Commonwealth v. Hicks
| Decision Date | 31 May 2019 |
| Docket Number | No. 56 MAP 2017,56 MAP 2017 |
| Court | Pennsylvania Supreme Court |
| Parties | COMMONWEALTH of Pennsylvania, Appellee v. Michael J. HICKS, Appellant |
In a line of Fourth Amendment jurisprudence that began with the landmark decision in Terry v. Ohio , 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), the Supreme Court of the United States has approved of "stop and frisk" practices as a limited departure from the requirement of probable cause and the necessity of warrants for searches and seizures. A cornerstone of modern law enforcement methods, "stop and frisk" is a practical tool designed to encourage the effective investigation and prevention of crime, while maintaining a balance between the constitutionally protected privacy interests of the individual and the needs and safety of law enforcement personnel. Only two conditions must be satisfied to validate the practice—one to justify the "stop," and another to allow a "frisk."
First, the investigatory stop must be lawful. That requirement is met in an on-the-street encounter, Terry determined, when the police officer reasonably suspects that the person apprehended is committing or has committed a criminal offense. Second, to proceed from a stop to a frisk, the police officer must reasonably suspect that the person stopped is armed and dangerous.
Arizona v. Johnson , 555 U.S. 323, 326-27, 129 S.Ct. 781, 172 L.Ed.2d 694 (2009).
Since 1991, in circumstances where a police officer encounters a person carrying a concealed firearm, our Superior Court has applied the inverse of this bedrock rule. Specifically, in Commonwealth v. Robinson , 410 Pa.Super. 614, 600 A.2d 957 (1991), the Superior Court held that the "possession of a concealed firearm by an individual in public is sufficient to create a reasonable suspicion that the individual may be dangerous, such that an officer can approach the individual and briefly detain him in order to investigate whether the person is properly licensed." Id. at 959 (hereinafter, the " Robinson rule").1 In the instant case, the Superior Court applied the Robinson rule to deem lawful the seizure of an individual based solely upon his possession of a concealed handgun, even though he was licensed in Pennsylvania to carry a firearm in such a manner.
We granted allowance of appeal in order to consider the viability of the Robinson rule. Because we conclude that the rule contravenes the requirements of the Terry doctrine, and thus subverts the fundamental protections of the Fourth Amendment, we overrule Robinson and its progeny. The Superior Court's decision in the instant case having descended from Robinson 's erroneous proposition of law, and there being no other lawful basis for the seizure at issue, we reverse the order of the Superior Court.
Although we will revisit the circumstances of this case in greater detail to apply the correct rule of law, infra Part III, a brief summary of the facts found by the suppression court sets the stage for the lower courts' application of the Robinson rule. On June 28, 2014, at approximately 2:30 a.m., a remote camera operator conducting live surveillance of a gas station and convenience store in the City of Allentown notified police officers that a patron of the establishment was in possession of a firearm. According to the suppression court's factual recitation, the "camera operator advised officers that the [observed individual] showed the firearm to another patron, put the firearm in his waistband, covered it with his shirt, and walked inside" the convenience store. Order, 9/18/2015, at 1 n.1.2
The observed individual was Michael Hicks. It later emerged that Hicks possessed a valid license to carry a concealed firearm. See 18 Pa.C.S. § 6109(a) (). Hicks was not statutorily prohibited from possessing a firearm. Accordingly, on the morning in question, and at the observed location, there was nothing unlawful about Hicks' possession of his handgun, nor the manner in which he carried it.
While responding police officers were en route, Hicks entered and exited the convenience store, then reentered his vehicle. Before Hicks could exit the parking lot, numerous police officers in marked vehicles intercepted and stopped Hicks' vehicle. Believing that Hicks had moved his hands around inside the vehicle, Officer Ryan Alles drew his service weapon as he approached Hicks' vehicle and ordered Hicks to keep his hands up. Officer Kyle Pammer, arriving at the vehicle moments after Officer Alles, restrained Hicks' arms while Officer Alles reached into the vehicle and retrieved Hicks' handgun from a holster on his waistband. Hicks "was removed from the vehicle for safety reasons and handcuffed." Order, 9/18/2015, at 2 n.1. At that point, the officers noticed the odor of an alcoholic beverage emanating from Hicks. The officers then searched Hicks' person and, in his pocket, discovered a bag that contained a small amount of marijuana.
