[ImminentDanger]

COMMONWEALTH v. HALL - JULY 24, 2007
(PA Superior Court J. S21021/07)
http://www.courts.state.pa.us/OpPost.../s21021_07.pdf

¶10 When a police officer observes a concealed weapon upon a person in the public sphere, an investigatory stop is a reasonable response. Stevenson, 894 A.2d at 772-73 (holding that police officers had a reasonable justification to stop an individual who appeared to be carrying a concealed weapon and was acting in a manner indicating that the weapon may have been illegal or unlicensed, and under these circumstances were further justified in (1) asking this individual to raise his hands, and (2) attempting to take the firearm from the individual prior to the investigation); Commonwealth v. Robinson, 600 A.2d 957, 959-60 (Pa.Super. 1991) (holding that the “possession of a concealed firearm by an individual in public is sufficient to create a reasonable suspicion that the individual may be dangerous, such that an officer can approach the individual and briefly detain him in order to investigate whether the person is properly licensed”). Here, as Appellant turned to angrily challenge Officer Brady’s attempt to open the back door of Appellant’s vehicle, Officer Tankelewicz observed that Appellant had concealed a firearm on his person. At that moment, the officers were justified in detaining Appellant for an investigatory stop. Stevenson, supra; Robinson, supra.

¶11 Immediately after Officer Tankelewicz indicated to his partner that Appellant had a firearm, Appellant engaged in behavior that justified his eventual arrest. Appellant refused Officer Tankelewicz’s demand that he keep his hands where they could be seen, he challenged the officer to shoot him, he physically resisted all efforts by the officers to take control of the weapon, and he also reached in the direction of his weapon during this angry and volatile encounter. (N.T. at 49). Accordingly, the police had probable cause to arrest Appellant. See Stevenson, supra at 775 (holding that probable cause for an arrest occurs when, immediately after the police indicate to the suspect their intent to conduct an investigatory stop because they observed the outline of a concealed handgun, the suspect physically resists the officers’ efforts while maintaining possession of the firearm).3 Therefore, even if the initial traffic stop of Appellant had been without reasonable suspicion of a Motor Vehicle Code violation, it was proper for the court below to refuse to suppress the physical evidence of the firearm taken from Appellant following his arrest. Lynch, supra; Britt, supra. See also Commonwealth v. Stallworth, 566 Pa. 349, 361-62, 781 A.2d 110, 116-17 (2001) (holding that a warrantless search incident to a lawful arrest is proper).

COMMONWEALTH v. STEVENSON - FEBRUARY 28, 2006
(PA Superior Court J. A31028/05)
http://www.courts.state.pa.us/OpPost.../a31028_05.pdf

¶24 Under this standard, we must reject Appellant’s challenge to the factual findings of the suppression court. Although Appellant argues that the evidence supports only the conclusion that he had an indeterminable heavy object in his pocket, Officer Absten testified unequivocally that he observed the outline of a small handgun in Appellant’s pocket. (N.T., Suppression Hearing, at 16). Therefore, the trial court’s finding that Officer Absten had reason to believe that Appellant was armed with a gun is supported by direct evidence of record.

¶25 Appellant also argues that the evidence concerning his mannerisms does not show that they were of a suspicious nature. Officer Absten testified, however, that based on his training and experience, the mannerisms exhibited by Appellant matched those of an individual who neither carried a weapon as a part of the job nor had experience carrying licensed handguns, and that these mannerisms, as well as the location of the gun upon Appellant’s person, indicated that the gun was quite likely unlicensed or illegal. Officer Absten also explained to the court the underpinnings of his conclusions, i.e. the facts of his training and experience as a police officer in detecting unlicensed and illegal handguns and apprehending those who possessed them. (Id. at 8-13). Therefore, the trial court’s finding that officer Absten did have an articulable suspicion that Appellant was engaged in unlawful activity (the possession of an illegal or unlicensed handgun) is likewise fully supported by the record.

¶26 Appellant also asserts that he was essentially the victim of a de facto criminal profile whose validity had not been established at the hearing. This argument must fail. Officers Absten and Prilla did not single out Appellant from the other patrons at the convenience store because he fit the profile of male individuals who carried illegal and unlicensed handguns. It was Appellant who drew the attention of the officers because: 1) he was actually carrying a handgun; 2) the officers were able to see the outline of the handgun through Appellant’s coat pocket; and 3) Appellant was carrying it in a manner very different from those individuals who carry weapons on the job or who are used to carrying licensed handguns.

¶30 Our determination as to whether the officers had reasonable suspicion to
stop Appellant is informed by the following principles:

Our inquiry is a dual one -- whether the officers' action was justified at its inception, and whether it was reasonably related in scope to the circumstances which justified the interference in the first place. Regarding the stop, a police officer may, short of an arrest, conduct an investigative detention if he has a reasonable suspicion, based upon specific and articulable facts, that criminality is afoot. The fundamental inquiry is an objective one, namely, whether the facts available to the officer at the moment of the [intrusion] warrant a man of reasonable caution in the belief that the action taken was appropriate. This assessment, like that applicable to the determination of probable cause, requires an evaluation of the totality of the circumstances, with a lesser showing needed to demonstrate reasonable suspicion in terms of both quantity or content and reliability. Commonwealth v. Zhahir, 561 Pa. 545, 552, 751 A.2d 1153, 1156-1157 (2000) (citations and quotations omitted).

