Com. v. Kue

• Decision Date: 22 April 1997
• Citation: 547 Pa. 668,692 A.2d 1076
• Parties: COMMONWEALTH of Pennsylvania, Appellee, v. Wangyer KUE, Appellant.
• Court: Pennsylvania Supreme Court

Page 1076

692 A.2d 1076

547 Pa. 668

COMMONWEALTH of Pennsylvania, Appellee, v. Wangyer KUE, Appellant.

Supreme Court of Pennsylvania.

Argued Oct. 17, 1996.

Decided April 22, 1997.

Jeffrey P. Shender, Philadelphia, for Wangyer Kue.

Catherine Marshall, Michael Erlich, Philadelphia, for Commonwealth.

Before FLAHERTY, C.J., and ZAPPALA, CAPPY, CASTILLE, NIGRO and NEWMAN, JJ.

OPINION ANNOUNCING THE JUDGMENT OF THE COURT

FLAHERTY, Chief Justice.

On July 31, 1994, Philadelphia police officer Richard Waters received a radio report that an Asian male was "armed with a gun" at the intersection of Second and Olney Streets in Philadelphia. This person was described as wearing a striped shirt. Officer Waters arrived at that location within three minutes of receiving the call and saw four Asian men standing on the highway, one of whom wore a striped shirt. He saw no indication of criminal activity; however, the officer observed that when he arrived, the men spoke quickly to each other and looked around in different directions. The officer then stopped and frisked the four men. Kue, who was not wearing a striped shirt, had a .25 caliber handgun in his waistband.

Kue was arrested and charged with violating the Uniform Firearms Act, 18 Pa.C.S. §§ 6106, 6108. He moved to suppress the gun which was seized, and the suppression court denied his motion. Thereafter he was convicted by the Municipal Court of two violations of the Uniform Firearms Act and received concurrent sentences of twelve months probation for each offense.

Kue filed a petition for a writ of certiorari with the Philadelphia County Court of Common Pleas, alleging that the stop and frisk was unsupported by reasonable suspicion or probable cause. The trial court denied the petition and Kue appealed to Superior Court. The Superior Court affirmed, holding that police had met the requirement of Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), that in order to conduct an investigative stop, a police officer must observe or receive over the police radio information which leads him to conclude that criminal activity is afoot and that the person with whom he is dealing may be armed and dangerous. Moreover, the court held that the police officer properly conducted a protective frisk of all four men, even though Kue was not the man described in the radio broadcast, for he was justified in believing that any of the men might pose a danger to him. In short, the officer possessed a reasonable suspicion "that one of the men was carrying a gun," and based on this suspicion, he was justified in conducting a protective frisk of all of the men.

We granted allocatur primarily for the purpose of considering whether the so-called companion rule, which allows police to conduct a pat-down search for weapons on a companion of a person suspected of criminal activity, is compatible with the Pennsylvania Constitution. ¹ Because of our analysis of the case, however, we do not reach this question.

The rules which govern when police may stop a person in order to investigate the possibility of criminal activity are set out in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). In general, an investigative stop is justified only upon reasonable suspicion of criminal activity, id., and a limited pat-down search for weapons may be conducted only if supported by the reasonable belief that the suspect is armed and dangerous. Commonwealth v. Melendez, 544 Pa. 323, 676 A.2d 226 (1996).

As we held in Commonwealth v. Hawkins, 547 Pa. 652, 692 A.2d 1068 (1997), also decided today, in order for police to act on an anonymous tip, the Terry requirement of reasonable suspicion of criminal activity must still be satisfied and must be independent of the telephone tip itself. ² Here, there was no independent reason to believe that criminal conduct was afoot, and the police officer, therefore, had no reason to search anyone, whether it was the man with the striped shirt or his companions.

The order of Superior Court is reversed.

NIGRO, J., concurs in the result.

NEWMAN, J., files a dissenting opinion in which CASTILLE, J., joins.

NEWMAN, Justice, dissenting.

Because I believe that the police properly searched Wangyer Kue and the three other men, I respectfully dissent.

As I state in my dissenting opinion in Commonwealth v. Hawkins, also decided today, I again do not believe the Majority has properly weighed the safety interests of the police in its analysis pursuant to Article I, Section 8 of the Pennsylvania Constitution and the Fourth Amendment to the United States Constitution in this case. I also do not believe the Majority has taken into account the grave danger that gun violence poses to our law enforcement officers and society. Therefore, I will apply here the analysis in my dissenting opinion in Hawkins, which includes an assessment of the true dangers that police face when they respond to a report of a "man with a gun."

