Commonwealth v. Hicks, M., Aplt.

                                   [J-86-2018]
                    IN THE SUPREME COURT OF PENNSYLVANIA
                                MIDDLE DISTRICT

   SAYLOR, C.J., BAER, TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY, JJ.


 COMMONWEALTH OF PENNSYLVANIA,                  :   No. 56 MAP 2017
                                                :
                      Appellee                  :   Appeal from the Order of the Superior
                                                :   Court dated March 29, 2017 at No.
                                                :   510 EDA 2016 Affirming Judgment of
               v.                               :   Sentence from the Lehigh County
                                                :   Court of Common Pleas, Criminal
                                                :   Division, dated January 11, 2016 at
 MICHAEL J. HICKS,                              :   No. CP-39-CR-0005692-2014.
                                                :
                      Appellant                 :   ARGUED: December 4, 2018


                                         OPINION


JUSTICE WECHT                                                   DECIDED: May 31, 2019
       In a line of Fourth Amendment jurisprudence that began with the landmark decision

in Terry v. Ohio, 

 (1968), the Supreme Court of the United States has approved

of “stop and frisk” practices as a limited departure from the requirement of probable cause

and the necessity of warrants for searches and seizures. A cornerstone of modern law

enforcement methods, “stop and frisk” is a practical tool designed to encourage the

effective investigation and prevention of crime, while maintaining a balance between the

constitutionally protected privacy interests of the individual and the needs and safety of

law enforcement personnel.        Only two conditions must be satisfied to validate the

practice—one to justify the “stop,” and another to allow a “frisk.”

       First, the investigatory stop must be lawful. That requirement is met in an
       on-the-street encounter, Terry determined, when the police officer
       reasonably suspects that the person apprehended is committing or has
       committed a criminal offense. Second, to proceed from a stop to a frisk, the
       police officer must reasonably suspect that the person stopped is armed
       and dangerous.


Arizona v. Johnson, 

 (2009).

       Since 1991, in circumstances where a police officer encounters a person carrying

a concealed firearm, our Superior Court has applied the inverse of this bedrock rule.

Specifically, in Commonwealth v. Robinson, 

 (Pa. Super. 1991), the Superior

Court held that the “possession of a concealed firearm by an individual in public is

sufficient to create a reasonable suspicion that the individual may be dangerous, such

that an officer can approach the individual and briefly detain him in order to investigate

whether the person is properly licensed.” 

 (hereinafter, the “Robinson rule”).1

In the instant case, the Superior Court applied the Robinson rule to deem lawful the

seizure of an individual based solely upon his possession of a concealed handgun, even

though he was licensed in Pennsylvania to carry a firearm in such a manner.

       We granted allowance of appeal in order to consider the viability of the Robinson

rule. Because we conclude that the rule contravenes the requirements of the Terry

doctrine, and thus subverts the fundamental protections of the Fourth Amendment, we

overrule Robinson and its progeny. The Superior Court’s decision in the instant case

having descended from Robinson’s erroneous proposition of law, and there being no

other lawful basis for the seizure at issue, we reverse the order of the Superior Court.

I.     Background

       Although we will revisit the circumstances of this case in greater detail to apply the

correct rule of law, infra Part III, a brief summary of the facts found by the suppression


1     See also Commonwealth v. Mason, 

 (Pa. Super. 2015);
Commonwealth v. Hall, 

 (Pa. Super. 2007); Commonwealth v.
Stevenson, 

 (Pa. Super. 2006). The Superior Court also has applied
the Robinson rule in numerous unpublished decisions, including the instant case.


                                      [J-86-2018] - 2
court sets the stage for the lower courts’ application of the Robinson rule. On June 28,

2014, at approximately 2:30 a.m., a remote camera operator conducting live surveillance

of a gas station and convenience store in the City of Allentown notified police officers that

a patron of the establishment was in possession of a firearm.             According to the

suppression court’s factual recitation, the “camera operator advised officers that the

[observed individual] showed the firearm to another patron, put the firearm in his

waistband, covered it with his shirt, and walked inside” the convenience store. Order,

9/18/2015, at 1 n.1.2

       The observed individual was Michael Hicks. It later emerged that Hicks possessed

a valid license to carry a concealed firearm. See 18 Pa.C.S. § 6109(a) (“A license to carry

a firearm shall be for the purpose of carrying a firearm concealed on or about one’s person

or in a vehicle throughout this Commonwealth.”). Hicks was not statutorily prohibited from

possessing a firearm. Accordingly, on the morning in question, and at the observed

location, there was nothing unlawful about Hicks’ possession of his handgun, nor the

manner in which he carried it.

       While responding police officers were en route, Hicks entered and exited the

convenience store, then reentered his vehicle. Before Hicks could exit the parking lot,

numerous police officers in marked vehicles intercepted and stopped Hicks’ vehicle.

Believing that Hicks had moved his hands around inside the vehicle, Officer Ryan Alles

drew his service weapon as he approached Hicks’ vehicle and ordered Hicks to keep his

hands up. Officer Kyle Pammer, arriving at the vehicle moments after Officer Alles,

restrained Hicks’ arms while Officer Alles reached into the vehicle and retrieved Hicks’

2     Although the suppression court found that the police officers received information
that Hicks “showed” the firearm to the other patron, the officer who testified at the
suppression hearing repeatedly stated that the dispatch advised officers that the suspect
was “brandishing” a firearm—a term with a distinct connotation. See Notes of Testimony,
7/14/2015, at 6-7, 15. We address this incongruity at greater length below, infra Part III.


                                      [J-86-2018] - 3
handgun from a holster on his waistband. Hicks “was removed from the vehicle for safety

reasons and handcuffed.” Order, 9/18/2015, at 2 n.1. At that point, the officers noticed

the odor of an alcoholic beverage emanating from Hicks. The officers then searched

Hicks’ person and, in his pocket, discovered a bag that contained a small amount of

marijuana.

