers

must be permitted to act before their reasonable

belief is verified by escape or fruition of the harm

it was their duty to prevent.

United States v. Holland, 510 F.2d 453, 455 (9th Cir. (1975), cert.

denied, 422 U.S. 1010 (1975).

As more recently explained by the Court in United States

v. McBride, 801 F.2d 1045, 1047 (8th Cir. 1986), cert. denied,

479 U.S. 1100 (1987)(citations omitted):

[I]t 1s immaterial that the details corroborating an

~~ informant's tip are as consistent with innocent

conduct as with illegal activity. Courts have rec-

ognized that persons through malice might fabri-

cate tips and meet this test for corroboration by

adding neutral information such a location or

vehicle description ... but those courts have also

recognized that the choice for police is between

making limited investigatory stops and ignoring

citizen tips. Some criminal conduct is inherently

impossible to verify by visual observation alone.

The proper analysis, therefore, is that even if the report

might be a fabrication, the officer acts properly if he or she acts

upon facts that appear reliable and would warrant an investigatory

stop.

Thus, the report of a gun justifies a stop and frisk not

because it increases the quantum of suspicion, but because it

increases the quantum of danger. The Terry stop and frisk is

a creature of the "unreasonable searches and seizures" clause

of the Fourth Amendment, and it is plainly reasonable --

indeed, the most everyday commonsense -- to take greater

precaution the greater the potential harm. The added urgency

presented by guns has been recognized by Professor LaFave

as a valid consideration in the reasonable suspicion

determination:

[I]n some instances the need for immediate

action may be so great that substantial doubts

about the reliability of the informant or his

information cannot be permitted to stand in

the way of prompt police action. ... Certainly a

stopping for investigation will be the least

intrusive effective means of dealing with cer-

tain special situations, such as a major bomb

scare or the kidnapping of a child, and thus

there is good reason to acknowledge that

lesser evidence than is otherwise required may

be used in such situations ... courts have most

frequently relied upon [this] rationale to per-

mit investigative stops to be made on the basis

of an anonymous call that a certain person at a

certain place was armed with a gun.

LaFave, Search and Seizure (West, 1987), § 9.4(h) at 229.

This view is consistent with that of other federal

courts that have considered this issue. E.g., United States v.

DeBerry, 76 F.3d 884, 886 (7th Cir. 1996)(where there is a

report of a man with a gun, a Terry stop "strike[s] the proper

balance between the right of the people to be left alone and

their nght to be protected"); United States v. Gibson, 64 F.3d

617 (11th Cir. 1995), cert. denied, 517 U.S. 1173 (1996)

(Terry stop proper where anonymous tip reported possibly

armed men and suspects matched description given, despite

absence of prediction of future conduct). See also United

States v. Bold, 19 F.3d 99 (2d Cir. 1994).°

4 State courts ihat have considered the issue also have held

that a report of a gun weighs heavily in the Terry analysis. The

Supreme Judicial Court of Maine concluded that the choices the

police must face when responding to a "man with a gun" call must

be resolved "in favor of the limited intrusion on privacy repre-

sented by a stop and pat-down for concealed weapons." State v.

Hasenbank, 425 A.2d 1330, 1334 (Me. 1981). The New Jersey

Supreme Court explained:

Where a weapon or explosive is involved it would

be foily to say that the police should be compelled

to ignore information, though from an anonymous

source, and do nothing to protect the public under

penalty of the suppression of evidence if they do

what their duty reasonably demands.

State In The Interest Of H.B., 75 N.J. 243, 381 A.2d 759, 763-764

(1977). The Supreme Court of Hawaii held that the police are

"duty-bound" to make an investigatory stop of a person anony-

mously identified as carrying a gun. State v. Kuahuia, 62 Haw.

464, 616 P.2d 1374, 1375 (1980). In People v. Smithers, 83 I1].2d

430, 47 Ill.Dec. 322, 415 N.E.2d 327, 332 (1980), the Supreme

Court of Illinois ruled that the reported presence of a gun "casts a

heavy weight in favor of the reasonableness" of police action

under Terry. "We should evaluate the officers' actions in light of

one's reaction had they failed to act." Accord State v. Franklin, 41

Wash.App. 409, 704 P.2d 666, 669 (1985) (collecting cases);

(Continued)

This Court, as well, in contexts other than Terry, has

recognized that potential danger to police or members of the

public at large may sometimes justify police action that

would otherwise be constitutionally impermissible. See, e.g.,

Maryland v. Buie, 494 U.S. 325, 337 (1990)(police may con-

duct protective sweep of house during an arrest, without a

search warrant or probable cause to search the house, where

they have "a reasonable belief based on specific and articula-

ble facts that the area to be swept harbors an individual pos-

ing a danger to those on the arrest scene"); New York v.

Quarles, 467 U.S. 649 (1984)(recognizing public safety ex-

ception to requirement of Miranda warnings prior to custo-

dial interrogation where questions are necessary to ensure

safety of police or that of the public); Cupp v. Murphy, 412

U.S. 291, 295 (1973)(noting long line of cases recognizing

exception to warrant requirement for search incident to arrest

based upon reasonable expectation of police that person

being arrested may use any weapons he has against them or

may try to destroy any incriminating evidence in his

possession).

In Cady v. Dombrowski, 413 U.S. 433 (1973), this

Court held that the possible presence of a gun in a rented

automobile, whose driver (a police officer from another juns-

diction) had been in an accident and was arrested for drunk

driving, justified a warrantless search of the trunk of the

(Continued)

People v. D.F., 933 P.2d 9 (Colo. 1997): In re. J.L.G., 209 Ga.

565, 434 S.E.2d 126 (1993); Allen v. State, 85 Md. App. 657, 584

A.2d 1279 (1991), appeal denied. 323 Md. 1, 590 A.2d 158

(1991); People v. Salaman, 7! NY 2d 869, 527 N.Y.S.2d 750, 522

N.E.2d 1048 (1988); State v. Pulley. 863 S.W.2d 29 (Tenn. 1993);

Scott v. Virginia, 20 Va.App. 725. 460 S.E.2d 610 (1995).

vehicle based upon concerns for the safety of the public. In

pertinent part, the Court's reasoning was as follows:

The Framers of the Fourth Amendment have

given us only the general standard of "unrea-

sonableness" as a guide in determining

whether searches and seizures meet the stan-

dard of that Amendment in those cases where

a warrant is not required.... Where, as here,

the trunk of an automobile, which the officer

believed to contain a gun, was vulnerable to

intrusion by vandals, we hold that the search

was not "unreasonable" within the meaning of

the Fourth and Fourteenth Amendments.

Id., 413 U.S. 448. Conversely, in Welsh v. Wisconsin, 466

U.S. 740 (1984), the Court concluded that where minor of-

fenses are involved it would be unreasonable to allow police

to make a warrantless entry into the suspect's home to make

an arrest, holding that the gravity of the underlying offense is

itself an important factor in determining the existence of exi-

gent circumstances which would excuse a warrant. 466 U.S.

at 750-753.

The same standard of "reasonableness," the same

clause of the Fourth Amendment, supports the conclusion of

the majority view that the danger inherent in a gun report

makes it reasonable for police to stop and frisk a person

matching the description of the reported gunman, to ensure

both their own safety and that of the public. Terry itself em-

phasized the need to balance the safety of police officers and

the public in determining the propnety of a stop and frisk:

Certainly it would be unreasonable to require

that police officers take unnecessary risks in

the performance of their duties ... [W]e cannot

blind ourselves to the need for law enforce-

ment officers to protect themselves and other

prospective victims of violence in situations

where they may lack probable cause for an

arrest.

392 US. at 23-24.’

Pennsylvania and those jurisdictions that follow its

reasoning purport to follow Terry; but in fact, ney seriously

distort the rationale of that case. These jurisdictions clearly

recognize that a report of a man with a gun warrants investi-

gation, but they decline to allow police to act in a way that

would reasonably allow investigation to occur. The police

are told that they may investigate, but only in a way that risks

their lives and the lives of those around them. Their other

supposed choice -- to passively watch the suspect and hope

that he does something overtly incriminating -- is simply an

abdication of investigation, and does not reduce the risk. The

: Also worthy of note is the analysis of the Maryland

Court of Special Appeals in addressing a challenge to a Terry stop

and frisk:

In balancing the interests that are involved when a

close call must be made by an officer on the street,

we cannot forget that an error on one side of the

line may result in an inconvenienced and offended

citizen, a circumstance not to be lightly dismissed.

An error on the other side of the line, however,

may result in a dead policeman.

State v. Blackman, 94 Md.App. 284, 617 A.2d 619, 628

(1992).

only rational choice under these cases, it seems, is for the po-

lice to stay safely indoors. Abandoning the public to its fate

is viewed by such courts as the proper application of Terry.