Upon further investigation, the officers determined that Hicks was licensed to carry a concealed firearm. Accordingly, Hicks was not charged with any crime relating to the firearm, nor with any crime relating to the other patron, to whom Hicks "showed" the firearm. Order, 9/18/2015, at 1 n.1. However, having discovered evidence of Hicks' suspected intoxication and possession of marijuana, the police officers arrested Hicks and charged him with driving under the influence of alcohol ("DUI")—high rate of alcohol (second offense), DUI—general impairment (second offense), possession of a small amount of marijuana, and disorderly conduct, graded as a third-degree misdemeanor.3
On April 15, 2015, Hicks filed an omnibus pre-trial motion seeking suppression of the evidence and a writ of habeas corpus , the latter motion requesting dismissal of the disorderly conduct charge due to the absence of any evidence establishing the elements of that crime. Following a hearing on Hicks' motion on July 14, 2015, the court granted Hicks' motion for a writ of habeas corpus and dismissed the charge of disorderly conduct, finding that there "was no evidence presented that [Hicks'] actions were intended to cause substantial harm or serious inconvenience, or that he persisted in disorderly conduct after reasonable warning or request to desist." Order, 9/18/2015, at 2 n.2. However, the court denied Hicks' motion to suppress, reasoning as follows:
"In limited circumstances, an individual may be stopped, briefly detained, and frisked for investigatory purposes." [ Robinson , 600 A.2d at 959 ]. Possession of a concealed weapon in public creates a reasonable suspicion justifying an investigatory stop in order to investigate whether the person is properly licensed. Id. (). Here, the police had information that [Hicks] was carrying a concealed weapon, and were justified in briefly detaining [Hicks] in order to determine whether [he] was properly licensed. As officers approached [Hicks], he moved his hands towards his waistband. This provided additional information to justify the brief detention of [Hicks] in order to investigate further. Under these circumstances, the stop and detention of [Hicks] was justified, and suppression is not warranted.
Id. at 2 n.1. Although the suppression court placed some degree of weight upon the testimony indicating that Hicks had moved his hands inside the car, the court clearly opined that the detention was justified prior to that observation, based solely upon the Robinson rule. Simply stated, the suppression court concluded that, under Robinson , it was lawful for police officers to seize Hicks immediately upon learning that Hicks possessed a concealed firearm in public.
Hicks proceeded to a non-jury trial. The court found Hicks guilty of one DUI count, and acquitted him of the remaining charges. Hicks was sentenced to a term of incarceration of thirty days to six months and was assessed a monetary fine.
The Superior Court affirmed Hicks' judgment of sentence. See Commonwealth v. Hicks , 510 EDA 2016, 2017 WL 1176412 (Pa. Super. Mar. 29, 2017) (unpublished). The court rejected Hicks' argument that the immediate and forcible nature of his seizure amounted to a custodial arrest rather than an investigative detention, concluding instead that the officers had authority to use physical coercion to advance their investigation of the information received through the dispatch. As for the existence of reasonable suspicion justifying that investigative detention, the Superior Court, unlike the suppression court, referred to Officer Pammer's testimony, wherein he asserted that the dispatch advised the officers that Hicks had "brandished" a firearm. See supra n.2. However, the Superior Court did not conclude that the purported "brandishing" established reasonable suspicion that a violent crime might be in progress, or that someone might be in imminent danger. Rather, like the suppression court, the Superior Court relied exclusively upon the Robinson rule, as applied in Commonwealth v. Mason , 130 A.3d 148, 151 (Pa. Super. 2015). The Superior Court held that "[p]ossession of a concealed firearm in public is sufficient to create a reasonable suspicion that the individual may be dangerous, such that an officer can approach the individual and briefly detain him in order to investigate whether the person is properly licensed." Hicks , 2017 WL 1176412, at *4 (quoting Mason , 130 A.3d at 153 ). "Thus," the Superior Court concluded, "the [suppression] court properly ascertained whether officers had a reasonable suspicion that Hicks possessed a concealed firearm in public." Id.
Having determined that Hicks' initial detention was lawful because he possessed a concealed firearm, the Superior Court concluded that...
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