STOP, DETAIN, SEARCH - What CAN an Officer Do Legally (IANAL)

[ImminentDanger]

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)

[ImminentDanger]

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EXCERPTS FROM REFERENCED CASES BELOW:
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COMMONWEALTH v. AYALA - FEBRUARY 6, 2002
(PA Superior Court J. S65035/01
http://www.romingerlegal.com/pacasel...s65035_01.html

"To secure the right of citizens to be free from such intrusions, courts in Pennsylvania require law enforcement officers to demonstrate ascending levels of suspicion to justify their interactions with citizens as those interactions become more intrusive."
Id.
The first of these [interactions] is a "mere encounter" (or request for information) which need not be supported by any level of suspicion, but carries no official compulsion to stop or respond.

The second, an "investigative detention" must be supported by reasonable suspicion; it subjects a suspect to a stop and period of detention, but does not involve such coercive conditions as to constitute the functional equivalent of arrest.

Finally, an arrest or "custodial detention" must be supported by probable cause.

COMMONWEALTH v. HAYWARD - JUNE 27, 2000
(PA Superior Court J. S05037/2000)
http://www.romingerlegal.com/pacasel...s05037_00.html

9
Our Supreme Court has recognized that there are three categories of interaction between citizens and the police:

The first of these is a "mere encounter" (or request for information) which need not be supported by any level of suspicion, but carries no official compulsion to stop or to respond. See Florida v. Royer, 460 U.S. 491, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983); Florida v. Bostick, 501 U.S. 429, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991).

The second, an "investigative detention" must be supported by a reasonable suspicion; it subjects a suspect to a stop and a period of detention, but does not involve such coercive conditions as to constitute the functional equivalent of an arrest. See Berkemer v. McCarty, 468 U.S. 420, 104 S.Ct. 3138, 82 L.Ed.2d.317 (1984); Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).

Finally an arrest or "custodial detention" must be supported by probable cause. See Dunaway v. New York, 442 U.S. 200, 99 S.Ct. 2248, 60 L.Ed. 2d 824 (1979); Commonwealth v. Rodriguez, 532 Pa. 62, 614 A.2d 1378 (1992)(footnote omitted). Commonwealth v. Ellis, 541 Pa. 285, 293-294, 662 A.2d 1043, 1047-1048 (1995). Accord In Re Evans, 717 A.2d 542, 544 (Pa.Super. 1998).

10 As our Court has recently stated: In determining whether a "mere encounter" has risen to the level of an "investigative detention," the focus of our inquiry is on whether a "seizure" of the person has occurred. Commonwealth v. Mendenhall, 552 Pa. 484, 715 A.2d 1117, 1120 (Pa. 1998). Within this context, our courts employ the following objective standard to discern whether a person has been seized: "Whether, under all the circumstances surrounding the incident at issue, a reasonable person would believe he was free to leave." Commonwealth v. Smith, 1999 PA Super 96, 732 A.2d 1226, 1232 (Pa. Super. 1999) (emphasis added). See also Commonwealth v. Matos, 543 Pa. 449, 672 A.2d 769, 774 (Pa. 1996). Commonwealth v. McClease, 2000 PA Super 91, 13, 750 A.2d 320, (Pa.Super. 2000).

COMMONWEALTH v. HAWKINS - APRIL 22, 1997
(PA Supreme Court J-257-1996)

Thus, before police may briefly detain a person, there must be reasonable suspicion of criminal conduct, and before police may pat down for weapons, there must be a reasonable belief that the suspect is presently armed and dangerous.

The Commonwealth takes the radical position that police have a duty to stop and frisk when they receive information from any source that a suspect has a gun. Since it is not illegal to carry a licensed gun in Pennsylvania,(4) it is 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 undetected. Even if the Constitution of Pennsylvania would permit such invasive police activity as the Commonwealth proposes -- which it does not -- such activity seems more likely to endanger than to protect the public. Unnecessary police intervention, by definition, produces the possibility of conflict where none need exist.

Contrary to the Commonwealth's view, the public will receive its full measure of protection by police who act within the restraints imposed on them by Art. I, § 8 of the Constitution of Pennsylvania and this court's relevant caselaw. Upon receiving unverified information that a certain person is engaged in illegal activity, the police may always observe the suspect and conduct their own investigation. If police surveillance produces a reasonable suspicion of criminal conduct, the suspect may, of course, be briefly stopped and questioned (the Terry investigative stop), and, if the officer has reasonable fear for his safety, police may pat down the suspect's outer garments for weapons.(5)

In this case, the police acted on an anonymous tip and had no basis for believing that the tip was reliable. They also had no independent reason to believe that the suspect may have been involved in criminal activity. But Queen requires that "a stop and frisk may be supported by a police radio bulletin _only_ if evidence is offered at the suppression hearing establishing the articulable facts which support the reasonable suspicion." 536 Pa. at 320, ___ A.2d at ___. Here, no facts were offered which supported the suspicion created by the anonymous call.