Under Terry as understood by the Pennsylvania Su-

preme Court, a report of a man entering a school with a gun

is not a cause for "histrionic" concern. The police should

assume the gunman is planning to teach firearms safety.

Investigating would be "more likely to endanger than to pro-

tect the public." J.L., 727 So.2d at 209; Hawkins, 692 A.2d at

1071.

Jurisdictions that follow the Pennsylvania view of

Terry are systematically misapplying the Fourth Amendment,

in a way that places literally thousands of people unnecessar-

ily at risk from gun violence. In the midst of a national crisis

in which ways are sought to control illegal handguns, the one

thing that is not needed is an idiosyncratic interpretation of

Terry that bars reasonable police investigation of "man with a

gun" calls. Because this Court's pending decision in Florida

v. J.L. will resolve the existing split among jurisdictions con-

sidering this issue, certiorari should be granted in this case in

order to ensure uniformity in the application of the Fourth

Amendment in cases where police make a Terry stop in

response to a "man with a gun” call.

II. THE PENNSYLVANIA SUPREME

COURT'S HOLDING THAT FLIGHT

IS IRRELEVANT IN DETERMINING

REASONABLE SUSPICION UNDER

TERRY IS IN DIRECT CONFLICT |

WITH THIS COURT'S RECENT DEC-

ISION IN ILLINOIS V. WARDLOW.

Even if this Court were to decide in J.L. that an

anonymous "man with a gun" call, standing alone, is insuffi-

cient to justify a Terry stop, the Pennsylvania Supreme

Court's decision in this case cannot withstand Fourth Amend-

ment scrutiny. In light of this Court's recent decision in IIli-

nois v. Wardlow, No. 98-1036, 2000 U.S. LEXIS 504

(2000), it is crystal clear that respondent's unprovoked flight

from police, viewed in combination with the "man with a

gun" call, unquestionably provided reasonable suspicion for

the stop of respondent. The Pennsylvania Supreme Court's

determination that respondent's flight was irrelevant under

Terry cannot survive Fourth Amendment scrutiny, and is di-

rectly contrary to this Court's holding in Wardlow. Ata

minimum, this case should be remanded to the Pennsylvania

Supreme Court for reconsideration in light of Wardlow.

In rejecting respondent's flight as irrelevant under

Terry, the Pennsylvania Supreme Court concluded that flight

can only be considered in the reasonable suspicion context if

police observe overtly suspicious conduct on the part of the

suspect before he or she flees. Thus, the Court concluded

that it didn't matter that police had a report of a man with a

gun at a specific location, and that respondent matched the

description of the reported gunman. Rather, because respon-

dent merely ran away when police arrived, without first

doing something suspicious like shooting the officer or an

innocent bystander, the police were required to do nothing

because, in the view of the Pennsylvania Supreme Court,

"{i}Jn the absence of any factors indicating that the officer

. suspected criminal activity was afoot, the ‘additional’ factor

of flight is not relevant to the determination of reasonable

suspicion." In the Interest of D.M., 743 A.2d at 426.

This reasoning is ridiculous. The officer in this case

did suspect criminal activity was afoot, and his suspicion was

clearly reasonable under the circumstances. The officer was

responding to a call reporting a man with a gun. Respondent

was at the location identified by the report, and matched the

description of the alleged gunman. When the officer arrived

on the scene, respondent reacted by running away when the

officer attempted to communicate with him. The

Pennsylvania Supreme Court, however, apparently concluded

that the flight was not itself suspicious because it was not

preceded by other suspicious conduct which was observed

"firsthand" by the officer. Id. Thus, according to the

Pennsylvania Supreme Court's tortured logic, flight is only

suspicious when it is preceded by other suspicious conduct.

Like its analysis of the reasonableness of police

responding to a "man with a gun" call, the Pennsylvania

Supreme Court's analysis of the significance of flight under

Terry is -- not surprisingly -- at odds with the vast majority .

of courts. Most jurisdictions have recognized the often

crucial weight a suspect's flight can provide in the reasonable

suspicion analysis.*

; See Tom v. Voida, 963 F.2d 952, 958 (7th Cir. 1992)

("flight is certainly a relevant and probative factor" supporting a

finding of reasonable suspicion); United States v. Pope, 561 F.2d

663, 668 (6th Cir. 1977)("Flight invites pursuit and colors conduct

which hitherto has appeared innocent."); United States v. Bowles,

(Continued)

625 F.2d 526, 535 (Sth Cir. 1980)("in appropriate circumstances

[flight] can supply the ‘key ingredient justifying the decision of a

law enforcement officer to take action"); United States v. Brown,

159 F.3d 147, 149 (3d Cir. 1998), cert. denied, 119 S. Ct. 1127

(1999)("We have held that flight combined with other factors may

support a warrantless stop and frisk."); United States ex rel. Rich-

ardson v. Rundle, 461 F.2d 860, 864 (3d Cir. 1972), cert. denied,

410 U.S. 911 (1973)(flight and furtive actions at approach of po-

lice are strong indicia of mens rea and constitute significant factors

in decision to make Terry stop); United States v. Harley, 682 F.2d

398, 401 (2d Cir. 1992)(flight "surely may be considered as mean-

- ingful by police officers contemplating ... a stop or an arrest");

Dimascio v. Anchorage, 813 P.2d 696, 699 (Alaska App.

1991)("an unprovoked act of flight is a legitimate factor which the

police and the courts can take into account when determining rea-

sonable suspicion for a stop"); People v. Souza, 9 Cal. 4th 224, 36

Cal.Rptr.2d 569, 885 P.2d 982, 988 (1994)("flight from police is a

proper consideration -- and indeed can be a key factor -- in deter-

mining whether in a particular case the police have sufficient

cause to detain"); Platt v. State, 589 N.E.2d 222, 226 (Ind. 1992)

("Flight at the sight of police is undeniably suspicious behavior.");

State v. Belton, 441 So. 2d 1195, 1198 (La. 1983), cert. denied,

466 U.S. 953 (1984) (flight "may be highly suspicious and, there-

fore, may be one of the factors leading to a finding of reasonable

cause"); City of St. Paul v. Vaughn, 306 Minn. 337, 237 N.W.2d

365, 369 (1975)(recognizing "that flight from police officers will

serve to furnish the basis of an investigative stop"); State v. Sweet,

44 Wash. App. 226, 721 P.2d 560, 563 (1986), appeal denied, 107

Wash. 2d 1001 (1986)("Courts have generally regarded flight in

the presence of police officers to be a circumstance that may be

considered along with other factors in determining whether an

investigatory stop is justified."); State v. Anderson, 155 Wis. 2d

77, 454 N.W.2d 763, 768 (1990)(""it would defy common sense'

to conclude that fleeing from the police does not amount to suspi-

(Continued)

Indeed, just sixteen days after the Pennsylvania

Supreme Court decided this case, this Court decided Illinois

v. Wardlow, supra. In Wardlow, police were traveling in a

four-car caravan through an area of Chicago known for heavy

narcotics traffic in order to investigate drug transactions.

When they passed by the street on which Wardlow was

standing, he looked at the police and ran away through an

alley. One officer saw this and pursued Wardlow, stopped

him, and conducted a frisk for weapons, which resulted in the

(Continued)

cious circumstances affording reasonable grounds to justify at

least a demand for identification and an inquiry into the sudden

flight"). See also Michigan v. Chesternut, 486 U.S. 567, 576

(1988)(Kennedy, J., Concurring)("respondent's unprovoked flight

gave the police ample cause to stop him"); United States v.

Brignoni-Ponce, 422 U.S. 873, 885 (1975)(behavior such as

erratic driving or obvious attempts to evade officers can support a

reasonable suspicion to stop a car near the border); sibron v. New

York, 392 U.S. 40, 66 (1968)(flight at approach of police is

"strong indicia of mens rea").Accord United States v. Garcia, 516

F.2d 318, 320 (9th Cir. 1975), cert. denied, 423 U.S. 934 (1975);

United States v. Johnson, 741 F.2d 223, 224 (8th Cir. 1984);

United States v. Wilson, 2 F.3d 226, 231 (7th Cir. 1993), cert.

denied, 511 U.S. 1054 (1994); United States v. Lane, 909 F.2d

895, 899 (6th Cir. 1990), cert. denied, 498 U.S. 1093 (1991);

United States v. Silva, 957 F.2d 157, 160 (Sth Cir. 1992), cert.

denied, 506 U.S. 887 (1992); United States v. Haye, 825 F.2d 32,

34 (4th Cir. 1987); United States v. Embry, 546 F.2d 552, 555 (3d

Cir. 1976), cert. denied, 430 U.S. 948 (1977); United States v.

