LET IT BE CLEARLY UNDERSTOOD - I AM NOT A LAWYER
THESE ARE ONLY MY OPINIONS BASED ON THE CASES CITED
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The PA Courts perceive 3-levels of Interaction between Police and Citizens
- - - - - - See AYALA & HAYWARD (PA Superior Court Cases)
A) Mere Encounter
Questioning can occur anytime/anyplace through a 'mere encounter'.
Citizens are not required to stop or respond to these questions.
B) Investigative Detention (often referred to as a Terry Stop)
With 'Reasonable suspicion that criminal activity is afoot', citizens may
be stopped and detained for a brief period without it being arrest.
C) Custodial Detention (iow, Arrest)
If 'Probable Cause' has been established, the citizen may be arrested.
There must be "reasonable suspicion of criminal conduct" before a Terry Stop
- - - - - - See HAWKINS (PA Supreme Court Case)
However, this standard may be challenged by later cases... ?or those cases overturned?
- - - - - - See HALL & STEVENSON & ROBINSON (PA Superior Court Cases)
- - - - - - as well as D.M. (PA Supreme Court Case)
The US Supreme Court ruled that Officer Safety affords additional Search & Seizure powers
(which is beyond those clearly identified and previously recognized by the USSC in the 4th Amendment)
- - - - - - See FLA v. J.L., PA v. MIMMS, TERRY v. OHIO (US Supreme Court Cases)
Therefore I have deduced the following conditions currently exist due to these (and other) cases:
What an Officer observes or discovers is critical to validating their actions... typically, it is best (for you) to minimize in every way possible what the Officer observes or discovers about you (irrelevant of how legal you believe you are acting)....
Under the concept of
'Mere Encounter', an Officer may approach you and strike up a conversation anywhere, anytime. However, you are free to ignore their comments or questions and/or leave the area without violating the law or being subject to prosecution. You cannot be stopped & detained 'even briefly' if the Officer has no 'Reasonable suspicion that criminal activity is afoot.' If you choose to interact with the Officer, engaging with them in a conversation, anything you say (and/or do) can & will be used to estabish a 'Reasonable suspicion that criminal activity is afoot' and the information you provided is admissable in court as evidence, even before being Mirandized.
You are under
'Investigative Detention' if the Officer already has or you have given them 'Reasonable suspicion that ciminal activity is afoot' or you are stopped for ANY VALID VIOLATION of the law (ANY law, including traffic laws). Once you are under 'Investigative Detention' the Officer's questions may not be ignored. You still have your 5th Amendment Rights against self-incrimination and you may assert those Rights to the Officer and refuse to answer their questions without council present.
An
'Investigative Detention' still does not give to the Officer the right to unreasonable search and seizure. The 'Investigative Detention' must be relevant to a 'Reasonable, Articulable Suspicion' of a specific crime by a specific individual and the investigation and detention are to be directed toward that crime and that person. Therefore, if you are stopped on the street for a 'Littering' violation, it does not give the Officer the right to frisk your person for weapons or contraband. Nor, if you are stopped in your vehicle for speeding, does that give an Officer the right to frisk you or search your vehicle.
However, under the concept of
Officer Safety, additional search and seizure may be allowed to protect the Officer's Safety during the period of 'Investigative Detention'. For instance, under Officer Safety, the Officer may require that you step out of your vehicle and to the side of the roadway.
If the Officer discovers, while you are under 'Investigative Detention', that you possess on your person or within your vehicle a firearm, they may presume that that firearm and any other weapon IS an immediate danger to their safety. The discovery may be because you are OCing, or because they observe you are printing while CCing, or you answer yes to their question 'Are carrying a firearm?', or to their question 'Do you have a firearm in the vehicle?'.
In fact, TERRY v. OHIO says, "The officer need not be absolutely certain that the individual is armed; the issue is whether a reasonably prudent man, in the circumstances, would be warranted in the belief that his safety or that of others was in danger."
They may use their suspicion of a firearm as justification to seize that weapon and conduct a further search for the purpose of Officer Safety. They may do an external clothing search and/or search the interior of your vehicle for additional weapons under this presumption of danger.
Furthermore, any contraband or other violations of law that is discovered during the search for Officer Safety can be legally pursued to arrest.
On the otherhand, if there is no knowledge of, nor observation of, a gun on your person or in your vehicle (ie., if you are not OCing nor are you printing while CCing nor is a gun visible within your vehicle), Officer Safety can not be used to validate simply searching any person or any vehicle. In other words, the Officer must observe or have Reasonable, Articulable Suspicion that you possess the firearm (or other weapon) before additional search and seizure is valid.
You may want to review the
In-Service Training material (Legal Update Course 09-201) related to Open Carry that is being used by MPOETC.
As to Anonymous Tips, the USSC has ruled in Florida v. J.L., “The reasonable suspicion here at issue requires that a tip be reliable in its assertion of illegality, not just in its tendency to identify a determinate person.”
There are basically two tracks that their investigation may take. If the Tip describes ‘predictive behavior’, where the subject of the tip actually does what the Tip says they will, and that ‘predicted behavior’ is not easily known by public means, the Officer may attribute ‘reliability’ to that Tip. However, the Tip must still include actual allegations of past, current, or future criminal activity, in order for the Officer to investigate further (including an Investigative Detention) based on the ‘reliability’ of the Tip.
However, if the Anonymous Tip provides only basic information about the subject (such as clothing being worn, or car being driven, or location of the subject) and there is no ‘predictive behavior’ included, or if there is no allegation of an actual crime (past, present, future), the Officer can go no further than ‘mere encounter’ or non-contact observation and investigation. The Officer can not proceed to a Terry Stop (Investigative Detention) without establishing for himself a Reasonable, Articulable Suspicion of an actual criminal activity.
Furthermore, even if the Anonymous Tip involves allegations about a firearm, the Officer may only proceed according to these two options – (1) with Reasonable, Articulable Suspicion of an actual crime the Officer may conduct a Terry Stop related specifically to the alleged crime or, without RAS, (2) the Officer is limited to a Mere Encounter (or non-contact) for observation and investigation.
Let me reiterate what I said at the beginning --- I AM NOT A LAWYER and nothing posted here should be assumed to be legally correct ... contact a lawyer familiar with PA gun laws for legal advice. As I also pointed out ---
In encounters with the police, it is best (for you) to minimize in every way possible what the Officer observes or discovers about you, irrelevant of how legal you believe you are acting.
(See the following posts for Referenced Cases)