       Upon further investigation, the officers determined that Hicks was licensed to carry

a concealed firearm. Accordingly, Hicks was not charged with any crime relating to the

firearm, nor with any crime relating to the other patron, to whom Hicks “showed” the

firearm. Order, 9/18/2015, at 1 n.1. However, having discovered evidence of Hicks’

suspected intoxication and possession of marijuana, the police officers arrested Hicks

and charged him with driving under the influence of alcohol (“DUI”)—high rate of alcohol

(second offense), DUI—general impairment (second offense), possession of a small

amount of marijuana, and disorderly conduct, graded as a third-degree misdemeanor.3

       On April 15, 2015, Hicks filed an omnibus pre-trial motion seeking suppression of

the evidence and a writ of habeas corpus, the latter motion requesting dismissal of the

disorderly conduct charge due to the absence of any evidence establishing the elements

of that crime. Following a hearing on Hicks’ motion on July 14, 2015, the court granted

Hicks’ motion for a writ of habeas corpus and dismissed the charge of disorderly conduct,

finding that there “was no evidence presented that [Hicks’] actions were intended to cause

substantial harm or serious inconvenience, or that he persisted in disorderly conduct after

reasonable warning or request to desist.” Order, 9/18/2015, at 2 n.2. However, the court

denied Hicks’ motion to suppress, reasoning as follows:

       “In limited circumstances, an individual may be stopped, briefly detained,
       and frisked for investigatory purposes.” [Robinson, 

].

3     See 75 Pa.C.S. § 3802(b); 75 Pa.C.S. § 3802(a)(1); 35 P.S. § 780-113(a)(31); 18
Pa.C.S. § 5503(a)(4), respectively.


                                     [J-86-2018] - 4
       Possession of a concealed weapon in public creates a reasonable suspicion
       justifying an investigatory stop in order to investigate whether the person is
       properly licensed. Id. (holding recognized by Commonwealth v. Hall, 

 (Pa. Super. 2007)). Here, the police had information that
       [Hicks] was carrying a concealed weapon, and were justified in briefly
       detaining [Hicks] in order to determine whether [he] was properly licensed.
       As officers approached [Hicks], he moved his hands towards his waistband.
       This provided additional information to justify the brief detention of [Hicks]
       in order to investigate further. Under these circumstances, the stop and
       detention of [Hicks] was justified, and suppression is not warranted.

 at 2 n.1. Although the suppression court placed some degree of weight upon the

testimony indicating that Hicks had moved his hands inside the car, the court clearly

opined that the detention was justified prior to that observation, based solely upon the

Robinson rule. Simply stated, the suppression court concluded that, under Robinson, it

was lawful for police officers to seize Hicks immediately upon learning that Hicks

possessed a concealed firearm in public.

       Hicks proceeded to a non-jury trial. The court found Hicks guilty of one DUI count,

and acquitted him of the remaining charges.          Hicks was sentenced to a term of

incarceration of thirty days to six months and was assessed a monetary fine.

       The Superior Court affirmed Hicks’ judgment of sentence. See Commonwealth v.

Hicks, 510 EDA 2016, 

 (Pa. Super. Mar. 29, 2017) (unpublished). The

court rejected Hicks’ argument that the immediate and forcible nature of his seizure

amounted to a custodial arrest rather than an investigative detention, concluding instead

that the officers had authority to use physical coercion to advance their investigation of

the information received through the dispatch.       As for the existence of reasonable

suspicion justifying that investigative detention, the Superior Court, unlike the suppression

court, referred to Officer Pammer’s testimony, wherein he asserted that the dispatch

advised the officers that Hicks had “brandished” a firearm. See supra n.2. However, the

Superior Court did not conclude that the purported “brandishing” established reasonable



                                      [J-86-2018] - 5
suspicion that a violent crime might be in progress, or that someone might be in imminent

danger. Rather, like the suppression court, the Superior Court relied exclusively upon the

Robinson rule, as applied in Commonwealth v. Mason, 

 (Pa. Super.

2015). The Superior Court held that “[p]ossession of a concealed firearm in public is

sufficient to create a reasonable suspicion that the individual may be dangerous, such

that an officer can approach the individual and briefly detain him in order to investigate

whether the person is properly licensed.” Hicks, 

, at *4 (quoting Mason,

). “Thus,” the Superior Court concluded, “the [suppression] court properly

ascertained whether officers had a reasonable suspicion that Hicks possessed a

concealed firearm in public.” 

       Having determined that Hicks’ initial detention was lawful because he possessed

a concealed firearm, the Superior Court concluded that the remainder of the officers’

conduct was justified. The officers’ actions in removing Hicks from his vehicle and

handcuffing him, the Superior Court held, were “reasonably necessary to ‘freeze the

status quo,’ prevent Hicks from leaving the scene ‘in order to ascertain his identity and

gather additional information,’ and to protect the officers’ personal safety.” 

 (brackets

omitted; citing United States v. Hensley, 

 (1985); In re D.M., 

 (Pa. 1999)). Only then, during the course of the purportedly lawful encounter,

did the officers notice an odor of alcohol. Accordingly, the Superior Court opined, “the

stop was supported by the requisite reasonable suspicion of criminal activity.” 

       Hicks sought allowance of appeal in this Court, which we granted in order to

consider whether the Superior Court’s continued application of the Robinson rule

comports with the requirements of the Fourth Amendment.4            Although our analysis

4     Adopting Hicks’ phrasing of the question, we granted allowance of appeal to
determine:



                                      [J-86-2018] - 6
requires us to consider Pennsylvania’s statutory law regarding the possession and

carrying of firearms, our polestar is the Fourth Amendment doctrine upon which the

Robinson rule ostensibly is premised—the law of Terry v. Ohio and its progeny.

II.    Analysis

       A.     Governing Law

       Hicks’ claim sounds in the protection from unlawful searches and seizures

guaranteed by the Fourth Amendment to the United States Constitution, made applicable

to the States through the Fourteenth Amendment, and by Article I, Section 8, of the

Pennsylvania Constitution.5 The Fourth Amendment 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.