Bennett, 514 A.2d 414, 416 (D.C. App. 1985); Hovington v. State,

616 A.2d 829, 832 (Del. 1992); State v. Stinnett, 104 Nev. 398,

760 P.2d 124, 126-127 (1988); People v. Martinez, 80 N.Y.2d

444,591 N.Y.S.2d 823, 606 N.E.2d 951, 953 (1992); State v. But-

ler, 331 N.C. 227, 415 S.E.2d 719, 722-723 (1992).

seizure of an illegal handgun. The IIlinois Supreme Court,

employing reasoning similar to the Pennsylvania Supreme

Court in this case, held that flight from a police officer is

insufficient to justify an investigatory stop unless there are

other "specific facts corroborating the inference of guilt

gleaned from defendant's flight." People v. Wardlow, 183 III.

2d 306, 316, 701 N.E.2d 484, 489, 233 Ill. Dec. 634 (1998),

reversed, No. 98-1036, 2000 U.S. LEXIS 504 (2000). This

Court granted certiorari and reversed the decision of the IIli-

nois Supreme Court.

While this Court deemed Wardlow's mere presence in

a high crime area as insufficient to justify a Terry stop, it

concluded that, when viewed in combination with his unpro-

voked flight from police, reasonable suspicion was estab-

lished to justify the stop. With respect to the significance of

Wardlow's flight, this Court observed:

Our cases have ... recognized that nervous,

evasive behavior is a pertinent factor in deter-

mining reasonable suspicion. Headlong flight

-- wherever it occurs -- is the consummate act

of evasion: it is not necessarily indicative of

wrongdoing, but it is certainly suggestive of

such. In reviewing the propriety of an offi-

cer's conduct, courts do not have available

empirical studies dealing with inferences

drawn from suspicious behavior, and we can-

not reasonably demand scientific certainty

from judges or law enforcement officers

where none exists. Thus, the determination of

reasonable suspicion must be based on com-

monsense judgments and inferences about

human behavior.

Illinois v. Wardlow, 2000 U.S. LEXIS 504, *10. This rea-

soning is simply incompatible with the Pennsylvania Su-

preme Court's Fourth Amendment analysis in this case.

Wardlow makes clear that flight itself is suspicious conduct,

and standing alone is relevant to determining the existence of

reasonable suspicion under Terry.

Indeed, in Wardlow, the police were not even investi-

gating any particular person, nor did they have any specific

information of wrongdoing; they were just looking for drug

transactions in an area known for such activity. In this case,

by contrast, police had information that a particularly

described person had a gun at a specific location, and respon-

dent matched that description and was at that precise location

within four seconds after the tip was relayed to the officer.

Thus, although respondent was not displaying a gun when

police arnved, his unprovoked flight, like that of Wardlow's,

was certainly suggestive of wrongdoing and further served to

corroborate the information provided by the anonymous

"man with a gun" call. In light of this Court's holding that

there was reasonable suspicion to stop Wardlow because he

was present in a high crime area and ran when he saw police,

the Pennsylvania Supreme Court's rationale in this case can-

not withstand scrutiny under the Fourth Amendment. For

this reason as well, this Court should grant certiorari in this

case and, at a minimum, remand the case for reconsideration

in light of Wardlow.

CONCLUSION

Wherefore, the Commonwealth of Pennsylvania re-

spectfully requests this Court to grant the petition for a writ

of certiorari.

Respectfully submitted,

WILLIAM G. YOUNG

Assistant District Attorney

HUGH J. BURNS, JR.

Acting Chief, Appeals Unit

CATHERINE MARSHALL

Chief, Appeals Unit

RONALD EISENBERG

Deputy District Attomney

(Counsel of Record)

ARNOLD H. GORDON

First Assistant District Attorney

LYNNE ABRAHAM

District Attomey

App. 1

[J-24-1999]

IN THE SUPREME COURT OF PENNSYLVANIA

EASTERN DISTRICT

IN THE INTEREST : No. 21 E.D. Appeal Docket

OF D.M., : 1998

: Order of the Superior Court

: dated November 19, 1997,

: at No. 3538 Philadelphia

: 1996 affirming the Order of

: the Court of Common Pleas

APPEAL OF: D.M. : of Philadelphia County

: dated October 2, 1996, at

: Juvenile Petition No.

: 4074-96-06

: ARGUED: February 3, 1999

OPINION

MR. JUSTICE CAPPY

DECIDED: December 27, 1999

The sole issue presented in the instant appeal is

whether the police officer demonstrated the requisite cause to

stop appellant pursuant to the Fourth Amendment of the

United States Constitution and Article 1, Section 8 of the

Pennsylvania Constitution. For the reasons stated herein, we

determine that the officer did not possess the requisite cause

to stop appellant, and accordingly, reverse the court below.

As the issue before us arses from the ruling of the

suppression court, our standard of review is limited. When

reviewing rulings of a suppression court, we must determine

” App. 2

whether the record supports that court's findings of fact.

Commonwealth v. Cortez, 507 Pa. 529, 491 A.2d 111 (1985).

Where the defendant has appealed, we consider the evidence

presented by the prosecution and only that evidence from the

defense that is uncontradicted. /d. Where the record sup-

ports the findings of the suppression court, we are bound by

those facts and may reverse only if the court erred in reach-

ing its legal conclusions based upon the facts. /d.

The facts, presented at the suppression hearing, estab-

lished the following. On June 24, 1996, at approximately

6:00 p.m., Officer Chris Frazier received a radio call regard-

ing a man with a gun at 28th and Cecil B. Moore Avenues in

Philadelphia. The officer was only one block from the loca-

tion at the time of the call. The radio call included a descrip-

tion of the "man with a gun" as a black male, wearing a white

t-shirt, blue jeans and white sneakers.

Upon arriving at the scene, the officer saw appellant,

D.M., who matched the description given by the radio call.

Officer Frazier exited his vehicle and told appellant to come

over. Appellant ran away from the officer. Police back up

approached the scene and appellant was stopped between the

two cars. Officer Frazier asked appellant to put his hands on

the hood of the car in front of him and proceeded to pat

appellant down for the officer's own protection. Officer

Frazier felt a hard object resembling a handgun in appellant's

crotch area. A .32 caliber handgun fell out of appellant's

Although there appears to be some dispute as to whether

appellant was the only person present at the time Officer Frazier

arrived on the scene, our scope of review is limited to considering

only the evidence that is uncontradicted.

App. 3

right pants leg. At that point, Officer Frazier secured the gun

and arrested appellant.

Appellant filed a motion to suppress alleging viola-

tions of both the United States and Pennsylvania Constitu-

tions. Following a hearing, the trial court denied appellant's

motion to suppress. That same day, the court adjudicated

appellant delinquent and placed him on Intensive Probation.

The Superior Court affirmed in a memorandum opinion.

This court granted the petition for allowance of appeal in

order to address the issue of whether the officer possessed

reasonable suspicion to stop appellant based on an anony-

mous tip, where appellant fled at the time he was approached

by the officer.’

Appellant argues that the officer did not establish

reasonable suspicion based upon Article 1, Section 8 of the

Pennsylvania Constitution. Specifically, appellant asserts

that anonymous tips that lack specificity carry no indicia of

reliability, and therefore cannot be used in establishing rea-

sonable suspicion. The Commonwealth responds that the

anonymous tip was sufficiently specific in the description

and location of appellant. Thus, when examined in their

totality, the facts in the instant case, including the tip and

appellant's subsequent flight, demonstrate reasonable suspi-

cion.

Both the Fourth Amendment of the United States

Constitution and Article 1, §8 of the Pennsylvania

. Appellant did not contend that the frisk was improper in

the courts below. Similarly, appellant does not contend that the

frisk was improper to this court, thus the only issue we address is

whether the stop was supported by reasonable suspicion.

App. 4

Constitution protect citizens from unreasonable searches and

seizures. Commonwealth v. Jackson, 698 A.2d 571, 573 (Pa.

1997). In the seminal case on reasonable suspicion, the

United States Supreme Court determined that in order to stop

a defendant the officer must demonstrate that he had a rea-

sonable suspicion that criminal activity was afoot. Terry v.

Ohio, 392 U.S. 1 (1968). "[T]he police officer must be able

to point to specific and articulable facts and reasonable infer-

ences drawn from those facts in light of the officer's experi-

ence." Commonwealth v. Cook, 735 A.2d 673, 677 (Pa.

1999); Jackson, 698 A.2d at 573; Terry, 392 U.S. at 27. In

determining whether reasonable suspicion exists for a Terry

stop, the inquiry is the same under either Article 1, Section 8

of the Pennsylvania Constitution or the Fourth Amendment

of the United States Constitution. Cook, 735 A.2d at 675;

Jackson, 698 A.2d at 573.

In Jackson, this court recently considered almost

identical facts to those involved in the instant case, and con-

cluded that the officers did not possess reasonable suspicion

to justify a stop of appellant. Jackson, 698 A.2d at 573.

