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Commonwealth v. Mackey

Superior Court of Pennsylvania

December 20, 2017


         Appeal from the Judgment of Sentence April 13, 2015 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0010023-2014

          BEFORE: BOWES, J., MOULTON, J., and STEVENS, P.J.E. [*]


          MOULTON, J.

         Stephen Mackey appeals from the April 13, 2015 judgment of sentence entered in the Court of Common Pleas of Philadelphia County following his convictions for persons not to possess a firearm, carrying a firearm without a license, and carrying a firearm on the public streets of Philadelphia.[1] While we acknowledge the significant challenges presented by the facts in this case, we conclude that under controlling precedent the police lacked reasonable suspicion to detain Mackey. Accordingly, we overturn the trial court's denial of Mackey's motion to suppress and vacate the judgment of sentence.

         This case involves a recurring scenario - the police receive an anonymous tip that a person matching a particular description in a particular location is carrying a firearm. When such a tip appears to raise a legitimate concern for public safety, the police have a manifest obligation to treat it seriously. As Judge Bowes aptly notes in her concurring opinion, "'[i]t would have been poor police work indeed' for the officers to simply ignore the tip just because possession of a firearm is not per se illegal. Conc. Op. at 5 (quoting Terry v. Ohio, 392 U.S. 1, 23 (1968). At the same time, in light of the tipster's cloak of anonymity, the police must also account for the possibility that the tip is either in error or, worse, a sham designed to cause trouble for a person who is not carrying a weapon. In responding to such a tip, therefore, as in countless other recurring situations, the police must balance their obligation to protect the public from danger with their constitutional duty to respect the rights of all citizens. Striking that balance is particularly challenging when the safety concern, while significant, is based not on police observations but solely on the unverified allegations of a person who cannot be held to account if those allegations prove false.

         The essential facts in this case, developed at a hearing on Mackey's motion to suppress, are largely undisputed. Philadelphia Police Officer Marcus O'Shaughnessy testified that on July 23, 2014, while on routine patrol, he received a radio call for a "person with a gun" aboard the Route 3 SEPTA bus, number 8323, traveling eastbound on Cecil B. Moore Avenue. According to the call, the suspect was described as "a black male wearing a white T-shirt and a flowered hat." N.T., 2/9/15, at 10. Officer O'Shaughnessy, along with another officer, found, stopped, and boarded the bus within two minutes of receiving the radio call. The trial court described what happened on the bus as follows:

Officer O'Shaughnessy entered the bus, which was filled with 50 to 60 passengers, and he immediately observed [Mackey] wearing a pink-and-green-flowered hat and a shirt that was white on the back and black on the front.2 (See N.T. 02/09/15, pp. 5-12, 16-17).
2 Officer O'Shaughnessy described the flowered hat as extremely distinctive in that it was a "bucket" hat patterned with pink and green flowers. (See N.T. 02/09/15, p. 17).
Officer O'Shaughnessy testified that he drew his firearm and commanded that [Mackey] show his hands; [Mackey] complied. He described [Mackey] as sitting up straight, while all the other passengers were leaning away and trying to duck for cover. [Mackey] was then handcuffed and led off the bus for passenger as well as officer safety. [Mackey] denied having any weapons; however, as he was being led off the bus, [Mackey] was not walking normally, he was "waddling". Officer O'Shaughnessy observed [Mackey] waddling for 20 to 25 feet. He testified that in his experience as an officer, he believed that [Mackey] was trying to keep a gun from falling out of his loose-fitting pants. Officer O'Shaughnessy then frisked [Mackey] and felt the gun, which he recovered from [Mackey's] waistband. The gun, which was loaded, was secured under property receipt. The entire incident took less than five (5) minutes. (See N.T. 02/09/15, pp. 12-17).

Trial Court Opinion, 12/24/15, at 2-3 ("1925(a) Op.") (some internal citations omitted).

         The trial court denied the motion to suppress, concluding that Officer O'Shaughnessy had properly removed Mackey from the bus out of a concern for public safety and that, based on a combination of the detailed tip, Mackey's response to the officer drawing and pointing his service weapon, and Mackey's "waddling" off the bus, the officer had reasonable suspicion to frisk Mackey for weapons. 1925(a) Op. at 6. Mackey proceeded to a non-jury trial on stipulated facts, after which the trial court convicted him of the offenses listed above. On April 13, 2015, following a pre-sentence investigation, the trial court sentenced Mackey to 2 to 5 years' incarceration, followed by 3 years' probation on the conviction for persons not to possess a firearm. The court imposed no further penalty on the remaining convictions. Mackey filed a timely notice of appeal on May 11, 2015.

