Opinion
No. 24 EAP 2022
09-28-2023
COMMONWEALTH of Pennsylvania, Appellee v. Kevin JACKSON, Appellant
ORDER
PER CURIAM
AND NOW, this 28th day of September, 2023, the Court being evenly divided, the order of the Superior Court is AFFIRMED.
JUSTICE BROBSON, in support of affirmance
In this discretionary matter, Appellant Kevin Jackson (Jackson) appeals from the judgment of the Superior Court, which vacated a pretrial order of the Court of Common Pleas of Philadelphia County (suppression court) and remanded the matter for further proceedings. The suppression court granted Jackson's motion to suppress evidence recovered after a police officer detained Jackson via what is commonly known as a Terry stop. While the suppression court concluded that the officer lacked the requisite reasonable suspicion to detain Jackson, the Superior Court reached the opposite conclusion. Upon review, we agree with the Superior Court insofar as it concluded that the police officer had reasonable suspicion to detain Jackson under the particular facts of this case. In so doing, we reiterate that an investigatory stop is lawful pursuant to Terry if it is supported by reasonable suspicion that the detained individual was, or was about to be, engaged in criminal activity. In making that determination, we review the totality of the circumstances available to the detaining officer at the time of the stop to discern whether there was a particularized and objective basis for suspecting the detained individual of criminal activity. Accordingly, we affirm. I. BACKGROUND
Terry v. Ohio , 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).
On December 10, 2019, at approximately 7:50 p.m., Philadelphia Police Officer Christopher Swinarski (Officer Swinarski) was on routine patrol in a marked vehicle at or near the 4900 block of Penn Street when he heard the sound of two to four gunshots. Officer Swinarski drove his vehicle northbound on Penn Street and then turned westbound onto Harrison Street, making his way to the location from where he believed the gunshots emanated. At that time, Officer Swinarski encountered Jackson running eastbound down Harrison Street on the sidewalk. Officer Swinarski exited his vehicle and asked Jackson why he was running, and Jackson responded that he was running "from the gunshots." (N.T., 2/11/2021, at 17, 21.) At that point, Officer Swinarski commanded Jackson to stop. Jackson did not stop as commanded, however, leading Officer Swinarski to chase him on foot. During the chase, Officer Swinarski observed Jackson discard several items. Officer Swinarski eventually caught up with Jackson and handcuffed him. Thereafter, Officer Swinarski recovered the items Jackson discarded, which included a cell phone and a handgun.
The suppression court found that Jackson responded that he was running "because [he] heard gunshots." (N.T., 02/11/2021, at 51.) As correctly noted by the Superior Court, testimony from the suppression hearing reveals that Jackson responded that he was running "from the gunshots." ( Id . at 17, 21.)
According to the suppression hearing transcript, Officer Swinarski then returned to Jackson and informed him that he was under arrest. (N.T., 02/11/2021, at 18.) Officer Swinarski also searched Jackson at that time and discovered 14 vials of suspected marijuana. ( Id. ) Notably, this case concerns only the propriety of Officer Swinarski's initial command to Jackson to stop running.
Based on the foregoing, the Commonwealth of Pennsylvania (Commonwealth) charged Jackson by criminal information with firearms not to be carried without a license and carrying a firearm in public in Philadelphia without a license. Jackson filed a pretrial motion in the suppression court, seeking to suppress the Commonwealth's evidence by alleging that Officer Swinarski lacked the reasonable suspicion necessary to conduct a lawful Terry stop in violation of Jackson's right to be free from unreasonable searches and seizures pursuant to the Fourth Amendment to the United States Constitution and Article 1, Section 8 of the Pennsylvania Constitution.
See Sections 6106(a)(1) and 6108 of the Crimes Code, 18 Pa. C.S. §§ 6106(a)(1) and 6108, respectively.
The Fourth Amendment to the United States Constitution provides:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
Article I, Section 8 of the Pennsylvania Constitution similarly mandates:
The people shall be secure in their persons, houses, papers and possessions from unreasonable searches and seizures, and no warrant to search any place or to seize any person or things shall issue without describing them as nearly as may be, nor without probable cause, supported by oath or affirmation subscribed to by the affiant.
The suppression court held an evidentiary hearing at which only Officer Swinarski testified. Officer Swinarski generally explained the foregoing events leading to Jackson's apprehension. Of further relevance here, as to his reasoning behind ordering Jackson to stop, Officer Swinarski explained:
[Officer Swinarski:] At that point, I told Mr. Jackson to stop. I gave him multiple
verbal commands to stop because I didn't know if he's injured. He could have been shot, in shock. He could have [been] a good witness or possibly an offender at that time. As I approached Mr. Jackson on foot, he fled ....
(N.T., 02/11/2021, at 17.) On cross-examination, Jackson's counsel questioned Officer Swinarski further regarding Jackson running from the gunshots:
[Jackson's counsel:] He told you he's running from the [gun]shots that you just heard?
[Officer Swinarski:] Yes.
[Jackson's counsel:] And you've been a police officer eight years?
[Officer Swinarski:] That's correct.
[Jackson's counsel:] And so people begin to shoot and some people run. That's standard? That's normal, right?
[Officer Swinarski:] Absolutely.
[Jackson's counsel:] Normal behavior of people, right?
[Officer Swinarski:] Yes.
[Jackson's counsel:] Especially—even—even people who are not involved. When people start shooting, people run, right?
[Officer Swinarski:] That's correct.
( Id. at 26.) Officer Swinarski also admitted that he did not witness Jackson clutching or holding anything, or reaching toward his waistband or his pockets, nor did he witness Jackson doing anything criminal during the pursuit. ( See id. at 26-27, 31-32, 34.)
Officer Swinarski additionally explained that Jackson was not under criminal investigation:
[Jackson's counsel:] So, anyway, you did tell us that you expected him to acquiesce to your command to stop, which he does not. He continues to run, right?
[Officer Swinarski:] He continues to run.
[Jackson's counsel:] And at that moment, he was—he was free to go. He wasn't under your investigation for anything. He was free to go away, wasn't he?
[Officer Swinarski:] When?
[Jackson's counsel:] When that gentleman—when this citizen was running down the street, he was not under police investigation for any criminal activity, was he?
[Officer Swinarski:] For no—for criminal activity, no.
[Jackson's counsel:] Okay. And then you began to pursue him, correct?
[Officer Swinarski:] After he disregarded the stop and continued to run.
[Jackson's counsel:] And you said stop a few times, right?
[Officer Swinarski:] Yes. Multiple times.
( Id . at 30-31.)
Officer Swinarski reiterated, however, that he commanded Jackson to stop because he believed that Jackson could have been a victim, witness, or perpetrator:
[Jackson's counsel:] If he'd appeared injured, meaning limping or ... seemed like he was infirmed while he was running, you would have documented that, right?
[Officer Swinarski:] Absolutely. ... [A]t that time, I did not know if he was shot or not. Like I said, somebody could be in shock. If they were—if they were—I've seen many people in shock who didn't think they were shot.
[Jackson's counsel:] I understand that.
[Officer Swinarski:] But, like I said, he could be—he could be the victim or the witness or possibly an offender at that time.
[Jackson's counsel:] Or—or, four, he could be nothing and just running from the [gun]shots?
[Officer Swinarski:] Absolutely.
( Id . at 27.) Officer Swinarski also explained that Jackson was the lone individual on the street at the time. ( Id. at 25.)
Based on the foregoing testimony, the suppression court granted Jackson's pretrial motion to suppress the Commonwealth's evidence. The suppression court announced its factual findings and legal conclusions from the bench:
[T]he point at which the officer detained the defendant was after they first had their mere encounter. And the defendant explained his reasons for running and he proceeded to run. At that point, the officer issued a command for Mr. Jackson to stop. And that would trigger the investigatory detention standard, which requires that he needed to have a reasonable basis to issue that command to order Mr. Jackson to stop.
I find that on these facts, he did not have reasonable suspicion to detain Mr. Jackson. I do not find that this was a high-crime area. I don't believe evidence was on the record to support that determination. All we have here is an individual on the street, engaging in running, and he—and with good reason because there had been [gun]shots fired.
The officer made every indication that, at [that] point, he had not seen the defendant engaging in any criminal activity, or have any reason to suggest that the defendant had engaged in criminal activity, nor did the officer, at that point, witness the defendant holding any objects or trying to hide any objects. He had no reasonable suspicion to detain Mr. Jackson.
( Id . at 51-52.) Accordingly, the suppression court concluded that Officer Swinarski conducted an unlawful Terry stop, and it suppressed the firearm and other evidence recovered by Officer Swinarski following the detention.
In a published decision, the Superior Court vacated the suppression court's order and remanded for further proceedings. Commonwealth v. Jackson , 271 A.3d 461 (Pa. Super. 2021). Like the suppression court, the Superior Court first recognized that, when Officer Swinarski ordered Jackson to stop running, he commenced an investigative detention under Terry , and Officer Swinarski, therefore, required reasonable suspicion that Jackson was involved in criminal activity to detain him. See id. at 463-64 (citing Terry , 392 U.S. at 30, 88 S.Ct. 1868 ). The Superior Court also noted that "Pennsylvania courts have consistently followed Terry in stop and frisk cases, including those in which the appellants allege protections pursuant to Article I, [Section] 8 of the Pennsylvania Constitution." Id. at 464 (quoting In re D.M. , 566 Pa. 445, 781 A.2d 1161, 1163 (2001) ). Accordingly, the Superior Court opined that Article I, Section 8 provides no greater protections concerning investigative detentions than the Fourth Amendment. As to its review of the investigative detention at issue, the Superior Court explained:
The Commonwealth took an interlocutory appeal as of right pursuant to Pennsylvania Rule of Appellate Procedure 311(d) on the basis that the suppression court's ruling substantially handicapped its prosecution. See Pa.R.A.P. 311(d) (providing that, "[i]n a criminal case, under the circumstances provided by law, the Commonwealth may take an appeal as of right from an order that does not end the entire case where the Commonwealth certifies in the notice of appeal that the order will terminate or substantially handicap the prosecution").
The Superior Court also observed that, "[w]hen reviewing an order granting suppression, [its] scope of review only includes ‘the evidence of the defendant's witnesses and so much of the evidence for the prosecution as read in the context of the record as a whole remains uncontradicted.’ " Jackson , 271 A.3d at 463 (quoting Commonwealth v. Lindblom , 854 A.2d 604, 606 (Pa. Super. 2004), appeal denied , 582 Pa. 672, 868 A.2d 1198 (2005) ). Further, where police have "invaded the privacy of an individual without a warrant," the Superior Court noted that it must review whether the police possessed reasonable suspicion under a de novo standard. Id. (citing Ornelas v. United States , 517 U.S. 690, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996) ).
In order to determine whether the police had a reasonable suspicion [when they executed a Terry stop], the totality of the circumstances—the whole picture—must be considered. Based upon that whole picture, the detaining officer[ ] must have a particularized and objective basis for suspecting the particular person stopped of criminal activity. [I]n determining whether the officer acted reasonably ... due weight must be given, not to his inchoate and unparticularized suspicion or ‘hunch,’ but to the specific reasonable inferences which he is entitled to draw from the facts in light of his experience.
Id . (citations and some quotation marks omitted) (some alterations in original) (quoting In re D.M. , 781 A.2d at 1163 ; United States v. Cortez , 449 U.S. 411, 417-18, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981) ; and Terry , 392 U.S. at 27, 88 S.Ct. 1868 ).
Turning to the facts of this case, the Superior Court recounted that Officer Swinarski heard gunshots and drove his marked car toward the location from where he believed the gunshots emanated. Arriving near that area shortly thereafter, Officer Swinarski discovered Jackson running in Officer Swinarski's direction and away from the location of the gunshots. Jackson was the lone individual running on the street. Thus, the Superior Court explained that "[t]his piqued the officer's curiosity that ... Jackson might have some tie to the gunshots." Id . The Superior Court noted that, exiting his cruiser, Officer Swinarski "followed up on his hunch by asking ... Jackson ‘what he was running from,’ " which the Superior Court commended as "precisely the type of continued investigation that the Fourth Amendment demands police undertake before detaining someone." Id . (emphasis in original) (quoting N.T., 02/11/2021, at 17).
The Superior Court then referenced its decision of Commonwealth v. Bryant , 866 A.2d 1143 (Pa. Super.), appeal denied , 583 Pa. 668, 876 A.2d 392 (2005), where it concluded that an officer has reasonable suspicion to conduct an investigative detention where the "officer reasonably deduces that the individual is potentially ‘a perpetrator, victim, or eyewitness of a possible shooting.’ " Jackson , 271 A.3d at 464 (quoting Bryant , 866 A.2d at 1147 ). In Bryant , the Superior Court explained, an officer likewise did not personally observe a suspected, recent shooting, but the "totality of the circumstances (being in a high-crime area, the police officer hearing gunshots and seeing three men running from the area where [the officer] believed the gunshots originated) justified a Terry stop." Id .
Although Jackson attempted to distinguish Bryant on the grounds that the suppression court in the instant matter found that Jackson was not in a high-crime area and the defendant and his companions in Bryant were the only people fleeing on a crowded street, the Superior Court rejected Jackson's arguments. Specifically, the Superior Court emphasized that, prior to ordering Jackson to stop, Officer Swinarski inferred from the totality of the circumstances that Jackson "could be the victim, the witness, or possibly an offender at that time." Id. (quoting N.T., 02/11/2021, at 27). That "real-time assessment of a highly dangerous, rapidly developing situation," the Superior Court opined, "was well reasoned" and comported with Bryant . Id .
The Superior Court further explained:
Where an individual ... admits to law enforcement that he is fleeing from gunshots and is the lone person who may have more information or connection to the shooting , this creates reasonable suspicion for the police to stop him and further investigate. In this instance, [Officer Swinarski's] inference that ... Jackson was probably connected to the active-shooter event was quite reasonable, regardless of the neighborhood where these events unfolded. Thus, the Commonwealth's failure to establish the high-crime-area factor is irrelevant.
Id . at 464-65 (emphasis added). Accordingly, the Superior Court concluded that the suppression court erroneously held that Officer Swinarski initiated an unconstitutional Terry stop when he directed Jackson to stop running so that he could investigate the gunshots further. As a result, the Superior Court vacated the suppression court's order and remanded for the suppression court to determine whether Officer Swinarski's actions following the lawful Terry stop were likewise constitutional.
II. ISSUE
Jackson filed a petition seeking this Court's discretionary review, which we granted to consider the following issue, as stated by Jackson:
Did the Superior Court err, and enter a ruling which conflicts with holdings of the Pennsylvania Supreme Court, the United States Supreme Court, and other panels of the Pennsylvania Superior Court when it held that the [suppression] court committed an error of law when it suppressed evidence recovered after a person was seized by police even though the officer did not suspect the individual stopped of criminal activity?
Commonwealth v. Jackson , ––– Pa. ––––, 283 A.3d 175 (2022) ( per curiam ) (alteration in original).
III. ARGUMENTS
Jackson contends that the Superior Court erroneously vacated the suppression court's holding and issued an opinion that conflicts with the precedent of the United States Supreme Court, this Court, and other decisions of the Superior Court, when it held that Officer Swinarski had reasonable suspicion to detain Jackson. This is particularly so, Jackson insists, where the Superior Court recognized the correct standard for reasonable suspicion to conduct a Terry stop— i.e. , that "the detaining officers must have a particularized and objective basis for suspecting the particular person stopped of criminal activity "—but misapplied that standard and failed to acknowledge certain "dispositive" facts in this matter. (Jackson's Br. at 22, 31 (emphasis in original) (quoting Jackson , 271 A.3d at 464 ).) Jackson specifically faults the Superior Court for ignoring Officer Swinarski's admissions at the suppression hearing that Jackson's conduct was not unusual or suspicious, that Jackson engaged in absolutely normal behavior by running from gunshots, and that he did not suspect Jackson of being involved in criminal activity in concluding that Officer Swinarski had a reasonable basis for suspecting Jackson of criminal activity. Jackson further emphasizes that the location was not a high-crime area and that he was not fleeing from police at the time of the stop; rather, he was a lone individual already running away from a dangerous situation and toward Officer Swinarski after hearing gunshots. Jackson adds that he even answered Officer Swinarski's question as he was running. Jackson also argues that the Superior Court's reliance on Bryant is erroneous insofar as the Superior Court misinterpreted that case to allow for the detention of an individual based on any lesser standard than that required under Terry and its progeny. Jackson further reiterates that Bryant is factually distinguishable from the instant matter and instead directs this Court's attention to Commonwealth v. Rohrbach , 267 A.3d 525 (Pa. Super. 2021), arguing that it compels the same outcome in this case.