However, the Commonwealth insists that the anonymous tip

in the instant case was more specific than the tip in Jackson.

In Jackson, the police officer received a radio report

of a man in a green jacket with a gun. The officer was also

provided with a location. The officer responded to the report

and upon arriving at the specified location, saw a group of

people in which appellant was the only person wearing a

green jacket. The officer exited his vehicle and immediately

searched appellant.

In rejecting the Commonwealth's contention that the

officer possessed a reasonable suspicion that criminal activity

was afoot, this court explained that anonymous tips should be

App. 5

treated with particular suspicion. Jackson, 698 A.2d at 573.

In order to be considered reliable the anonymous tip must

supply specific facts, which are sufficiently corroborated by

the officer. Jackson, 698 A.2d at 574. Facts that may be

utilized in determining reasonable suspicion should indicate

a particularized knowledge, and should not be those facts

available to the general public. Jackson; see also Alabama v.

White, 496 U.S. 325 (1990) (facts which predict a defendant's

future behavior make anonymous tip more reliable). "The

fact that a suspect resembles the anonymous caller's descrip-

tion does not corroborate allegations of criminal conduct, for

anyone can describe a person who is standing in a particular

location at the time of the anonymous call. Something more

is needed to corroborate the caller's allegation of criminal

conduct." Jackson, 698 A.2d at 574-5; quoting Hawkins, 692

A.2d at 1070. Based upon the above, the court concluded

that the mere physical description and location of appellant

were insufficient to satisfy the reasonable suspicion require-

ment. Jackson, 698 A.2d at 575.

We are not persuaded by any attempts to distinguish

the radio report in the instant case from the one in Jackson.

We do not see how the "additional" facts of the race of the

appellant and a full clothing description of the appellant

imparted more reliability to the instant tip. Akin to the tip in

Jackson, there is nothing in this tip to indicate that the person

providing the tip had any particularized knowledge about

appellant. As we stressed in Jackson, anyone can describe a

person who is standing in a particular location at the time of

the anonymous call. In that instance, the tip must provide

something more. Here, the tip provided nothing more than a

physical description and location of the appellant, the equiva-

lent to the tip in Jackson. Officer Frazier did not testify that

appellant was acting suspiciously at the time he arrived on

the scene. He also did not make any observations that would

ved a RS SPS

“4

App. 6

insinuate that criminal activity was afoot. In fact, the evi-

dence merely suggests that appellant was "hanging out"

when Officer Frazier reached the scene. Accordingly, there

was nothing in the instant anonymous tip or the circum-

stances surrounding the tip that provided the officers with a

reasonable suspicion that criminal activity was afoot.’

However, our inquiry does not end here, because the

Commonwealth asserts that appellant's subsequent flight

furnished the police officers with a reasonable suspicion to

stop appellant. In Commonwealth v. Cook, supra, this court

recently explained the relevance of an appellant's subsequent

flight in determining reasonable suspicion. Although ulti-

mately, in Cook, this court did not suppress the contraband,

the analysis regarding flight is instructive for purposes of the

instant case.

: The dissent asserts that the corroboration requirements

should be lessened where the suspect is alleged to be carrying a

gun, given the risk that a suspected gun carrier poses to the police

and in turn, society. Dissenting opinion at 3. Contrary to the

insinuations of the dissenting opinion, we are mindful of the risks

that police officers in this Commonwealth face on a daily, even

hourly, basis. We are also cognizant of the widespread public

violence that has erupted in our schools and streets, due in part to

the accessibility to firearms. However, this Court has steadfastly

refused the temptation to step onto the slippery slope by recogniz-

ing a "gun exception” to the limitations placed upon search and

seizures by both the Fourth Amendment and Article 1, §8; and we

continue to decline any invitations to recognize such an exception

today. Jackson, 698 A.2d at 575 (quoting Hawkins, 692 A.2d at

1070 (". . . there isno gun exception to the Jerry requirement for

reasonably suspicion of criminal activity. . . .")).

App. 7

In Cook, this Court made clear that flight alone does

not establish reasonable suspicion. 735 A.2d at 677. How-

ever, flight along with other facts, may demonstrate a reason-

able suspicion that criminal activity is afoot. /d. In making

the determination that reasonable suspicion existed, we relied

upon the fact that the officer made firsthand observations of

suspicious conduct, which based upon his experience, indi-

cated that criminal activity was afoot, before he even

approached appellant. /d. Moreover, we explained that

flight could be considered in establishing reasonable suspi-

cion, since the officer's suspicions were already aroused at

the time appellant fled. /d. at 677-78. Accordingly, Cook

makes clear that the appellant's subsequent flight becomes a

relevant factor, in determining reasonable suspicion, only

when the officer's suspicions are already aroused.

In the instart case, the officer's suspicions were not

aroused at the time he initially approached appellant. As

indicated previously, the tip and existing circumstances when

Officer Frazier arrived at the scene failed to provide any facts

that would lead an officer to reasonably suspect that criminal

activity was afoot. In the absence of any factors indicating

that the officer suspected criminal activity was afoot, the

"additional" factor of flight is not relevant to the determina-

tion of reasonable suspicion.

Accordingly, for the reasons stated herein, we reverse

the Superior Court and grant appellant's motion to suppress

the contraband.

Mr. Justice Castille files a dissenting opinion joined

by Madame Justice Newman.

Mr. Justice Saylor files a dissenting opinion.

App. 8

Judgment entered

Dated: December 27, 1999

/s/

John W. Person, Esquire

Deputy Prothonotary

ria

m, 2

App. 9

[J-24-1999]

IN THE SUPREME COURT OF PENNSYLVANIA

EASTERN DISTRICT

: No. 21 E.D. Appeal Docket

: 1998

IN THE INTEREST : Order of the Superior Court

OF D.M., : dated November 19, 1997,

: at No. 3538 Philadelphia

: 1996 affirming the Order of

: the Court of Common Pleas

: of Philadelphia County

: dated October 2, 1996, at

: Juvenile Petition No.

APPEAL OF: D.M., : 4074-96-06

: ARGUED: February 3, 1999

- DISSENTING OPINION

MR. JUSTICE CASTILLE

DECIDED: December 27, 1999

For the reasons expressed in Madame Justice New-

man's Dissenting Opinions in Commonwealth v. Hawkins,

547 Pa. 652, 692 A.2d 1068 (1997), and Commonwealth v.

Kue, 547 Pa. 668, 692 A.2d 1076 (1997), I believe that the

police officer in the instant matter was justified in initiating

an investigative stop of appellant. Consequently, I would

affirm the Superior Court's determination that the investiga-

tive stop herein satisfies the requirements of the United

States and Pennsylvania Constitutions.

App. 10

The majority correctly acknowledges that the stan-

dard for determining whether reasonable suspicion exists for

a protective frisk is the same under both Article 1, Section 8

of the Pennsylvania Constitution and the Fourth Amendment

of the United States Constitution. Commonwealth v. Cook,

Pa. __, 735 A.2d 673 (1999); Commonv <alth v. Jack-

son, 548 Pa. 484, 698 A.2d 571 (1997). Nevertheless, the

majority's interpretation of the corroboration requirements

for an anonymous tip of a "suspect with a gun" continues to

diverge from the interpretation of federal courts. See, e.g.,

United States v. DeBerry, 76 F.3d 884 (7th Cir. 1996)

(anonymous tip that armed man dressed in tan shorts and

shirt at certain location and "ambiguous gesture" justified

frisking suspect); United States v. Gibson, 64 F.3d 617 (11th

Cir. 1995), cert. denied, 517 U.S. 1173 (1996) (anonymous

tip of armed man wearing long black trench coat at specific

location and suspect reaching behind him justified frisking

suspect); United States v. Bold, 19 F.3d 99 (2d Cir. 1994)

(anonymous tip of armed man in gray Cadillac at spectfic

location justified frisking suspect); United States v. Clipper,

973 F.2d 944 (D.C. Cir. 1992), cert. denied, 506 U.S. 1070

(1993) (anonymous tip that armed man wearing green and

blue jacket and black hat at a specific location justified frisk-

ing suspect); United States v. McClinnhan, 660 F.2d 500

(D.C. Cir. 1981) (anonymous tip of armed man in black hat

holding briefcase at specific location justified frisking sus-

pect).

—~““The majority asserts that Alabama v. White, 496 U.S.

325 (1990), always requires predictive information to support

a finding of reasonable suspicion based on an anonymous tip.