         Mackey raises the following issues on appeal:

A. Did law enforcement detain . . . Mackey without the required reasonable suspicion?
B. Did law enforcement subject . . . Mackey to a constitutionally infirm frisk?

Mackey's Br. at 2 (full capitalization and suggested answers omitted).

         In reviewing the denial of a suppression motion, our role is to determine:

whether the suppression court's factual findings are supported by the record and whether the legal conclusions drawn from those facts are correct. Because the Commonwealth prevailed before the suppression court, we may consider only the evidence of the Commonwealth and so much of the evidence for the defense as remains uncontradicted when read in the context of the record as a whole. Where the suppression court's factual findings are supported by the record, we are bound by these findings and may reverse only if the court's legal conclusions are erroneous. Where, as here, the appeal of the determination of the suppression court turns on allegations of legal error, the suppression court's legal conclusions are not binding on an appellate court, whose duty it is to determine if the suppression court properly applied the law to the facts. Thus, the conclusions of law of the courts below are subject to our plenary review.

Commonwealth v. Jones, 988 A.2d 649, 654 (Pa. 2010) (internal quotations and citations omitted). Our scope of review is limited to the evidence presented at the suppression hearing. In re L.J., 79 A.3d 1073, 1080 (Pa. 2013).

         Mackey first alleges that he was illegally detained because Officer O'Shaughnessy lacked reasonable suspicion to believe Mackey was carrying a weapon. According to Mackey, at the moment of detention, Officer O'Shaughnessy lacked reasonable suspicion to seize him because the officer possessed only anonymous radio information that a person partially matching Mackey's appearance was armed, and the officer "did not observe any criminal activity to corroborate the radio call." Mackey's Br. at 5, 10.

         The Commonwealth responds that "the totality of the circumstances established reasonable suspicion to believe that criminal activity might be afoot." Cmwlth.'s Br. at 8. The Commonwealth notes that Officer O'Shaughnessy received a detailed tip that described Mackey's appearance, as well as information that he was on a specific bus headed eastbound on Cecil B. Moore Avenue. Id. In addition to the tip, the Commonwealth relies on Mackey's "unusual" behavior when Officer O'Shaughnessy drew his service weapon and Mackey's "waddling" off the bus in support of its claim that the officer reasonably believed Mackey was carrying a weapon. Id. at 9.

         The investigation of possible criminal activity invariably brings police officers in contact with members of the public. Depending on the circumstances, a police-citizen encounter may implicate the liberty and privacy interests of the citizen as embodied in both the federal constitution, see U.S. Const. art. IV, [2] and our state constitution, see Pa. Const. art. I, § 8.[3] The law recognizes three distinct levels of interaction between police officers and citizens: (1) a mere encounter; (2) an investigative detention, often described as a Terry stop, see Terry v. Ohio, 392 U.S. 1 (1968); and (3) a custodial detention. See Commonwealth v. Jones, 874 A.2d 108, 116 (Pa.Super. 2005).

         "A mere encounter can be any formal or informal interaction between an officer and a citizen, but will normally be an inquiry by the officer of a citizen. The hallmark of this interaction is that it carries no official compulsion to stop or respond, " Commonwealth v. DeHart, 745 A.2d 633, 636 (Pa.Super. 2000) (internal citations and quotations omitted), and therefore need not be justified by any level of police suspicion. Commonwealth v. Polo, 759 A.2d 372, 375 (Pa. 2000).

         "In contrast, an 'investigative detention' . . . carries an official compulsion to stop and respond . . . . Since this interaction has elements of official compulsion it requires reasonable suspicion of unlawful activity." DeHart, 745 A.2d at 636. In addition, while reasonable suspicion of unlawful activity is sufficient to justify a forcible stop, it does not necessarily justify a frisk for weapons. See Commonwealth v. Davis, 102 A.3d 996, 999 (Pa.Super. 2014) ("A Terry frisk is a type of investigative detention requiring reasonable suspicion that criminal activity is afoot and that the individual whose suspicious behavior he is investigating at close range is armed and presently dangerous to the officer or to others.") (internal quotation marks omitted, emphasis added). Only when the officer reasonably believes the suspect may be armed and dangerous is a weapons frisk appropriate. See Commonwealth v. Pinney, 378 A.2d 293, 296 (Pa. 1977) ("[I]n the case of a self-protective search for weapons, a police officer must be able to point to particular facts from which he could reasonably infer that the individual was armed and dangerous.").