       Whether the Superior Court’s bright line rule holding that possession of a
       concealed firearm in public is sufficient to create reasonable suspicion is a
       matter of such substantial public importance as to require prompt and
       definitive resolution by the Pennsylvania Supreme Court?
Commonwealth v. Hicks, 

 (Pa. 2017) (per curiam).
5       Hicks also invokes his constitutional right to keep and bear arms, guaranteed
under the Second Amendment to the United States Constitution and Article I, Section 21
of the Pennsylvania Constitution. See U.S. CONST. amend. II (“A well-regulated Militia,
being necessary to the security of a free State, the right of the people to keep and bear
Arms, shall not be infringed.”); PA. CONST. art. I, § 21 (“The right of the citizens to bear
arms in defence of themselves and the State shall not be questioned.”). Although the
right to keep and bear arms serves as an important conceptual backdrop to numerous
legal issues surrounding firearms and the enforcement of the criminal law, our analysis
will not focus upon the contours of that right. The issue presented is one of law
enforcement practice, and the constitutional right at issue is the freedom from
unreasonable, warrantless seizure of the person for purposes of criminal investigation.
As such, this case is governed by the Fourth Amendment’s Terry doctrine, not by the right
to keep and bear arms.


                                      [J-86-2018] - 7
U.S. CONST. amend. IV. Pennsylvania’s constitutional provision, similar in its phrasing

but distinct in the nature and scope of its protections, provides:

       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.


PA. CONST. art. I, § 8.    Although it is beyond cavil that Article I, Section 8, of the

Pennsylvania Constitution provides broader protection from unreasonable searches and

seizures than its federal counterpart, see generally Commonwealth v. Edmunds, 

 (Pa. 1991), this Court long has held that the Terry doctrine “sets forth the

reasonableness standard for Article I, § 8 of the Pennsylvania Constitution.”

Commonwealth v. Brown, 

 (Pa. 2010); see Commonwealth v. Jackson,

 (Pa. 1997) (noting that “Pennsylvania has always followed Terry in

stop and frisk cases”).     Accordingly, and because Hicks does not aver that our

Constitution compels a different result, we need not conduct separate analyses of the

applicable constitutional provisions.

       Our standard of review of an order denying suppression is well-settled:

       When we review the ruling of a suppression court we must determine
       whether the factual findings are supported by the record. When it is a
       defendant who has appealed, we must consider only the evidence of the
       prosecution and so much of the evidence for the defense as, fairly read in
       the context of the record as a whole, remains uncontradicted. Assuming
       that there is support in the record, we are bound by the facts as are found
       and we may reverse the suppression court only if the legal conclusions
       drawn from those facts are in error.


Jackson, 

 (quoting Commonwealth v. Cortez, 

 (Pa.

1985)). Although we will return to the suppression court’s factual findings in order to

resolve the instant appeal, our principal task is to review the lower courts’ application of



                                        [J-86-2018] - 8
the Robinson rule—treated as dispositive of the lawfulness of a seizure even absent any

other facts suggesting criminal activity. This is a pure question of law. “As an appellate

court, we are not bound by the suppression court’s conclusions of law; rather, when

reviewing questions of law, our standard of review is de novo and our scope of review is

plenary.” Commonwealth v. Wilmer, 

 (Pa. 2018).

       Because the conduct to which the Robinson rule applies is regulated and

authorized by statute, we begin with a brief review of the law relating to the carrying of

firearms in this Commonwealth. The statutes providing for the sale, transfer, possession,

and carrying of firearms are set forth in the Pennsylvania Uniform Firearms Act of 1995,

18 Pa.C.S. §§ 6101-27 (“UFA”).       In this Commonwealth, firearms lawfully may be

possessed by any individual not prohibited to do so under 18 Pa.C.S. § 6105 or otherwise

barred by federal law. With the exception of certain locations such as school property or

court facilities, where the possession of weapons is prohibited by statute, see, e.g., 18

Pa.C.S. §§ 912-13, firearms lawfully may be carried in public in all parts of Pennsylvania.

The manner of their carrying, however, is subject to certain statutory limitations and

licensing requirements.

       Except in Philadelphia, no license is required in order to carry a firearm openly on

one’s person. However, a county-issued license to carry a firearm is required for the

carrying of a firearm “in any vehicle” or “concealed on or about” one’s person, and carrying

in such a manner “without a valid and lawfully issued license” constitutes a criminal

offense, generally graded as a third-degree felony. 18 Pa.C.S. § 6106(a). The issuance

of a license to carry a firearm, of course, exempts an individual from the limitations of

Section 6106, and expressly authorizes the carrying of a firearm “concealed on or about

one’s person or in a vehicle throughout this Commonwealth.” 18 Pa.C.S. § 6109(a). A

license to carry a firearm further authorizes an individual to carry a firearm openly or




                                      [J-86-2018] - 9
concealed within the City of Philadelphia. 18 Pa.C.S. § 6108.6 Accordingly, “[i]n all parts

of Pennsylvania, persons who are licensed may carry concealed firearms.”

Commonwealth v. Hawkins, 

, 1071 n.4 (Pa. 1997) (plurality). Stated

otherwise, an individual licensed to carry a firearm may do so in public, openly or

concealed, within a vehicle or without, throughout every municipality in Pennsylvania.

      Under Pennsylvania law, there can be no doubt that a properly licensed individual

who carries a concealed firearm in public engages in lawful conduct. Indeed, millions of

people lawfully engage in this conduct on a daily basis, both within this Commonwealth

and across the nation.7 The Pennsylvania State Police reports that, in Pennsylvania,

237,344 licenses to carry firearms were issued in 2015; 300,565 were issued in 2016;

and 290,958 were issued in 2017.8




6      Consistent with the General Assembly’s reservation of the exclusive prerogative
to regulate firearms in this Commonwealth, codified at 18 Pa.C.S. § 6120, the additional
requirement that an individual possess a license in order to carry a firearm openly within
the City of Philadelphia is prescribed by statute, not by municipal ordinance. See 18
Pa.C.S. § 6108; see generally Ortiz v. Commonwealth, 

 (Pa. 1996).
7      See Royce de R. Barondes, Conditioning the Exercise of Firearms Rights On
Unlimited Terry Stops, 54 IDAHO L. REV. 297, 300 (2018) (hereinafter, “Barondes”)
(quoting Ali Rowhani-Rahbar et al., Loaded Handgun Carrying Among US Adults, 2015,
107 AM. J. PUB. HEALTH 1930, 1930 (2017)) (“The number of holders of concealed firearms
permits has grown explosively in recent years—according to a recent study, from ‘2.7
million in 1999 to 4.6 million in 2007, 11 million in 2014, and 14.5 million in 2016.’ The
study further reports ‘[O]ur findings suggest that nearly 9 million [U.S.] adult handgun
owners carry loaded handguns monthly, approximately 3 million of whom do so every
day, and that most report protection as the primary reason for carrying regardless of
carrying frequency.’”).
8       See Pennsylvania State Police, Firearms Annual Report 2015, Appendix D;
Pennsylvania State Police, Firearms Annual Report 2016, Appendix D; Pennsylvania
State Police, Firearms Annual Report 2017, Appendix D. These reports are available at
https://www.psp.pa.gov/firearms-information/Pages/Firearms-Information.aspx     (last
visited January 23, 2019).



