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04/22/97 COMMONWEALTH PENNSYLVANIA v. MICHAEL

April 22, 1997

COMMONWEALTH OF PENNSYLVANIA, APPELLEE
v.
MICHAEL HAWKINS, APPELLANT



Appeal from the December 15, 1995 order of the Superior Court at No. 2955 Philadelphia 1994, affirming the order of the Court of Common Pleas of Philadelphia County, M.R. No. 94-8421, which denied a writ of certiorari to the Philadelphia Municipal Court, following imposition of defendant's judgment of sentence, M.C. # 9311-2345 November term, 1993 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 ANNOUNCING THE JUDGMENT OF THE COURT

MR. CHIEF JUSTICE FLAHERTY

DECIDED: April 22, 1997

This case concerns whether a police radio broadcast that a man of a particular description is carrying a gun may serve as the justification for a search of that person and the seizure of the gun he is carrying when the arresting officer is unable to authenticate the telephone message on which the radio broadcast was based or provide an independent basis for the stop and frisk.

On November 19, 1993, a Philadelphia police officer responded to a radio call that there was a man with a gun at Sydenham and York Streets. The suspect was described as a black male wearing a blue cap, black jeans and a gold or brownish coat. When the officer arrived, he observed Hawkins, who fitted the radio description. He then stopped and frisked Hawkins, finding a .22 caliber revolver in his waistband. At the suppression hearing, the officer stated that he did not know the source of the information contained in the radio call. No other testimony established the source of the call or the basis for the information.

On May 25, 1994, Hawkins was convicted of a violation of the Uniform Firearms Act *fn1 and sentenced to twenty-one months probation. A writ of certiorari in the court of common pleas was denied and Hawkins appealed to Superior Court. On July 20, 1994, Superior Court, in a memorandum opinion, affirmed the conviction. This court granted allocatur.

The existing law with respect to searches such as the one conducted in this case is based on Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889, which held that police are authorized under the Fourth Amendment to stop and temporarily detain citizens short of an arrest when they can point to "specific and articulable facts" causing them to have a reasonable suspicion that "criminal activity may be afoot." 392 U.S. at 21, 30, 88 S. Ct. at , , 20 L. Ed. 2d at 905-06, 911; Commonwealth v. Melendez, 544 Pa. 323, 676 A.2d 226, 228 (1996); Commonwealth v. Hicks, 434 Pa. 153, 160, 253 A.2d 276, (1969). If police reasonably believe that they may be in danger, they may conduct a limited pat-down search of the suspect's outer garments for weapons. Ybarra v. Illinois, 444 U.S. 85, 92-93, 100 S. Ct. 338, 62 L. Ed. 2d 238, 246 (1979); accord, Commonwealth v. Melendez, supra. 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. *fn2 The initial question with which any analysis of this case must begin, therefore, is whether the police officer had grounds for reasonable suspicion that criminal activity was afoot.

When police receive an anonymous call alleging that a person of a particular description is carrying a gun at a particular location and the police broadcast this information to radio patrol cars, neither the police dispatcher nor the officers in the cars know whether the information is reliable. It may be a prank call. For this reason, in Commonwealth v. Queen, 536 Pa. 315, 320, 639 A.2d 443 (1994), we held 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." *fn3 To hold otherwise would be to sanction police interference with citizens upon less than the reasonable suspicion of criminal activity required by Terry.

The Superior Court reasoned that because the officer arrived within three minutes of receiving the call, because Hawkins fitted the description of the man on the radio broadcast, and because Hawkins allegedly had a gun, there was "sufficient corroboration" of the phone call to give the officer reasonable suspicion that Hawkins was "armed and dangerous." Superior Court erroneously believed that these factors were sufficient to justify the search of appellant and the seizure of his gun.

If the police respond to an anonymous call that a particular person at a specified location is engaged in criminal activity, and upon arriving at the location see a person matching the description but nothing more, they have no certain knowledge except that the caller accurately described someone at a particular location. As the United States Supreme Court observed in Illinois v. Gates, 462 U.S. 213, 103 S. Ct. 2317, 76 L. Ed. 2d 527 (1983), 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 allegations of criminal conduct. The fact that the subject of the call was alleged to be carrying a gun, of course, is merely another allegation, and it supplies no reliability where there was none before. And since there is no gun exception to the Terry requirement for reasonable suspicion of criminal activity, in the typical anonymous caller situation, the police will need an independent basis to establish the requisite reasonable suspicion.

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, *fn4 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. *fn5

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. The judgment of sentence must, therefore, be reversed.

Mr. Justice Nigro concurs in the result.

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


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