         Finally, "a custodial detention occurs when the nature, duration and conditions of an investigative detention become so coercive as to be, practically speaking, the functional equivalent of an arrest." DeHart, 745 A.2d at 636. This level of interaction requires that the police have probable cause to believe that the person so detained has committed or is committing a crime. See Commonwealth v. Ellis, 662 A.2d 1043, 1047 (Pa. 1995) (citing Dunaway v. New York, 442 U.S. 200 (1979)).

         The parties agree that Mackey's seizure was an investigative detention. Thus, the central issue is whether Officer O'Shaughnessy possessed the necessary "reasonable suspicion" to detain Mackey at the time that detention commenced.[4]

         Preliminarily, however, we must determine at what point Mackey was detained.[5] See Commonwealth v. Riley, 715 A.2d 1131, 1135 (Pa.Super. 1998) (citing Terry, 392 U.S. 1) (noting that reasonable suspicion analysis examines circumstances when stop began). Determining that point with precision is crucial to the constitutional analysis because the police must have reasonable suspicion at the moment of detention; information developed after a police-citizen encounter moves from consensual to coercive cannot be used to justify the detention. See Florida v. J.L., 529 U.S. 266, 271 (2000) ("[T]he reasonableness of official suspicion must be measured by what the officers knew before they conducted their search."); Commonwealth v. Wiley, 858 A.2d 1191, 1197 (Pa.Super. 2004).

         An investigative detention "constitutes a seizure of a person and activates the protections of the Fourth Amendment." Commonwealth v. Lewis, 636 A.2d 619, 622-23 (Pa. 1994). To determine whether and when a seizure has occurred, we employ "an objective test entailing a determination of whether, in view of all surrounding circumstances, a reasonable person would have believed that he was free to leave." Commonwealth v. Strickler, 757 A.2d 884, 889 (Pa. 2000) (citations omitted). "In evaluating the circumstances, the focus is directed toward whether, by means of physical force or show of authority, the citizen-subject's movement has in some way been restrained . . . . In making this determination, courts must apply the totality-of-the-circumstances approach, with no single factor dictating the ultimate conclusion as to whether a seizure has occurred." Id. at 890.

         Officer O'Shaughnessy testified that upon entering the bus, he immediately identified Mackey based on the radio description and then drew his service weapon and pointed it at Mackey while ordering Mackey to show his hands.[6] N.T. at 14-15. At that moment - when the officer pointed his weapon at Mackey and ordered him to show his hands - Mackey was detained.[7] Under these circumstances, a reasonable person would not feel free to leave or otherwise terminate the encounter. See United States v. Mendenhall, 446 U.S. 544, 554 (1980) (listing "examples of circumstances that might indicate a seizure, " including "the display of a weapon by an officer . . . or the use of language or tone of voice indicating that compliance with the officer's request might be compelled.").

         The Commonwealth does not appear to disagree that Mackey was detained once the officer ordered him to put his hands in the air. Instead, it recasts the scene on the bus as follows: Officer O'Shaughnessy drew his weapon as soon as he boarded the bus, observed that "everyone on the bus except for [Mackey] ducked [while Mackey] stared straight at the officer, " and then ordered Mackey to raise his hands. Cmwlth.'s Br. at 8-9. The Commonwealth draws this time line in order to include Mackey's unique response to the drawn service weapon as part of the quantum of evidence that it claims gave Officer O'Shaughnessy the reasonable suspicion needed to justify what it describes as the subsequent seizure of Mackey. The chief flaw in this argument is that the Commonwealth's description of the sequence of events on the bus is not supported by the record. While the Commonwealth is entitled to all "reasonable inferences drawn from the facts in light of the officer's experience, " Commonwealth v. Holmes, 14 A.3d 89, 95 (Pa. 2011), its assertion here is supported neither by the suppression hearing testimony nor by the trial court's findings of fact. As both Officer Shaughnessy testified and the trial court found, the officer pointed his weapon at Mackey and ordered him to raise his hands as soon as he located Mackey on the bus. Mackey's unique reaction followed, rather than preceded, the seizure.