                                     [J-86-2018] - 10
       Bearing this in mind, we turn to the authority that the Robinson rule heretofore has

bestowed upon law enforcement with regard to individuals carrying concealed firearms,

including the hundreds of thousands of Pennsylvanians licensed to do so. The Robinson

rule envisions an encounter between a law enforcement officer and a private citizen that

is not authorized by a warrant embodying a neutral and detached magistrate’s

determination of probable cause for a search or seizure. Although not every interaction

between a citizen and a law enforcement officer implicates the Fourth Amendment, “[t]he

Fourth Amendment, of course, applies to all seizures of the person, including seizures

that involve only a brief detention short of a traditional arrest.” Brown v. Texas, 

 (1979) (internal quotation mark omitted).

       For purposes of the Fourth Amendment, a person is “seized” when, “in view of all

the circumstances surrounding the incident, a reasonable person would have believed

that he was not free to leave.” United States v. Mendenhall, 

 (1980).9

When a police officer “accosts an individual and restrains his freedom to walk away, he

has ‘seized’ that person.” Brown, 

 (quoting Terry, 

). In

assessing the impression that would be given to a reasonable person, a court must

determine “whether, taking into account all of the circumstances surrounding the

encounter, the police conduct would ‘have communicated to a reasonable person that he

was not at liberty to ignore the police presence and go about his business.’” Florida v.

Bostick, 

 (1991) (quoting Michigan v. Chesternut, 

(1988)).



9      The Mendenhall Court stressed that “[t]he purpose of the Fourth Amendment is
not to eliminate all contact between the police and the citizenry, but ‘to prevent arbitrary
and oppressive interference by enforcement officials with the privacy and personal
security of individuals.’” Mendenhall, 

-54 (quoting United States v.
Martinez-Fuerte, 

 (1976)).


                                     [J-86-2018] - 11
          As this Court frequently has noted, warrantless interactions between citizens and

police officers fall into three categories, distinguished one from another by consideration

of whether the citizen has been “seized” within the meaning of the Fourth Amendment,

the intrusiveness and extent of the seizure, and the justification therefor. The first type of

interaction—a mere encounter—does not constitute a seizure. It generally involves a

request for information and requires no particular suspicion of criminality because it

carries “no official compulsion to stop or to respond.” Commonwealth v. Ellis, 

 (Pa. 1995) (citing Florida v. Royer, 

 (1983); 

During a mere encounter, “[a]s long as the person to whom questions are put remains

free to disregard the questions and walk away, there has been no intrusion upon that

person’s liberty or privacy as would under the Constitution require some particularized

and objective justification.” Mendenhall, 

.

          We recognize only two types of lawful, warrantless seizures of the person, both of

which “require an appropriate showing of antecedent justification: first, an arrest based

upon probable cause; second, a ‘stop and frisk’ based upon reasonable suspicion.”

Commonwealth v. Melendez, 

 (Pa. 1996) (quoting Commonwealth v.

Rodriquez, 

 (Pa. 1992)). Here, we are concerned with this latter type

of seizure—interchangeably labeled an “investigative detention,” a “Terry stop,” or, when

coupled with a brief pat-down search for weapons on the suspect’s person, a “stop and

frisk.”

          “To maintain constitutional validity, an investigative detention must be supported

by a reasonable and articulable suspicion that the person seized is engaged in criminal

activity and may continue only so long as is necessary to confirm or dispel such

suspicion.” Commonwealth v. Strickler, 

 (Pa. 2000). The asserted

grounds for an investigative detention must be evaluated under the totality of the




                                       [J-86-2018] - 12
circumstances. See United States v. Cortez, 

 (1981). So long as

the initial detention is lawful, nothing precludes a police officer from acting upon the

fortuitous discovery of evidence suggesting a different crime than that initially

suspected—such as the odor of alcohol on the breath of a driver, as occurred in the

instant case.     However, an unjustified seizure immediately violates the Fourth

Amendment rights of the suspect, taints the evidence recovered thereby, and subjects

that evidence to the exclusionary rule. See, e.g., Melendez, 

.

       Although the Robinson rule ostensibly authorizes the ascertainment of an

individual’s licensing status, the encounter contemplated is not merely a request for

information that a citizen is entitled to ignore. Rather, the Robinson rule characterizes

the carrying of a concealed firearm as per se reasonable suspicion authorizing the use of

official force to seize an individual “in order to investigate whether the person is properly

licensed,” i.e., whether the person is committing a criminal offense under 18 Pa.C.S.

§ 6106. Robinson, 

. Thus, the encounter envisioned by the Robinson

rule is ostensibly an investigative detention, and, as such, a seizure governed by the

Fourth Amendment’s Terry doctrine.

       B.     The Parties’ Arguments

       Hicks contends that, because an investigative detention must be premised upon

reasonable suspicion of criminal activity, and because Pennsylvania law provides for the

lawful carrying of firearms, “mere possession of a weapon, concealed or otherwise, is not

‘criminal conduct,’ nor is it inherently indicative of criminal activity afoot.” Brief for Hicks

as 12. Hicks further argues that the Robinson rule not only misapplied the Terry doctrine,

but also reflected a misreading of the Superior Court’s opinion in Commonwealth v.

Mears, 

 (Pa. Super. 1981), and this Court’s opinion in Commonwealth v.