To the contrary, Alabama v. White, did not create a "categori-

cal rule conditioning a Terry stop . . . on the corroboration of

predictive information." Clipper, supra at 949. In United

States v. Roberson, 90 F.3d 75 (3d Cir. 1996), in which there

App. 11

was an anonymous tip of a man selling narcotics, the United

States Court of Appeals for the Third Circuit noted in dicta

that predictive information may not be required to conduct a

protective frisk based on an anonymous tip of a "suspect with

gun." The Third Circuit cited Clipper, supra, for the propo-

sition that the police have the requisite reasonable suspicion

to conduct a protective frisk when an anonymous tip

involves: (1) the report of a suspect with a gun, (2) a

description of the suspect, and (3) the suspect's location. The

court in Clipper reasoned that:

[The] element of imminent danger distin-

guishes a gun tip from one involving posses-

sion of drugs. If there is any doubt about the

reliability of an anonymous tip in the latter

case, the police can limit their response to

surveillance or engage in 'controlled buys."

Where guns are involved, however, there is

the risk that an attempt to 'wait out' the sus-

pect might have fatal consequences.

Clipper, supra at 951.

The simple rationale for the Clipper standard is to

provide police with the tools to decrease the deadly risk

when confronting suspects who may be armed with firearms.

A protective risk "allow(s] the officer to pursue his investiga-

tion without fear of violence... ." Adams v. Williams, 407

U.S. 143, 146 (1972). A police officer is "required to act

swiftly to apprehend an individual reported to be in posses-

sion of a gun. . . and [is] a potential threat to the safety of the

officer and other persons in the area." Commonwealth v.

Lagana, 517 Pa. 371, 377, 537 A.2d 1351, 1354 (1988).

This Court should properly balance the privacy interests of a

citizen of this Commonwealth with the risk encountered by

App. 12

police officers entrusted with the protection of society and

their own personal safety. A proper balance is found when

this Court acknowledges that an anonymous tip concerning a

suspect with a gun requires less corroboration given the risk

of a police encounter with a potentially armed suspect.

Therefore, I believe that the facts of the instant matter

under the standard set forth in Clipper support a finding that

the officer had reasonable suspicion to conduct a protective

frisk for weapons. The majority's holding here greatly

enhances the possible infliction of death or serious injury to

those in whom society chooses to enforce the public safety,

the police, and concomitantly increases the danger to all

members of society by greatly decreasing the ability of the

police to remove illegally carried firearms from our public

streets.

Madame Justice Newman joins this dissenting opin-

ion.

App. 13

[J-24-1999]

IN THE SUPREME COURT OF PENNSYLVANIA

EASTERN DISTRICT

IN THE INTEREST : No. 21 E.D. Appeai Docket

OF D.M. : 1998

: Appeal from Judgment of

: Superior Court entered on

: November 19, 1997 at No.

: 3538 PHL 1996 affirming the

: Order entered on October 2,

: 1996 in the Court of

: Common Pleas, Philadelphia

: County, Family Division at

: No. 04074-96-06

APPEAL OF: D.M. : ARGUED: February 3, 1999

DISSENTING OPINION

MR. JUSTICE SAYLOR

DECIDED: December 27, 1999

As the majority notes, this Court's precedent

establishes that an anonymous report of an armed individual

on a public street is not, in and of itself, sufficient to support

an investigatory detention/protective frisk, Commonwealth v.

Jackson, 548 Pa. 484, 493, 698 A.2d 571, 575 (1997), nor is

an individual's flight from an approaching police officer

alone sufficient for such purpose. See Commonwealth v.

DeWitt, 530 Pa. 299, 308, 608 A.2d 1030, 1034 (1992).

While the United States Supreme Court has granted

App. 14

certiorari in cases implicating both of these holdings,’ at this

juncture I therefore agree, in the present case, that neither the

informer's tip nor D.M.'s flight independently constitutes a

sufficient justification for the investigatory detention of D.M.

I differ with the majority, however, in the assessment

of the totality of the circumstances presented. See generally

United States v. Cortez, 449 U.S. 411, 417-18, 101 S. Ct.

690, 695 (1981) (stating that "the essence [of the determina-

tion of reasonable suspicion] . . . is that the totality of the

circumstances -- the whole picture -- must be taken into

account"); in re D.M., 556 Pa. 160, 168, 727 A.2d 556,

559-60 (1999) (same). Here, in addition to identifying

potentially dangerous behavior, the anonymous informer

provided descriptive information about the subject in terms

of race, attire and venue. Such information was corroborated

by police observation upon immediate arrival at the

designated location.’ As the uniformed officer approached,

See Floridav.J.L., US. ___, 120 S. Ct. 395 (1999)

(granting certiorari to review J.L. v. State, 727 So.2d 204 (Fla.

1998), in which the Florida Supreme Court held that an anony-

mous tip providing only a description and location of a person

possessing a firearm is insufficient to warrant an investigative

detention); //linois v. Wardlow, _ U.S. ___, 119 S. Ct. 1573

(1999) (granting certiorari to review People v. Wardlow, 701

N.E.2d 484, 486 (Ill. 1998), in which the Illinois Supreme Court

held that a defendant's flight upon the approach of a police vehicle

patrolling a high crime area, alone, was insufficient to justify an

investigatory stop).

: Since the tip lacked predictive information, it was not, by

itself, adequate to justify an investigative detention. See Alabama

v. White, 496 U.S. 325, 332, 110 S. Ct. 2412, 2417 (1990). Ido

(Continued)

App. 15

D.M. fled to avoid the encounter. Thus, at this point, I

believe that the circumstances had ripened into an objectively

reasonable basis for suspicion.

The majority asserts that, as D.M. was approached,

the officer's suspicions were not aroused, and therefore,

D.M.'s subsequent flight merits no consideration in the total-

ity of the circumstances. It is unclear to me, however, in

what sense the majority employs the word "suspicion" in this

analysis. I believe that, prior to D.M.'s departure, based upon

the partially corroborated tip, the officer did in fact "suspect"

(in the subjective, common sense usage of that word) that the

juvenile with whom he was confronted might possess a

weapon and therefore be engaged in a criminal act. It is for

that reason that the officer approached D.M. in the first

instance; indeed, the officer would have been remiss in his

responsibilities if he had not conducted some further investi-

gation. 7

The majority's analysis appears to contemplate some

intermediate degree of suspicion -- between that which

would prompt further, limited police investigation (for exam-

ple, a mere encounter) and the objectively reasonable degree

(Continued)

not read Alabama v. White, however, as foreclosing consideration

of a non-predictive anonymous tip as a component of the totality

of the circumstances in a case in which independent information

(here, D.M.'s flight) is also present. See generally United States v.

Reberson, 90 F.3d 75, 80 (3rd Cir. 1996) (noting that the omission

of predictive information from an anonymous tip would not neces-

sarily have invalidated it as a consideration in the totality of the

circumstances, if, after corroborating readily observable facts,

police had also observed unusual or suspicious conduct on the

suspect's part).

App. 16

necessary to justify an investigative detention -- which must

be present before flight will take on any legal significance in

the totality of the circumstances. In my view, however, this

form of analysis departs from the fundamental inquiry,

namely, whether "the facts available to the officer at the

moment of the se2rch and seizure 'warrant a man of reason-

able caution in the belief’ that the action taken was appropri-

ate," Terry v. Ohio, 392 U.S. 1, 21-22, 88 S. Ct. 1868, 1880

(1968) (citations omitted), and creates the potential for con-

fusion among police officers in the course of day-to-day

encounters. Nor aI able to meaningfully distinguish the

quantum of information that was available to the officers in

Commonwealth v. Cook, Pa. _, 735 A.2d 673 (1999), a

case in which the Court found that the defendant's flight from

police did have significance in the totality of the circum-

stances, from that which was available here.’

Accordingly, I would hold that the circumstances

present in this case formed an objectively reasonable basis

for suspicion, thus justifying the investigatory detention.

: I am also unable to meaningfully distinguish the decision

in Commonwealth v. Lagana, 517 Pa. 371, 537 A.2d 1351 (1988),

in which the Court concluded that a partially corroborated tip plus

suspicious behavior in the form of the use of binoculars (giving

rise to a suspicion that the defendant was "casing" a business

establishment) formed a sufficient basis for objectively reasonable

suspicion. In this regard, I note that the issue of binoculars in this

situation, and D.M.'s flight in the present case, would seem equally

to be activities that would generate suspicion on the part of an

investigating officer, but at the same time would cairy some possi-

bility of legitimate explanation.

App. 17

J.A39004/97

IN THE INTEREST : IN THE SUPERIOR

OF: D.M. : COURT OF PENNSYL-

: VANIA

APPEAL OF: D.M. : No. 3538 Philadelphia 1996

ORDER

AND NOW, this 30th day of January, 1998, IT IS

HEREBY ORDERED:

THAT the application filed December 1,

1997, requesting reargument/reconsideration

of the decision dated November 19, 1997 is

DENIED.