Jackson points out that the Commonwealth has the burden at a suppression hearing of proving, by a preponderance of the evidence, that the challenged evidence was not obtained in violation of a defendant's rights. (Jackson's Br. at 30 (citing In re L.J. , 622 Pa. 126, 79 A.3d 1073, 1086 (2013) ).) He also notes that it is well-settled in Pennsylvania that "contraband discarded during an unlawful pursuit must be suppressed." ( Id. (quoting Commonwealth v. Taggart , 997 A.2d 1189, 1196 (Pa. Super. 2010), appeal denied , 610 Pa. 578, 17 A.3d 1254 (2011) ).)
In sum, Jackson insists that the Superior Court's decision in the instant case dispenses with the proper requirement for reasonable suspicion and conflicts with volumes of state and federal case law establishing that an officer must have a particularized and reasonable suspicion of criminal activity relative to a particular individual to conduct a Terry stop. According to Jackson, "condoning officers to order people who are not suspected of criminal activity to stop as they flee from danger is dangerous, counter-productive[,] and unconstitutional." (Jackson's Br. at 40.) For those reasons, Jackson urges this Court to reverse the decision of the Superior Court.
The Commonwealth responds first by recognizing that an investigatory stop is lawful "where the police officer reasonably suspects that the person apprehended is committing or has committed a criminal offense." (Commonwealth's Br. at 9-10 (quoting Interest of T.W. , ––– Pa. ––––, 261 A.3d 409, 417 (2021) ).) Contrary to Jackson's assertions, the Commonwealth contends that the Superior Court correctly held, pursuant to the foregoing standard, that Officer Swinarski possessed the requisite reasonable suspicion to detain Jackson. The Commonwealth points to the following specific facts:
Officer Swinarski was on patrol in an area of Philadelphia that had seen a large increase in gun violence. The officer heard multiple gunshots and drove in the direction of the gunfire. As he did so, he saw [Jackson] running down the street coming from the direction of the [gun]shots. [Jackson] was the only pedestrian in the area. As [Officer Swinarski] explained, no other people were "out" at the time. [ ] Officer Swinarski stopped his car, got out, and asked [Jackson] why he was running. [Jackson] told the officer he was running from the gunshots.
The Commonwealth emphasizes that, although it may be normal behavior for people to run from gunshots, this is not a situation where Officer Swinarski saw a large group of people running from gunshots and randomly selected one person from that group to detain. Instead, Jackson was the only person running on the street. (Commonwealth's Br. at 20.)
( Id . at 10 (citation and footnotes omitted).) Adding that the incident occurred after dark, the Commonwealth insists that these circumstances provided a sufficient basis for Officer Swinarski to stop Jackson for a brief investigation in relation to the apparent shooting that had just occurred. The Commonwealth references Bryant and several other cases from various jurisdictions in support of its argument, relying particularly upon the Supreme Court of Ohio's decision in State v. Hairston , 156 Ohio St.3d 363, 126 N.E.3d 1132, cert. denied , ––– U.S. ––––, 140 S.Ct. 390, 205 L.Ed.2d 219 (2019). The Commonwealth also asserts that Jackson's reliance on Rohrbach is misplaced because that case is factually distinguishable.
Additionally, the Commonwealth attacks any reliance on the suppression court's conclusion that the area was not a "high-crime area" as "pure semantics." (Commonwealth's Br. at 16.) While conceding that Officer Swinarski "did not intone the magic words ‘high-crime area,’ " the Commonwealth emphasizes that he explained that the locality had seen "a large increase in gun violence," which is a more detailed and useful description particularly given that Officer Swinarski stopped Jackson based upon his potential involvement in a shooting. ( Id . (quoting N.T., 02/11/2021, at 20).) Thus, the Commonwealth urges that Officer Swinarski's more detailed description should not undermine the conclusion that Officer Swinarski had reasonable suspicion to detain Jackson. Noting that the existence of a "high-crime area" is not necessary to establish reasonable suspicion, but is sometimes relevant for purposes of analyzing the probability of whether a person's conduct is linked to criminal activity, the Commonwealth explains that Jackson's conduct of running down the street was clearly related to criminal activity here because, inter alia , his own words established that he was running from the gunshots and not for some other non-criminal reason. The Commonwealth submits that "the fact that [Jackson] was running as a direct result of a crime that had just occurred provided a more compelling reason to suspect him of criminal conduct than if he had simply been running in a location that had a reputation for being a ‘high-crime area,’ but where the police had no knowledge of any actual crime having recently been committed." ( Id. at 19.)
The Commonwealth also contests Jackson's claim that Officer Swinarski expressly conceded in his testimony that he did not suspect Jackson of being involved in criminal activity and submits that, in any event, "such a concession would be irrelevant because the question of whether an officer had reasonable suspicion to stop someone ‘is an objective one.’ " ( Id . at 22 (quoting Commonwealth v. Holmes , 609 Pa. 1, 14 A.3d 89, 96 (2011) ).) Thus, viewing the facts of this case objectively , the Commonwealth insists that an officer in Officer Swinarski's position could reasonably suspect Jackson of involvement in criminal activity, regardless of Officer Swinarski's subjective beliefs. ( Id . at 23 (quoting Brigham City, Utah v. Stuart , 547 U.S. 398, 404, 126 S.Ct. 1943, 164 L.Ed.2d 650 (2006) ("An action is ‘reasonable’ under the Fourth Amendment, regardless of the individual officer's state of mind, as long as the circumstances, viewed objectively , justify [the] action." (some internal quotation marks omitted) (emphasis and alteration in original))).)
In disputing whether Officer Swinarski actually conceded that Jackson was not suspected of criminal activity in his testimony, the Commonwealth notes that the exchange between Jackson's counsel and Officer Swinarski went as follows: [Jackson's counsel:] When that gentleman—when this citizen was running down the street, he was not under police investigation for any criminal activity, was he?
[Officer Swinarski:] For no—for criminal activity, no.
(Commonwealth's Br. at 22 n.9 (quoting N.T., 02/11/2021, at 31).) "Given the awkward wording of the question," the Commonwealth submits that Officer Swinarski may not have understood what Jackson's counsel meant by "under police investigation." ( Id .) In any event, the Commonwealth notes that Officer Swinarski testified twice that Jackson was "possibly an offender," thereby dispelling any doubt as to whether Officer Swinarski suspected Jackson of being involved in criminal activity. ( Id . (quoting N.T., 02/11/2021, at 17, 27).)
Alternatively, the Commonwealth argues that Officer Swinarksi's investigative detention of Jackson would be constitutional under the law applicable in other contexts, such as those involving the detention of witnesses or victims of criminal activity or DUI checkpoints. See, e.g. , Commonwealth v. Beaman , 583 Pa. 636, 880 A.2d 578 (2005) (applying three-prong balancing test to determine whether sobriety checkpoint was unconstitutional seizure in violation of Fourth Amendment to United States Constitution and Article I, Section 8 of Pennsylvania Constitution ); Illinois v. Lidster , 540 U.S. 419, 124 S.Ct. 885, 157 L.Ed.2d 843 (2004) (applying same balancing test to suspicionless driving checkpoint set up in search for suspect in fatal hit-and-run incident); State v. Fair , 353 Or. 588, 302 P.3d 417, 431 (2013) ("[I]t is permissible under [ Article I, Section 9 of the Oregon Constitution ] for officers to stop and detain someone for on-the-scene questioning whom they reasonably suspect can provide material information about a crime's commission.").
As noted by the Superior Court, we review determinations of reasonable suspicion de novo on appeal. Ornelas , 517 U.S. at 699, 116 S.Ct. 1657 ("We therefore hold that as a general matter determinations of reasonable suspicion and probable cause should be reviewed de novo on appeal. Having said this, we hasten to point out that a reviewing court should take care both to review findings of historical fact only for clear error and to give due weight to inferences drawn from those facts by resident judges and local law enforcement officers." ). Jackson is likewise correct that the Commonwealth bears the burden at a suppression hearing of proving "by a preponderance of the evidence that the challenged evidence is admissible." Commonwealth v. DeWitt , 530 Pa. 299, 608 A.2d 1030, 1031 (1992) ; Pa.R.Crim.P. 581(H). Moreover,
[w]hen reviewing rulings of a suppression court, we must consider only the evidence of the prosecution and so much of the evidence for the defense as remains uncontradicted when read in the context of the record as a whole. Where the record supports the findings of the suppression court, we are bound by those facts and may reverse only if the legal conclusions drawn therefrom are in error.
Commonwealth v. E.M. , 558 Pa. 16, 735 A.2d 654, 657 (1999) (citation omitted).
A. Reasonable Suspicion
Given the nature of the parties’ constitutional arguments as well as the Superior Court's decision, we first consider Terry stops generally and the reasonable suspicion standard necessary for a police officer to conduct an investigative detention. The Fourth Amendment to the United States Constitution and Article I, Section 8 of the Pennsylvania Constitution contain similar text, both mandating that the people be free from "unreasonable searches and seizures" and that any intrusion by the government, whether federal or state, upon persons, houses, papers, and effects or possessions, be supported by "probable cause." U.S. Const., amend. IV ; Pa. Const. art I, § 8. By necessity, Terry —which "involved a brief, on-the-spot stop on the street and a frisk for weapons"—represents an exception to the probable cause requirement:
Terry for the first time recognized an exception to the requirement that Fourth Amendment seizures of persons must be based on probable cause. ... [S]ince the intrusion involved in a "stop and frisk" was so much less severe than that involved in traditional "arrests," the Court declined to stretch the concept of "arrest"—and the general rule requiring probable cause to make arrests "reasonable" under the Fourth Amendment—to cover such intrusions. Instead, the Court treated the stop-and-frisk intrusion as a sui generis "rubric of police conduct[.]"
Dunaway v. New York , 442 U.S. 200, 208-09, 99 S.Ct. 2248, 60 L.Ed.2d 824 (1979) (citation omitted). As the United States Supreme Court has explained,
a "stop and frisk" [i]s constitutionally permissible if two conditions are met. 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).
As indicated above, this case concerns only the investigatory stop, not a frisk. In this regard, Terry permitted such an intrusion under circumstances "where a police officer observes unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot ." Terry , 392 U.S. at 30, 88 S.Ct. 1868 (emphasis added). In Cortez , although recognizing that reasonable suspicion is an "elusive concept," the United States Supreme Court emphasized that "[a]n investigatory stop must be justified by some objective manifestation that the person stopped is, or is about to be, engaged in criminal activity." Cortez , 449 U.S. at 417, 101 S.Ct. 690 (citing, inter alia , Brown v. Texas , 443 U.S. 47, 51, 99 S.Ct. 2637, 61 L.Ed.2d 357 (1979) ("[T]he Fourth Amendment requires that a seizure must be based on specific, objective facts indicating that society's legitimate interests require the seizure of the particular individual, or that the seizure must be carried out pursuant to a plan embodying explicit, neutral limitations on the conduct of individual officers.")); see also United States v. Goodrich , 450 F.3d 552, 560 (3d Cir. 2006) (recognizing that "an officer cannot conduct a Terry stop simply because criminal activity is afoot" and that, "[i]nstead, the officer must have a particularized and objective basis for believing that the particular person is suspected of criminal activity" (emphasis in original) (quoting United States v. Brown , 159 F.3d 147, 149 (3d Cir. 1998), cert. denied , 525 U.S. 1184, 119 S.Ct. 1127, 143 L.Ed.2d 120 (1999) )). The Cortez decision further advised that "the detaining officers must have a particularized and objective basis for suspecting the particular person stopped of criminal activity" based on "the whole picture." Cortez , 449 U.S. at 417-18, 101 S.Ct. 690. The United States Supreme Court continued:
The idea that an assessment of the whole picture must yield a particularized suspicion contains two elements, each of which must be present before a stop is permissible. First, the assessment must be based upon all the circumstances. The analysis proceeds with various objective observations, information from police reports, if such are available, and consideration of the modes or patterns of operation of certain kinds of lawbreakers. From these data, a trained officer draws inferences and makes deductions—inferences and deductions that might well elude an untrained person.
The process does not deal with hard certainties, but with probabilities. Long before the law of probabilities was articulated as such, practical people formulated certain common sense conclusions about human behavior; jurors as factfinders are permitted to do the same—and so are law enforcement officers. Finally, the evidence thus collected must be seen and weighed not in terms of library analysis by scholars, but as understood by those versed in the field of law enforcement.
The second element contained in the idea that an assessment of the whole picture must yield a particularized suspicion is the concept that the process just described must raise a suspicion that the particular individual being stopped is engaged in wrongdoing. Chief Justice Warren, speaking for the Court in Terry [,] said that, "[t]his demand for specificity in the information upon which police action is predicated is the central teaching of this Court's Fourth Amendment jurisprudence."
Id. at 418, 101 S.Ct. 690 (emphasis omitted) (quoting Terry , 392 U.S. at 21 n.18, 88 S.Ct. 1868 ).
With respect to the nature of the inquiry being an objective one considering the totality of the circumstances, the United States Supreme Court in Terry explained:
[I]n justifying the particular intrusion the police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion. The scheme of the Fourth Amendment becomes meaningful only when it is assured that at some point the conduct of those charged with enforcing the laws can be subjected to the more detached, neutral scrutiny of a judge who must evaluate the reasonableness of a particular search or seizure in light of the particular circumstances. And in making that assessment it is imperative that the facts be judged against an objective standard: would the facts available to the officer at the moment of the seizure or the search ‘warrant a man of reasonable caution in the belief’ that the action taken was appropriate?
Terry , 392 U.S. at 21-22, 88 S.Ct. 1868 (footnotes omitted). Indeed, more generally, the United States Supreme Court has observed that "reasonableness"—the "touchstone of the Fourth Amendment"—is "predominantly an objective inquiry." Ohio v. Robinette , 519 U.S. 33, 39, 117 S.Ct. 417, 136 L.Ed.2d 347 (1996) (quoting Florida v. Jimeno , 500 U.S. 248, 250, 111 S.Ct. 1801, 114 L.Ed.2d 297 (1991) ); Ashcroft v. al-Kidd , 563 U.S. 731, 736, 131 S.Ct. 2074, 179 L.Ed.2d 1149 (2011) (quoting Indianapolis v. Edmond , 531 U.S. 32, 47, 121 S.Ct. 447, 148 L.Ed.2d 333 (2000) ).
We ask whether "the circumstances, viewed objectively, justify [the challenged] action." Scott v. United States , 436 U.S. 128, 138, 98 S.Ct. 1717, 56 L.Ed.2d 168 ... (1978). If so, that action was reasonable " whatever the subjective intent" motivating the relevant officials. Whren v. United States , 517 U.S. 806, 814, 116 S.Ct. 1769, 135 L.Ed.2d 89 ... (1996). This approach recognizes that the Fourth Amendment regulates conduct rather than thoughts, Bond v. United States , 529 U.S. 334, 338[ ] n.2, 120 S.Ct. 1462, 146 L.Ed.2d 365 ... (2000) ; and it promotes evenhanded, uniform enforcement of the law, Devenpeck v. Alford , 543 U.S. 146, [153-54], 125 S.Ct. 588, 160 L.Ed.2d 537 ... (2004).
Ashcroft , 563 U.S. at 736, 131 S.Ct. 2074 (emphasis and one alteration in original). With little exception, the United States Supreme Court has made clear that, if an intrusion is objectively reasonable, the subjective beliefs or motives of an officer are of no import to the analysis. See , e.g. , Scott , 436 U.S. at 138, 98 S.Ct. 1717 ("We have ... held that the fact that the officer does not have the state of mind which is hypothecated by the reasons which provide the legal justification for the officer's action does not invalidate the action taken as long as the circumstances, viewed objectively, justify that action."); Whren , 517 U.S. at 813, 116 S.Ct. 1769 (recognizing that United States Supreme Court has been "unwilling to entertain Fourth Amendment challenges based on the actual motivations of individual officers" and that "[s]ubjective intentions play no role in ordinary, probable-cause Fourth Amendment analysis"); Bond , 529 U.S. at 338 n.2, 120 S.Ct. 1462 ("The parties properly agree that the subjective intent of the law enforcement officer is irrelevant in determining whether that officer's actions violate the Fourth Amendment."); Illinois v. Rodriguez , 497 U.S. 177, 183-86, 110 S.Ct. 2793, 111 L.Ed.2d 148 (1990) (holding that officer's mistake of fact does not invalidate warrantless entry of home under Fourth Amendment so long as mistake is reasonable); Heien v. North Carolina , 574 U.S. 54, 60-61, 66, 135 S.Ct. 530, 190 L.Ed.2d 475 (2014) (holding that reasonable suspicion can rest on "mistaken understanding of the scope of a legal prohibition" if mistake of law—just as mistake of fact—is " objectively reasonable" and that Court "do[es] not examine the subjective understanding of the particular officer involved" (emphasis in original)); Brigham , 547 U.S. at 404-05, 126 S.Ct. 1943 (observing that "officer's subjective motivation is irrelevant" to Fourth Amendment reasonableness analysis and, thus, concluding it did not matter whether officers’ warrantless entry into home was made "to arrest respondents and gather evidence against them or to assist the injured and prevent further violence"); United States v. Knights , 534 U.S. 112, 121-22, 122 S.Ct. 587, 151 L.Ed.2d 497 (2001) (holding that warrantless search of probationer's apartment that was supported by reasonable suspicion and authorized by probation condition comported with Fourth Amendment and explaining that, "[b]ecause [the Court's] holding rests on ordinary Fourth Amendment analysis that considers all the circumstances of a search, there is no basis for examining official purpose" of search).