                                       [J-86-2018] - 13
Lagana, 

 (Pa. 1988). See Brief for Hicks at 13-15. In Hicks’ view, the

Robinson rule was flawed from its inception.

       Finally, Hicks argues that, without recourse to the erroneous Robinson rule, no

information available to the officers would allow for a finding of reasonable suspicion of

criminality. Rather, Hicks notes that, as confirmed by the camera operator’s video footage

and the police radio broadcasts (submitted into evidence at the suppression hearing as

Defense Exhibit 1 and 2, respectively), Hicks merely entered and exited a retail

establishment, got into his vehicle, and attempted to drive away. Brief for Hicks at 16.

Because none of this conduct gave rise to a reasonable suspicion that criminal activity

was afoot, Hicks asserts that the police officers’ seizure of his person violated the Fourth

Amendment and Article I, Section 8 of the Pennsylvania Constitution, and the evidence

that the officers derived from that seizure therefore must be suppressed.10

       The Commonwealth, by contrast, asserts that the per se approach of Robinson is

a justifiable application of the Terry doctrine. Although the Commonwealth does not

dispute the legality of carrying firearms in public throughout Pennsylvania, it emphasizes

that, under the totality of the circumstances, “wholly lawful conduct might justify the

suspicion that criminal activity [is] afoot.” Brief for Commonwealth at 5 (quoting Reid v.

Georgia, 

 (1980) (per curiam)). The Commonwealth further stresses

that the reasonable suspicion standard “does not deal with hard certainties, but with

probabilities.” 

 at 6 (quoting United States v. Cortez, 

 (1981)). The


10     Hicks’ position is supported by several amici curiae, including Members of the
Pennsylvania General Assembly, Firearms Owners Against Crime, the Firearms Policy
Coalition, and the Firearms Policy Foundation. Hicks’ amici argue that the Robinson rule
is contrary to this Court’s precedent and to the general teachings of the Supreme Court
of the United States’ Fourth Amendment jurisprudence. Amici further point to numerous
decisions of the courts of other states and federal appellate courts that have addressed
the specific question at issue here, and which have held that mere possession of a
concealed firearm provides no basis for an investigative detention.


                                     [J-86-2018] - 14
assessment of reasonable suspicion, the Commonwealth highlights, “must be based on

common[ ]sense.” 

 at 9 (quoting Illinois v. Wardlow, 

 (2000)). This

“common sense,” the Commonwealth posits, “would seem to prescribe . . . the fact that a

person is observed carrying a concealed weapon in public would warrant a simple request

by a police officer to determine whether or not the person is licensed.” 

       Reiterating its central premise regarding the potentially suspicious nature of lawful

conduct, the Commonwealth stresses that Terry, itself, involved “purely legal activity,” i.e.,

walking along a public street and peering through a store’s windows. Id. at 11. Although

this conduct was not ipso facto criminal, the facts of Terry gave rise to reasonable

suspicion that the individuals may have been “casing” the store in preparation for a

robbery. Similarly, the Commonwealth asserts:

       Notwithstanding that carrying a firearm is a legal act in Pennsylvania,
       common[ ]sense dictates where police are confronted with a person
       carrying a firearm concealed in his waistband and car while in public, an
       officer is not only justified, but duty bound to conduct a brief detention to
       ascertain that individual’s license to do so.


Id. (emphasis in original).

       Although several of this Court’s previous decisions have found no justification for

investigative detentions based upon anonymous reports of individuals in possession of

firearms, see Jackson, 

; Hawkins, 

 (plurality), the

Commonwealth attempts to distinguish those cases based upon the anonymous nature

of the tips at issue in those cases. See Brief for Commonwealth at 14-15. Finally, the

Commonwealth maintains that, even absent application of Robinson’s categorical

approach to concealed firearms, “there was additional information that serve[d] to bolster

the officers’ reasonable suspicion and justified their actions.” Id. at 16. The available

information, the Commonwealth asserts, was:




                                      [J-86-2018] - 15
       [A]t 3:00 a.m., police received information from the operator of a city owned
       surveillance camera that an individual at the Gulf Station displayed a firearm
       to another patron at the station, and that the person with the firearm was
       driving a silver Chev[rolet] Impala. The video from the camera clearly
       shows the firearm concealed in [Hicks’] waistband and that, despite the
       hour, there are a number of individuals at this location. Officer Pammer also
       testified that the Gulf Station is located in a high crime neighborhood, where
       police regularly receive calls regarding drug dealing, people with weapons
       and loitering.


Id. (citations to Notes of Testimony omitted).11

       C.     Discussion

              i.     This Court’s Precedent

       Although this Court has not addressed the sort of per se rule that Robinson

endorses, we have considered the existence of reasonable suspicion in the so-called



11      The Pennsylvania District Attorneys Association (“PDAA”) filed an amicus curiae
brief in support of the Commonwealth. Like the Commonwealth, the PDAA seeks to
distinguish previous decisions of this Court based upon the absence of an anonymous tip
in this case, and further disputes any reliance upon our plurality decision in Hawkins.
With regard to the validity of the Robinson rule under general Fourth Amendment
principles, however, the PDAA first opines that it is “eminently reasonable” for police
officers to “conduct a brief investigation” of individuals in possession of concealed
firearms “for the purpose of ascertaining that the individual is not unlawfully possessing
the firearm.” Amicus Brief for PDAA at 12. However, in apparent disagreement with the
argument advanced throughout the Commonwealth’s principal brief, PDAA then clarifies
that “it is not the position of your amicus that every person who is carrying a concealed
weapon must be interdicted and investigated, but when the facts known to the officer
support the belief that the person may be unlawfully possessing a concealed firearm, he
should be permitted to conduct the investigation.” Id. at 13.
Finally, PDAA asserts that, notwithstanding application of the Robinson rule, the seizure
of Hicks nonetheless was supported by reasonable suspicion of criminal activity. Like the
Commonwealth, PDAA focuses upon Hicks’ presence in a high crime area during earlymorning hours. PDAA additionally emphasizes its understanding that Hicks’ firearm was
concealed in his waistband without a holster, a fact that it asserts is “inconsistent with
lawful possession.” Id. at 14. However, this latter assertion of fact is wholly inaccurate,
as a plain reading of the suppression court’s findings of fact reveals that, during the
seizure, police officers “removed the firearm from a holster on [Hicks’] person.” Order,
9/18/2015, at 2 n.1 (emphasis added).


