[ImminentDanger]

APPEAL of D.M - DECEMBER 27, 1999
(PA Supreme Court J-24-1999)
http://www.courts.state.pa.us/OpPost.../J024-99mo.pdf

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 reasonable 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 inferences drawn from those facts in light of the officer’s experience.” 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 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 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 description 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 requirement. Jackson, 698 A.2d at 575.

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 equivalent 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 insinuate that criminal activity was afoot. In fact, the evidence merely suggests that appellant was “hanging out” when Officer Frazier reached the scene. Accordingly, there was nothing in the instant anonymous tip or the circumstances surrounding the tip that provided the officers with a reasonable suspicion that criminal activity was afoot.(3)

(3)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 recognizing 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 is no gun exception to the Terry requirement for reasonably suspicion of criminal activity....")).

DISSENTING OPINIONS:
By JUSTICE CASTILLE
http://www.courts.state.pa.us/OpPost...J024-99do1.pdf
By JUSTICE SAYLOR
http://www.courts.state.pa.us/OpPost...J024-99do2.pdf

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NOTE: The D.M. case above appears to clearly supercede the lower court ruling (ROBINSON below) regarding less need for a RAS before making a Terry Stop when a gun possession is involved. I believe this due to the much later date of adjudication and by a higher court.

The D.M. case states that factual (verifiable) information regarding an allegation of an actual crime must be present upon which to base Reasonable, Articulable Suspicion when an Anonymous Call is received regarding a 'Man with a Gun'. It further requires that the information is actually verified by the Officer before a Terry Stop is made. I would extrapolate that the same level of factual (verifiable) information upon which to base RAS of a crime is required even when the Officer has observed for themself a 'Man with a Gun' (where no other illegal behavior is present).

I further suspect that the line of reasoning involved in this case (D.M.) would lead to the overturn of the Superior Court cases cited previously that are more recent than the ROBINSON case (HALL & STEVENSON). Those cases essentially attempt to validate the same authority proposed in ROBINSON, that is: That the Officer has less burden for RAS of an actual crime when the mere possibility of a gun possession exists and such possibilty provides immediate and automatic justification for a Terry Stop.

NOTE ALSO: The dissent by Justice Castille decries the fact that the PA Supreme Court continues to apply a standard more strict as to the interpretation of required RAS for Terry Stops than applied by the US Supreme Court, even though it is more burdensome on the police officers.
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COMMONWEALTH v. ROBINSON - OCTOBER 31, 1991
(PA Superior Court 600 A.2d 957, 959)

The Commonwealth contends that the officer had a reasonable basis to stop appellee based on her observation of the gun stuck in appellee's pants and because the street was crowded with children.

The present case presents a stronger factual scenario than either Mears or Lagana, since Officer Hamman personally observed the firearm secured in appellee's waistband. The implicit foundation of both Mears and Lagana is that 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. In the present case, Officer Hamman 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.

We find that the initial restraint of appellees freedom was warranted under the circumstances [410 Pa.Super. 621] and consequently find the stop to be legal under the Fourth Amendment.

Our next inquiry must be of whether the gun was in "plain view."(4) We find that it was. After making a lawful stop of appellee the officer observed the gun lying on the floor beside the driver's seat. The officer was lawfully present at the vantage point and the discovery was inadvertent. We find the criteria for the plain view exception to be met and that the seizure was legal under the Fourth Amendment.

(4) The orthodox statement of the plain view exception is, that before the police may conduct a warrantless search or seizure of evidence in plain view: the police must be lawfully present at the vantage point from which the evidence is discovered; the discovery of the evidence must be inadvertent; and the probable evidentiary value of the evidence must be immediately apparent. Commonwealth v. Ferrari, 376 Pa.Super. 307, 545 A.2d 1372, 1382 (1988).