Com. v. Jackson

• Decision Date: 15 December 1986
• Citation: 359 Pa.Super. 433,519 A.2d 427
• Parties: COMMONWEALTH of Pennsylvania v. Jerry JACKSON, Appellant.
• Court: Pennsylvania Superior Court

Page 427

519 A.2d 427

359 Pa.Super. 433

COMMONWEALTH of Pennsylvania v. Jerry JACKSON, Appellant.

Superior Court of Pennsylvania.

Submitted May 5, 1986.

Filed Dec. 15, 1986.

Elaine DeMasse, Asst. Public Defender, Philadelphia, for appellant.

Jane C. Greenspan, Asst. Dist. Atty., Philadelphia, for Com., appellee.

Before MONTEMURO, HOFFMAN and HESTER, JJ.

HOFFMAN, Judge:

This is an appeal from the denial of a petition for writ of certiorari filed with the Court of Common Pleas of Philadelphia County. Appellant was convicted in the Municipal Court of Philadelphia of carrying a firearm without a license, 18 Pa.C.S.A. § 6106, and carrying a firearm on a public street or place in Philadelphia, 18 Pa.C.S.A. § 6108. Appellant contends that certain physical evidence should have been suppressed because the police lacked either probable cause or reasonable suspicion sufficient to justify the seizure of this evidence. For the following reasons, we vacate the judgment of sentence and remand for a new trial.

On May 12, 1984, two Philadelphia police officers responded to a radio call ordering them to investigate a burglary at 317 N. 63rd St. in Philadelphia. These officers met with the complainant, who stated that at 3:20 p.m. two males had tried to kick in his front door, and that one of them, a black male wearing a gray sweatsuit, ran east on Vine St. N.T. July 13, 1984 at 4; id. April 19, 1985 at 4. Within two or three minutes of responding to the radio call, and approximately two blocks from the complainant's home, the officers spotted appellant, a black male wearing a gray sweatsuit and carrying a blue gym bag, running west on Vine St. towards the scene of the crime. Id. July 13, 1984 at 4-7. The officers stopped appellant, who did not attempt to flee. Without questioning appellant, they patted him down and then searched his opaque, zippered gym bag, within which was found a .32 caliber revolver loaded with one live round of ammunition. ¹ Id. April 19, 1985 at 5-7. During a subsequent on-site identification, the complainant did not identify appellant as one of the perpetrators. ² Appellant was then arrested and charged with the instant offenses.

Appellant filed a motion to suppress the revolver, which was denied by the Municipal Court. In a Municipal Court bench trial, appellant was found guilty of the weapons offenses. Appellant subsequently filed a petition for writ of certiorari with the Court of Common Pleas, seeking suppression of the seized evidence. The court denied the petition, prompting this appeal.

The standard for reviewing the propriety of a suppression ruling is well-established:

Our function on review of an order denying a motion to suppress is to determine whether the factual findings of the lower court are supported by the record. In making this determination, we are to consider only the evidence of the prosecution's witnesses and so much of the evidence for the defense as, fairly read in the context of the record as a whole, remains uncontradicted. If, when so viewed, the evidence supports the factual findings, we are bound by such findings and may only reverse if the legal conclusions drawn therefrom are in error.

Commonwealth v. Cavalieri, 336 Pa.Superior Ct. 252, 254-55, 485 A.2d 790, 791 (1984). The threshold for a finding of probable cause to arrest exceeds that for justification of a stop and frisk: "[e]ven in the absence of probable cause, an individual may be stopped and briefly detained." Commonwealth v. Prengle, 293 Pa.Superior Ct. 64, 68, 437 A.2d 992, 994 (1981). Because appellant contends that the evidence should have been suppressed under either standard, we must first determine whether the record supports the lower court's factual findings and legal conclusions that the search of appellant was justified under the stop and frisk doctrine. If the frisk or search of appellant was not justified under the standard first established in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), then it follows that this evidence could not properly have been admitted as the fruit of a search incident to a lawful arrest predicated upon probable cause.