(4) In all parts of Pennsylvania, persons who are licensed may carry concealed firearms. 18 Pa.C.S. § 6108. Except in Philadelphia, firearms may be carried openly without a license. See Ortiz v. Commonwealth, ___ Pa. ___, ___, 681 A.2d 152, 155 (1996) (only in Philadelphia must a person obtain a license for carrying a firearm whether it is unconcealed or concealed; in other parts of the Commonwealth, unconcealed firearms do not require a license).

(5) We do not address the scenario in which the officer has an independent reason to believe that a crime (carrying an unlicensed gun) may be in progress, inquires as to whether the gun is licensed and the person does not answer.

[ImminentDanger]

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EXCERPTS FROM REFERENCED CASES BELOW:
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FLORIDA v. J.L. - DECEMBER 28, 2000
(US Supreme Court 98-1993)
http://www.law.cornell.edu/supct/html/98-1993.ZS.html

An accurate description of a subject's readily observable location and appearance is of course reliable in this limited sense: It will help the police correctly identify the person whom the tipster means to accuse. Such a tip, however, does not show that the tipster has knowledge of concealed criminal activity. 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. Cf. 4 W. LaFave, Search and Seizure §9.4(h), p. 213 (3d ed. 1996) (distinguishing reliability as to identification, which is often important in other criminal law contexts, from reliability as to the likelihood of criminal activity, which is central in anonymous-tip cases).

A second major argument advanced by Florida and the United States as amicus is, in essence, that the standard Terry analysis should be modified to license a "firearm exception." Under such an exception, a tip alleging an illegal gun would justify a stop and frisk even if the accusation would fail standard pre-search reliability testing. We decline to adopt this position.

Firearms are dangerous, and extraordinary dangers sometimes justify unusual precautions. Our decisions recognize the serious threat that armed criminals pose to public safety; Terry 's rule, which permits protective police searches on the basis of reasonable suspicion rather than demanding that officers meet the higher standard of probable cause, responds to this very concern. See 392 U. S., at 30 . But an automatic firearm exception to our established reliability analysis would rove too far. Such an exception would enable any person seeking to harass another to set in motion an intrusive, embarrassing police search of the targeted person simply by placing an anonymous call falsely reporting the target's unlawful carriage of a gun.

PENNSYLVANIA v. MIMMS - DECEMBER 5, 1977
(US Supreme Court 76-1830)
http://supreme.justia.com/us/434/106/case.html

In this case, unlike Terry v. Ohio, there is no question about the propriety of the initial restrictions on respondent's freedom of movement. Respondent was driving an automobile with expired license tags in violation of the Pennsylvania Motor Vehicle Code. [Footnote 4] Deferring for a moment the legality of the "frisk" once the bulge had been observed, we need presently deal only with the narrow question of whether the order to get out of the car, issued after the driver was lawfully detained, was reasonable, and thus permissible under the Fourth Amendment. This inquiry must therefore focus not on the intrusion resulting from the request to stop the vehicle or from the later "pat down," but on the incremental intrusion resulting from the request to get out of the car once the vehicle was lawfully stopped.

Placing the question in this narrowed frame, we look first to that side of the balance which bears the officer's interest in taking the action that he did. The State freely concedes the officer had no reason to suspect foul play from the particular driver at the time of the stop, there having been nothing unusual or suspicious about his behavior. It was apparently his practice to order all drivers out of their vehicles as a matter of course whenever they had been stopped for a traffic violation. The State argues that this practice was adopted as a precautionary measure to afford a degree of protection to the officer, and that it may be justified on that ground. Establishing a face-to-face confrontation diminishes the possibility, otherwise substantial, that the driver can make unobserved movements; this, in turn, reduces the likelihood that the officer will be the victim of an assault. [Footnote 5]

We think it too plain for argument that the State's proffered justification -- the safety of the officer -- is both legitimate and weighty. "Certainly it would be unreasonable to require that police officers take unnecessary risks in the performance of their duties." Terry v. Ohio, supra at 392 U. S. 23. And we have specifically recognized the inordinate risk confronting an officer as he approaches a person seated in an automobile.

