Com. v. Anderson

• Decision Date: 05 October 1978
• Parties: COMMONWEALTH of Pennsylvania v. Gregory ANDERSON, Appellant.
• Court: Pennsylvania Supreme Court

Page 1298

392 A.2d 1298

481 Pa. 292

COMMONWEALTH of Pennsylvania v. Gregory ANDERSON, Appellant.

Supreme Court of Pennsylvania.

Argued April 13, 1978.

Decided Oct. 5, 1978.

[481 Pa. 293] Defender Ass'n of Philadelphia, Benjamin Lerner, Defender, John W. Packel, Asst. Public Defender, Philadelphia, for appellant.

Edward G. Rendell, Dist. Atty., Steven H. Goldblatt, Deputy Dist. Atty. for Law, Robert B. Lawler, Chief, Appeals Div., Philadelphia, for appellee.

OPINION OF THE COURT

NIX, Justice.

On March 8, 1975, police radio received an anonymous call and transmitted a report that there was a man who was an escapee from a drug rehabilitation program in a bar at 57th and Master Streets in the City of Philadelphia. The caller described the person as a Negro male, named "Perry" about 5'10 with a large "bush" hair style and wearing a dark coat. As a result of receiving the above information, two police officers went to the Capri Bar, entering by the rear door. Upon entrance they observed the appellant, Gregory Anderson and decided that he fitted the above description.

They approached appellant and asked him his name. Appellant replied that his name was Charles Hayes. Appellant was requested to stand and one officer asked whether he was carrying any weapons. The other officer without waiting for a response leaned over and touched appellant's right jacket pocket and felt an object which appeared to him to be a gun. The object was retrieved from the pocket of appellant and found to be a loaded and operable .22 calibre revolver. After seizing the weapon the appellant was searched and identification papers were found upon his person indicating that he was known as "Perry" and that his correct name was Gregory Anderson.

Thereafter appellant was convicted in the Municipal Court of Philadelphia upon the charges of carrying a firearm without a license, carrying a firearm in a public place, possession of an instrument of crime, and prohibited offensive weapon (former convict prohibited from owning or possessing a firearm). Prior to trial a timely motion to suppress evidence was denied. The Court of Common Pleas of Philadelphia County denied his petition for a writ of certiorari. ¹ This decision was affirmed by the Superior Court, Commonwealth v. Anderson, 240 Pa.Super. 1, 360 A.2d 739 (1976). This Court granted appellant's petition for review. ²

This appeal raises, once again, the question of police officers authority to "stop" and "frisk" a suspect under circumstances which do not amount to probable cause. The United States Supreme Court has made it clear that the Fourth Amendment applies to all seizures of a person, including seizures that involve only a brief detention short of traditional arrest. United States v. Brignoni-Ponce, 422 U.S. 873, 95 S.Ct. 2574, 45 L.Ed.2d 607 (1975). Davis v. Mississippi, 394 U.S. 721, 89 S.Ct. 1394, 22 L.Ed.2d 676 (1969); Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). In the case of Terry v. Ohio, supra, the United States Supreme Court pointed out that "a police officer may in appropriate circumstances and in an appropriate manner approach a person for purposes of investigating possible criminal behavior even though there is no probable cause to make an arrest." Id. at 22, 88 S.Ct. at 1880. That court further stated:

"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.

We must still consider, however, the nature and quality of the intrusion on individual rights which must be accepted if police officers are to be conceded the right to search for weapons in situations where probable cause to arrest for crime is lacking. " Id. at 24, 88 S.Ct. at 1881.

We are here called upon to determine whether the intrusion upon the personal security of appellant under the facts of this case was constitutionally offensive. Considering this question we are mindful of the United States Supreme Court's admonition

"(E)ven a limited search of the outer clothing for weapons constitutes a severe, though brief, intrusion upon cherished personal security, and it must surely be an annoying, frightening, and perhaps humiliating experience." Terry v. Ohio, supra, at 24-25, 88 S.Ct. at 1882.

The Commonwealth argues that the nature of the intrusion and the circumstances surrounding it in this case are essentially the same as that approved in Adams v. Williams, 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1973). In Adams, a police officer assigned to a high-crime area of Bridgeport, Connecticut was approached by a person known to the officer at approximately 2:15 a. m. This person advised the officer that an individual was seated in a nearby car carrying narcotics and that the person had a gun concealed at his waist. The officer approached the vehicle to investigate the report. The officer tapped at the car window and asked the occupant, Robert Williams, to open the door. Williams rolled down the window instead and the officer reached into the car and removed a fully loaded revolver from Williams' waistband. The gun was not visible to the officer from the outside of the car, but was in precisely the place indicated by the informant. The United States Supreme Court found that the officer had sufficient information to justify his approaching Williams and in view of the late hour and the information he possessed, the court determined that the officer had reason to fear for his safety and that the limited intrusion caused by the removal of the weapon from the person of Williams was reasonable.

We do not accept the Commonwealth's position that the facts in Adams correspond to the facts presented in this appeal. First, in Adams, the officer knew the informant. Whereas here, the information was supplied by an anonymous caller whose reliability was unknown. In Adams, the defendant was pointed out to the officer by the person providing the information. In the present instance only a general description was given, one which would fit any number of individuals. See Commonwealth v. Pinney, 474 Pa. 210, 378 A.2d 293 (1977); Commonwealth v. Berrios, 437 Pa. 338, 263 A.2d 342 (1969). In Adams, the officer had been advised that the suspect was armed. Here we do not believe that the mere fact that an individual was on an unauthorized leave from a drug rehabilitation program would justify a reasonable belief...