An individual’s suspicious and furtive behavior that, in the opinion of an experienced police officer under certain circumstances, indicates criminal activity, reasonably justifies an investigative detention. Id. at 553-54, 751 A.2d at 1157.

¶31 Further, the delicate balance between protecting the right of citizens to be free from unreasonable searches and seizures, on the one hand, and protecting the safety of our citizens and police officers by allowing police to make limited intrusions on citizens while investigating crime, on the other hand, requires additional considerations when the police have a reasonable suspicion that a person may be armed. In Terry v. Ohio, 392 U.S. 1 (1968), the Supreme Court recognized the importance of these competing governmental interests, particularly where the safety of police officers is concerned. The Court stated:

We are now concerned with more than the governmental interest in investigating crime; in addition, there is the more immediate interest of the police officer in taking steps to assure himself that the person with whom he is dealing is not armed with a weapon that could unexpectedly and fatally be used against him. Certainly it would be unreasonable to require that police officers take unnecessary risks in the performance of their duties. American criminals have a long tradition of armed violence, and every year in this country many law enforcement officers are killed in the line of duty, and thousands more are wounded. Virtually all of these deaths and a substantial portion of the injuries are inflicted with guns and knives.

In view of these facts, we cannot blind ourselves to the need for law enforcement officers to protect themselves and other prospective victims of violence in situations where they may lack probable cause for an arrest. When an officer is justified in believing that the individual whose suspicious behavior he is investigating at close range is armed and presently dangerous to the officer or to others, it would appear to be clearly unreasonable to deny the officer the power to take necessary measures to determine whether the person is in fact carrying a weapon and to neutralize the threat of physical harm. Id. at 23-24 (footnote omitted) (emphasis added).

Our Supreme Court has long recognized this interest as well. See Commonwealth v. Hicks, 434 Pa. 153, 158-159, 253 A.2d 276, 279 (1969) (adopting the Terry test and reasoning). Further, the safety concerns of police and other citizens are of a continuing nature, given the sober truth that “many of our streets are [now] infinitely more dangerous for citizens and police officers alike than they were in 1968 when the U.S. Supreme Court decided Terry and in 1969 when our Supreme Court decided Hicks.” Commonwealth v. Blair, 860 A.2d 567, 572 (Pa.Super. 2004).

¶ 32 Thus, under Terry, Hicks, and related authority, a police officer may frisk an individual during an investigatory detention when the officer believes, based on specific and articulable facts, that the individual is armed and dangerous. Commonwealth v. Robinson, 600 A.2d 957, 959 (Pa.Super. 1991). When assessing the reasonableness of an officer’s decision to frisk a suspect during an investigatory detention, an appellate court does “not consider [the officer’s] ‘unparticularized suspicion or “hunch,” but [rather] … the specific reasonable inferences which he is entitled to draw from the facts in light of his experience.’” Zhahir, supra at 554, 751 A.2d at 1158 (quoting Terry, 392 U.S. at 27). Further, the court must be guided by common sense concerns that give preference to the safety of the police officer during an encounter with a suspect where circumstances indicate that the suspect may have, or may be reaching for, a weapon. Id. at 555, 751 A.2d at 1158.


¶33 In Robinson, supra, a police officer witnessed a person bending into a van in a populated area. The individual’s posture revealed that he had a handgun stuck in the back of his shorts. The officer and her partner stopped the individual and frisked him, and their investigatory stop revealed a handgun with its serial number obliterated. In holding that the officers’ conduct was appropriate, we observed:

[P]ossession of a concealed firearm by an individual in public is sufficient to create a reasonable suspicion that the individual may be dangerous, such that an officer can approach the individual and briefly detain him in order to investigate whether the person is properly licensed. In the present case, [the police officer] was acting upon a reasonable suspicion based upon her personal observation of the weapon in combination with her concern with the presence of children in the area. The need to conduct an investigatory detention under the present facts clearly outweighs any harm which the stop and frisk entails. Robinson, supra at 959-60.

Thus, in light of the above authority, we emphasize that police safety, and the safety of other citizens, must always be afforded great weight when balanced against the privacy rights of an individual during an investigatory detention and pat down or frisk for weapons when the police have a reasonable suspicion that an individual is armed.

¶34 Turning to the case sub judice, there can be no doubt, under the above precedent, that Officers Absten and Prilla had reasonable justification to stop Appellant and take hold of his weapon. The Commonwealth’s evidence, which we must consider as credible in this appeal,10 establishes that the officers observed that Appellant possessed a concealed weapon; that Appellant acted suspiciously and in a manner that suggested that his weapon may be illegal or unlicensed; that Appellant carried his weapon in a location on his person that, in Officer Absten’s experience, indicated that the weapon may be illegal or unlicensed; and that Officer Absten had the requisite training and experience to make the necessary assessments as to whether Appellant was carrying an illegal or unlicensed weapon. The totality of these circumstances wholly support the trial court’s conclusion that the officers had a reasonable suspicion that Appellant may have been engaged in criminal activity. Moreover, because the officers had a reasonable suspicion that Appellant was concealing an illegal or unlicensed handgun, Officer Absten’s direction that Appellant place his hands on his head and the officer’s attempt to secure the weapon constituted only a limited intrusion upon Appellant’s privacy rights, as balanced against the significant needs of Officer Absten to insure his own safety and that of his partner and any bystanders. To hold otherwise under these circumstances would do violence to the well-considered reasoning of Terry, Zhahir, Robinson, and analogous cases.