The hazard of accidental injury from passing traffic to an officer standing on the driver's side of the vehicle may also be appreciable in some situations. Rather than conversing while standing exposed to moving traffic, the officer prudently may prefer to ask the driver of the vehicle to step out of the car and off onto the shoulder of the road where the inquiry may be pursued with greater safety to both.

Against this important interest, we are asked to weigh the intrusion into the driver's personal liberty occasioned not by the initial stop of the vehicle, which was admittedly justified, but by the order to get out of the car. We think this additional intrusion can only be described as de minimis. The driver is being asked to expose to view very little more of his person than is already exposed. The police have already lawfully decided that the driver shall be briefly detained; the only question is whether he shall spend that period sitting in the driver's seat of his car or standing alongside it. Not only is the insistence of the police on the latter choice not a "serious intrusion upon the sanctity of the person," but it hardly rises to the level of a "petty indignity.'" Terry v. Ohio, supra at 392 U. S. 17. What is, at most, a mere inconvenience cannot prevail when balanced against legitimate concerns for the officer's safety. [Footnote 6]

There remains the second question of the propriety of the search once the bulge in the jacket was observed. We have as little doubt on this point as on the first; the answer is controlled by Terry v. Ohio, supra. In that case, we thought the officer justified in conducting a limited search for weapons once he had reasonably concluded that the person whom he had legitimately stopped might be armed and presently dangerous. Under the standard enunciated in that case -- whether "the facts available to the officer at the moment of the seizure or the search 'warrant a man of reasonable caution in the belief' that the action taken was appropriate [Footnote 7]" -- there is little question the officer was justified. The bulge in the jacket permitted the officer to conclude that Mimms was armed, and thus posed a serious and present danger to the safety of the officer. In these circumstances, any man of "reasonable caution" would likely have conducted the "pat down."

[ImminentDanger]

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EXCERPTS FROM REFERENCED CASES BELOW:
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TERRY v. OHIO - JUNE 10, 1968
(US Supreme Court 67-392)
http://supreme.justia.com/us/392/1/case.html

...we turn our attention to the quite narrow question posed by the facts before us: whether it is always unreasonable for a policeman to seize a person and subject him to a limited search for weapons unless there is probable cause for an arrest.

There is some suggestion in the use of such terms as "stop" and "frisk" that such police conduct is outside the purview of the Fourth Amendment because neither action rises to the level of a "search" or "seizure" within the meaning of the Constitution. [Footnote 12] We emphatically reject this notion. It is quite plain that the Fourth Amendment governs "seizures" of the person which do not eventuate in a trip to the stationhouse and prosecution for crime -- "arrests" in traditional terminology. It must be recognized that, whenever a police officer accosts an individual and restrains his freedom to walk away, he has "seized" that person. And it is nothing less than sheer torture of the English language to suggest that a careful exploration of the outer surfaces of a person's clothing all over his or her body in an attempt to find weapons is not a "search." Moreover, it is simply fantastic to urge that such a procedure performed in public by a policeman while the citizen stands helpless, perhaps facing a wall with his hands raised, is a "petty indignity." [Footnote 13] It is a serious intrusion upon the sanctity of the person, which may inflict great indignity and arouse strong resentment, and it is not to be undertaken lightly. [Footnote 14]

The scope of the search must be "strictly tied to and justified by" the circumstances which rendered its initiation permissible. Warden v. Hayden, 387 U. S. 294, 387 U. S. 310 (1967) (MR. JUSTICE FORTAS, concurring); see, e.g., Preston v. United States, 376 U. S. 364, 376 U. S. 367-368 (1964); Agnello v. United States,@ 269 U. S. 20, 269 U. S. 30-31 (1925).

In order to assess the reasonableness of Officer McFadden's conduct as a general proposition, it is necessary "first to focus upon the governmental interest which allegedly justifies official intrusion upon the constitutionally protected interests of the private citizen," for there is "no ready test for determining reasonableness other than by balancing the need to search [or seize] against the invasion which the search [or seizure] entails." Camara v. Municipal Court, 387 U. S. 523, 387 U. S. 534-535, 387 U. S. 536-537 (1967).

The crux of this case, however, is not the propriety of Officer McFadden's taking steps to investigate petitioner's suspicious behavior, but, rather, whether there was justification for McFadden's invasion of Terry's personal security by searching him for weapons in the course of that investigation. 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. [Footnote 21]

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.