At approximately 2:30 a.m. on July 31, 1994, two police officers received a report over their police radio concerning an Asian male wearing a striped shirt, carrying a gun at the intersection of Second Street and Olney Avenue in Philadelphia. The officers arrived at that location within three minutes of receiving the radio call and observed four Asian men standing on the street, one of whom was wearing a striped shirt (the suspect). As the officers approached the group, the men looked around and began conversing with each other. The officers conducted a brief stop and protective frisk of the suspect, Kue and the two other men.

I would conclude that because the police stopped the suspect within three minutes of receiving an anonymous radio call that accurately described his race, clothing and location, they could justifiably rely on the informant's tip that the suspect possessed a gun. Commonwealth v. Hawkins, 547 Pa. 652, 692 A.2d 1068 (1997)(Newman, dissenting). Furthermore, there was a statistical likelihood that the gun was unlicensed. ¹ Hawkins (Newman, dissenting). The totality of the circumstances gave the police reasonable suspicion to stop the suspect to investigate criminal activity and conduct a protective frisk. Thus, I would find that the police officers properly searched the suspect.

Unlike the Majority, therefore, I would reach an analysis of the search of Kue pursuant to the Fourth Amendment of the United States Constitution and Article I, Section 8 of the Pennsylvania Constitution. In Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), the United States Supreme Court created an exception to the Fourth Amendment's requirement that police have probable cause before conducting a search of a citizen. Pursuant to Terry, a police officer may conduct a stop and frisk of a citizen without probable cause, by providing specific and articulable facts that the person was engaging in criminal activity and then establishing an objectively reasonable belief that the individual was armed and dangerous.

The Ninth Circuit was the first court to construe Terry as supporting the "automatic companion" rule, which permits police officers to conduct a protective frisk of companions to arrestees. See United States v. Berryhill, 445 F.2d 1189 (9th Cir.1971). California police in Berryhill were investigating Berryhill for forging stolen checks and knew that he usually carried a weapon. Berryhill was driving a car and his wife was in the passenger seat when police stopped the vehicle to effectuate the arrest. An officer noticed that Berryhill's wife was clutching a handbag, which the officer thought might contain a weapon. Therefore, the officer searched the handbag, which contained stolen mail, but no gun. Berryhill moved to suppress the mail found in his wife's handbag, arguing that it was uncovered pursuant to an unlawful search.

The Ninth Circuit reasoned that, pursuant to Terry, the police may conduct a limited search for weapons when they reasonably fear that a weapon could be unexpectedly used against them. Berryhill. Thus, it upheld the officer's protective search of Berryhill's wife's handbag and announced the "automatic companion" rule; "[a]ll companions of the arrestee within the immediate vicinity, capable of accomplishing a harmful assault on the officer are constitutionally subjected to the cursory 'pat-down' reasonably necessary to give assurance that they are unarmed." Berryhill, 445 F.2d at 1193.

The Superior Court of Pennsylvania has adopted a version of the "automatic companion" rule. It has upheld a Terry stop and frisk of the immediate companion of an individual who the police have a reasonable belief is involved with criminal activity and is armed and dangerous. Commonwealth v. Kearney, 411 Pa.Super. 274, 601 A.2d 346 (1992); Commonwealth v. Chamberlain, 332 Pa.Super. 108, 480 A.2d 1209 (1984); cf. Commonwealth v. Graham, 454 Pa.Super. 169, 685 A.2d 132 (1996)(upheld stop of arrestee's companion without adopting "automatic companion" rule). In Chamberlain, at 1:05 a.m., Philadelphia police officers observed a motor vehicle with no left headlight and no taillights. When the officers stopped the vehicle to investigate the violations of the Motor Vehicle Code, they noticed that the driver was attempting to conceal a black handgun. The police then searched both the driver and the passenger, Chamberlain. The trial court denied Chamberlain's motion to suppress the handgun and the Superior Court affirmed. It reasoned as follows:

'We think that Terry recognizes and common sense dictates that the legality of such a limited intrusion into a citizen's personal privacy extends to a criminal's companions at the time of arrest. It is inconceivable that a police officer effecting a lawful arrest of an occupant of a vehicle must expose himself to a shot in the back from [the suspect's] associate because he cannot, on the spot, make a nice distinction between whether the other is a companion in crime or a social...