Such exceptions include "special-needs and administrative-search cases." Ashcroft , 563 U.S. at 736, 131 S.Ct. 2074. Additionally, "programmatic purposes may be relevant to the validity of Fourth Amendment intrusions undertaken pursuant to a general scheme without individualized suspicion," such as "suspicionless vehicle checkpoints set up for the purpose of detecting illegal narcotics." Id. at 737-38, 131 S.Ct. 2074 (emphasis omitted) (quoting Edmond , 531 U.S. at 45-46, 121 S.Ct. 447 ).
Moreover, it is axiomatic that reasonable suspicion requires more than "a mere ‘hunch’ " but "considerably less than proof of wrongdoing by a preponderance of the evidence, and obviously less than is necessary for probable cause." Navarette v. California , 572 U.S. 393, 397, 134 S.Ct. 1683, 188 L.Ed.2d 680 (2014) (some internal quotation marks omitted) (quoting Terry , 392 U.S. at 27, 88 S.Ct. 1868 ; United States v. Sokolow , 490 U.S. 1, 7, 109 S.Ct. 1581, 104 L.Ed.2d 1 (1989) ); see also United States v. Arvizu , 534 U.S. 266, 274, 122 S.Ct. 744, 151 L.Ed.2d 740 (2002) ("Although an officer's reliance on a mere [ ]‘hunch’[ ] is insufficient to justify a stop, the likelihood of criminal activity need not rise to the level required for probable cause, and it falls considerably short of satisfying a preponderance of the evidence standard." (internal citations omitted)). Rather,
[t]he Fourth Amendment does not require a policeman who lacks the precise level of information necessary for probable cause to arrest to simply shrug his shoulders and allow a crime to occur or a criminal to escape. On the contrary, [T]erry 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, 32 L.Ed.2d 612 (1972) (citation omitted). In this regard, the United States Supreme Court also has "consistently recognized that reasonable suspicion ‘need not rule out the possibility of innocent conduct.’ " Navarette , 572 U.S. at 403, 134 S.Ct. 1683 (quoting Arvizu , 534 U.S. at 277, 122 S.Ct. 744 ). Terry involved "ambiguous" conduct that "was by itself lawful" and "susceptible of an innocent explanation" but "also suggested that the individuals were" about to engage in criminal activity. Illinois v. Wardlow , 528 U.S. 119, 125, 120 S.Ct. 673, 145 L.Ed.2d 570 (2000). In allowing brief detentions "to resolve the ambiguity[,] ... Terry accepts the risk that officers may stop innocent people." Id. at 125-26, 120 S.Ct. 673 (citation omitted); see also Gomez v. United States , 597 A.2d 884, 890 (D.C. 1991) ("[S]uspicious conduct by its very nature is ambiguous, and the principal function of the investigative stop is to quickly resolve that ambiguity" (quoting State v. Anderson , 155 Wis.2d 77, 454 N.W.2d 763, 766 (1990) )). Moreover, "officers, like jurors, may rely on probabilities in the reasonable suspicion context." Kansas v. Glover , ––– U.S. ––––, 140 S.Ct. 1183, 1190, 206 L.Ed.2d 412 (2020).
Turning to our own precedent, as the Superior Court acknowledged, this Court follows Terry and its progeny in assessing the constitutionality of investigative detentions. See In re D.M. , 781 A.2d at 1163 ("Pennsylvania courts have consistently followed Terry in stop and frisk cases, including those in which the appellants allege protections pursuant to Article 1, Section 8 of the Pennsylvania Constitution."). In accord with that precedent, this Court has repeatedly observed that the analysis is based on an objective view of the totality of the circumstances. See, e.g. , Holmes , 14 A.3d at 96 ("The determination of whether an officer had reasonable suspicion that criminality was afoot so as to justify an investigatory detention is an objective one, which must be considered in light of the totality of the circumstances."); Commonwealth v. Chase , 599 Pa. 80, 960 A.2d 108, 120 (2008) ("Reasonable suspicion sufficient to stop a motorist must be viewed from the standpoint of an objectively reasonable police officer."); Commonwealth v. Rogers , 578 Pa. 127, 849 A.2d 1185, 1189 (2004) ("In order to determine whether the police officer had reasonable suspicion, the totality of the circumstances must be considered."); Commonwealth v. Zhahir , 561 Pa. 545, 751 A.2d 1153, 1156-57 (2000) (explaining that "[t]he fundamental inquiry [relative to reasonable suspicion] is an objective one" that "requires an evaluation of the totality of the circumstances, with a lesser showing needed to demonstrate reasonable suspicion in terms of both quantity or content and reliability" (citations omitted)).
It is worth noting that Jackson does not argue that the Pennsylvania Constitution affords him greater protection than the United States Constitution under the circumstances presented.
In this vein, our Court has similarly recognized that the subjective motives or beliefs of an officer do not factor into the "reasonableness" of a detention that is objectively based on reasonable suspicion. See Chase , 960 A.2d at 120 (citing Whren and observing that, "if police can articulate a reasonable suspicion of a Vehicle Code violation, a constitutional inquiry into the officer's motive for stopping the vehicle is unnecessary" and further explaining that "even stops based on factual mistakes generally are constitutional if the mistake is objectively reasonable"). We have likewise emphasized the significance of the requirement that reasonable suspicion be particularized to the individual to be detained. See Commonwealth v. Hicks , 652 Pa. 353, 208 A.3d 916, 938 ("The individualized nature of the justification for a seizure is central to the Terry doctrine, inherent in the requirement that an investigative detention must be premised upon specific and articulable facts particular to the detained individual."), cert. denied , ––– U.S. ––––, 140 S.Ct. 645, 205 L.Ed.2d 410 (2019) ; In re D.M. , 781 A.2d at 1163 ("Based upon that whole picture the detaining officers must have a particularized and objective basis for suspecting the particular person stopped of criminal activity." (quoting Cortez , 449 U.S. at 417-18, 101 S.Ct. 690 )). Further, we have opined that "reasonable suspicion does not require that the activity in question must be unquestionably criminal before an officer may investigate further." Rogers , 849 A.2d at 1190.
Based on the foregoing, we take this opportunity to reiterate that, in determining whether an officer has reasonable suspicion to conduct an investigative detention, we examine the totality of the circumstances at issue to discern whether there were particularized and objective grounds upon which to suspect that the individual detained was, or was about to be, engaged in criminal activity. But we emphasize that reasonable suspicion is not an exact science that requires absolute certainty that an individual was or was about to be involved in criminal activity, as that would undermine Terry ’s purpose as an investigative tool that requires an even lesser showing than probable cause. For that reason, we allow officers to rely on probabilities and their experience to make split-second decisions to investigate and prevent crime and to promote their own safety—so long as their suspicion of criminal activity is articulable, objectively reasonable, and particularized to the individual to be detained based on the circumstances as a whole. Furthermore, if reasonable suspicion supports the investigative detention based on an objective view of the totality of the circumstances, we do not inquire into the subjective views of an officer in conducting an investigative detention. With that made clear, we proceed to consider the investigative detention at issue in this case.
B. Officer Swinarski's Investigative Detention of Jackson
As previously described, Officer Swinarski heard gunshots while he was on routine patrol and began to travel toward the direction from which he believed they emanated. Shortly thereafter, Officer Swinarski encountered a single individual —Jackson—running from what he believed to be the source of the gunshots. Officer Swinarski then asked Jackson what he was doing, at which point Jackson responded that he was "running from the gunshots," thereby connecting himself to the criminal activity at issue. Notably, Jackson continued on his way after responding to Officer Swinarski and gave no indication that he sought Officer Swinarski's protection or aid during the interaction leading up to the stop. Based on these facts and the rational inferences gleaned therefrom, we would conclude that Officer Swinarski had a particular and objective basis for suspecting that Jackson may have just committed a criminal offense, thereby justifying a seizure of Jackson for purposes of conducting an investigatory detention under Terry and its progeny.
While gunshots may not in every circumstance indicate criminal activity, it would be unreasonable for a police officer in Officer Swinarski's position not to suspect that the sound of gunshots in an area where the possession and discharge of firearms are regulated strongly suggests that a crime—and a potentially serious crime—likely occurred or was occurring and to proceed to investigate. See , e.g. , Sections 6106(a)(1) and 6108 of the Crimes Code ; Phila. Code § 10-810(1) (prohibiting discharge of firearms recklessly and without reasonable cause); Phila. Code § 10-814(2) (prohibiting, inter alia , acquisition or transfer of any firearm in Philadelphia without license); and Phila. Code § 10-818(2) (providing that, generally, "[n]o person shall carry a firearm upon the public streets or upon any public property at any time" without license). Indeed, the parties do not dispute that the sound of gunshots in this matter was indicative of criminal activity as opposed to some other non-criminal event.
In reaching our conclusion, we find this case to be more akin to Hairston and Bryant than Rohrbach . In Hairston , two police officers were responding to an unrelated call one evening when they heard gunshots nearby and traveled to where they believed the gunshots originated. Hairston , 126 N.E.3d at 1134-35. That location was an area outside of an elementary school where drug activity and other crimes were known to take place at night. Id . at 1135. Roughly 30 to 60 seconds after hearing the gunshots, the officers observed the defendant, who was the only person in the area, walking across a street and talking on a cellphone. Id. The officers detained the defendant and discovered a firearm on his person. Id. The Supreme Court of Ohio concluded that the "cumulative facts" demonstrated that the officers possessed reasonable suspicion to detain the defendant given that the officers "personally heard the sound of [close-by] gunshots" and did not rely on secondhand information or radio dispatch; one officer "knew from personal experience that crime often occurred at night in the area where" the investigative detention occurred; the investigative detention occurred at night; and, "most important[ly,] ... the stop occurred very close in time to the gunshots and [the defendant] was the only person in the area from which the shots emanated." Id . at 1136. Notably, the Ohio Supreme Court faulted the lower court for reaching the opposite conclusion by "focusing on individual factors in isolation rather than on the totality of the circumstances." Id. at 1137. The Ohio Supreme Court emphasized that, while the court below "may have been correct in concluding that none of the individual factors that the state relied on was sufficient in itself to create a reasonable suspicion," the facts when taken together and viewed "through the eyes of a reasonable police officer" did create the requisite reasonable suspicion to stop the defendant "to see if he was the source of or had information about the gunshots." Id .
Similarly, in Bryant , two police officers were on routine patrol in a vehicle around 8 p.m. "when they heard six ‘popping’ sounds" that the officers believed were gunshots. Bryant , 866 A.2d at 1144. Moments later, the officers observed the defendant and two other males running from the general vicinity of where the possible gunshots originated, which the officers knew to be a high-crime area. Id. at 1144-47. The individuals had turned a corner onto a crowded street where no one else was running. Id. at 1144-45. One of the officers detained the individuals and, while conducting a subsequent pat-down of the defendant, discovered narcotics. Id. at 1145. The Superior Court concluded that the objective facts before the officer at the time he conducted the investigative detention— i.e. , the defendant running from the location of gunshots heard by the officer in the evening in a high-crime area and on a street where no one else was running—were sufficient to establish reasonable suspicion. Id. at 1146-47. Specifically, the Superior Court opined that a reasonable officer in that position could have concluded that the defendant was "a perpetrator, victim, or eyewitness of a possible shooting," thereby justifying a Terry stop "for the purpose of determining [the defendant's] identity and maintaining the status quo while obtaining more information." Id. at 1147.
In Rohrbach , the defendant parked his vehicle in a gym parking lot that was known for "high-drug activity." Rohrbach , 267 A.3d at 527. Although the owner of the lot had made reports to police about suspicious vehicles/activity in the lot before and the police regularly patrolled the lot, the owner did not make a report on the date in question, nor had he described the defendant's vehicle to police in the past. Id. Two state troopers entered the lot in their marked vehicle where they discovered the defendant parked in a "not well-lit area," so the troopers drove toward the passenger side of the defendant's vehicle to investigate for a possible overdose or someone needing assistance. Id. Upon noticing the troopers, the defendant began backing out of the parking spot. Id. The troopers then honked their car horn, which all parties to the case agreed constituted a seizure for an investigative detention. Id. at 527, 528 n.2. After the defendant stopped his vehicle, the troopers approached on foot and discovered the smell of marijuana emanating from the vehicle. Id. at 527. The officers ultimately searched the vehicle and discovered a cannabis cigarette. Id.
On appeal, the Superior Court concluded that the troopers lacked reasonable suspicion to detain the defendant because the troopers did not have a particularized basis for suspecting the defendant of criminal activity. Rather, because the troopers relied on vague reports of random criminal conduct police had received in the past and not any specific report about the defendant's vehicle, the Superior Court opined that there was "as much likelihood that [the troopers’] car (or anyone else's) fit the owner's reports. On these facts, no one had reasonable grounds to stop the troopers’ cruiser for an investigative detention, any more than the troopers had reasonable grounds to stop [the defendant's] for one." Id. at 529. Thus, as the Superior Court emphasized, there was no particularized connection between the alleged criminal activity that occurred in the parking lot and the defendant. Rather, the troopers had only observed the defendant's "car pull away from them in a high-crime area," which was insufficient to support reasonable suspicion to detain the defendant. Id. at 529-30.
The particularized nature of the reasonable suspicion standard is evident in Hairston and Bryant . The officers in Hairston witnessed the defendant, the lone individual in the area, walking away from the location of gunshots less than a minute after the gunshots were personally heard by the officers. Likewise, the officers in Bryant viewed the defendant and two individuals running from the location of gunshots onto a crowded street where no one else was running moments after the officers heard the gunshots. In this case, Officer Swinarski witnessed Jackson running from the location of gunshots shortly after he heard them, Jackson was the lone individual running on the street, and Jackson explained that he was running from the gunshots. Thus, this is not a case like Rohrbach where the criminal activity in question lacked a sufficient connection to the defendant. In support of his argument that Officer Swinarski lacked reasonable suspicion to detain him, Jackson relies heavily on Officer Swinarski's testimony at the suppression hearing, wherein, Jackson contends, Officer Swinarski conceded that Jackson engaged in "normal" conduct and that he did not suspect Jackson of criminal activity at the time of their encounter. ( See N.T., 02/11/2021, at 26, 30-31.) In other words, Jackson asks this Court to assess the constitutionality of the investigative detention here based on Officer Swinarski's subjective beliefs or motives in the heat of the moment. Jackson's request, however, is not in accord with the precedent outlined above, which teaches that the constitutionality of the detention here must be judged through an objective lens. Having concluded that reasonable suspicion supported Officer Swinarski's command to Jackson to stop under an objective view of the facts as a whole, Officer Swinarski's subjective beliefs or intentions do not factor into our reasonable suspicion analysis. See Brigham , 547 U.S. at 404, 126 S.Ct. 1943 ("An action is ‘reasonable’ under the Fourth Amendment, regardless of the individual officer's state of mind, ‘as long as the circumstances, viewed objectively , justify [the] action." (emphasis and alteration in original) (quoting Scott , 436 U.S. at 138, 98 S.Ct. 1717 )); see also Whren , Bond , Heien, and Rodriguez . Thus, even accepting that Officer Swinarski conceded that he did not subjectively believe Jackson was engaged in criminal activity leading up to the stop—which is not at all clear when viewing his testimony as a whole, see supra at pages 739–40—that concession does not invalidate the stop.
Insofar as Hairston , Bryant , and Rohrbach considered the level of crime in the area at issue in the reasonable suspicion analysis, we reiterate that the suppression court found that the area where Officer Swinarski encountered Jackson was not a high-crime area and that the Superior Court found the high-crime-area factor to be irrelevant to its analysis. Notably, in so doing, the Superior Court observed that the use of this factor has garnered criticism. See Jackson , 271 A.3d at 465 n.4 (citing cases for, inter alia , "criticism that the high-crime-area factor is an illogical restriction on the powers of police in low[-]crime areas" and "depriv[es] citizens of equal protections of the constitution"). On this point, the Pennsylvania District Attorneys Association (Association) has filed an amicus curiae brief in support of the Commonwealth, wherein it insists that "[c]ourts can consider whether a stop occurs in a ‘high[-]crime area[ ]’ when determining whether an officer possessed reasonable suspicion to initiate a stop" pursuant to applicable precedent and that this Court should reject any suggestion that the high-crime-area factor is no longer viable. ( See Association's Br. at 5.) For their part, the parties do not contest the validity of the high-crime-area factor generally but, instead, dispute whether that factor is present or otherwise required to be present in this case for purposes of establishing reasonable suspicion. Like the Superior Court, we do not find that the high-crime-area factor is determinative of the reasonable suspicion analysis in this case, and, therefore, we will not address it further in this Opinion.