                                     [J-86-2018] - 16
“man with a gun” scenario, in which police receive a report from an anonymous source

that there is an armed individual at a given location. In light of the parties’ disparate views

of this Court’s earlier precedents, the most natural place to begin our analysis is this

Court’s decision in Lagana—a case of particular relevance to the question presented

here, in that the Robinson court reasoned that its per se approach to concealed firearms

was merely an express articulation of what it viewed as the “implicit foundation” of Lagana.

See Robinson, 

 (“The implicit foundation of . . . Lagana is that possession

of a concealed firearm by an individual in public is sufficient to create a reasonable

suspicion that the individual may be dangerous, such that an officer can approach the

individual and briefly detain him in order to investigate whether the person is properly

licensed.”).

       In Lagana, this Court held that an investigative detention was supported by

reasonable suspicion of criminal activity where the police received an anonymous report

of an armed individual wearing a yellow raincoat at a specified location and, upon their

arrival, officers observed an individual matching the description who was “casing” a

restaurant with a pair of binoculars. Lagana, 

. The Lagana Court

indeed referred to the potential dangers that an armed individual may pose to public

safety. 

. However, this Court emphasized the particular behavior that the

police officers observed when they arrived at the location identified by the anonymous tip,

where they “discovered a white male in his early twenties wearing a yellow raincoat who

made his presence even more obvious because he was casing a business establishment

with a pair of binoculars in the pouring rain.” 

 Thus, the officers’ observations not only

corroborated the description of the individual reported, but established that he was

engaged in “suspicious conduct under the circumstances,” which justified the initiation of

an investigative detention. 

                                      [J-86-2018] - 17
       This Court clarified Lagana’s reasoning in Jackson, making clear that the presence

of a concealed firearm was not dispositive in Lagana:

       While the suggestion was indeed made in Lagana, that the risk posed by
       firearms should be factored into the reasonable suspicion analysis, that
       observation was dictum. In Lagana, an anonymous caller provided the
       police with a description and location of the suspect, and stated that he was
       armed. When the police arrived, they observed the suspect “casing” a store
       using binoculars, which is precisely the sort of suspicious activity which
       arose in Terry itself. The police therefore already had the requisite
       reasonable suspicion to stop and frisk Mr. Lagana, even absent any
       allegation that he was armed.


Jackson, 

. Because the suspicion in Lagana hinged upon the “casing” of

a business establishment rather than the mere possession of a concealed firearm, the

Robinson court’s inference regarding the “implicit foundation” of Lagana was

unwarranted.

       In Hawkins, this Court, albeit in a plurality opinion, more directly addressed and

rejected the notion that the mere possession of a firearm may constitute grounds for an

investigative detention. Like Lagana, Hawkins involved an anonymous report of a man

who possessed a firearm. Chief Justice Flaherty, writing for the Court and joined by

Justices Zappala and Cappy—with Justice Nigro concurring in the result but not writing

separately—opined that the anonymous tip at issue was not corroborated sufficiently, and

that the police “had no independent reason to believe that the suspect may have been

involved in criminal activity.” Hawkins, 

 (plurality).

       In Hawkins, the Commonwealth argued that, notwithstanding the absence of any

facts providing an independent basis for a finding of reasonable suspicion, the “police

have a duty to stop and frisk when they receive information from any source that a suspect

has a gun.” 

 The lead opinion described the Commonwealth’s position as “radical”

and inconsistent with Pennsylvania law, which provides for the licensed carrying of



                                     [J-86-2018] - 18
firearms. 

 The Hawkins plurality opined that the Commonwealth’s position would not

comport with the Pennsylvania Constitution, and further would seem “more likely to

endanger than to protect the public” inasmuch as “[u]necessary police intervention, by

definition, produces the possibility of conflict where none need exist.” 

       Hawkins is a non-binding plurality decision, which can be considered for its

persuasive value only. However, only three months later, this Court decided Jackson,

which we stated was “factually indistinguishable from Hawkins.” Jackson, 

. Jackson, like Lagana and Hawkins, addressed an anonymous report of a man with

a gun. The anonymous tipster did not describe any suspicious conduct beyond the

possession of a firearm and, unlike in Lagana, the responding officer did not observe any

suspicious conduct when he located the reported individual. 

 (“There is no

contention that the appellant was acting suspiciously.”). This Court concluded that, in the

absence of any suspicious activity, the mere identification of an individual matching the

description provided in the anonymous tip was an insufficient basis upon which to conduct

an investigative detention. 

.

       In Jackson, the Commonwealth revisited the “radical position” that it had offered in

Hawkins. This time, a Majority of the Court resoundingly rejected the Commonwealth’s

proposition:

       The Commonwealth contends . . . that the degree of danger to the police
       and the public from armed criminals is so great that if an anonymous caller
       provides a physical description of the individual, an accurate location and
       an allegation that the individual is armed, a Terry stop is justified. That
       argument will not withstand constitutional scrutiny. The danger to the police
       and public from firearms was already factored into the balance when the
       requirement of reasonable suspicion was articulated in Terry. To adopt the
       position that the Commonwealth urges is in reality to overrule Terry in favor
       of a lower standard of protection under the state and federal constitutions,
       a decision that we are not empowered to make.


Jackson, 

.


                                     [J-86-2018] - 19
       Unlike Hawkins, Jackson is binding precedent in this Court. Importantly, as noted

above, Jackson clarified that the lawfulness of the investigative detention in Lagana was

not dependent upon the presence or absence of a firearm, but rather was justified by the

police officers’ observations of the particular suspect’s conduct. Consequently, Hicks is

correct that the Robinson rule is not an accurate articulation of the “implicit foundation” of

Lagana.      Robinson, 

.           Moreover, Jackson’s rejection of the

Commonwealth’s categorical approach to the seizure of individuals in possession of

firearms casts a considerable shadow over the validity of the Robinson rule. However,

Lagana, Hawkins, and Jackson may only take us so far, in that each case, as the

Commonwealth and its amicus highlight, involved an anonymous tip—an additional fact

that implicates distinct questions regarding the reliability of the information upon which

police officers act.