Our evaluation of the proper balance that has to be struck in this type of case leads us to conclude that there must be a narrowly drawn authority to permit a reasonable search for weapons for the protection of the police officer, where he has reason to believe that he is dealing with an armed and dangerous individual, regardless of whether he has probable cause to arrest the individual for a crime. 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. Cf. Beck v. Ohio, 379 U. S. 89, 379 U. S. 91 (1964); Brinegar v. United States, 338 U. S. 160, 338 U. S. 174-176 (1949); Stacey v. Emery, 97 U. S. 642, 97 U. S. 645 (1878). [Footnote 23] And in determining whether the officer acted reasonably in such circumstances, due weight must be given not to his inchoate and unparticularized suspicion or "hunch," but to the specific reasonable inferences which he is entitled to draw from the facts in light of his experience. Cf. Brinegar v. United States supra.

The sole justification of the search in the present situation is the protection of the police officer and others nearby, and it must therefore be confined in scope to an intrusion reasonably designed to discover guns, knives, clubs, or other hidden instruments for the assault of the police officer.

The scope of the search in this case presents no serious problem in light of these standards. Officer McFadden patted down the outer clothing of petitioner and his two companions. He did not place his hands in their pockets or under the outer surface of their garments until he had felt weapons, and then he merely reached for and removed the guns. He never did invade Katz' person beyond the outer surfaces of his clothes, since he discovered nothing in his pat-down which might have been a weapon. Officer McFadden confined his search strictly to what was minimally necessary to learn whether the men were armed and to disarm them once he discovered the weapons. He did not conduct a general exploratory search for whatever evidence of criminal activity he might find.

We conclude that the revolver seized from Terry was properly admitted in evidence against him. At the time he seized petitioner and searched him for weapons, Officer McFadden had reasonable grounds to believe that petitioner was armed and dangerous, and it was necessary for the protection of himself and others to take swift measures to discover the true facts and neutralize the threat of harm if it materialized. The policeman carefully restricted his search to what was appropriate to the discovery of the particular items which he sought. Each case of this sort will, of course, have to be decided on its own facts. We merely hold today that, where a police officer observes unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot and that the persons with whom he is dealing may be armed and presently dangerous, where, in the course of investigating this behavior, he identifies himself as a policeman and makes reasonable inquiries, and where nothing in the initial stages of the encounter serves to dispel his reasonable fear for his own or others' safety, he is entitled for the protection of himself and others in the area to conduct a carefully limited search of the outer clothing of such persons in an attempt to discover weapons which might be used to assault him.

Such a search is a reasonable search under the Fourth Amendment, and any weapons seized may properly be introduced in evidence against the person from whom they were taken.

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Read the concurring opinion by JUSTICE HARLAN
BUT UNDERSTAND, IT DOES NOT HAVE THE WEIGHT OF LAW

This opinion clearly lays out the concept of Officer Safety: If a constitutionally valid stop is made, there is a presumption that a citizen (actually or reasonably suspected of) simply possessing a gun _IS_ an immediate danger to Officer Safety and that immediately and automatically justifies a Terry Frisk...

If the State of Ohio were to provide that police officers could, on articulable suspicion less than probable cause, forcibly frisk and disarm persons thought to be carrying concealed weapons, I would have little doubt that action taken pursuant to such authority could be constitutionally reasonable. Concealed weapons create an immediate and severe danger to the public, and though that danger might not warrant routine general weapons checks, it could well warrant action on less than a "probability."

However, his opinion also clearly delineates no justification for a frisk BEFORE a constitutionally valid stop is made, as in during what is later termed a 'mere encounter'....

In the first place, if the frisk is justified in order to protect the officer during an encounter with a citizen, the officer must first have constitutional grounds to insist on an encounter, to make a forcible stop. Any person, including a policeman, is at liberty to avoid a person he considers dangerous. If and when a policeman has a right instead to disarm such a person for his own protection, he must first have a right not to avoid him, but to be in his presence. That right must be more than the liberty (again, possessed by every citizen) to address questions to other persons, for ordinarily the person addressed has an equal right to ignore his interrogator and walk away; he certainly need not submit to a frisk for the questioner's protection. I would make it perfectly clear that the right to frisk in this case depends upon the reasonableness of a forcible stop to investigate a suspected crime.