Furthermore, we agree with the Superior Court that Officer Swinarski was evaluating in real time a potentially "highly dangerous, rapidly developing situation." Jackson , 271 A.3d at 464. In concluding that Officer Swinarski had the requisite reasonable suspicion to conduct an investigative detention of Jackson, we observe that Officer Swinarski was not required to rule out the possibility that Jackson was engaging in innocent conduct—as a mere witness or victim of criminal activity or otherwise—prior to the stop. Nonetheless, we are quick to underscore that, as this case falls under the Terry paradigm, it "does not implicate a scenario involving ‘special needs, beyond the normal need for law enforcement[ ]’ [or other situation] such as would dispense with the requirement of individualized suspicion." Hicks , 208 A.3d at 937 (quoting Edmond , 531 U.S. at 37, 121 S.Ct. 447 ). The United States Supreme Court has never sanctioned the investigative detention of a witness or a victim under Terry . Cf. Terry , 392 U.S. at 34, 88 S.Ct. 1868 (White, J., concurring) ("There is nothing in the Constitution which prevents a policeman from addressing questions to anyone on the streets. Absent special circumstances, the person approached may not be detained or frisked but may refuse to cooperate and go on his way."); Wardlow , 528 U.S. at 125, 120 S.Ct. 673 ("[W]hen an officer, without reasonable suspicion or probable cause, approaches an individual, the individual has a right to ignore the police and go about his business."). Thus, while Terry does not require an officer to rule out the possibility that the individual is a mere witness to or victim of criminal activity prior to detaining the individual for purposes of an investigative detention, and a lawful investigative detention may ultimately bear out those facts, it is not enough for the circumstances to establish a reasonable suspicion that the individual is only a witness or victim. It is axiomatic that an investigative detention under Terry requires individualized suspicion that the person detained is engaged in criminal activity. As such, we disapprove of the Superior Court's decision to the extent that it suggests that Terry permits a police officer to detain an individual that merely has "more information" about or a "connection to" a criminal event, Jackson , 271 A.3d at 464-65, absent an objective basis for suspecting that the particular individual is or is about to be involved or engaged in criminal activity.
Additionally, because we conclude that reasonable suspicion existed to support Officer Swinarski's investigative detention of Jackson under Terry , we need not address the Commonwealth's alternative argument that the detention was proper under the law applicable to other contexts as referenced supra note 11.
Relatedly, we acknowledge that some facts presented in this case—such as running from gunshots—may be viewed as innocent in and of themselves. In this vein, our decision should not be interpreted as holding that a police officer will have reasonable suspicion to conduct an investigative detention in every circumstance where the officer encounters an individual or individuals running from the sound or location of gunshots. As we recognized in Hicks , per se rules necessarily detract from the evaluation of the totality of the circumstances and the particularized focus on the individual that are necessary for an investigative detention under Terry and Cortez . See Hicks , 208 A.3d at 939 ("Such is a danger of per se rules, pursuant to which the totality of the circumstances inquiry—the whole picture—is subordinated to the identification of one, single fact."). But where certain facts will not establish reasonable suspicion when taken alone, those same facts may establish reasonable suspicion in the aggregate. See Commonwealth v. Cook , 558 Pa. 50, 735 A.2d 673, 677 (1999) ; Terry , 392 U.S. at 22, 88 S.Ct. 1868 (explaining that officer discharged "legitimate investigative function" when approaching individuals, noting that officer observed individuals engage in "a series of acts, each of them perhaps innocent in itself, but which taken together warranted further investigation"); Arvizu , 534 U.S. at 277-78, 122 S.Ct. 744 ("Undoubtedly, each of these factors alone is susceptible of innocent explanation .... Taken together, we believe they sufficed to form a particularized and objective basis for ... stopping the vehicle, making the stop reasonable within the meaning of the Fourth Amendment."). As such, while the individual facts of this case may not have supported a finding of reasonable suspicion standing alone, we conclude that, based on the totality of the circumstances of this case viewed under an objective lens, Officer Swinarski possessed the reasonable suspicion necessary to detain Jackson.
At the outset of his Opinion in Support of Reversal, Justice Wecht pens a story to set the stage for his ensuing legal analysis. OISR at 768–69. In his story, Justice Wecht evaluates the reasonableness of a Terry stop from the perspective of "you," the reader, who recently concluded a meal with friends and a bottle (or two, or three) of Cabernet Sauvignon. Toward the end of the evening, as the reader exits the establishment, gunfire erupts, prompting the reader to flee the area. The reader's entirely understandable effort to run away from the gunshots, however, is briefly interrupted by a police officer who is not running away from the gunshots, but toward them at risk to his/her personal safety. For Justice Wecht, the reader would clearly find this stop unreasonable and, thus, unconstitutional. See id. at 768–69. Stated otherwise, the responding officer's effort to detain briefly the reader to assess the situation violated the reader's constitutional right to be free from an unreasonable seizure. After all, the reader was not involved in the gunshots directly and was engaging in perfectly innocent and understandable conduct. The law, however, does not evaluate the reasonableness of a temporary detention from the perspective of an innocent person. In Justice Wecht's tale, the responding police officer did not know "you," the reader, were an innocent bystander, let alone a wine enthusiast. It is axiomatic that entirely innocent people may be caught up in a Terry stop. The police officer also did not know whether the reader was fleeing the gunshots for safety or fleeing them to avoid apprehension by law enforcement. The law does not require a police officer to resolve this question before making a Terry stop. The question, for Fourth Amendment purposes, is not whether the innocent person reasonably fleeing gunshots would feel inconvenienced, burdened, or violated. The question, instead, is whether, from the perspective of the police officer, there was reasonable suspicion to believe that "you" may have been involved in the criminal activity.
As we stressed in Hicks , moreover, the individualized nature of reasonable suspicion is central to the Terry regime. Here, because Jackson was the lone individual running directly from the location of a crime just after it occurred and admitted to running because of the gunshots, there can be no doubt that Officer Swinarski could suspect Jackson of the purported criminal activity and not anyone else. The Supreme Court of Ohio similarly emphasized this point in Hairston . Thus, contrary to Justice Wecht's suggestions, these points are salient to our objective review of the totality of the circumstances of this case. Indeed, appellate courts must be vigilant to avoid viewing facts in isolation when making reasonable suspicion determinations; for example, that Jackson did not have blood on his clothes; that Jackson did not ask for help from Officer Swinarski; that Jackson was the lone individual on the street; or that Jackson responded to Officer Swinarski that he was "running from the gunshots." Each fact alone may be insufficient for reasonable suspicion, but our standard of review requires that we consider the totality of the circumstances at issue. When doing so, it becomes clear that an officer in Officer Swinarski's position could reasonably have suspected Jackson of criminal activity, despite that his conduct could be also be viewed as normal. V. Conclusion
Justice Wecht overstates the breadth of this opinion. OISR at 779 ("The impact of today's decision cannot be overstated. The sad reality is that mass shootings are familiar in today's society. ... All persons fleeing from those situations now are in danger of having their privacies invaded .... Terry was never intended to apply in this manner."). This case does not concern a mass flight from the area of a mass shooting; it concerns a "focused, limited, individualized detention[ ]" that was intended to be "brief in duration and narrow in scope"— i.e. , precisely how the United States Supreme Court intended Terry to apply. Id . If circumstances such as those suggested by Justice Wecht come before this Court, we are well-equipped to determine whether the detaining officer had reasonable suspicion based on an objective review of the totality of the circumstances that the detainee was, or was about to be, engaged in criminal activity.
Under the Fourth Amendment to the United States Constitution and Article I, Section 8 of the Pennsylvania Constitution, and pursuant to Terry and its progeny, an officer's investigative detention of an individual must be supported by reasonable suspicion. In analyzing whether an officer possessed the requisite reasonable suspicion to justify the detention, we view the totality of the circumstances to determine whether the officer had a particularized and objective basis for suspecting that the detained individual was, or was about to be, engaged in criminal activity. Because we agree with the Superior Court that Officer Swinarski had a particular and objective basis for suspecting Jackson of criminal activity under the totality of the circumstances presented, we would affirm the order of the Superior Court.
Chief Justice Todd and Justice Mundy join this opinion in support of affirmance.
JUSTICE DONOHUE, in support of reversal
As the trial court concisely stated: "All we have here is an individual on the street, engaging in running, and he – and with good reason because there had been shots fired." N.T., 2/11/2021, at 52. I join Justice Wecht's Opinion in Support of Reversal ("OISR").
Because the Commonwealth in this case insists that we bless reliance on the notion of "high-crime" areas as a factor in our search and seizure jurisprudence, and that we consider it in this case notwithstanding the trial court's contrary finding, Commonwealth's Brief at 11, 16-18, I write to highlight that its importance is often overused and misunderstood. The designation of a neighborhood as "high-crime" creates a vast inequality in the level of privacy afforded individuals based on where they find themselves. I recognize that when applying the Fourth Amendment, "officers are not required to ignore the relevant characteristics of a location in determining whether the circumstances are sufficiently suspicious to warrant further investigation." Illinois v. Wardlow , 528 U.S. 119, 124, 120 S.Ct. 673, 145 L.Ed.2d 570 (2000) ; see also, Opinion in Support of Affirmance ("OISA") at 752–53, n.16 (leaving open the possibility that the difference, though it says nothing about you as an individual fleeing from danger, would tip the scales toward allowing an officer to seize you, while also noting that the factor has garnered criticism).
Then-Justice Baer's concurring opinion in Commonwealth v. Thompson , 604 Pa. 198, 985 A.2d 928, 944-45 (2009) (Baer, J., concurring) lamented the long-term consequences of consideration of high-crime neighborhood. He stated that the unfortunate result of that decision was that "the low socio-economic character of a neighborhood" would "be enough to suffice the rigorous standards of probable cause for any citizen" despite that "the rights of Pennsylvania residents in both high-crime and low-crime areas remain the same under our Constitution." Id .
Nonetheless, the Fourth Amendment's requirement of particularized and individualized suspicion demands more than incantation of "high-crime area." It is critical that courts and practitioners in this area of the law be cognizant of the burden that rests with the Commonwealth to justify a warrantless search or seizure when it seeks to do so based upon a "high-crime area." Significantly, for the Commonwealth to successfully invoke "high-crime area" as a factor that weighs into a reasonable suspicion analysis, it must do more than present testimony of a witness who will utter the words.
"[S]earches and seizures conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment – subject only to a few specifically established and well delineated exceptions." Minnesota v. Dickerson , 508 U.S. 366, 372, 113 S.Ct. 2130, 124 L.Ed.2d 334 (1993). "The exceptions are ‘jealously and carefully drawn’ and there must be a ‘showing by those who seek exemption ... that the exigencies of the situation made that course imperative.’ " Coolidge v. New Hampshire , 403 U.S. 443, 455, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971) (quoting Jones v. United States , 357 U.S. 493, 499, 78 S.Ct. 1253, 2 L.Ed.2d 1514 (1958) and McDonald v. United States , 335 U.S. 451, 456, 69 S.Ct. 191, 93 L.Ed. 153 (1948) ).
First, the Commonwealth must present evidence to support its assertion of the designation. That is, where the existence of reasonable suspicion depends in any meaningful way on the characteristic of a neighborhood as being a disproportionately crime-ridden neighborhood, the Commonwealth bears the burden of proving that there is, in fact, significant crime occurring in that neighborhood. For instance, if the Commonwealth seeks to characterize a neighborhood as having "high-gun-crime," it cannot merely call a witness to intone the words as it did here. Relatedly, as Justice Dougherty astutely observes, even asserting a "large increase in gun violence" is meaningless. See OISR at 767 n.4 (Dougherty, J.) (explaining that a "large increase in gun violence" does not mean the same thing as "high-crime" because a large percentage increase in shootings could merely indicate that there is one as opposed to zero shootings, and one shooting cannot fairly be characterized as "high-crime"). Without explaining and quantifying the assertion and comparing it to other areas, the incantations of "high-crime area" or "high-gun crime" or "high-drug crime" are hollow. See United States v. Montero-Camargo , 208 F.3d 1122, 1143 (9th Cir. 2000) (Kozinski, J., concurring) ("[T]o rely on every cop's repertoire of war stories to determine what is a ‘high crime area’ – and on that bases to treat otherwise innocuous behavior as ground for reasonable suspicion – strikes me as an invitation to trouble. ... I would be most reluctant to give police the power to turn any area into a high crime area based on their unadorned personal experiences.").
The testimony and argument from the suppression hearing reveal the superficiality of the Commonwealth's assertions here. The prosecutor inquired about the officer's familiarity with the "4900 area of North Penn Street[,]" and the officer stated that he was "pretty familiar" and that he receives "daily intel reports of every district every week." N.T., 2/11/2021, at 20. Asked to characterize the area of the incident, the officer answered, "There's been a large increase in gun violence in the last few years in that area." Id . That was the entire exchange.
Though there was no evidence presented to support or rebut the officer's bald assertion, he was cross-examined about it. On cross-examination, Jackson's counsel inquired: "[Y]ou made mention of there being a large increase in gun violence in this particular area... So what's the increase? What's the [sic] percentage has it increased, sir?" Id . at 23. The officer responded, candidly, "I wouldn't know. I would have to had [sic] those intel reports." Id . at 23-24. The Commonwealth presented no evidence to support the officer's assertion that there was a large increase in gun violence.
Scholars and judges have rightfully criticized courts for failing to require that the designation be "empirically supported with factual evidentiary proof." See Andrew Guthrie Ferguson & Damien Bernache, The "High Crime Area" Question: Requiring Verifiable and Quantifiable Evidence for Fourth Amendment Reasonable Suspicion Analysis , 57 AM. U. L. REV. 1587, 1591 (2008). Professor Andrew Guthrie Ferguson, a national expert on predictive policing, wrote with his colleague to modestly propose that courts use an "objective, quantifiable approach to a high-crime area designation." Id . at 1628-34. They insist that the central question must focus on whether an area is "disproportionately affected by criminal activity[,]" not merely whether an officer testifies subjectively that he would characterize the area as "high-crime." Id . at 1629.
The Ninth Circuit Court of Appeals shared this concern when it stated that "more than mere war stories are required to establish the existence of a high-crime area." United States v. Montero-Camargo , 208 F.3d 1122, 1139 n.32 (9th Cir. 2000). That court instructed reviewing courts to "examine with care the specific data underlying any such assertion." Id .See similarly, United States v. Diaz-Juarez , 299 F.3d 1138, 1145 (9th Cir. 2002) (Ferguson, J., dissenting) (stating that an officer's speculative observations are "a far cry" from the specific data required to support an assertion that a stop occurred in a "high-crime" area).
In Montero-Camargo , the Ninth Circuit Court of Appeals ultimately concluded that reasonable suspicion was supported, in part, by the fact that the defendant's conduct occurred in a certain location, but it was because of the uniqueness of the defendant's conduct in the barren desert on the side of the highway. Montero-Camargo , 208 F.3d at 1138-39. The court clarified that its reliance on the location was "conditioned on the unique circumstances of the locale." Id . at 1139 n.32.
Second, and in addition to proving that the neighborhood is disproportionately affected by the criminal activity, the Commonwealth must demonstrate that the criminal activity is relevant to the officer's suspicions. Evidence is relevant if "it has any tendency to make a fact more or less probable than it would be without the evidence;" and "the fact is of consequence in determining the action." Pa.R.E. 401(a) & (b). Courts are to evaluate relevance based on "reason, experience, scientific principles and the other testimony offered in the case." Id ., cmt. For those who doubt that relevance is foundational in this context, I point out that the United States Supreme Court has likewise required the government to establish the relevance of its "high-crime" assertion.
In Brown v. Texas , 443 U.S. 47, 99 S.Ct. 2637, 61 L.Ed.2d 357 (1979), the Court clarified the Terry test, pulling back on the states straying from requiring the specific, individualized suspicions Terry envisioned, in a case that touched on this concept of "high-crime area." In Brown , the Court considered the application of a Texas statute which made it a criminal act to refuse to give one's name and address to an officer "who has lawfully stopped him and requested the information." Id . at 49, 99 S.Ct. 2637 (citing Texas Penal Code § 38.02(a) (1974)). The statute was used to justify detaining and requiring the appellant to identify himself.