         Next, we must determine whether Officer O'Shaughnessy had reasonable suspicion to detain Mackey when he drew his service weapon and ordered Mackey to show his hands. An officer may stop and briefly detain a person for investigatory purposes when that officer has "reasonable suspicion, based on specific and articulable facts, that criminal activity may be afoot." Commonwealth v. Allen, 725 A.2d 737, 740 (Pa. 1999). "[T]he 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." Commonwealth v. Gray, 784 A.2d 137, 142 (Pa.Super. 2001) (citation omitted). We must consider the totality of the circumstances, including such factors as "tips, the reliability of the informants, time, location, and suspicious activity." Id. (citing Commonwealth v. Freeman, 757 A.2d 903, 908 (Pa. 2000)). As noted above, however, the relevant "totality" of circumstances does not include events that occurred after the seizure was effectuated. For this reason, we may not consider either Mackey's reaction to the drawn gun or his "waddling" off the bus in an apparent attempt to keep a weapon from slipping down his pants. Because both events occurred after the seizure, neither is relevant to the reasonable suspicion analysis.

         Where an investigative detention is based on an anonymous tip, "we must determine whether under the totality of the circumstances the informant's tip established the necessary reasonable suspicion that criminal activity was afoot." Commonwealth v. Martin, 705 A.2d 887, 892 (Pa.Super. 1997) (quoting Alabama v. White, 496 U.S. 325 (1990)). The veracity and reliability of anonymous tips are particularly difficult for the police to evaluate. See White, 496 U.S. at 325. Unlike trusted (or at least tested) informants or members of the public not concealing their identity, anonymous tipsters know they cannot be held to account for false allegations. See Florida v. J.L., 529 U.S. 266, 270 (2000). In addition, they often fail to reveal the basis for their alleged knowledge and are generally unavailable to answer follow-up questions from police. See White, 496 U.S. at 329 (citing Illinois v. Gates, 462 U.S. 213, 237 (1983)).

         The United States Supreme Court has made clear that an anonymous tip that a particular person in a particular location is carrying a firearm does not, by itself, establish reasonable suspicion for an investigative detention. J.L., 529 U.S. at 274. In J.L., police received an anonymous tip that a "young black male standing at a particular bus stop and wearing a plaid shirt was carrying a gun." Id. at 268. Two officers responded to the call and, about six minutes later, arrived at the bus stop to find three black males. Id. One of the males, J.L., was wearing a plaid shirt. Id. "Apart from the tip, the officers had no reason to suspect any of the three of illegal conduct." Id. Acting solely on the anonymous tip and matching description, officers ordered J.L. to "put his hands on the bus stop, frisked him, and seized a gun from J.L.'s pocket." Id.

         Recognizing that "an anonymous tip alone seldom demonstrates the informant's basis of knowledge or veracity, " the J.L. Court analyzed whether the tip contained "sufficient indicia of reliability to provide reasonable suspicion to make the investigatory stop." Id. at 270 (quoting White, 496 U.S. at 327, 329). The Court unanimously held that the officers lacked reasonable suspicion based on the anonymous tip:

The tip in the instant case lacked the moderate indicia of reliability present in White[8] and essential to the Court's decision in that case. The anonymous call concerning J.L. provided no predictive information and therefore left the police without means to test the informant's knowledge or credibility. That the allegation about the gun turned out to be correct does not suggest that the officers, prior to the frisks, had a reasonable basis for suspecting J.L. of engaging in unlawful conduct: The reasonableness of official suspicion must be measured by what the officers knew before they conducted their search. All the police had to go on in this case was the bare report of an unknown, unaccountable informant who neither explained how he knew about the gun nor supplied any basis for believing he had inside information about J.L. If White was a close case on the reliability of anonymous tips, this one surely falls on the other side of the line.

Id. at 271.

         Three years prior to J.L., the Pennsylvania Supreme Court reached the same conclusion announced by the J.L. Court - police lack reasonable suspicion where an anonymous tip merely provides a description and the location of a person who the tipster claims is armed. See Commonwealth v. Jackson, 698 A.2d 571 (Pa. 1997). In Jackson, an officer received a radio report "of a man in green jacket carrying a gun" in a specific location. Jackson, 698 A.2d at 572. The officer responded within two minutes, finding Jackson, who was wearing a green jacket, amongst a group of people. Id. The officer immediately frisked Jackson and did not find a gun, but did find a small key box that contained packets of cocaine. Id.

         The Jackson Court concluded that the officer lacked reasonable suspicion to stop and frisk Jackson, noting that "[w]hen . . . the underlying source of the police department's information is an anonymous telephone call, . . . the tip should be treated with particular suspicion." Id. at 575. The Court adopted the following reasoning from its earlier plurality opinion in Commonwealth v. Hawkins, 692 A.2d 1068 (Pa. 1997):

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, ...

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