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EVERYONE SHOULD READ JUSTICE DOUGLAS' DISSENTING OPINION
BUT UNDERSTAND, IT DOES NOT HAVE THE WEIGHT OF LAW

This opinion clearly lays out the dangers that the TERRY v. OHIO ruling creates..

I agree that petitioner was "seized" within the meaning of the Fourth Amendment. I also agree that frisking petitioner and his companions for guns was a "search." But it is a mystery how that "search" and that "seizure" can be constitutional by Fourth Amendment standards unless there was "probable cause" [Footnote 2/1] to believe that (1) a crime had been committed or (2) a crime was in the process of being committed or (3) a crime was about to be committed.

The opinion of the Court disclaims the existence of "probable cause." If loitering were in issue and that was the offense charged, there would be "probable cause" shown. But the crime here is carrying concealed weapons; [Footnote 2/2] and there is no basis for concluding that the officer had "probable cause" for believing that that crime was being committed. Had a warrant been sought, a magistrate would, therefore, have been unauthorized to issue one, for he can act only if there is a showing of "probable cause." We hold today that the police have greater authority to make a "seizure" and conduct a "search" than a judge has to authorize such action. We have said precisely the opposite over and over again. [Footnote 2/3]

In other words, police officers up to today have been permitted to effect arrests or searches without warrants only when the facts within their personal knowledge would satisfy the constitutional standard of probable cause. At the time of their "seizure" without a warrant, they must possess facts concerning the person arrested that would have satisfied a magistrate that "probable cause" was indeed present. The term "probable cause" rings a bell of certainty that is not sounded by phrases such as "reasonable suspicion." Moreover, the meaning of "probable cause" is deeply imbedded in our constitutional history.

The infringement on personal liberty of any "seizure" of a person can only be "reasonable" under the Fourth Amendment if we require the police to possess "probable cause" before they seize him. Only that line draws a meaningful distinction between an officer's mere inkling and the presence of facts within the officer's personal knowledge which would convince a reasonable man that the person seized has committed, is committing, or is about to commit a particular crime.

"In dealing with probable cause, . . . as the very name implies, we deal with probabilities. These are not technical; they are the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act."Brinegar v. United States, 338 U. S. 160, 338 U. S. 175.

To give the police greater power than a magistrate is to take a long step down the totalitarian path. Perhaps such a step is desirable to cope with modern forms of lawlessness. But if it is taken, it should be the deliberate choice of the people through a constitutional amendment.

Until the Fourth Amendment, which is closely allied with the Fifth, [Footnote 2/4] is rewritten, the person and the effects of the individual are beyond the reach of all government agencies until there are reasonable grounds to believe (probable cause) that a criminal venture has been launched or is about to be launched.

There have been powerful hydraulic pressures throughout our history that bear heavily on the Court to water down constitutional guarantees and give the police the upper hand. That hydraulic pressure has probably never been greater than it is today.

Yet if the individual is no longer to be sovereign, if the police can pick him up whenever they do not like the cut of his jib, if they can "seize" and "search" him in their discretion, we enter a new regime. The decision to enter it should be made only after a full debate by the people of this country.

[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.

[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).

[ImminentDanger]

A Placeholder for additional cases

[KMAG]

Great research. Caselaw is so much more informative than "Well I think that . . ." seen in most posts. Hmm . . . how do I send a rep Thanks.

[AverageJoe]

My only concern/question is, to the OP and others, is that when a LEO uses and/or believes the officer safety would constitute a further search of vehicle/person. In Lackawanna County I am 100% positive (yes this has been absolutely confirmed) that when your vehicle is stopped or you encounter LEO and they "run" your name for ID purposes, the 911 center sends your name through the system and your LTCF is discovered and the officer is advised (whether you know it or not). This practice happens at just about every encounter to verify IDs.

So, can the LEO then play the officer safety card at every encounter? If so, I would only think it best to offer no info that is not mandatory depending on your situation.

Thoughts?

[TaePo]

There's that (and thanks for your presentation by the way) and the other encounter possibility...

Namely, if you are stopped and asked if there is a firearm in the vehicle and you respond, "I do not consent to any searches and I wish to exercise my 5th Amendment rights at this time. (or, I refuse to answer on the grounds it may incriminate me and refuse all questions without a lawyer present)."

Now, logic dictates that there is a high probability you are hiding something, so is the search on? But, I am thinking legally, they cannot search barring any RAS of a crime other than your taking the 5th.

Of course, what probably happens is you're searched and anything that is found as 'contraband' is attempted to be suppressed by your lawyer.

What a gamble the law seems to have become IMHO.