The Court recounted the officer's testimony offered in support of reasonable suspicion: he and his partner were cruising in a patrol car at 12:45 in the afternoon; they observed the appellant and another individual walking in opposite directions away from one another in an alley; and they believed that the two "had been together or were about to meet until the patrol car appeared." Id . at 48, 99 S.Ct. 2637. One of the officers testified that the situation in the alley "looked suspicious," but he could not point to any facts supporting his conclusion. Id . at 51-52, 99 S.Ct. 2637. The officer exited the vehicle and asked the appellant to identify himself and explain his presence in the alley. When the appellant refused to identify himself, he was arrested for violating the Texas statute. Id . at 49, 99 S.Ct. 2637 (citing Texas Penal Code § 38.02(a) (1974)).
Addressing the legality of the seizure, the Court reiterated the reasonable suspicion standard: the officers must "have a reasonable suspicion, based on objective facts, that the individual is involved in criminal activity." Id . at 51, 99 S.Ct. 2637. In finding that the seizure violated the Fourth Amendment, the Court carefully addressed the characteristics of the situation in which the appellant found himself:
There is no indication in the record that it was unusual for people to be in the alley. The fact that appellant was in a neighborhood frequented by drug users, standing alone, is not a basis for concluding that appellant himself was engaged in criminal conduct. In short, the appellant's activity was no different from the activity of other pedestrians in that neighborhood.
Id . at 52, 99 S.Ct. 2637. Thus, Brown prudently advises that presence in a certain type of neighborhood alone is not enough to suspect an individual of criminal conduct, unless the government demonstrates the connection (i.e., the relevance) of conduct in relation to the neighborhood characteristic. By distinguishing from circumstances where an individual is acting unusually or differently than those around him, the Court drew attention to the requirement that reasonable suspicion be based on facts specific to the individual's conduct. Reasonable suspicion cannot be based on generalities about where an individual finds himself. "When such a stop is not based on objective criteria, the risk of arbitrary and abusive policy practices exceeds tolerable limits." Id .
Twenty-one years later, the United States Supreme Court once again addressed the "high-crime neighborhood" factor. In Illinois v. Wardlow , 528 U.S. 119, 120 S.Ct. 673, 145 L.Ed.2d 570 (2000), Chicago Police officers driving in a four-car caravan policing an "area known for heavy narcotics trafficking" came upon an area where they "expected to find a crowd of people ... including lookouts and customers." Id . at 121, 120 S.Ct. 673. The caravan approached the suspected area, passing Wardlow standing next to a building holding an opaque bag. Wardlow looked in the direction of the officers and then fled. Officers then chased down Wardlow and performed a "protective pat down search for weapons because in [the officer's] experience it was common for there to be weapons in the near vicinity of narcotics transactions." Id . at 122, 120 S.Ct. 673. The pat down search led officers to discover an unlawful firearm. Wardlow challenged whether the circumstances leading to the pat down search established reasonable articulable suspicion.
The Court, after reiterating its oft-stated language from Terry that "[t]he officer must be able to articulate more than an ‘inchoate and unparticularized suspicion or hunch’ of criminal activity[,]" found that the standard was met. Id . at 123-24, 120 S.Ct. 673 (citing Terry , 392 U.S. at 27, 88 S.Ct. 1868 ). Amongst other things, the Court clarified how the characteristics of the neighborhood played into its totality of the circumstances analysis. It first reiterated Brown ’s rejection of "high-crime neighborhood" as a standalone basis for "reasonable, particularized suspicion that the person is committing a crime." Id . at 124, 120 S.Ct. 673 (citing Brown , 443 U.S. 47, 99 S.Ct. 2637, 61 L.Ed.2d 357 ). Nonetheless, the Court elucidated, "officers are not required to ignore the relevant characteristics of a location in determining whether the circumstances are sufficiently suspicious to warrant further investigation." Id . It cited Adams v. Williams and explained, "we have previously noted the fact that the stop occurred in a ‘high crime area’ among the relevant contextual considerations in a Terry analysis." Id . (citing Adams v. Williams , 407 U.S. at 143, 144, 147-68, 92 S.Ct. 1921 ). Wardlow's presence in an area of heavy narcotics trafficking combined with his unprovoked flight upon noticing the police aroused the officers’ reasonable articulable suspicion. Id . Thus, under the Fourth Amendment, an officer may consider the " relevant characteristics of a location in determining whether the circumstances are sufficiently suspicious to warrant further investigation[.]" Wardlow , 528 U.S. at 128, 120 S.Ct. 673 (emphasis added). This consideration presupposes that the government has demonstrated relevance.
Just four years after Terry v. Ohio , 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), Adams v. Williams , 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972) introduced "high-crime area" into our lexicon. At 2:15 a.m., in Bridgeport, Connecticut, an officer "on car patrol duty in a high-crime area" was received a tip from a person known to the officer that "an individual seated in a nearby vehicle was carrying narcotics and had a gun at his waist." Adams , 407 U.S. at 144-45, 92 S.Ct. 1921. The officer approached the nearby vehicle to investigate. He tapped on the car window and asked the occupant (Williams) to open the door. When Williams rolled down the window instead, the officer reached into the car and removed a firearm from Williams’ waistband. The gun was not visible to the officer, but it was in the exact location indicated by the informant. Id . Williams was arrested for unlawful possession of the firearm. Id .
The Adams v. Williams opinion focuses largely on the informant's unverified tip, considering how under the probable cause standard, the Court's decisions indicate that unverified tips may be insufficient for a narcotics arrest or search warrant. Id . at 147, 92 S.Ct. 1921. Clarifying, the Court condoned consideration of the verified tip for purposes of the reasonable suspicion calculation. Then, in a passage restating the totality of the circumstances analysis, the Court again mentioned the type of neighborhood where the search occurred:
While properly investigating the activity of a person who was reported to be carrying narcotics and a concealed weapon and who was sitting alone in a car in a high-crime area at 2:15 in the morning, [the officer] had ample reason to fear for his safety. When Williams rolled down his window, rather than complying with the policeman's request to step out of the car so that his movements could more easily be seen, the revolver allegedly at Williams’ waist became an even greater threat. Under these circumstances the policeman's action in reaching to the spot where the gun was thought to be hidden constituted a limited intrusion designed to insure his safety, and we conclude that it was reasonable.
Id . at 147-48, 92 S.Ct. 1921 (emphasis added). Adams v. Williams thus casually introduced the term into our Fourth Amendment jurisprudence by mentioning it in a case that was otherwise focused on another reasonable suspicion factor.
Recently, a majority of this Court pushed back against the dangerous practice of baldly invoking "high-crime area" without proving its relevance. In an opinion authored by then-Chief Justice Baer, in Commonwealth v. Barr , ––– Pa. ––––, 266 A.3d 25, 44 (2021), we found that where troopers simply stopped a vehicle for a minor traffic violation and then smelled marijuana, and where troopers did not witness the occupants in the vehicle engage in any suspicious conduct, "it [was] of no moment whether the area in which the stop occurred is known as a ‘high crime area.’ " Again, assertions of "high-crime area" must be accompanied by a showing of relevance.
Forty years ago, Professor Sheri L. Johnson (an expert in the interface of race and criminal procedure) captured the issue well when she stated that, absent a connection between the prevalent crime and the suspected crime, "a ‘crime-prone’ neighborhood does not increase the probability that a particular crime is being committed." Sheri L. Johnson, Race and the Decision to Detain a Suspect , 93 YALE L.J. 214, 222 n.42 (1983). She provided a useful illustration: in a state where sodomy was illegal, a gay community could have been accurately characterized as "high-crime," but that would be irrelevant if the suspected crime was a drug transaction. Courts need not blindly accept the invocation of "high-crime neighborhood" as if proof that there is a lot of crime in a neighborhood proves that there is reasonable suspicion to believe that this individual is involved in the suspected criminal activity.
By contrast, imagine a neighborhood where there is a significant and disproportionate graffiti problem. Where an officer sees a woman walking from a large cement wall with a spray-paint can hanging out of her pocket, the characteristic of this neighborhood reasonably informs the officer's view of the woman. Though it may be inaccurate, the officer may nonetheless consider the characteristic of this neighborhood when forming his suspicions about her conduct. Seeing the same woman walk away from a paint store in another neighborhood with a spray-paint can in her pocket carries entirely different meaning and would render an officer's suspicion that she is engaged in graffiti far less reasonable.
Returning to the case before us, in addition to failing to establish an evidentiary record in this case, supra note 3, the Commonwealth also made no effort to connect the dots to show how the neighborhood's characteristics conveyed information about Jackson's conduct. The Commonwealth repeatedly insisted that it was a "high-crime" area because of gun violence, without explaining how that was relevant to its assertion that there existed reasonable individualized suspicion that Jackson was engaged in criminal activity. Ultimately, the trial court never got to the relevance question because it found that the evidence didn't support the "high-crime" area proposition.
"This officer is very well aware he's in a high-crime area where there's a lot of gun violence[,]" N.T., 2/11/2021, at 44; "[i]t's a high-crime area. There's gun violence[,]" id . at 44; "it's a high-crime area[,]" id . at 45; "There is case law th[at] states that being in a high-crime area, gunshots, Your Honor, the defendant fleeing from the officer, that's all indicative of criminal activity." id . at 49.
If we assume for the purpose of analysis that the Commonwealth established with empirical evidence that the area where Jackson was stopped constituted an area known for disproportionately regular gun violence, that evidence would not be relevant because it does not tend to make it more probable that Jackson was engaged in gun violence. A person in an area known for gun violence is at least as likely to run away from the sound of gun shots as a person in an area not known for gun violence. Contrary to the Commonwealth's argument, the Fourth Amendment requires the government to explain how reasonable suspicion relates to the individual's conduct taking place in the location or area, for instance, by showing that his conduct was unique and, therefore, suspicious. See, e.g., Brown , 443 U.S. at 52, 99 S.Ct. 2637 (finding that the characteristics of the neighborhood were irrelevant because there was "no indication ... that it was unusual for people to be in the alley[ ]" and "the appellant's activity was no different from the activity of other pedestrians in that neighborhood[ ]"). Here, there is nothing unusual or unique about running from the sound of gun fire, high-gun violence area or not.
According to the Commonwealth, the character of the neighborhood sheds light on whether a person's conduct is or is not linked to criminal activity. Commonwealth's Brief at 18.
Troublingly, the Commonwealth is of the impression that an officer can tip the scales toward reasonable suspicion by simply intoning the mantra "high-crime area," an impression directly in opposition to the requirement that reasonable suspicion be supported by specific and articulable facts. Brown , 443 U.S. at 51-52, 99 S.Ct. 2637. Any blessing of intonations of "high-crime area" unsupported by empirical evidence and unconnected to the specific circumstances is a blot on our jurisprudence in this area of Fourth Amendment jurisprudence.
I join Justice Wecht's opinion in support of reversal.
Justice Wecht joins this opinion in support of reversal.
JUSTICE DOUGHERTY, in support of reversal
The reasonable suspicion standard is not especially demanding, but it isn't toothless either. In my view, Officer Swinarski lacked even reasonable suspicion when he ordered Jackson to stop. Accordingly, I respectfully dissent.
Under the Fourth Amendment to the United States Constitution, a police order to stop must actually be obeyed by the person to constitute a seizure. See Cnty. of Sacramento v. Lewis , 523 U.S. 833, 845 n.7, 118 S.Ct. 1708, 140 L.Ed.2d 1043 (1998) ("Attempted seizures of a person are beyond the scope of the Fourth Amendment."); California v. Hodari D. , 499 U.S. 621, 626, 111 S.Ct. 1547, 113 L.Ed.2d 690 (1991) ("The word ‘seizure’ ... does not remotely apply, ... to the prospect of a policeman yelling ‘Stop, in the name of the law!’ at a fleeing form that continues to flee. That is no seizure."). Jackson did not obey Officer Swinarski's order to stop, but instead fled from the officer. See N.T. 2/11/21 at 17, 21. Nevertheless, under our state counterpart to the Fourth Amendment, Article I, Section 8 of the Pennsylvania Constitution, a police order to stop effectuates a seizure. In Commonwealth v. Matos , 543 Pa. 449, 672 A.2d 769 (1996), this Court "reject[ed] Hodari D. as incompatible with the privacy rights guaranteed to the citizens of this Commonwealth under Article I, Section 8 of the Pennsylvania Constitution." Matos, 672 A.2d at 776. Moreover, Matos endorsed Commonwealth v. Jones , 474 Pa. 364, 378 A.2d 835 (1977). See id. at 773-74. Jones , in turn, noted that "[i]f a citizen approached by a police officer is ordered to stop or is physically restrained, obviously a ‘stop’ occurs." Jones , 378 A.2d at 839. Here, Jackson's suppression motion was premised on both the federal and state constitutions, see Omnibus Pretrial Motion to Suppress, 1/7/21 at 1; N.T. 2/11/21 at 13, 43, and the trial court ruled he was seized "under Pennsylvania constitutional principles[,]" see N.T. 2/11/21 at 52-53. Additionally, the Commonwealth concedes that when "the officer told [Jackson] to stop [he] thereby ‘seized’ him for constitutional purposes." Commonwealth's Brief at 11. Under these circumstances, when Officer Swinarski ordered Jackson to stop, he was seized and subject to an investigative stop under Article I, Section 8, triggering the requirement of reasonable suspicion.
See OISA at 750–51.
The "general rule" is that a police seizure of an individual is constitutional "only if based on probable cause to believe that the individual has committed a crime." Bailey v. United States , 568 U.S. 186, 192, 133 S.Ct. 1031, 185 L.Ed.2d 19 (2013) (quotation marks and citation omitted). The seminal decision in Terry , however, "created an exception to the requirement of probable cause[.]" Ybarra v. Illinois , 444 U.S. 85, 93, 100 S.Ct. 338, 62 L.Ed.2d 238 (1979). Under Terry , an officer "can stop and briefly detain a person for investigative purposes if the officer has a reasonable suspicion supported by articulable facts that criminal activity ‘may be afoot,’ even if the officer lacks probable cause." United States v. Sokolow , 490 U.S. 1, 7, 109 S.Ct. 1581, 104 L.Ed.2d 1 (1989), quoting Terry , 392 U.S. at 30, 88 S.Ct. 1868. The officer must have "a particularized and objective basis for suspecting the particular person stopped of criminal activity." United States v. Cortez , 449 U.S. 411, 417-18, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981). "[A] mere ‘hunch’ does not create reasonable suspicion[.]" Kansas v. Glover, ––– U.S. ––––, 140 S.Ct. 1183, 1187, 206 L.Ed.2d 412 (2020), quoting Navarette v. California , 572 U.S. 393, 397, 134 S.Ct. 1683, 188 L.Ed.2d 680 (2014). There must be " ‘some minimal level of objective justification’ for making the stop." Sokolow , 490 U.S. at 7, 109 S.Ct. 1581, quoting INS v. Delgado , 466 U.S. 210, 217, 104 S.Ct. 1758, 80 L.Ed.2d 247 (1984). "[T]he level of suspicion the standard requires is considerably less than proof of wrongdoing by a preponderance of the evidence, and obviously less than is necessary for probable cause." Glover , 140 S.Ct. at 1187, quoting Navarette , 572 U.S. at 397, 134 S.Ct. 1683. In other words, "[t]he reasonable suspicion inquiry ‘falls considerably short’ of 51% accuracy[.]" Id. at 1188. "Reasonable suspicion is a less demanding standard than probable cause not only in the sense that reasonable suspicion can be established with information that is different in quantity or content than that required to establish probable cause, but also in the sense that reasonable suspicion can arise from information that is less reliable than that required to show probable cause." Alabama v. White , 496 U.S. 325, 330, 110 S.Ct. 2412, 110 L.Ed.2d 301 (1990). Moreover, "reasonable suspicion ‘need not rule out the possibility of innocent conduct.’ " Navarette , 572 U.S. at 403, 134 S.Ct. 1683 (2014), quoting United States v. Arvizu , 534 U.S. 266, 277, 122 S.Ct. 744, 151 L.Ed.2d 740 (2002). In assessing the presence of reasonable suspicion, "the totality of the circumstances — the whole picture — must be taken into account." Cortez , 449 U.S. at 417, 101 S.Ct. 690. Thus, "the presence of additional facts might dispel reasonable suspicion." Glover , 140 S.Ct. at 1191.
While federal and Pennsylvania constitutional law diverge on the question of what constitutes an investigative stop, see supra note 1, they are coextensive regarding the quantum and nature of evidence required for a stop, see Commonwealth v. Grahame , 607 Pa. 389, 7 A.3d 810, 816 (2010) ("Pennsylvania courts have always followed [ Terry v. Ohio , 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) ] regardless of whether the appellant's claim was predicated on the Fourth Amendment or Article I, Section 8 of the Pennsylvania Constitution."); In re D.M. , 566 Pa. 445, 781 A.2d 1161, 1163 (2001) ("Pennsylvania courts have consistently followed Terry in stop and frisk cases, including those in which the appellants allege protections pursuant to Article 1, Section 8 of the Pennsylvania Constitution."); Commonwealth v. Wimbush , 561 Pa. 368, 750 A.2d 807, 810 n.2 (2000) ("We note that Pennsylvania has consistently followed Fourth Amendment jurisprudence in stop and frisk cases."); Commonwealth v. Jackson , 548 Pa. 484, 698 A.2d 571, 573 (1997) ("Pennsylvania has always followed Terry in stop and frisk cases[.]").