PER CURIAM

App. 18

. A39004/97

IN THE INTEREST : IN THE SUPERIOR

OF: D.M. : COURT OF PENNSYL-

: VANIA

: No. 03538 Philadelphia

APPEAL OF: D.M. : 1996

Appeal from the Order entered October 2,

1996 In the Court of Common Pleas of Phila-

delphia County, Juvenile, No. 04074-96-06

BEFORE: JOHNSON, FORD ELLIOTT, MONTEMURO,

JJ*

JUDGMENT

ON CONSIDERATION WHEREOF, it is now

here ordered and adjudged by this Court that the judgment of

the Court of Common Pleas of PHILADELPHIA County be,

and the same is hereby AFFIRMED.

BY THE COURT:

/s/ David A. Szewezak

PROTHONOTARY

Dated: November 19, 1997.

App. 19

. A39004/97

IN THE INTEREST : IN THE SUPERIOR

OF: D.M. : COURT OF PENNSYL-

: VANIA

: No. 03538 Philadelphia

APPEAL OF: D.M. : 1996

Appeal from the Order entered October 2,

1996 In the Court of Common Pleas of Phila-

delphia County, Juvenile, No. 04074-96-06

BEFORE: JOHNSON, FORD ELLIOTT, MONTEMURO,

JJ*

MEMORANDUM: FILED NOV 19 1997

This appeal arises from an order of adjudication and

disposition following the court's finding Appellant, D.M.,

delinquent for violating various provisions of the Uniform

Firearms Act.’ We affirm.

Appellant contends that the trial court erred in deny-

ing his pretrial motion to suppress physical evidence which

he alleges was seized in violation of both the United States

and Pennsylvania Constitutions. Our standard in reviewing

the denial of a suppression motion is well-established:

Specifically, Appellant was convicted of carrying a fire-

arm without a license (18 Pa.C.S. § 6106), carrying a firearm on a

public street (18 Pa.C.S. § 6108), and possession of a firearm by a

minor (18 Pa.C.S. § 6110.1).

*Retired Justice assigned to Superior Court.

App. 20

considering only the evidence of the Commonwealth, and so

much of the evidence of the defendant that remains uncontra-

dicted in the context of the record as a whole, we must deter-

mine whether the court's factual findings are supported by the

record. Commonwealth v. Martinez Jackson, 451 Pa. Super.

129, 133, 678 A.2d 798, 800, allocatur denied, 685 A.2d 543

(1996). "If the evidence supports the findings of the trial

court, we are bound by such findings and may reverse only if

the legal conclusions drawn therefrom are erroneous." /d.

At the suppression hearing, Officer Christopher Fra-

zier, of the Philadelphia Police Department, testified that he

was in uniform on routine patrol on June 24, 1996 in the area

of Cecil B. Moore Avenue and 29th Street. At approxi-

mately 6:00 p.m. he received a radio call, based on an anony-

mous tip, to investigate a male "possibly with a handgun” at

28th Street and Cecil M. Moore Avenue. (N.T. 10/2/96 at 5).

The tipster described the suspect as "black male, white

t-shirt, blue jeans and white sneakers." -(/d. at 6). Since

Officer Frazier was only one block away, he arrived at the

location in approximately four seconds.

Officer Frazier testified that Appellant was the only

male on the corner and the only one fitting the tipster's

description.’ He emerged from his vehicle and asked Appel-

lant to "come here." (/d. at 9). Instead, Appellant fled and

Officer Frazier pursued him. When the officer's backup

arrived and began to chase Appellant from another direction,

Appellant stopped between both of the officers. Officer

: Although Appellant testified that there were at least eight

other people near him at the time of the stop, some of whom were

wearing a white t-shirt and jeans, we may only consider the evi-

dence of Appellant that was uncontradicted.

App. 21

Frazier asked him to place his hands on the vehicle in front

of him and conducted a pat-down search for weapons "for

officers' safety." (Jd. at 7). He felt a hard object that he

believed was a handgun in Appellant's crotch area. A silver

.32 caliber handgun then fell out of Appellant's right pant leg.

Appellant was arrested and charged with various violations

of the Uniform Firearms Act.

Appellant filed a pretrial motion to suppress on Sep-

tember 16, 1996, alleging violations of both the United States

and Pennsylvania Constitutions, and a hearing was held on

October 2. Following the hearing, the trial judge denied

Appellant's motion, and Appellant agreed to incorporate the

testimony from the suppression hearing and to stipulate to a

ballistics report for purposes of adjudication. That same day,

the court adjudicated Appellant delinquent and placed him on

Intensive Probation. This timely appeal follows.

Appellant argues that the suppression court erred for

two reasons:

(1) An unverified radio call from an unknown

source, without any predictions of future be-

havior or other independent corroboration, can

not establish reasonable suspicion; and

(2) The information contained in the radio call

was too general to support a finding of reason-

able suspicion.

(Appellant's Brief at 3). We disagree, and for the reasons set

forth below, affirm.

In the absence of probable cause to arrest, a police

officer may stop and briefly detain an individual for

App. 22

investigatory purposes when he can "point to specific and

articulable facts which warrant the initial stop." Common-

wealth v. Espada, 354 Pa. Super. 604, 607, 528 A.2d 968,

969 (1987) (citing Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868,

20 L. Ed. 2d 889 (1968)). "This standard is met 'if the police

officer observes unusual and suspicious conduct on the part

of the individual which leads him reasonably to conclude that

criminal activity may be afoot... ."" Jd. (quoting Common-

wealth v. Hicks, 434 Pa. 153, 158, 253 A.2d 276, 279

(1969)). Moreover, an officer may rely on information he

receives over the police radio to justify the stop; he need not

personally observe the suspicious conduct. Commonwealth

v. Arch, 439 Pa. Super. 606, 612, 654 A.2d 1141, 1144

(1995). The factors an officer should consider when making

a Terry stop not based on his personal observations include:

"the specificity of the description of the suspect in conjunc-

tion with how well the suspect fits the given description, the

proximity of the crime to the sighting of the suspect, the time

and place of the confrontation, and the nature of the offense

reported to have been committed." Commonwealth v. Jerry

Jackson, 359 Pa. Super. 423, 438, 519 A.2d 427, 430 (1986);

accord M. Jackson, supra. In our review, we must look to

the totality of the circumstances "to determine whether a

_ particularized and objective basis for suspecting an individ-

ual stopped of criminal activity exists." Commonwealth v.

Allen, 452 Pa. Super. 200, 209, 681 A.2d 778, 783 (1996).

In the present case, the suppression court concluded

that Officer Frazier had the requisite "reasonable suspicion"

to stop Appellant based on the following facts: "[Appellant]

exactly fit the description [of the suspect], [Appellant] was

both spatially and temporally proximate to the scene, the

crime was a felony and [Appellant] ran away when Officer

Frazier told him to come over[.]" (Trial Ct. Op. at 4). We

agree that these facts, considered in their tc-ality, were

App. 23

sufficient to provide the officer with the reasonable suspicion

to conduct a Terry stop and frisk.’

Clearly, an anonymous tip, in and of itself, is insuffi-

cient to justify a Terry stop. Jn Interest of D.W., 427 Pa.

Super. 629, 633, 629 A.2d 1387, 1389 (1993). However, "[a]

Terry stop may be made on the basis of an anonymous tip,

provided the tip is sufficiently corroborated by independent

police work to give rise to a reasonable belief that the tip was

correct." Commonwealth v. Carl Jackson, No. 96-30, slip

op. at 6 (E.D. Pa. filed July 23, 1997) (citing Alabama v.

White, 496 U.S. 325, 110 S. Ct. 2412, 110 L. Ed. 2d 301

(1990)). When the officers have not personally observed the

suspicious behavior, the specificity of the description of the

suspect is "of great importance." J. Jackson, 359 Pa. Super.

at 438, 519 A.2d at 430.

Moreover, a suspect's flight when approached by the

police, in and of itself, cannot justify a Terry stop. Common-

wealth v. Jeffries, 454 Pa. 320, 325, 311 A.2d 914, 917

(1973). See also Commonwealth v. DeWitt, 530 Pa. 299,

308-9, 608 A.2d 1030, 1034 (1992) ("We would be hard

Appellant does contend that the pat-down was improper;

he argues only that the officer should not have "stopped" him in

the first place. The police may frisk a suspect during an investiga-

tory stop if they can "point to specific and articulable facts indicat-

ing that the person they intend to frisk may be armed and

dangerous|[.]" J. Jackson, 359 Pa. Super. at 439, 519 A.2d at 431.

Here, the tipster indicated that Appellant was armed. Therefore,

Officer Frazier was justified in conducting a limited pat-down for

weapons. See id. at 439-40, 519 A.2d at 427 (stating that police

may "reasonably believe themselves to be in danger when .. . a

perpetrator is reported to possess or have used a weapon.") (cita-

tion omitted).

App. 24

pressed to find that flight, in and of itself constitutes reason-

able suspicion of criminal conduct"). However, flight, cou-

pled with other factors, may be sufficient. Commonwealth v.