       As such, we will afford the Commonwealth the benefit of the doubt and conclude

that Jackson is at least arguably distinguishable from the question at bar due to the

additional considerations that attend the evaluation of anonymous tips, which were at

issue in Lagana, Hawkins, and Jackson, but have no application herein. We accordingly

proceed to address the validity of the Robinson rule upon its own merits, notwithstanding

its origin as an erroneous extension of Lagana.

       Before this Court, the Commonwealth again advanced its “radical position,”

Hawkins, 

, in the present iteration contending that police officers are not

only entitled, but “duty bound” to seize and investigate the licensing status of every

individual who carries a concealed firearm in Pennsylvania. Brief for Commonwealth at

11. We have little difficulty in again rejecting this proposition, because we conclude that

the Robinson rule contravenes the Terry doctrine and, indeed, the fundamental

guarantees of the Fourth Amendment.




                                      [J-86-2018] - 20
               ii.     The Terry Doctrine’s Criminality Predicate

       First, as is manifest from its very phrasing, the Robinson court’s analysis of the

basis for a Terry stop overlooks the initial and essential prerequisite that justifies the

seizure. Prior to the acquisition of any evidence arising from an investigative detention,

the seizure of the person must be “justified at its inception.” Terry, 

. The

Terry Court was careful to maintain the distinctions between, and the constitutional

significance of, the separate events of the “stop,” “arrest,” or “seizure” of the person and

the “frisk” or “search” of that person, stressing that the analysis cannot be permitted to

“isolate from constitutional scrutiny the initial stages of the contact between the policeman

and the citizen.” 

. The Terry decision introduced the now-familiar “reasonable

suspicion” standard, allowing a police officer to stop an individual based upon “specific

and articulable facts” and “rational inferences from those facts” that warrant a belief that

the individual is involved in criminal activity. 

. Terry further allows a limited search

for weapons where “an officer is justified in believing that the individual whose suspicious

behavior he is investigating at close range is armed and presently dangerous to the officer

or to others.” 

.

       Concurring in Terry to “fill in a few gaps” in the Court’s opinion, Justice Harlan

stressed that, “[i]n the first place, if the frisk is justified in order to protect the officer during

an encounter with a citizen, the officer must first have constitutional grounds to insist on

an encounter, to make a forcible stop.” 

 (Harlan, J., concurring). Justice

Harlan sought to “make it perfectly clear that the right to frisk in this case depends upon

the reasonableness of a forcible stop to investigate a suspected crime.” 

.

       Although the Terry decision focused primarily upon the legality of the “frisk” rather

than the “stop,” the United States Supreme Court subsequently has made “perfectly

clear,” 

 that Justice Harlan correctly articulated the law of investigative detentions.




                                         [J-86-2018] - 21
See, e.g., Cortez, 

 (“An investigatory stop must be justified by some

objective manifestation that the person stopped is, or is about to be, engaged in criminal

activity.”).   More recently, in Arizona v. Johnson, the Court articulated the distinct

standards for a “stop” and a “frisk” with unmistakable clarity:

        The [Terry] Court upheld “stop and frisk” as 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.


Johnson, 

 (emphasis added).

        The Superior Court’s holding in Robinson clearly subverts this fundamental

principle. Rather than requiring reasonable suspicion of criminal activity to justify the

initial “stop,” the Robinson rule conflated that necessary antecedent with the justification

for the “frisk.” The court reasoned that possession of a concealed firearm in public “is

sufficient to create a reasonable suspicion that the individual may be dangerous,” which,

in turn, the court concluded, allows an officer to “briefly detain him in order to investigate

whether the person is properly licensed.” Robinson, 

 (emphasis added).

However, even presuming dangerousness, “dangerous” is not synonymous with

“criminal.” As set forth above, a reasonable belief that a suspect is armed and dangerous

allows for a limited search for weapons only after the police officer ascertains specific and

articulable facts to support a finding of reasonable suspicion that criminal activity is afoot,

so as to justify the intrusion of an investigative detention in the first instance. Mere

“dangerousness” is simply an insufficient basis upon which to conduct a Terry stop. This

was precisely Justice Harlan’s point in Terry, and it is a clear line that has been drawn

throughout the Court’s subsequent decisions.




                                      [J-86-2018] - 22
       The Robinson rule purports to deem constitutional the seizure of persons upon a

basis manifestly inconsistent with the Fourth Amendment jurisprudence that has

governed interactions between citizens and law enforcement for five decades. However,

although the conflation of dangerousness with criminality is a palpable flaw in the

Robinson rule, its effect would be the same if, for some other reason, a police officer is

entitled to infer that an individual carrying a concealed firearm is engaged in some type

of unlawful conduct, such that an investigative detention would be “justified at its

inception.” Terry, 

. Some courts have so held. Because the essence of

the Robinson rule is that possession of a concealed firearm establishes a lawful basis for

an investigative detention, we now evaluate this proposition, and the problematic

consequences that follow.

              iii.   The Terry Doctrine and the Carry of Firearms

       We are, of course, not the first Court to address the Fourth Amendment

ramifications of criminal laws relating to the carrying of firearms. We stress, however,

that our present analysis is confined to the antecedent justification for a “stop,” and we

accordingly offer no opinion as to whether a police officer who has effectuated a lawful

investigative detention may treat the suspect’s possession of a firearm as per se

authorization to “frisk” the detainee. Accordingly, decisions addressing that separate

question, and the consideration of whether an “armed” individual is automatically

“dangerous” for purposes of a Terry frisk, see, e.g., United States v. Robinson, 

 (4th Cir. 2017) (en banc), have no relevance to this appeal. As discussed throughout

this Opinion, these inquires are distinct.12


12      See generally J. Richard Broughton, Danger at the Intersection of Second and
Fourth, 54 IDAHO L. REV. 379 (2018) (hereinafter, “Broughton”) (discussing recent case
law addressing firearms and the Terry doctrine, with particular emphasis on the
justification for a frisk).