Terry v. Ohio , 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).
Importantly, while Terry created an exception to the probable cause requirement, it did not insulate extralegal police conduct from judicial condemnation and the exclusionary rule. On the contrary, Terry emphasized:
Nothing we say today is to be taken as indicating approval of police conduct outside the legitimate investigative sphere. Under our decision, courts still retain their traditional responsibility to guard against police conduct which is over-bearing or harassing, or which trenches upon personal security without the objective evidentiary justification which the Constitution requires. When such conduct is identified, it must be condemned by the judiciary and its fruits must be excluded from evidence in criminal trials.
Terry , 392 U.S. at 15, 88 S.Ct. 1868. In particular, the Terry Court indicated its concern about stops motivated by racial bias. See id. at 14, 88 S.Ct. 1868 (noting "[t]he wholesale harassment by certain elements of the police community, of which minority groups, particularly [Blacks], frequently complain"); id. at 14 n.11, 88 S.Ct. 1868 ("(i)n many communities, field interrogations are a major source of friction between the police and minority groups... the friction caused by (m)isuse of field interrogations increases as more police departments adopt aggressive patrol in which officers are encouraged routinely to stop and question persons on the street who are unknown to them, who are suspicious, or whose purpose for being abroad is not readily evident.") (quotation marks and citation omitted).
Many courts and commentators since Terry have expressed the same concern. See generally Wayne R. LaFave, Search and Seizure: A Treatise on the Fourth Amendment § 9.1(e) (6th ed. 2020).
The Fourth Amendment provides: "The right of the people to be secure in their persons ... against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue but upon probable cause ...." U.S. Const. amend IV. The Fourth Amendment is applicable to the states via the Fourteenth Amendment. See Mapp v. Ohio , 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961). It has become well-entrenched in the United States Supreme Court's precedents that the "touchstone of the Fourth Amendment is reasonableness," Florida v. Jimeno , 500 U.S. 248, 250, 111 S.Ct. 1801, 114 L.Ed.2d 297 (1991), and that "[r]easonableness, in turn, is measured in objective terms by examining the totality of the circumstances." Ohio v. Robinette , 519 U.S. 33, 39, 117 S.Ct. 417, 136 L.Ed.2d 347 (1996).
Here, Officer Swinarski, who was the sole witness at the suppression hearing, testified he was on patrol at the intersection of Penn Street and Oxford Avenue in Philadelphia. Shortly before 8 p.m., the officer heard two to four gunshots west of his location. He drove slowly northbound on Penn Street, and then turned left on to Harrison Street and drove westbound on Harrison. As the officer drove westbound on Harrison, he saw Jackson running eastbound on Harrison towards him. Jackson was running on the sidewalk, and he was the only pedestrian. He was not clutching anything or holding anything. He was not reaching toward his waistband or pockets. He did not appear injured. He did not change direction. Officer Swinarski got out of his patrol car and asked Jackson why he was running. Jackson responded that he was running from the gunshots. At that point, Officer Swinarski ordered him to stop. Jackson, however, disregarded the officer's order and ran. See N.T. 2/11/21 at 17-18, 25-27, 29-30, 35-36.
I agree with the Opinion in Support of Affirmance (OISA) that, while not insusceptible to innocent explanation, the sound of multiple gunshots in this case established reasonable suspicion of criminal activity. See OISA at 750 n.15. The sound of gunfire in Philadelphia is potentially indicative not only of violent crime and firearms violations, but also violations of the multiple Philadelphia-specific laws concerning the possession and discharge of firearms. See, e.g. , 18 Pa.C.S. § 6108 (generally prohibiting possession of firearms on public streets or public property in Philadelphia); Phila. Code § 10-810(1) ("No person shall fire or discharge recklessly and without reasonable cause any rifle, gun, pistol, or other firearm."); Phila. Code § 10-815(1) ("No person shall go upon land owned or controlled by the City or any public authority with a rifle, gun, pistol, or other firearm or with bows and arrows for the purpose of hunting wildlife."); Phila. Code § 10-815(2) ("No person while hunting wildlife shall discharge any rifle, gun, pistol or other firearm or arrow into land owned or controlled by the City or any public authority."); Phila. Code § 10-818(2) (generally prohibiting possession of firearms on public streets or public property); Phila. Code § 10-822(2) (generally prohibiting possession of firearms in educational institutions); Phila. Code § 10-833(2) (generally prohibiting possession of firearms in or within 100 feet of elementary or secondary schools); Phila. Code § 10-842(2) (generally prohibiting possession of firearms at recreational facilities). Yet, reasonable suspicion of criminal activity, even serious criminal activity, is alone not sufficient to support an investigative stop. The detaining officer must also have reasonable suspicion "that the particular individual being stopped is engaged in [the] wrongdoing." Glover , 140 S.Ct. at 1191, quoting Cortez , 449 U.S. at 418, 101 S.Ct. 690. It is with respect to this additionally essential showing that I believe the Commonwealth's evidence falls short. See In re L.J. , 622 Pa. 126, 79 A.3d 1073, 1085 (2013) ("It is the Commonwealth's burden to establish that evidence was properly seized[.]").
Considering the totality of the circumstances, the sole circumstance even arguably connecting Jackson to the potential wrongdoing ( i.e. , the shooting) is the fact, readily admitted by him at the time, that he was running from the gunshots. In and of itself, running from gunshots is not criminal, suspicious, or unusual. Gunfire, of course, carries the risk of serious injury and death. It is a normal and expected human reaction to run from the danger. To be sure, "innocent facts ... may give the [police] reasonable suspicion." Interest of T.W. , ––– Pa. ––––, 261 A.3d 409, 423 (2021) (quotation marks and citation omitted). However, some facts are so susceptible to varying innocent explanations as to carry little if any weight in the calculus. See United States v. Karam , 496 F.3d 1157, 1163 (10th Cir. 2007) ("While ... even seemingly innocent factors may be relevant to the reasonable suspicion determination, some facts are so innocuous and so susceptible to varying interpretations that they carry little or no weight.") (quotation marks and citation omitted). The fact Jackson was running from the gunshots falls into this category. There are many wholly innocent explanations for why Jackson may have been running from the shots. For instance, it is entirely possible he was not at or near the scene of the crime but rather heard the shots from a distance and prudently decided to run for his own safety. After all, Officer Swinarski was not at or immediately proximate to the location where the shots were fired, yet he heard them and responded accordingly. Jackson could very well have done the same. Alternately, Jackson could have been present at the scene of the gunfire but merely a victim, intended victim, witness, or bystander, who reasonably determined to flee the threat of harm. See N.T. 2/11/21 at 17 (Officer Swinarski testifying Jackson could have been victim or "good witness"). It is also conceivable Jackson neither heard nor saw the gunshots but instead was told by someone else that shots had been fired and decided to run. It is possible too that he saw others running, presumed they were fleeing gunfire in a city where shootings are tragically common, and determined to join them. The mere fact Jackson was running from gunshots is simply too amenable to innocent interpretation to support reasonable suspicion he committed the shooting.
This is particularly so given the additional facts dispelling reasonable suspicion for a stop. Upon seeing Jackson running, Officer Swinarski observed Jackson did not have a gun in his hands, did not make any reaching motion indicative of his possession of a gun, did not appear injured in any way, and did not change direction to avoid the officer. See N.T. 2/11/21 at 26-27, 35. These exculpatory facts counteract any hunch of criminality arising from Jackson's flight, and solidify the absence of reasonable suspicion in this case.
In support of its contrary conclusion, the OISA argues "Officer Swinarski witnessed Jackson running from the location of gunshots shortly after he heard them[.]" OISA at 752; see also id. at 755 ("Jackson was the lone individual running directly from the location of a crime[.]"). However, Jackson never told Officer Swinarski he was running from the location of the gunshots, only that he was "running from the gunshots[,]" N.T. 2/11/21 at 17, and the record does not otherwise establish the location of the shooting. The full extent of the evidence as to the location of the gunshots is Officer Swinarski's testimony that when he was at the intersection of Penn Street and Oxford Avenue, he heard gunshots "west of [his] location." Id . This vague testimony does not specify a situs for the shooting. To say that something was heard to the "west" encompasses a very broad range indeed, and does not pinpoint the geographic origin of the sound. Put simply, "west" is a direction, not a location. We cannot conclude Jackson was running from the location of the gunshots when this location is itself a mystery. In any case, to the extent Jackson was running from the dangerous scene of a shooting, this conduct is subject to a multiplicity of innocent explanations, too many to move the needle from bare hunch to reasonable suspicion.
The OISA also emphasizes "Jackson was the lone individual running on the street[.]" OISA at 752; see also id. at 750 ("Officer Swinarski encountered a single individual — Jackson — running from what he believed to be the source of the gunshots.") (emphasis in original); id. at 755 (referring to Jackson as "lone individual running"). Although the OISA does not elaborate on the importance of the fact Jackson was alone, its implied argument appears to be that someone must have fired the shots, and if Jackson was the only person in the vicinity, he must have been that someone. Yet the record does not establish Jackson was the only person in the area of the gunshots. Officer Swinarski merely testified Jackson "was the only pedestrian." N.T. 2/11/21 at 25. His testimony allows for other individuals out on the street not traveling by foot, including people in cars, sitting on front steps or porches, and standing on street corners. And he could only credibly testify concerning what he was observing at the time: the particular block of Harrison Street where he encountered Jackson. There were other blocks and other streets nearby. Officer Swinarski encountered Jackson in a dense section of the Commonwealth's most populous city. It was close to 8 p.m., not the middle of the night or early morning. It is not plausible the officer and Jackson were the only two people out on the street in the area of the gunfire.
The OISA contends "Jackson continued on his way after responding to Officer Swinarski and gave no indication that he sought Officer Swinarski's protection or aid during the interaction leading up to the stop." OISA at 750–51. In fact, according to Officer Swinarski's testimony, Jackson stopped to answer the officer's question as to why he was running, and took off again only after the officer told him to stop. See N.T. 2/11/21 at 21 ("The only communication prior to him running was that he stated that he was running from the gunshots.") (emphasis added); id. ("At that point, I told him just to stop multiple times as I was approaching. And then he just took off on foot.") (emphasis added); id. at 25-26 ("Q. And instead of continuing to run and totally disregard you, the young man answers you and tells you why he's running? A. Yes."); id. at 30 ("[W]hen I told him to stop, I go around my vehicle to approach him and he takes off on foot .") (emphasis added); but see id. at 51 (trial court finding "the defendant proceeded to keep — to continue running. At which point the officer commanded the defendant to stop."). In any case, whether Jackson stopped to answer Officer Swinarski's question or not, he had no real opportunity to seek the officer's assistance. As Jackson ran towards the officer but was still approximately eight feet away from him, the officer asked him why he was running. See id. at 28. Then, just as soon as Jackson answered he was running from the gunshots, Officer Swinarski immediately commanded him to stop. See id. at 17 ("He stated he was running from the gunshots. At that point , I told Mr. Jackson to stop.") (emphasis added); id. at 28-29 ("Q. Okay. And what you do, instead of asking him was he infirmed [sic] or shot or one of those questions, you tell him to stop? You give him an official police command to stop, right? A. Yes."). That Jackson did not manage to verbalize a request for aid in the brief instant between when he was preemptively questioned from a distance and then instantaneously ordered to stop is not meaningfully suspicious.
Finally, the OISA's reliance on State v. Hairston , 156 Ohio St.3d 363, 126 N.E.3d 1132 (2019), and Commonwealth v. Bryant , 866 A.2d 1143 (Pa. Super. 2005), is misplaced. See OISA at 751 (finding case to be "akin to Hairston and Bryant "). First, these cases do not bind this Court. See Domus, Inc. v. Signature Bldg. Sys. of PA, LLC , ––– Pa. ––––, 252 A.3d 628, 637 (2021) ("[D]ecisions of our sister states are certainly not binding on this Court[.]"), quoting Koken v. Reliance Ins. Co. , 586 Pa. 269, 893 A.2d 70, 83 (2006) ; Marion v. Bryn Mawr Trust Co. , ––– Pa. ––––, 288 A.3d 76, 93 (2023) ("[I]t is axiomatic that Superior Court decisions ... do not bind this Court."). They are also distinguishable on their facts. In Hairston , the police "knew from personal experience that crime often occurred at night in the area where the stop took place." Hairston , 126 N.E.3d at 1136. In addition, "the stop occurred very close in time to the gunshots[.]" Id. It took the police "only 30 to 60 seconds to get to the intersection" where they viewed Hairston. Id. Further, "Hairston was the only person in the area from which the shots emanated." Id. Here, on the other hand, there is no evidence the stop occurred in a high-crime area, and the trial court expressly refused to find that this circumstance was present. See N.T. 2/11/21 at 52 ("I do not find that this was a high-crime area. I don't believe evidence was on the record to support that determination."). Moreover, the record here is silent as to the amount of time that elapsed between when Officer Swinarski first heard the shots and ultimately encountered Jackson. Pertinently, the officer testified he drove "slowly" in responding to the gunshots. See id. at 17 ("I proceeded to drive slowly northbound on Penn, approaching Harrison."). Furthermore, the record does not establish Jackson was somehow the sole person in a congested area of Philadelphia in the early evening, but rather merely that he was the only pedestrian Officer Swinarski observed on the particular block of Harrison Street where the stop occurred. See N.T. 2/11/21 at 25.
The Commonwealth argues that while Officer Swinarski "did not intone the words ‘high-crime area," he "testified ‘there's been a large increase in gun violence’ in the area where the stop occurred[.]" Commonwealth's Brief at 17, quoting N.T. 2/11/21 at 20. A large increase in gun violence in an area does not make it a high-crime area. If the number of yearly shootings in an area increases from zero to one, there has been a large (100%) increase in gun violence in the area, but the area may not be fairly characterized as a high-crime area.
Dunaway v. New York , 442 U.S. 200, 208, 99 S.Ct. 2248, 60 L.Ed.2d 824 (1979).
The non-binding Bryant case is also factually distinct from this one. In Bryant , the stop occurred "in a high-crime area ... with a high incidence of drug dealing." Bryant , 866 A.2d at 1146-47. The officer saw Bryant "running around the corner from where [the officer] heard the shots originate." Id. at 1147. While Bryant was running, "other individuals in the street were not fleeing the area of the gunshots." Id. Presently, by contrast, the area where Jackson was stopped was not a high-crime area, the originating location of the gunshots is unknown, and Jackson's conduct was not abnormal. Indeed, Officer Swinarski testified Jackson's running from gunshots was "[a]bsolutely" normal behavior. N.T. 2/11/21 at 26.
I acknowledge the possibility there was in fact reasonable suspicion for the Terry stop here but the thin record of the suppression hearing simply fails to substantiate it. To the extent this is the case, this problem of proof could potentially have been avoided by a more detailed and fulsome evidentiary presentation by the Commonwealth. See Interest of T.W. , 261 A.3d at 438 (Dougherty, J., concurring) (advising testifying police officers in Terry cases to "provide as much detail as possible" and advising prosecutors to "be cognizant that specificity is, where available, beneficial both at the motion stage and on appeal"). In any event, our scope of review is, of course, confined to the record actually before us, which, in my view, does not support reasonable suspicion. Hence, I would reverse the Superior Court's order and remand for further proceedings.
The Commonwealth argues in the alternative that even if the stop was not permissible under Terry , it was lawful under other authorities permitting the police to stop individuals they reasonably believe might be able to assist them in responding to a serious crime. See Commonwealth's Brief at 25-36. The Superior Court did not reach this argument in light of its holding there was a "lawful Terry stop." Commonwealth v. Jackson , 271 A.3d 461, 465 (Pa. Super. 2021). Accordingly, pursuant to our usual practice, I would remand to the Superior Court to consider this unaddressed issue in the first instance. See Commonwealth v. Koger , ––– Pa. ––––, 295 A.3d 699, 711 n.12 (2023) (noting Court's "usual practice" with respect to issue not addressed in lower court is to remand for further consideration).
Id.
JUSTICE WECHT, in support of reversal
It's 8:00 pm. in a Philadelphia neighborhood. You just finished a great dinner with your oldest and dearest friend. The wine was good, too. You stagger and stumble just a bit as you walk out of the restaurant and into the cool night air. You turn onto the sidewalk and begin the trek to your apartment five blocks away. Your mind wanders back to the meal, the wine, and the company.
BANG!
BANG!
BANG!
