Com. v. Cortez

Decision Date18 April 1985
Citation491 A.2d 111,507 Pa. 529
PartiesCOMMONWEALTH of Pennsylvania, Appellee, v. Anthony CORTEZ, Appellant.
CourtPennsylvania Supreme Court

Eric B. Henson, Deputy Dist. Atty., Sarah Vandenbraak, Asst. Dist. Atty., Gaele Barthold McLaughlin, Philadelphia, for appellee.

Before NIX, C.J., and LARSEN, FLAHERTY, McDERMOTT, HUTCHINSON, ZAPPALA and PAPADAKOS, JJ.

OPINION

McDERMOTT, Justice.

Two police officers on routine patrol in the early hours of an empty, snowy February morning passed an alley behind residences in North Philadelphia. As the officers were passing they heard dogs barking as two men emerged from the alley. The officers stopped the men and asked if they lived on the alleyway. The men acknowledged that they did not and were unable to produce identification. Prior to further inquiry the officers "patted down" the appellant here, and found in an outer coat pocket the ubiquitous gun. Arrested and charged with possession of a firearm, appellant was tried and convicted. 1 In his appeal here, he contends, as he did unsuccessfully below, that the stop and frisk by the police officers was unsupported by a reasonable suspicion. While we would not yield our right of passage on the public streets to the whim of every barking dog, there are circumstances that may for the protection of all require some small rites of such passage.

In Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), the Supreme Court laid down certain limited occasions when one's freedom to go where he will upon the public streets, may justify the small, at least to the innocent, inconvenience of a police inquiry.

[W]here a police officer observes unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot and that the persons with whom he is dealing may be armed and presently dangerous, where in the course of investigating this behavior he identifies himself as a policeman and makes reasonable inquiries, and where nothing in the initial stages of the encounter serves to dispel his reasonable fear for his own or others' safety, he is entitled for the protection of himself and others in the area to conduct a carefully limited search of the outer clothing of such persons in an attempt to discover weapons which might be used to assault him. Such a search is a reasonable search under the Fourth Amendment, and any weapons seized may properly be introduced in evidence against the person from whom they were taken.

Id. at 30-31, 88 S.Ct. at 1884-85.

Dogs are vigilant of the small parcels of the world they call their own. They bark at mice and men, feel tremors in the depths of the earth and seem to hear the shift of cobwebs. Their bark is not always, however, an alarm. Those they guard come to know the meanings of their bark; sift the bark at the stray cat, the home coming neighbor, and the echo of distant change.

In the dark of a snowy February morning, however, their bark, herald of two men emerging from an alley, is not without its reasonable suspicions. Those charged with everyone's protection cannot be faulted if they heed that bark and check its obvious cause. To do less under those circumstances is to unreasonably discount one of the most common experiences of men with dogs: dogs bark at strangers. Whether persons in an alley, past the midnight, are indeed strangers, harmless passersby, lost, ill, or bent upon more sinister errands, is so palpably a reasonable question, that not to seek its answer would be a dereliction of common experience, and for police officers a dereliction of their duty.

When we review the ruling of a suppression court we must determine whether the factual findings are supported by the record. When it is a defendant who has appealed, we must consider only the evidence of the prosecution and so much of the evidence for the defense as, fairly read in the context of the record as a whole, remains uncontradicted. Assuming that there is support in the record, we are bound by the facts as are found and we may reverse the suppression court only if the legal conclusions drawn from those facts are in error. Commonwealth v. Patterson, 488 Pa. 227, 412 A.2d 481 (1980); Commonwealth v. Johnson, 467 Pa. 146, 354 A.2d 886 (1976); Commonwealth v. Goodwin, 460 Pa. 516, 333 A.2d 892 (1975). Cf. Commonwealth v. James, --- Pa. ---, 486 A.2d 376 (1985); Commonwealth v. Hamlin, 503 Pa. 210, 469 A.2d 137 (1983) (regarding the proper standard of review in a Commonwealth appeal.)

At the suppression hearing one of the arresting officers testified that he suspected a burglary had occurred or was going to occur in that alley, and he testified that he felt the need to protect himself. Furthermore, he articulated the reasons for his suspicions: the time of night, the weather, the empty streets, the barking dogs, the inability of appellant to produce identification. The suppression hearing judge found these facts sufficient to justify the stop, and we detect no error in this determination.