We must examine the investigating officers' actions at two levels of inquiry: the legality of the initial stop, and the propriety of the officers' actions subsequent to the stop. See Commonwealth v. Otto, 343 Pa.Superior Ct. 457, 460-61, 495 A.2d 554, 555 (1985). "If [the] police have a reasonable suspicion that criminal activity is afoot, they may make a temporary, investigatory stop even though they lack probable cause to make an arrest." Commonwealth v. Capers, 340 Pa.Superior Ct. 136, 141, 489 A.2d 879, 881 (1985) (citation omitted). The initial stop of a person is legitimate if the investigating officers "[c]an point to specific and articulable facts which in conjunction with rational inferences deriving therefrom reasonably warrant the intrusion." Commonwealth v. Prengle, supra. Such a stop facilitates the acquisition of information useful to the investigating officers:

Terry recognizes that it may be the essence of good police work to adopt an intermediate response.... A brief stop of a suspicious individual, in order to determine his identity or to maintain the status quo momentarily while obtaining more information may be most reasonable in light of the facts known to the officer at the time.

Adams v. Williams, 407 U.S. 143, 145-46, 92 S.Ct. 1921, 1923, 32 L.Ed.2d 612 (1972) (citation omitted). The search or frisk of a suspect incident to such a stop, however, must meet a higher threshold of justification

The police officer may legitimately sieze a person ... and conduct a limited search of the individual's 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 to conclude that criminal activity is afoot and that the person with whom he is dealing may be armed and dangerous.

Commonwealth v. Hicks, 434 Pa. 153, 158-59, 253 A.2d 276, 279 (1969).

A police officer need not personally observe unusual or suspicious conduct reasonably leading to the conclusion that criminal activity is afoot and that a person is armed and dangerous; this Court has recognized that "... a police officer may rely upon information which is broadcast over a police radio in order to justify an investigatory stop." Commonwealth v. Prengle, supra, 293 Pa.Superior Ct. at 68, 437 A.2d at 994. In such cases, the factors that must be considered in justifying an investigatory stop and subsequent frisk include the specificity of the description of the suspect in conjunction with how well the suspect fits the given description, the proximity of the crime to the sighting of the suspect, the time and place of the confrontation, and the nature of the offense reported to have been committed. See Commonwealth v. Whelton, 319 Pa.Superior Ct. 42, 50 n. 4, 465 A.2d 1043, 1049 n. 4 (1983).

Although specificity of description is only one of the factors examined in justifying a stop and frisk, it is of great importance in situations where the investigating officers have not personally observed suspicious behavior; the police need to have identification information specific enough to reasonably conclude that the party they are stopping is actually the person for whom they are searching. See Commonwealth v. Whelton, 319 Pa.Superior Ct. 42, 465 A.2d 1043 (stop and frisk of robbery suspect justified where defendant matches description as to race, height, weight, age, hair, coat, footwear, and facial characteristics); Commonwealth v. Capers, 340 Pa.Superior Ct. 136, 489 A.2d 879 (stop and frisk justified where defendant matches description of assailant as to face, height, build, skin tone and jacket, acts suspiciously, approaches from scene of crime, is known to be armed, and has bloody hand). Our Supreme Court has held, however, that an overly general description will not support a Terry stop and frisk in the absence of suspicious behavior observed by the investigating officer. Commonwealth v. Berrios, 437 Pa. 338, 263 A.2d 342 (1970). In Berrios, the frisk of the defendant was found improper where police, seeking two blacks in dark clothing and one hispanic in light clothing moving east on a particular street after a shooting, seized a gun from an hispanic man in light clothing, who was accompanied by a black man dressed in dark clothing and was walking east on the specified street within twenty minutes and three blocks of the shooting. Our Supreme Court noted that not only was the defendant acting in a normal manner, but also that the description of the perpetrator was too vague to justify searches of all "[hispanics] wearing light clothing and walking with a negro in this area." Id. at 342, 263 A.2d at 344.

Close spatial and temporal proximity of a suspect to the scene of a crime can also heighten a police officer's reasonable suspicion that a suspect is the perpetrator for whom the police are searching. Moreover, the time and place of an encounter may indicate that a person, conspicuous through their solitary presence at a late hour or desolate location, may be the object of a search. See Commonwealth v. Cortez, 507 Pa. 529, 491 A.2d 111 (1985) cert. denied Cortez v. Pennsylvania, 474 U.S. 950, 106 S.Ct. 349, 88 L.Ed.2d 297 (1985); Commonwealth v. Carter, 334 Pa.Superior Ct. 369, 483 A.2d 495 (1984).

To justify a frisk incident to an investigatory stop, the police need to point to specific and articulable facts indicating that the person they intend to frisk may be armed and dangerous; otherwise, the talismanic use of the phrase "for our own protection," a phrase invoked by the investigating officers in the instant case, becomes meaningless. An expectation of danger may arise under several different circumstances. The police may reasonably believe themselves...