Gunshots. Three of them erupt from the alley across the street. You don't have time to look and see who fired them. There is only one thought in your head: RUN! You take off.
Around the corner, a police officer patrols the dark streets in a marked cruiser. A routine, boring shift suddenly transforms into an adrenaline-fueled commotion as the three loud pops pierce the tranquil night air. The officer activates the siren and emergency lights, hits the accelerator, and speeds off in the direction of the gunshots.
The police car squeals to a stop when the officer sees you racing around the corner, fleeing the area from where the gunshots rang out. You are not bleeding. You are not holding a gun. You do not toss anything aside. You are not pointing, screaming, or calling for help. Your singular focus is getting away from the danger.
The officer calls out to you. Although he heard the same shots that you heard, he asks you why you are running. You tell the truth: "I am running from the gunshots!" You don't stop. You don't ask for help. You just want to put as much distance as possible between you and the deadly gunfire.
Today's Opinion in Support of Affirmance ("OISA") declares that, because you are running away, it is reasonable for a police officer to suspect that you are the shooter. The OISA would hold that, because you are alone and you did not stop to ask for help, you have "connected" yourself to "the criminal activity at issue." 1 Through the OISA's eyes, your objectively reasonable, expected, and normal reaction to a dangerous situation was, to the contrary, criminally suspicious. Police officers would be free to seize and investigate you, notwithstanding the absence of any objective indicia that you were in any way involved in the suspected crime.
Per today's decision, had you been with someone else, instead of on your own, the police officer could not have stopped you, presumably even if that other person also was fleeing from the dangerous situation. Or, had you merely asked the police officer for help, instead of getting as far away as possible from an active shooter, the officer could not have stopped you. But you were alone, and you passed the officer by in your frantic effort to protect yourself. Thus, according to the OISA, you are a suspect.
This holding pushes the Terr y 2 stop far beyond what the Supreme Court of the United States intended it to be: a limited exception to the requirement that police officers must have probable cause before arresting an individual. The sweeping law enforcement tool that the OISA endorses today would be unrecognizable to the Justices that decided Terry in 1968. Our Constitutions do not permit such expansive police power. I dissent.
Before Terry , the analytical framework for ascertaining whether an interaction between the police and a private individual was constitutionally reasonable 3 was "relatively simple and straightforward." 4 The sole inquiry was whether the interaction was an arrest supported by probable cause. 5 A "seizure" for Fourth Amendment purposes was treated as synonymous with an "arrest," and "the requirement of probable cause ... was treated as absolute." Probable cause embodied "the best compromise that has been found for accommodating [the] often opposing interests" in "safeguard[ing] citizens from rash and unreasonable interferences with privacy" and in "seek[ing] to give fair leeway for enforcing the law in the community's protection." "The standard of probable cause thus represented the accumulated wisdom of precedent and experience as to the minimum justification necessary to make the kind of intrusion involved in an arrest reasonable under the Fourth Amendment" and applies "to all arrests, without the need to balance the interests and circumstances involved in particular situations."
Id. (footnotes and citations omitted).
Brinegar v. United States , 338 U.S. 160, 176, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949).
Dunaway , 442 U.S. at 208, 99 S.Ct. 2248 (internal quotations and citation omitted).
Simply put, prior to 1968, the Fourth Amendment to the United States Constitution did not recognize, let alone countenance, concepts such as an "investigative detention." "Reasonable suspicion" did not exist in the constitutional rubric. Then came Terry .
The facts of Terry are well-known. Terry and another man were standing at the intersection of two streets in Cleveland, Ohio. Their loitering piqued the investigative senses of an experienced police officer. The officer kept his well-trained eye on the pair until one of them walked along the street, looked in a store window, continued on, turned around, and then peered into the same store window on the way back. Once the first man returned to the corner, the other walked along the same street and looked in the same window. Alternating one at a time, the men did this five or six times each. A third man joined the pair, spoke briefly with them, and then walked off. Terry and his cohort continued to pace on the street for a short while longer, and then walked away in the direction of the third man. The officer followed, and saw the two meet the third man.
Terry , 392 U.S. at 5, 88 S.Ct. 1868.
Id. at 6, 88 S.Ct. 1868.
The officer contemplated the actions that he had just observed and concluded that the men were "casing a job, a stick up." The officer decided to investigate further. Fearing that the trio was armed, the officer believed that "direct action" was necessary. He approached the group, identified himself as a police officer, and asked them to identify themselves. When Terry mumbled something, the officer grabbed him, spun him around to face the other two suspects, patted the outside of Terry's clothing, and found a pistol. The officer's actions would change law enforcement tactics and constitutional law forever.
Id.
Id. at 6-7, 88 S.Ct. 1868.
Id . at 7, 88 S.Ct. 1868.
Terry's challenge to the seizure of the pistol eventually reached the Supreme Court of the United States, which addressed the "narrow question" of "whether it is always unreasonable for a policeman to seize a person and subject him to a limited search for weapons unless there is probable cause for an arrest." The question presented the Court with two competing interests. On one hand, the Court recognized, law enforcement officials must have flexibility in order to address the "rapidly unfolding and often dangerous situations on city streets." On the other hand, the "traditional jurisprudence of the Fourth Amendment" strictly circumscribed police authority, and previously had imposed "a severe requirement of specific justification for any intrusion" upon a person's protected privacy interests. The Court sought to strike a balance between these two important interests.
Id. at 15, 88 S.Ct. 1868.
Id. at 10, 88 S.Ct. 1868.
Id. at 11, 88 S.Ct. 1868.
The Court "emphatically reject[ed]" the notion that the stop and frisk at issue did not rise to the level of a seizure for Fourth Amendment purposes. To the contrary, the Court emphasized, even a brief, investigative detention "is a serious intrusion upon the sanctity of the person, which may inflict great indignity and arouse strong resentment." However, that an investigatory detention constituted a seizure did not mean that the officer first had to obtain a search warrant. This newly sanctioned type of police conduct differed significantly from that which traditionally had been subject to the warrant requirement. Such unplanned investigative detentions were an "entire rubric of police conduct—necessarily swift action predicated upon the on-the-spot observations of the officer on the beat—which historically has not been, and as a practical matter could not be, subjected to the warrant procedure." Thus, the Court explained, the "conduct involved in this case must be tested by the Fourth Amendment's general proscription against unreasonable searches and seizures," not against the warrant requirement.
Id. at 16, 88 S.Ct. 1868.
Id. at 17, 88 S.Ct. 1868.
Id. at 20, 88 S.Ct. 1868.
Id.
For a detention predicated upon something less than probable cause to be reasonable, the Court ruled, a law enforcement officer must be able to "point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion." The Court further explained that judges must assess those facts "against an objective standard: would the facts available to the officer at the moment of the seizure or the search warrant a man of reasonable caution in the belief that the action taken was appropriate?"
Id. at 21, 88 S.Ct. 1868 (footnote omitted).
Id. at 21-22, 88 S.Ct. 1868 (internal quotation marks, citations, and footnote omitted).
After identifying and evaluating the interests on both sides of the case, i.e. , the needs of law enforcement in addressing evolving and dangerous situations versus the privacy interests of individuals, the Court concluded that the "proper balance" of those interests required the recognition of a "narrowly drawn authority to permit a reasonable search for weapons for the protection of the police officer, where he has reason to believe that he is dealing with an armed and dangerous individual, regardless of whether he has probable cause to arrest the individual for a crime." Thus, the Terry stop and frisk was born.
Id. at 27, 88 S.Ct. 1868.
Given its familiarity in modern police practice, it is all too easy to forget that Terry created an exception to the Fourth Amendment's requirements. Terry is not the general rule. It is even easier to overlook the fact that the Supreme Court steadfastly "has been careful to maintain" the exception's "narrow scope." Indeed, Terry ’s "application of [a] balancing test led the Court to approve this narrowly defined less intrusive seizure on grounds less rigorous than probable cause, but only for the purpose of a pat-down for weapons." It is precisely because of the limited applicability of this "narrowly defined" seizure that the OISA correctly recognizes that Terry stops exist for the purposes of confirming or dispelling criminal suspicions, not for identification of potential victims of a crime or interrogation of potential witnesses. The Supreme Court has made it abundantly clear that Terry stops pass constitutional muster only when "criminal activity may be afoot," or, stated otherwise, when the objective circumstances indicate that "the person stopped is, or is about to be, engaged in criminal activity." Investigative detentions are a " sui generis rubric of police conduct" enabling a pat down for weapons while police officers conduct a brief investigation into suspected criminal activity. They are not boundless law enforcement tools to be deployed at the whim or convenience of a police officer.
See Ybarra v. Illinois , 444 U.S. 85, 93, 100 S.Ct. 338, 62 L.Ed.2d 238 (1979) (explaining that "[t]he Terry case created an exception to the requirement of probable cause"); Dunaway , 442 U.S. at 208-09, 99 S.Ct. 2248 (" Terry for the first time recognized an exception to the requirement that Fourth Amendment seizures of persons must be based on probable cause."); id. at 210, 99 S.Ct. 2248 ("Because Terry involved an exception to the general rule requiring probable cause, this Court has been careful to maintain its narrow scope.").
Ybarra , 444 U.S. at 93, 100 S.Ct. 338 (quoting Dunaway , 442 U.S. at 210, 99 S.Ct. 2248 ).
Dunaway , 442 U.S. at 210, 99 S.Ct. 2248 (emphasis added).
See OISA at 750 ("[W]e examine the totality of the circumstances at issue to determine whether there were particularized and objective grounds upon which to suspect that the individual detained was, or was about to be engaged in criminal activity .") (emphasis added).
Terry , 392 U.S. at 30, 88 S.Ct. 1868.
United States v. Cortez , 449 U.S. 411, 417, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981) (citations omitted).
Dunaway , 442 U.S. at 209, 99 S.Ct. 2248 (citations and quotation marks omitted).
See Brown v. Texas , 443 U.S. 47, 99 S.Ct. 2637, 61 L.Ed.2d 357 (1979) (limiting Terry stops to situations in which a suspect "engaged or had engaged in criminal conduct").
In Commonwealth v. Bryant , our Superior Court pushed Terry far beyond its intended limits. There, a police officer heard six gunshots and saw three men running from the general vicinity whence the shots had originated. As the three men rounded a corner and emerged onto a street, the officer noticed that no one else on that well-populated street was running. The officer pursued the three men and conducted a Terry stop, during which the officer found narcotics in Bryant's front pants pocket.
866 A.2d 1143 (Pa. Super. 2005).
Id. at 1144-45.
Id. at 1145.
The Superior Court held that the officer possessed reasonable suspicion to stop Bryant because he "could have concluded reasonably that [Bryant] was a perpetrator, victim , or eyewitness of a possible shooting." The Supreme Court of the United States has never endorsed such sweeping police authority. Nor has this Court. To do so would transform Terry from the narrow, sui generis exception into a limitless power that threatens to strip the constitutionally protected privacy rights of all persons who find themselves somewhere near an area in which a suspected crime has occurred.
Id. at 1147 (emphasis added).
Professor Wayne R. LaFave, who some call the "reigning expert on the law of search and seizure," Wayne R. LaFave, Search and Seizure: A Treatise on the Fourth Amendment , 4 Search & Seizure § 9.2 n.a0 (6th ed.), explains that, although Terry stops originally were permissible for the purpose of preventing crime, the exception has been extended to allow stops for the purposes of crime investigation and detection. Id. § 9.2(a) The Supreme Court of the United States has not yet extended Terry any further. Professor LaFave notes, however, that it might be "sensible" to permit Terry stops to freeze a possible scene and to ascertain a person's identity, or to determine if that person has "knowledge of material aid" in the investigation. Id. § 9.2(b) (citing the Model Code of Pre-Arraignment Procedure § 110.2(1)(b)(1975)). Neither the Supreme Court of the United States nor this Court ever has endorsed such an expansive use of Terry stops.
The OISA rightly rejects the Superior Court's reliance upon Bryant in this case. But the OISA would not go far enough. Rather than merely "disapprov[ing] of the Superior Court's decision" that "permits a police officer to detain an individual that merely has ‘more information’ about or a ‘connection to" a criminal event," I would expressly overrule this aspect of Bryant . As evidenced by the Superior Court's continued reliance upon that case, Bryant is no mere harmless misstatement of the law. That court is invoking Bryant ’s unsupportable—and unconstitutional—premise as a substantive legal basis to uphold seizures that, as I discuss below, are not otherwise supported by the necessary reasonable suspicion. This error must be corrected. Even though Jackson does not make a serious push to have Bryant overruled, his silence is no impediment to our ability to excise from the law books a case that serves no legitimate purpose and causes serious constitutional harm to boot. We recently have acknowledged that a "precedent may be so questionable as to warrant overruling even when the parties have not raised the point." Bryant is one of those glaring mistakes that must be overruled before it can do any more damage to the constitutional rights of Pennsylvanians. While the OISA's "disapproval" of Bryant is a step in the right direction, a complete and final repudiation is necessary in order to ensure that the Superior Court's problematic ruling is never again used to justify an invalid Terry stop.
OISA at 754 (quoting Commonwealth v. Jackson , 271 A.3d 461, 464-65 (Pa. Super. 2021) ).
Commonwealth v. Alexander , 664 Pa. 145, 243 A.3d 177, 196 (2020) (citation omitted). See also Commonwealth v. Ortiz , 649 Pa. 547, 197 A.3d 256, 262 (2018) (Wecht, J., dissenting):
As I have explained in the past, both for the Court and individually, [that a party has not expressly asked that a precedent be overruled] should not be a categorical impediment to overruling indefensible, unsustainable, or conflicting case law. See William Penn Sch. Dist. v. Pennsylvania Dep't of Educ. , 642 Pa. 236, 170 A.3d 414, 447 n.49 (2017) ("We would encourage the perpetuation of poorly reasoned precedent were we to permit ourselves to revisit the soundness of our case law only when expressly invited to do so based upon a given party's tactical decision of whether to attack adverse case law frontally ... or to attempt more finely to distinguish the adverse decisions. The scope of our review is not so circumscribed."); accord , Commonwealth v. Cagey , 645 Pa. 268, 179 A.3d 458, 473 n.7 (2018) (Wecht, J., concurring).
Id. at 262 n.1 (citations modified).
Nonetheless, up to this point in its analysis, the OISA adheres to the Supreme Court's recurrent admonitions that Terry be treated as a narrow exception to the Fourth Amendment's general rule. All of that changes when the OISA turns to the question of whether reasonable suspicion existed in this case to detain Jackson. The OISA views the facts of this case in a highly elastic manner, so as to venture the assertion that somehow Jackson "connect[ed] himself to the criminal activity at issue." Although the OISA is correct that reasonable suspicion does not require "absolute certainty," and that, at times, and without any wrongdoing by law enforcement, detentions based upon reasonable suspicion may ensnare innocent people, it does not follow that the Constitution allows every stop that emanates from even the slightest whiff of criminal activity.
OISA at 750.
Id. at 750 (emphasis omitted).
Id. at 748–49 (citing Illinois v. Wardlow , 528 U.S. 119, 125-26, 120 S.Ct. 673, 145 L.Ed.2d 570 (2000) ).
While not quite as rigorous a standard as probable cause, reasonable suspicion requires more than simply a police officer (or a court) with a "hunch." An investigative detention must be "justified at its inception" with "specific and articulable facts" (and with the reasonable inferences that can be drawn from those facts) that warrant the belief that the detainee is involved in criminal activity. Typically, the determination of reasonable suspicion happens on the street during rapidly evolving circumstances. For this reason, courts cannot demand "scientific certainty," and instead must rely upon the detaining officer's "common sense judgments and inferences about human behavior." However, "in making such judgments and drawing such inferences, officers must weigh the totality of the circumstances," including "the presence of additional facts [that] might dispel reasonable suspicion."
Kansas v. Glover , ––– U.S. ––––, 140 S. Ct. 1183, 1188, 206 L.Ed.2d 412 (2020) (explaining that reasonable suspicion always has been a "less demanding" standard that "can be established with information that is different in quantity or content than that required to establish probable cause") (quoting Alabama v. White , 496 U.S. 325, 330, 110 S.Ct. 2412, 110 L.Ed.2d 301 (1990) ).
Id. at 1187 (emphasizing that a "mere hunch does not create reasonable suspicion") (quoting Prado Navarette v. California , 572 U.S. 393, 397, 134 S.Ct. 1683, 188 L.Ed.2d 680 (2014) (some quotation marks omitted)).
Terry , 392 U.S. at 20, 21, 88 S.Ct. 1868.
Wardlow , 528 U.S. at 125, 120 S.Ct. 673.
Glover , 140 S. Ct. at 1191 ; see also Interest of T.W. , ––– Pa. ––––, 261 A.3d 409, 429 (2021) (Dougherty, J., concurring).
