from the Judgment of Sentence April 13, 2015 In the Court of
Common Pleas of Philadelphia County Criminal Division at
BEFORE: BOWES, J., MOULTON, J., and STEVENS, P.J.E.
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. 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
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
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).
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.
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
reviewing the denial of a suppression motion, our role is to
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
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.
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.
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,  and our state
constitution, see Pa. Const. art. I, §
8. 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
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).
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.").
"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)).
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
however, we must determine at what point Mackey was
detained. 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).
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.
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. 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. 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.").
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.
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.
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
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.
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 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.
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.
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, ...