In Commonwealth v. Hicks, 434 Pa. 153, 253 A.2d 276 (1969) this Court held:

[E]ven if probable cause to arrest is absent, [a] police officer may still legitimately seize a person ... and conduct a limited search of the individual's outer clothing in an attempt to discover the presence of weapons which might be used to endanger the safety of the police officer and others, if the police officer observes unusual and suspicious conduct on the part of the individual seized which leads him reasonably to conclude that criminal activity may be afoot and that the person with whom he is dealing may be armed and dangerous. (Emphasis in original.)

Id. at 158-159, 253 A.2d at 279. The acts of the police officers here were certainly consistent with these guidelines. We cannot demand of our police that they determine with one hundred per cent certainty that criminal activity is afoot or that a person is armed before they take protective steps. Terry v. Ohio, supra, does not require this and neither do prior decisions of this Court.

The order of the Superior Court is affirmed.

HUTCHINSON, J., joins the Majority opinion and files a separate concurring opinion.

FLAHERTY, J., files a dissenting opinion.

ZAPPALA, J., files a dissenting opinion.

HUTCHINSON, Justice, concurring.

The Fourth Amendment to the United States Constitution and Article I, Section 8 of the Pennsylvania Constitution require that the authorities act reasonably in seizing persons or property. I read the majority opinion as simply holding that the police did act reasonably in investigating this situation and making a Terry stop, Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), after the barking dog alerted them. The facts as set out by the majority show that conclusion is plainly correct and I therefore join the majority opinion.

FLAHERTY, Justice, dissenting.

Shortly after midnight on February 7, 1980 Philadelphia Police Officers McCarthy and Malandra were on patrol in an unmarked police vehicle. In the 1700 block of North 22nd Street the officers heard dogs barking in the back yards and decided to investigate. The weather was inclement and no one was on the streets. The officers observed two men emerge from the alley behind the houses in the 1700 block and walk across a vacant lot. Officer McCarthy exited the police vehicle and approached the two men in order to question them because he was suspicious that they may have been involved in a burglary or attempted burglary of these houses.

When Officer McCarthy approached the two men, he asked whether they lived on the block. They answered in the negative, and he then asked for identification. The man accompanying Cortez produced identification, but Cortez did not. Cortez told McCarthy his name and stated that he was on his way home. Officer McCarthy testified that he then frisked the outer clothing of the two men for his own protection. In the left front coat pocket of Cortez's coat McCarthy retrieved a loaded twenty-two caliber pistol.

Cortez was charged with carrying a firearm without a license, carrying a firearm on a public street or place, and possessing an instrument of crime. He was convicted of the first two offenses in Philadelphia Municipal Court, but acquitted of the last and was sentenced to a fifty dollar fine plus court costs of sixty dollars. Following conviction and sentencing, Cortez petitioned for certiorari in the Philadelphia Court of Common Pleas, alleging that the Philadelphia Municipal Court erred in not suppressing evidence against him. Cortez's petition was denied and Superior Court denied the subsequent appeal in a per curiam memorandum opinion, Judge Popovich dissenting. We granted allocatur to decide whether, on the facts of this case, Officer McCarthy exceeded his authority under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) to make this investigatory stop and to conduct a self-protective frisk.

The Fourth Amendment applies to seizures of the person, even brief seizures short of traditional arrest. Davis v. Mississippi, 394 U.S. 721, 89 S.Ct. 1394, 22 L.Ed.2d 676 (1969). Moreover,

" '[W]henever a police officer accosts an individual and restrains his freedom to walk away, he has "seized" that person,' ... and the Fourth Amendment requires that the seizure be 'reasonable.' " United States v. Brignoni-Ponce, 422 U.S. 873, 878, 95 S.Ct. 2574, 2578, 45 L.Ed.2d 607 (1975).

Brown v. Texas, 443 U.S. 47, 50, 99 S.Ct. 2637, 2640, 61 L.Ed.2d 357, 361 (1979). Thus, the seizure of Cortez in the present case must be treated under a Fourth Amendment "reasonableness" analysis, albeit a Fourth Amendment analysis which the United States Supreme Court modified in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) as applied to brief investigatory stops. Prior to Terry,...

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