There is no dispute that the gunshots heard by Officer Swinarski in this case gave rise to a reasonable suspicion that a crime had been committed. As the OISA notes, in Philadelphia, the sound of gunfire within city limits presents compelling evidence of, at the very least, a violation of the City's no-discharge ordinance, even setting aside the possibility of a violent crime in progress. However, the mere presence of criminal activity does not provide law enforcement officers carte blanche authority to detain anyone near the scene of that activity. There must also exist a reasonable suspicion that the person sought to be detained was involved in that criminal activity. As this Court explained in Commonwealth v. Hicks , "[t]he individualized nature of the justification for the seizure is central to the Terry doctrine, inherent in the requirement that an investigative detention must be premised upon specific and articulable facts particular to the detained individual." And, as always, in reviewing whether the officer was justified in detaining a particular individual, we must evaluate the totality of the circumstances.
See OISA at 750, n.15. Although I agree with the OISA that the sound of gunfire is sufficient evidence of criminal activity in this case, it is critical to highlight that this will not always be the case. For instance, rural areas or smaller towns might not share the strict regulations that may prevail in urban areas. Alternatively, the sounds of gunfire might emanate from a nearby shooting range or from hunting grounds. The point is that gunfire should not, ipso facto , be treated as evidence of criminality in all instances. Like all assessments of reasonable suspicion, the totality of the circumstances must be considered, and that includes the circumstances surrounding the gunfire, such as time, location, and local regulations. Not all sounds of gunfire are the same.
652 Pa. 353, 208 A.3d 916, 938 (2019).
Id. at 927 (citing Cortez , 449 U.S. at 417-18, 101 S.Ct. 690 ).
With regard to the facts that we may review in performing this totality assessment, our standard of review is well-settled. Because Jackson prevailed before the suppression court, we are bound by the suppression court's factual findings, so long as they are supported by the record, and we consider only those facts that support Jackson, as the prevailing party, and those of the Commonwealth that are uncontradicted. It was 8 o'clock at night in Philadelphia. Officer Swinarski was on patrol when he heard gunshots. The officer turned his cruiser around and headed in the direction of the shots. Notably, the location was not a "high crime area." Officer Swinarski saw Jackson running on a sidewalk. Jackson was not looking back. Jackson did not have a gun in either hand. He was not bleeding, limping, or otherwise displaying any signs of injury. His clothes were not tattered or torn so as to suggest he had been involved in any fight or struggle. He did not reverse course or change direction upon seeing the police officer. Instead, Jackson replied to Officer Swinarski when the officer asked why he was running. Jackson appears to have told Officer Swinarski the truth. Jackson said that he was "running from the gunshots." Suffering no obvious injuries, and presumably wanting to continue putting as much distance between himself and the gunshots, Jackson kept running, even though Officer Swinarski then chose to demand that Jackson stop. At precisely that moment, Jackson was seized for purposes of Article I, Section 8 of the Pennsylvania Constitution.
Commonwealth v. Yandamuri , 639 Pa. 100, 159 A.3d 503, 516 (2017) (citation omitted).
Commonwealth v. Mason , 665 Pa. 230, 247 A.3d 1070, 1080 (2021) (citing Commonwealth v. Brown , 606 Pa. 198, 996 A.2d 473, 476 (2010) ). The OISA gets the standard of review backwards. Rather than viewing the facts in favor of Jackson, the prevailing party below, the OISA instead employs a standard of review that emphasizes the Commonwealth's evidence. See OISA at 745 n.12 (quoting Commonwealth v. E.M. , 558 Pa. 16, 735 A.2d 654, 657 (1999) ). This is plainly erroneous. See Summers v. Certainteed Corp. , 606 Pa. 294, 997 A.2d 1152, 1160 (2010) (emphasizing that appellate courts must utilize the correct standard of review).
See Notes of Testimony ("N.T."), 2/11/2021, at 52 (suppression court ruling: "I do not find that this was a high-crime area. I don't believe evidence was on the record to support that determination. All we have here is an individual on the street, engaging in running, and he -- and with good reason because there had been shots fired."). As our jurisprudence currently stands, the location at which a police officer seizes a person matters. If it matters that some areas are "high crime areas," then, just as importantly, it has to matter that the area involved in this case is not a "high crime area." Thus, not only must we consider the trial court's rejection of Officer Swinarski's testimony regarding the character of the area as part of a totality of the circumstances assessment; we are bound by it.
Id. at 17.
See Commonwealth v. Jones , 474 Pa. 364, 378 A.2d 835, 839 (1977) (holding that a seizure occurs upon a command to stop from a police officer).
Considering all of these circumstances, I discern no error in the trial court's conclusion that reasonable suspicion was lacking to justify the seizure. None of these facts connect Jackson in any way to criminal activity. The only objectively reasonable conclusion that can be drawn from these facts is that Jackson was, as he stated, running away from the gunshots. Nothing about Jackson's behavior, or the police officer's observations of him, suggest that Jackson was the person that fired the shots minutes before, or that he was in any way involved in the shooting. The only reasonable inference that can be drawn from the officer's initial observation is that Jackson was near (not even at) the scene of a crime. It has long been the law of Pennsylvania that a person's presence at or near a crime scene, without more, is not evidence of that person's participation in that crime. Proximity may "have aroused speculation or suspicion on the officers’ part but [does] not meet the standard and quality of evidentiary proof required to satisfy the mandate of" our Constitution.
See Commonwealth v. Goslee , 427 Pa. 403, 234 A.2d 849, 851 (1967).
Id. (quoting Commonwealth v. One 1958 Plymouth Sedan (Plaza) , 418 Pa. 457, 211 A.2d 536, 540 (1965) ).
Nor did Jackson's decision not to stop after briefly responding to Officer Swinarski give rise to reasonable suspicion. The initial interaction between the officer and Jackson was a "mere encounter." As such, Jackson was not required to stop. Jackson was well within his constitutional rights to run right past the officer and continue his attempt to get away from the gunshots. Doing what our Constitutions permit is not evidence of criminal behavior; a person may not constitutionally be punished for exercising his rights. Jackson's failure to stop and converse further with the officer adds nothing to the reasonable suspicion calculus.
See Commonwealth v. Ellis , 541 Pa. 285, 662 A.2d 1043, 1047 (1995) (citing Florida v. Royer , 460 U.S. 491, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983) ; Florida v. Bostick , 501 U.S. 429, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991) ).
See generally Commonwealth v. Rivera , ––– Pa. ––––, 296 A.3d 1141, 1163–64 (2023) (Wecht, J., concurring) (explaining that constitutional rights are stripped of their force and meaning if a person is punished for exercising them).
Our task here is to review the totality of the circumstances, not just those facts or circumstances that might now suggest a link, however tenuous, to the criminal activity at issue. That totality necessarily includes "the presence of additional facts [that] might dispel reasonable suspicion." There are many such facts. Despite this constitutional command, the OISA disregards all of them. After hearing gunshots and seeing Jackson running, Officer Swinarski apparently had a hunch that Jackson was the shooter. Maybe the hunch was good. Maybe the hunch was bad. Either way, there was no evidence to elevate that hunch into a legally actionable level of suspicion. The officer did not see Jackson with a gun. Jackson was not covered in blood. Jackson made no incriminating statements, nor did he otherwise inculpate himself. He did not flee at the sight of the officer. These circumstances should have eliminated any hunch that Officer Swinarski may have harbored. The totality of the circumstances points to only one conclusion: Jackson was doing precisely what he said he was doing, running from gunshots. There is nothing criminal about that.
Glover , 140 S. Ct. at 1191 ; see also Interest of T.W. , ––– Pa. ––––, 261 A.3d 409, 429 (2021) (Dougherty, J., concurring).
In reaching the opposite conclusion, the OISA casts aside the fact that running from gunshots is a normal, indeed instinctive, human reaction. The OISA excludes this consideration because Jackson relies upon Officer Swinarski's testimony that he (the officer) also believed that running from gunshots is "normal." The OISA is correct that a law enforcement officer's subjective beliefs or intentions are irrelevant in a reasonable suspicion analysis. We are required to examine the facts and circumstances available to the officer at the time of the interaction objectively, not as the officer interpreted them in his mind. That does not mean that we must ignore a fact that also is objectively and obviously true, just because it is (unsurprisingly) consistent with the officer's subjective beliefs.
See OISA at 752–53 (quoting N.T., 2/11/2021, at 26, 30-31).
See Terry , 392 U.S. at 21, 88 S.Ct. 1868 (mandating that "it is imperative that the facts be judged against an objective standard").
While we are prohibited from including in our assessment specifically what Officer Swinarski believed constitutes "normal" behavior, we are not required to disregard the fact that, objectively , running from a dangerous situation (here, gunfire) is normal, rational, reasonable, and non-criminal behavior. Our review is not as circumscribed as the OISA makes it out to be. In fact, it is fair to say that it would be objectively abnormal for a person not to run from such a situation. If nothing more, the fact that Jackson's behavior conformed to what would constitute objectively normal behavior under the circumstances underscores the absence of facts or circumstances linking Jackson to the criminal activity. His behavior strongly suggests just the opposite.
Ultimately, the OISA rests its decision that reasonable suspicion existed in this case upon two circumstances, neither of which is convincing. First, the OISA emphasizes that Jackson was a " single individual " running from the gunshots. This emphasis is perplexing. The OISA fails to explain how or why Jackson's solitude is relevant to the reasonable suspicion calculus. It is objectively reasonable behavior for a civilian to run from the sound or sight of gunfire. For some unexplained reason, however, the OISA requires that a person who flees from a dangerous situation must first stop to find a partner or assemble a group, lest that person become a criminal suspect. The OISA offers no convincing rationale for this arbitrary and irrelevant distinction. I fail to discern how, without more, being alone or being with others makes any difference for purposes of reasonable suspicion, or how this case would have been any different if Jackson happened to be running alongside one or more others. Had Jackson been accompanied, would today's OISA rule that Officer Swinarski was bound to let them leave unimpeded because they were together instead of alone? Merely to put the question is to reveal the absurdity of the OISA's premise.
OISA at 750–51 (emphasis in original).
It is unsurprising that the OISA cannot cite a case from this Court to support its emphasis upon Jackson being unaccompanied in service of its reasonable suspicion determination. I know of no such case, nor has my research turned one up. The OISA's efforts must also have proved unavailing, because, for support of its holding, the OISA invokes two non-binding cases, one from Ohio, State v. Hairston , and one from our own Superior Court, Bryant , a case that the OISA disapproves. In any event, these cases do not stand for the proposition that a person's solitude alone contributes to reasonable suspicion. In fact, only one of the cases involved a person who was alone at the time of his apprehension.
See Koken v. Reliance Ins. Co., 586 Pa. 269, 893 A.2d 70, 83 (2006) (noting that decisions of our sister states are not binding on this Court); Marion v. Bryn Mawr Trust Co. , ––– Pa. ––––, 288 A.3d 76, 93 (2023) ("Finally, and in any case, it is axiomatic that Superior Court decisions and lower federal court cases do not bind this Court.").
156 Ohio St.3d 363, 126 N.E.3d 1132 (2019).
In Hairston , while on patrol, two police officers heard gunshots and immediately drove in the direction of the sounds. Within a minute of hearing the shots, the officers observed Hairston walking alone, talking on a cell phone. The officers immediately detained and frisked Hairston, finding a gun. The Ohio Supreme Court ultimately ruled that reasonable suspicion existed under those circumstances. In Bryant , however, when police officers heard six gunshots and proceeded to the area from which the sounds emanated, they saw two males running in a high-crime area on a crowded street upon which no one else was running. It is troubling that the OISA finds it pertinent to the existence of reasonable suspicion in this case that Jackson was alone, notwithstanding the fact that the cases which the OISA cites provide no support for that proposition. Indeed, Hairston involved only one person, while Bryant involved two.
Id. at 1135.
Id. at 1136.
Bryant , 866 A.2d at 1144-45.
Second, the OISA stresses the fact that Jackson did not seek Officer Swinarski's aid or protection as he ran away from the gunshots. This factor fares no better in the analysis than the first. The OISA does not explain convincingly how this leads to the conclusion that Jackson was involved in the criminal activity, does not provide any onpoint, binding cases that stand for this dubious contention, and does not demonstrate that the cases upon which it does rely— Hairston and Bryant —warrant finding relevance in this fact. An objectively reasonable person fleeing from a dangerous, active shooter might well decide in the moment that putting as much distance as possible between himself or herself and the shooter is the safest option. Others might decide instead that stopping to seek assistance from a police officer might be the safest option. There is no reason to believe, and the OISA offers none, that a person's choice of one course of action over the other implicates that person in criminal activity. There is nothing inherently criminal or suspicious about Jackson's decision not to stop and ask Officer Swinarski for help.
Not only do Hairston and Bryant fail to support the two primary bases for the OISA's conclusion; both cases are also readily distinguishable and non-binding. Start with Hairston . It is a crucial, if not determinative, distinction that the detention in that case occurred in a high-crime area, whereas the area in which Jackson was apprehended was not. Hairston was found walking from the scene talking on a cellular phone less than a minute after the shooting. Jackson, on the other hand, was running from the area and told Officer Swinarski that he was fleeing from gunshots.
See supra n.61.
Hairston , 126 N.E. 3d at 1136.
Aside from the sound of gunshots, there is little in common between Hairston and this case, and certainly not enough to incorporate that non-binding Ohio decision into our own case law. In addition to Hairston ’s factual dissimilarities, I would assign no legal value to its rationale. Neither the OISA nor the Ohio Supreme Court explains how the objectively innocuous behavior of walking down a street while talking on a phone is in any way indicative of being involved in criminal conduct. The result of Hairston , and of today's decision, is to create a bubble of presumptive criminality that allows police to detain anyone within the proximity of a shooting, regardless of the objective reasonableness of the citizen's behavior or how little that behavior demonstrates involvement in criminal activity. We should reject Hairston outright, not welcome it with open arms.
Bryant is even more dissimilar—and just as non-binding—as Hairston . In Bryant , two men were seen rounding a corner in a high-crime area shortly after gunshots rang out. They were the only two people running on a crowded street immediately after the shots were heard. Their disparate behavior relative to the others on the street reasonably raised the police officers’ suspicions. Nothing like that occurred here. Jackson was not the sole runner amidst a crowd of non-runners. He was the only person on the street, and he did nothing objectively to indicate that he was involved in the shooting. Even if we were bound by the Superior Court's decision in Bryant (which, of course, we are not), it would compel no particular conclusion, as the facts of that case differ significantly from those in the record before this Court.
The impact of today's decision cannot be overstated. The sad reality is that mass shootings are now endemic, and perhaps epidemic, in our society. There are shootings at shopping malls, supermarkets, schools, movie theaters, and day care facilities. All persons fleeing from those attacks now are in danger of having their privacies invaded unless they happen to satisfy the heretofore unstated, arbitrary criteria that might satisfy today's OISA. Terry was never intended to apply in this manner. Terry stops were meant to be focused, limited, individualized detentions that are brief in duration and narrow in scope. Terry did not validate what today's OISA would approve. Rather than demanding the specific and articulable individual grounds necessary to justify the "serious intrusion upon the sanctity of the person [that] may inflict great indignity and arouse strong resentment," the OISA accepts artificial and legally untethered conjectures and hunches.
Unsurprisingly, given its inability to connect what happened in this case to any reasonable criminal suspicion, the OISA provides little substantive retort to my criticism of its conclusions. Instead, the OISA chooses to tilt at the hypothetical with which I began this opinion. Here again, the OISA misses the mark. The purpose of such a rhetorical device is not to spin a good yarn. The purpose is to show just how far the OISA analysis would reach. Thus, while the OISA labors to distinguish my opening scenario, the fact remains that, distilled to its essence, the case before this Court involves an identical set of core facts: the sound of gunshots, a police officer lacking any knowledge of who fired the shots, and a person running alone from the vicinity whence those shots emanated, without asking for help. Those facts are indistinguishable from the present case. The OISA cannot (and does not) explain why Jackson is a criminal suspect, while the "you" in my opening hypothetical is not.
The OISA shrugs off the obvious parallels between my hypothetical diner and Jackson by leaning once again upon the "axiomatic" feature of the law that "entirely innocent people may be caught up in a Terry stop." It is one thing when an innocent person is seized by police officers who possess a constitutionally adequate level of reasonable suspicion. It is a different thing entirely to facilitate seizures of innocent people by refusing to hold police to the Terry standard. And that is where the OISA would now take us.
OISA at 755.
The sound of gunshots induces immediate and instinctive fear and anxiety. Unlike soldiers and police officers, civilians do, and should, run from those sounds. After today, such instinctive flight turns citizens into criminal suspects. The OISA's protestations notwithstanding, that result is far more broad than what Terry , the Fourth Amendment, and Article I, Section 8 of the Pennsylvania Constitution permit.
Id. at 755–56 n.18.
Justice Donohue joins this opinion in support of reversal.