Mayo, 344 Pa. Super. 336, 341, 496 A.2d 824, 826 (1984)

(citation omitted). See Commonwealth v. Moore, 300 Pa.

Super. 488, 446 A.2d 960 (1981) (finding reasonable suspi-

cion to stop when officer observes appellant and companion

emerging from alley at night in high crime area; they leaf

through object and flee at sight of police); Commonwealth v.

Legg, 258 Pa. Super. 294, 392 A.2d 801 (1978) (finding

probable cause to arrest when officers receive anonymous

tip that robbery suspect, described by victim as black male,

19-20 years old, five feet eleven inches, wearing blue and

white shirt, is at particular address; when officers arrive, they

see suspect, clad only in underwear, who matches descrip-

tion and suspect flees into home upon sight of police); Com-

monwealth v. Stratton, 231 Pa. Super. 91, 331 A.2d 741

(1974) (finding reasonable suspicion to stop when officer

sees suspect after midnight outside door of closed laundro-

mat twelve feet off sidewalk, and suspect flees upon observ-

ing officer).

In the present case, we are confronted with a suspect

who both matches the physical description of a person

alleged to be carrying a handgun and flees when approached

by police. We conclude that these facts, viewed in their

totality, rise to the level of reasonable suspicion necessary to

initiate a Terry stop.

First, Appellant exactly matched the physical descrip-

tion of the suspect provided by the anonymous tipster; he

was a black male dressed in a white t-shirt, blue jeans and

white sneakers. In addition, Officer Frazier responded within

four seconds of the call; therefore, Appellant was spatially

and temporally where the tipster indicated he would be.

App. 25

Moreover, the tipster stated that Appellant was carrying a

handgun, which, if unlicensed, is a felony in Pennsylvania.*

Finally, and most importantly, Appellant fled immediately

after Officer Frazier asked him to "come here." Thus, we

conclude that these facts, viewed in their totality, provided

Officer Frazier with the reasonable suspicion to stop, briefly

detain, and frisk Appellant. See Commonwealth v. Ellis, 541

Pa. 285, 662 A.2d 1043 (1995) (finding reasonable suspicion

to stop appellant's vehicle when vehicle was only one on road

near burglary scene, vehicle matched description of one at

crime scene and vehicle was in area where it would have

been if it left crime scene at time call was broadcast; despite

fact that occupants, two black males, did not match descrip-

tion of suspects as two white or possibly "Mexican" males);

Commonwealth v. Whelton, 319 Pa. Super. 42, 465 A.2d

1043 (1983) (finding reasonable suspicion to stop when

appellant was observed at bus stop one block from reported

purse snatching, 15 to 20 minutes after crime, and matched

description of suspect). Cf C. Jackson, supra (finding no

reasonable suspicion to stop when police responded to

report of man in green jacket carrying gun, and-immediately

searched appellant who matched description).

We find the facts of the present case very similar to

those in /n Interest of S.J., 425 Pa. Super. 270, 624 A.2d

1068 (1993). In S./., an officer received a radio call that a

"black female, wearing a red jacket, blue jeans, red sneakers

: Appellant makes much of the fact that Officer Frazier

testified that the radio call indicated that the suspect was "possi-

bly" carrying a handgun. However, we find this irrelevant. Either

the radio dispatcher or the officer, himself, could have added the

word "possibly" simply because they did not know if the tip was

reliable; certainly that is a reasonable inference to be drawn from

the facts.

App. 26

and curlers in her hair was selling narcotics on the 2300

block of West Turner." /d. at 272, 624 A.2d at 1069. The

officer, admitting he did not know who placed the call or

when it was received, responded within ten minutes and

observed the appellant, who exactly matched the description

of the suspect, standing with two men in front of 23 West

Turner. Jd. This Court concluded that "given the informa-

tion received, the police, as part of good investigative proce-

dures," were permitted to stop and briefly question her. /d. at

277, 624 A.2d at 1071. However, in that case, we then con-

cluded that the officer's subsequent search of the appellant

was unwarranted since he

failed to observe any conduct corroborating

the radio dispatch of criminal activity attrib-

uted to S.J., and when his questioning of S.J.

did not disclose evidence (e.g., furtive activ-

ity, evasive conduct and/or erroneous infor-

mation to his questions) indicative of crin.inal

activity, the police had no reason to detain S.J.

any longer nor search the inside of her jacket.

Id. at 27, 624 A.2d at 1071 (footnote omitted) (emphasis

added). Conversely, in the present case, Appellant certainly

displayed "furtive activity" and "evasive conduct" when he

fled. This is exactly the situation we anticipated in S.J.

would be sufficient to warrant a full Terry stop and frisk. See

S.J., 425 Pa. Super. at 279, 624 A.2d at 1072 ("Lastly, and

most importantly, there were no furtive attempts at conceal-

ment, no fleeing of the scene and no other activity which

would remove the Appellant's behavior from that of an ordi-

nary citizen to that of a suspect cnminal warranting a Terry

'frisk'.") (emphasis added).

App. 27

Appellant's argument focuses solely on the anony-

mous tip. He dismisses the significance of his flight from the

scene by stating that "[t]his Court has held specifically[, in Jn

the Interest of Barry W., 423 Pa. Super. 549, 621 A.2d 669

(1993), aff'd sub nom. Commonwealth v. Biagini, 540 Pa. 22,

655 A.2d 492 (1995),] that an anonymous tip bearing no

indicia of reliability, and containing no predictions of future

behavior, and unsupported by any corroborative observations

by an officer, when coupled with flight, is not enough to _

justify a Terry stop." (Appellant's brief at 17-18). In doing

so, however, Appellant has failed to consider the facts of that

case.

In Barry W., an officer received a radio call to investi-

gate "male selling narcotics’ at a specific location." Barry

W., 423 Pa. Super. at 552, 621 A.2d at 671. When he arrived

at the location, the officer observed two men, one of whom

was the appellant, standing on the corner. /d. As he

approached and said "stop police," the men fled. /d. The

officer pursued the appellant and eventually arrested him. /d.

Clearly, Barry W. is distinguishable on its facts from

the present case. Although both cases ‘nvolved an anony-

mous tip and flight by the suspect, the tip in the present case

was much more descriptive than that in Barry W. Indeed, in

Barry W. the police could have suspected any male, standing

near the location the tipster indicated, of selling drugs.

"There was no description of the alleged felon, and the

anonymous tip possessed no other indicia of reliability." /d.

at 561, 621 A.2d at 675 (emphasis added). Here, however,

the tipster described the suspect in greater detail: black male,

white t-shirt, blue jeans and white sneakers. Moreover, Offi-

cer Frazier testified that Appellant was the only person at

28th Street and Cecil B. Moore Avenue fitting that descrip-

tion within four seconds of the radio call. Therefore, Officer

App. 28

Frazier was able to form an individualized suspicion about

Appellant even before he fled.°

Appellant also seems to assert that the Common-

wealth should be required to prove a tipster's basis of knowl-

edge at every suppression hearing based on a stop resulting

from an anonymous tip. See Appellant's Brief at 15. How-

ever, that burden would virtually eliminate the use of anony-

mous tips.° Certainly, that is not what either the United

States or Pennsylvania Supreme Courts have mandated. See

C. Jackson, No. 96-30, slip op. at 5-6 (stating that although

: Although Appellant claims that the tipster’s description of

the suspect was too general to support a finding of reasonable

suspicion, we disagree. Indeed, in S./., supra, this Court found a

very similar description sufficient to justify an investigatory stop.

Moreover, the case Appellant relies on for support, Com-

monwealth v. Berrios, 437 Pa. 338, 263 A.2d 342 (1970), is

clearly distinguishable. In Berrios, the suspects in a shooting were

described as "three males, two negroes in dark clothing and one

Puerto Rican in light clothing.” Jd. at 341, 263 A.2d at 344. The

appellant and his companion, matching the meager description of

the suspects, were stopped twenty minutes after the radio call,

three blocks from the scene of the crime. /d. Here, however, the

tipster described not only the suspect's race and general color of

clothing, but also the specific items of clothing the suspect was

wearing. In addition, the officer observed Appellant within four

seconds of the radio call at the exact location the tipster indicated

he would be. Finally, Appellant fled when approached by the

police. Therefore, the stop was not based solely on a general

description, but instead on a more detailed description, as well as

the suspect's actions when confronted by the police.

: It is difficult to comprehend how the Commonwealth

could provide the testimony of a witness who is "anonymous."

App. 29

anonymous tips "should be treated with particular suspi-

cion[,] . . . [t]his does not mean that an officer may never

conduct a Terry stop on the basis of an anonymous tip."). An

anonymous tip, if sufficiently corroborated by an officer's

own observations, can provide the basis for a Terry stop.’

