Commonwealth v. Mears

• Decision Date: 16 January 1981
• Citation: 283 Pa.Super. 416,424 A.2d 533
• Parties: COMMONWEALTH of Pennsylvania v. John MEARS, Appellant.
• Court: Pennsylvania Superior Court

424 A.2d 533

283 Pa.Super. 416

COMMONWEALTH of Pennsylvania v. John MEARS, Appellant.

Superior Court of Pennsylvania.

January 16, 1981

Submitted March 21, 1980.

John W. Packel, Chief, Appeals, Asst. Public Defender, Philadelphia, for appellant.

Eric B. Henson, Asst. Dist. Atty., Philadelphia, for Commonwealth appellee.

Before HESTER, WICKERSHAM and LIPEZ, JJ.

HESTER Judge:

Appellant John Mears was found guilty of carrying a firearm without a license and carrying a firearm in a public street in the Municipal Court of Philadelphia. A petition for a writ of certiorari to the Court of Common Pleas was denied and this appeal followed. The sole issue before us is the propriety of the search of appellant's person which resulted in the seizure of the firearm.

The facts may be briefly stated. In the late afternoon of July 12, 1978 Officer Thomas Pryor and John Herron of the Philadelphia Police Department were on duty in plainclothes and in an unmarked car. While at Seventeenth and York Streets, the officers were approached by a man who Officer Pryor knew from the neighborhood, but not personally. This man informed the officers "that there was a Negro male by the name of John Mears, who is about five-foot-ten and about one hundred sixty pounds, wearing a blue button-down shirt, with maroon pants, and blue and white jogging sneaks similar to the sneaks that my partner had on. He told us he was at Bouvier and Huntingdon, and he was armed with a gun." N.T. 4. On the basis of this information, the officers drove to Bouvier and Huntingdon where they observed the appellant, who matched the above description. The officers approached appellant, identified themselves, and frisked him, whereupon they discovered a .32 caliber revolver in the back of his waistband.

Appellant contends the officers lacked reasonable cause to "stop and frisk" him. Of course, the police need not meet the strict requirements of probable cause to justify a brief stop of a suspicious individual. The U. S. Supreme Court has recognized that:

"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," he may conduct a limited protective search for concealed weapons.

Adams v Williams, 407 U.S. 143, 146, 92 S.Ct. 1921, 1923, 32 L.Ed.2d 612 (1972), quoting Terry v. Ohio, 392 U.S. 1, 24, 88 S.Ct. 1868, 1881, 20 L.Ed.2d 889 (1968). Thus, our courts have, on numerous occasions, sanctioned brief investigatory stops and limited searches where "the officer observes unusual and suspicious conduct on the part of the individual seized which leads him to conclude that criminal activity may be afoot and that the person with whom he is dealing may be armed and dangerous." Commonwealth v. Hicks, 434 Pa. 153, 158-9, 253 A.2d 276, 279 (1969). See, e. g., Commonwealth v. Hart, 266 Pa.Super. 190, 403 A.2d 608 (1979); Commonwealth v. Stewart, 257 Pa.Super. 334, 390 A.2d 1264 (1978); Commonwealth v. Galadyna, 248 Pa.Super. 226, 375 A.2d 69 (1977); Commonwealth v. Ellis, 233 Pa.Super. 169, 335 A.2d 512 (1975); Commonwealth v. Wascom, 236 Pa.Super. 157, 344 A.2d 630 (1975). Further, reasonable cause for a "stop and frisk" need not be based solely on the officer's observation. Rather, just as probable cause for an arrest or search may be provided by an informant's tip, Spinelli v. U. S., 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969); Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964); Commonwealth v. Matthews, 446 Pa. 65, 285 A.2d 510 (1971), so too an informant may provide valuable information which may lead to a justifiable Terry -type stop and frisk. Adams v. Williams, supra. In Williams, the officer received a tip from an individual known to the officer that a man seated in a nearby vehicle was carrying narcotics and had a gun in his waist. The officer approached the vehicle and, when the occupant rolled down the window, he reached into the car and removed a fully loaded revolver from the accused's waistband. On these facts, the Court found the officer had sufficient information to justify his approach to the suspect, especially in view of his suspicion that the individual possessed a weapon, and that the limited intrusion was reasonable.

Our Courts have been quite strict in applying the teaching of Williams in informant situations. Thus, in Commonwealth v Anderson, 481 Pa. 292, 392 A.2d 1298 (1978), the Court refused to sustain a brief stop and limited search for weapons where the officer received his information from an anonymous informant and the description supplied was very general, "one which would fit any number of individuals" id. at 295, 392 A.2d 1300. Nor was there any basis for believing the suspect was armed and dangerous. Similarly, in Commonwealth v. Cruse, 236 Pa.Super. 85, 344 A.2d 532 (1975), information was garnered from an anonymous tip lacking any indicia of...