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04/22/97 COMMONWEALTH PENNSYLVANIA v. WANGYER KUE

April 22, 1997

COMMONWEALTH OF PENNSYLVANIA, APPELLEE
v.
WANGYER KUE, APPELLANT



Appeal from the Order of the Superior Court entered December 19, 1995, at No. 421 Philadelphia 1995, affirming the Order of the Court of Common Pleas of Philadelphia County, Criminal Division at MC 94 9408-0047 and MR 94 915656, entered January 24, 1995 Pa. Super. , Before: Flaherty, C.j., And Zappala, Cappy, Castille, Nigro And Newman, JJ. Mr. Justice Nigro concurs in the result. Madame Justice Newman files a Dissenting opinion in which Mr. Justice Castille joins.

The opinion of the court was delivered by: Flaherty

OPINION ANOUNCING THE JUDGMENT OF THE COURT

MR. CHIEF JUSTICE FLAHERTY

DECIDED: April 22, 1997

On July 31, 1994, Philadelphia police officer Richard Waters received a radio report that an Asian male was "armed with a gun" at the intersection of Second and Olney Streets in Philadelphia. This person was described as wearing a striped shirt. Officer Waters arrived at that location within three minutes of receiving the call and saw four Asian men standing on the highway, one of whom wore a striped shirt. He saw no indication of criminal activity; however, the officer observed that when he arrived, the men spoke quickly to each other and looked around in different directions. The officer then stopped and frisked the four men. Kue, who was not wearing a striped shirt, had a .25 caliber handgun in his waistband.

Kue was arrested and charged with violating the Uniform Firearms Act, 18 Pa.C.S. §§ 6106, 6108. He moved to suppress the gun which was seized, and the suppression court denied his motion. Thereafter he was convicted by the Municipal Court of two violations of the Uniform Firearms Act and received concurrent sentences of twelve months probation for each offense.

Kue filed a petition for a writ of certiorari with the Philadelphia County Court of Common Pleas, alleging that the stop and frisk was unsupported by reasonable suspicion or probable cause. The trial court denied the petition and Kue appealed to Superior Court. The Superior Court affirmed, holding that police had met the requirement of Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968), that in order to conduct an investigative stop, a police officer must observe or receive over the police radio information which leads him to conclude that criminal activity is afoot and that the person with whom he is dealing may be armed and dangerous. Moreover, the court held that the police officer properly conducted a protective frisk of all four men, even though Kue was not the man described in the radio broadcast, for he was justified in believing that any of the men might pose a danger to him. In short, the officer possessed a reasonable suspicion "that one of the men was carrying a gun," and based on this suspicion, he was justified in conducting a protective frisk of all of the men.

We granted allocatur primarily for the purpose of considering whether the so-called companion rule, which allows police to conduct a pat-down search for weapons on a companion of a person suspected of criminal activity, is compatible with the Pennsylvania Constitution. *fn1 Because of our analysis of the case, however, we do not reach this question.

The rules which govern when police may stop a person in order to investigate the possibility of criminal activity are set out in Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968). In general, an investigative stop is justified only upon reasonable suspicion of criminal activity, id., and a limited pat-down search for weapons may be conducted only if supported by the reasonable belief that the suspect is armed and dangerous. Commonwealth v. Melendez, 544 Pa. 323, 676 A.2d 226 (1996).

As we held in Commonwealth v. Hawkins, 692 A.2d 1068, 1997 Pa. LEXIS 815, also decided today, in order for police to act on an anonymous tip, the Terry requirement of reasonable suspicion of criminal activity must still be satisfied and must be independent of the telephone tip itself. *fn2 Here, there was no independent reason to believe that criminal conduct was afoot, and the police officer, therefore, had no reason to search anyone, whether it was the man with the striped shirt or his companions.

The order of Superior Court is reversed.

Mr. Justice Nigro concurs in the result.

Madame Justice Newman files a Dissenting opinion in which Mr. ...


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