Appellant relies on two recent decisions of the Pennsylva-

nia Supreme Court, Commonwealth v. Hawkins, __ Pa. _, 692

A.2d 1068 (1997) and Commonwealth v. Kue, _ Pa. __, 692

A.2d 1076 (1997), to support his position that a Terry stop cannot

be based on an anonymous tip. However, both of these cases are

plurality decisions, without precedential authority. Common-

wealth v. Milligan, _ Pa. Super.__,__—, 693 A.2d 1313, 1316

(1997).

Nevertheless, even if we were bound by these two deci-

sions, we would distinguish them on their facts. In both Hawkins

and Kue, the police received an anonymous tip that a person at a

specific location was armed with a gun. In Hawkins, the tipster

described the suspect as a black male wearing blue jeans, a blue

cap, and a gold or brown coat. Hawkins, __ Pa.at__—«, 692 A.2d

at 1069. The officer proceeded to the location, observed the

appellant who matched the tipster's description and immediately

stopped and frisked him. /d. In Kue, the tipster described the

suspect as an Asian male wearing a striped shirt. Kue, _ Pa. at

___, 692 A.2d at 1077. The officer arrived within three minutes of

the call and saw four Asian males at the location, one of whom,

not the appellant, was wearing a striped shirt. Jd. When the offi-

cer arrived, he saw the men speak quickly to each other and look

around. /d. The officer stopped and frisked all four men. /d.

In the present case, however, Appellant not only exactly

matched the detailed physical description of the suspect, he also

fled when approached by Officer Frazier. Therefore, we find this

case sufficiently distinguishable from Hawkins and Kue.

App. 30

Finally, Appellant argues that even if we find the stop

and frisk permissible under Fourth Amendment standards, he

is entitled to relief under Article I, Section 8 of the Pennsyl-

vania Constitution. He contends that, under the Pennsylvania

Constitution, it would be unacceptable "to hold that reason-

able suspicion could be based upon information with no

indicia of reliability." (Appellant's Brief at 21). Although

we agree, we conclude that, in the present case, Appellant is

not entitled to relief.*

The Pennsylvania Supreme Court has adopted the

Terry standard for determining the reasonableness of a stop

and frisk under Article I, Section 8. C. Jackson, No. 96-30,

slip op. at 5 (citing Commonwealth v. Melendez, 544 Pa. 323,

676 A.2d 226 (1996)). A Terry stop and frisk is reasonable if

it is "based on specific, articulable facts and reasonable infer-

ences drawn from those facts in light of the officer's experi-

ence." C. Jackson, No. 96-30, slip op. at 5. Appellant

contends that "[t]he pivotal question is whether Article [,

Section 8 allows the police to act on sparse information with

no indicia of reliability," (Appellant's Brief at 25). We agree

that it does not. However, again, what Appellant fails to

acknowledge is that Officer Frazier did not act solely on the

basis of the anonymous tip. He proceeded to investigate the

tip, and when he approached, Appellant fled. Thus, Officer

Frazier stopped and frisked Appellant based on his corrobo-

ration of the anonymous tip, i.e., Appellant matched the

physical desenption of the suspect, and was spatially and

temporally proximate to the scene, and Appellant's flight.

‘ Although the Commonwealth argues that this issue is

waived, we find that Appellant challenged the stop under both the

United States and Pennsylvania Constitutions at the suppression

hearing.

App. 31

We find this sufficient to satisfy the reasonable suspicion

required for a stop and frisk under both the Fourth Amend-

ment and Article I, Section 8.

Order affirmed.

App. 32

THE COURT OF COMMON PLEAS

PHILADELPHIA COUNTY

FAMILY COURT DECISION

IN THE INTEREST : PETITION NO. 04074-96-06

OF D.M.

: APPEAL TO SUPERIOR

: COURT NO. 3538 PHILA-

APPEAL OF: D.M. : DELPHIA 1996

OPINION

JELIN, J. FILED: MARCH 19, 1997

Defendant was found guilty and adjudged delinquent

by this Court on October 2, 1996 on the charges of Carrying

a Firearm Without a License, Carrying a Firearm on Public

Streets or Public Property in Philadelphia, and Possession of

a Firearm by a Minor. Disposition was determined that same

date and defendant was placed on Intensive Probation Serv-

ices.

In his Statement of Matters Complained of on Appeal

defendant contends "(t]he trial court erred as a matter of law

by denying Appellant's Motion to Suppress Physical Evi-

dence."

On June 24, 1996 at approximately 6:00 p.m. Officer

Chris Frazier was on routine patrol when he received a radio

call regarding a man with a gun at 28th and Cecil B. Moore

Avenues, in Philadelphia. Officer Frazier was travelling east

on C. B. Moore from 29th Street and only one block from the

specified location. The radio call included a description of a

black male, wearing a white T-shirt, blue jeans and white

sneakers. (N.T., October 2, 1996, pgs. 4-6.)

App. 33

Officer Frazier arrived at the location within four

seconds and saw defendant fitting the description. He exited

his vehicle and told the defendant to come over and defen-

dant ran away. Officer Frazier's back up was approaching

and defendant stopped between them. (N.T., pgs. 6-7.) -

Officer Frazier asked defendant to place his hands on

the car in front of him and patted him down for his own pro-

tection. He felt a hard object resembling a hand gun in

defendant's crotch area. A .32 caliber handgun fell out of

defendant's right pant leg. At that point Officer Frazier

secured the gun and arrested the defendant. (N.T., pgs. 7-8.)

Defendant contends that an unverified radio call can

not establish reasonable suspicion and the description con-

tained in the radio call was too general to support a finding of

reasonable suspicion.

It is well established that an "officer need not person-

ally observe suspicious conduct leading to the reasonable

belief needed for a Terry stop; rather, he may rely upon infor-

mation received over the police radio to justify the stop."

Commonwealth v. Jackson, 451 Pa. Super. 129, 678 A.2d

798 (1996) (citing Commonwealth v. Arch, 439 Pa. Super.

606, 654 A.2d 1141 (1995)). "Reasonable suspicion, like

probable cause, is dependent upon both the content of infor-

mation possessed by police and its degree of reliability.”

Commonwealth v. Jackson, supra. (quoting Commonwealth

v. Knotts, 444 Pa. Super. 60, 663 A.2d 216 (1995)). "The

factors that must be considered in justifying an investigatory

stop and subsequent frisk [when the suspicious conduct has

not been personally observed by the officer] include the

specificity of the description of the suspect in conjunction

with how well the suspect fits the given description, the

App. 34

proximity of the crime to the sighting of the suspect, the time

and place of the confrontation and the nature of the offense

reported to have been committed." Commonwealth v. Jack-

son, supra. (quoting Commonwealth v. Jackson, 359 Pa.

Super. 433, 519 A.2d 427 (1986)).

In Commonwealth v. Jackson, supra. the officer

received a radio call regarding a robbery in progress. The

radio call included a description of an armed male wearing a

black baseball hat and black jacket. Five minutes after

receiving the call, the officer proceeded to the location and

observed defendant wearing a dark colored baseball hat and

black jacket two and a half blocks from the scene of the rob-

bery. He stopped the defendant and asked where he had

been. Defendant replied his girlfriend's house. The officer

then frisked the defendant and recovered a .45 caliber gun.

Id.

The Court found that the radio call supplemented

with the other integral factors i.e., defendant exactly fit the

description, defendant was both spatially and temporally

proximate to the scene, the crime was a serious felony and it

was late in the evening in a particularly dangerous area; cre-

ated the requisite "specific and articulable facts" that war-

ranted the stop of defendant. /d.

In the instant case Officer Frazier received a radio

call regarding a man with a gun. The radio call included a

description of a black male, wearing a white T-shirt, blue

jeans and white sneakers. Officer Frazier arrived at the loca-

tion within four seconds and observed defendant wearing a

white T-shirt, blue jeans and white sneakers. He told defen-

dant to come over and defendant ran away.

App. 35

This Court found that the radio call supplemented

with other integral factors ie, defendant exactly fit the

description, defendant was both spatially and temporally

proximate to the scene, the crime was a felony and defendant

ran away when Officer Frazier told him to come over; cre-

ated the requisite "specific and articulable facts" that war-

ranted the stop of defendant.

In addition, Officer Frazier was authorized to frisk the

defendant during the stop because the radio call specified a

man with a gun. "[T]he right to frisk must be immediate and

automatic if the reason for the stop is, as here, an articulable

suspicion of a crime of violence." Commonwealth v.

Prengle, 293 Pa. Super. 64, 437 A.2d 992 (1981) (citing

Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889

(1968)).

For all of the above reasons the Motion to Suppress

Physical Evidence was properly denied and the adjudication

and disposition are appropriate.

/s/ Sheldon C. Jelin

DATED: March 19, 1997

ae ee Sa L sit CaS SAGER +32 ple a haere re On OCS ey Sg eee

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