                                      [J-86-2018] - 23
       The Supreme Court of the United States has declined to recognize a “firearm

exception” to the requirements of Terry. See Florida v. J.L., 

 (2000) (“A

second major argument advanced by Florida and the United States as amicus is, in

essence, that the standard Terry analysis should be modified to license a ‘firearm

exception.’ . . . We decline to adopt this position.”). However, as in Lagana, Hawkins,

and Jackson, the Court’s decision in J.L. dealt with an anonymous tip, and the “firearm

exception” that the Court rejected was essentially the same proposition that this Court

rejected in Jackson—that “a tip alleging an illegal gun would justify a stop and frisk even

if the accusation would fail standard pre-search reliability testing.” 

 That is, the Court’s

rejection of the proposition was grounded upon the reliability inquiries attending

anonymous tips, not the distinct question of whether the mere possession of a firearm,

however discerned, may establish a per se basis for an investigative detention.

Accordingly, as with Jackson, we will not treat the J.L. Court’s rejection of the proposed

“firearm exception” as alone dispositive of the Robinson rule’s validity.

       Numerous state courts and federal Courts of Appeals, however, have considered

Fourth Amendment seizures based solely upon the possession of firearms, with a

particular eye toward the lawfulness of such activity under the statutes of the subject

jurisdiction. In United States v. Black, 

 (4th Cir. 2013), the Fourth Circuit

reasoned:

       Being a felon in possession of a firearm is not the default status. More
       importantly, where a state permits individuals to openly carry firearms, the
       exercise of this right, without more, cannot justify an investigatory detention.
       Permitting such a justification would eviscerate Fourth Amendment
       protections for lawfully armed individuals in those states. United States v.
       King, 

 (10th Cir.1993).


Id. at 540. The Tenth Circuit’s decision in King, which the Black court cited, similarly held

that the interest in the safety of police officers and bystanders did not justify the detention



                                      [J-86-2018] - 24
of a motorist immediately upon observation of a firearm, reasoning that “[i]n a state such

as New Mexico, which permits persons to lawfully carry firearms, the government’s

argument would effectively eliminate Fourth Amendment protections for lawfully armed

persons.” King, 

.

       Likewise in Northrup v. City of Toledo Police Dep’t, 

 (6th Cir. 2015),

the Sixth Circuit found unlawful the detention of an individual based upon his open

carrying of a firearm, reasoning in part:

       While open-carry laws may put police officers . . . in awkward situations
       from time to time, the Ohio legislature has decided its citizens may be
       entrusted with firearms on public streets. The Toledo Police Department
       has no authority to disregard this decision—not to mention the protections
       of the Fourth Amendment—by detaining every “gunman” who lawfully
       possesses a firearm.

 (citation omitted).

       In a case arising in the Virgin Islands, where the possession of a firearm in public

was lawful, the Third Circuit rejected an assertion that such possession alone gave rise

to reasonable suspicion of criminality. United States v. Ubiles, 

 (3d Cir.

2000). An anonymous tip that Ubiles possessed a firearm at a public event, the court

found, although accurate, provided “no reason to believe that Ubiles was engaged in or

planning or preparing to engage in illegal activity due to his possession of a gun.” 

. The Ubiles court provided an analogy to the lawful possession of a different object—

a wallet, which may or may not contain unlawful counterfeit bills. 

 The mere possibility

that a wallet could contain counterfeit bills, the Ubiles court reasoned, does not entitle a

police officer to infer their presence in the absence of reasonable, articulable suspicion.

       Courts of some jurisdictions have analyzed the question based upon whether,

under applicable statutes, nonlicensure is an element of the crime of carrying a firearm

without a license—in which case a Terry stop for mere possession is unlawful—or



                                      [J-86-2018] - 25
whether licensure serves as an affirmative defense to the criminal charge—in which case

a Terry stop is lawful.    See generally Barondes, supra n.7, at 326-41. In State v.

Timberlake, 

 (Minn. 2008), the Minnesota Supreme Court reasoned that,

under Minnesota’s statute, “the nonexistence of a permit is not an element of the crime,”

and “the permit holder has the obligation to provide evidence of his permit as a way to

avoid criminal responsibility.” 

. Accordingly, the Court deemed it lawful for a

police officer to seize an individual in Minnesota based solely upon a reliable report of his

possession of a firearm in a vehicle. 

. Applying this approach in United States

v. Gatlin, 

 (3d Cir. 2010), the Third Circuit distinguished its decision in Ubiles

and reasoned that, under Delaware law, because the existence of a license to carry a

firearm is a defense to the crime of carrying a concealed firearm, an investigative

detention based solely upon the possession of a concealed firearm is permissible. 

 (“[U]nder Delaware law, carrying a concealed handgun is a crime to which

possessing a valid license is an affirmative defense, and an officer can presume a

subject’s possession is not lawful until proven otherwise.”).13

       The Supreme Court of the United States has not addressed whether this element-

or-defense approach to concealed carry licenses is acceptable under Fourth Amendment

principles. Although by no means intended as an exhaustive survey of the decisions

applying this litmus, this brief discussion is amply sufficient for this Court to conclude that


13      Although we treat decisions of the Third Circuit as persuasive authority on
questions of federal constitutional law, we are not bound thereby. See Stone Crushed
P’ship v. Kassab Archbold Jackson & O’Brien, 

, 883 n.10 (Pa. 2006). The
Supreme Court of the United States remains “the ultimate authority” in matters of federal
constitutional jurisprudence. Purple Orchid, Inc. v. Pa. State Police, 

(Pa. 2002); see also Commonwealth v. Cross, 

, 338 n.4 (“This [C]ourt is not
bound by a lower federal court’s interpretation of United States Supreme Court decisions,
but is bound only by the United States Supreme Court.”). For the reasons discussed
throughout this Opinion, and addressed in further detail in Part II(C)(vi), infra, we decline
to follow the Third Circuit’s approach in Gatlin.


                                      [J-86-2018] - 26
we do not find the approach persuasive. To characterize an investigative detention as

lawful solely because licensure is an affirmative defense under the applicable statute,

rather than nonlicensure serving as an element of the crime, is to obscure the fact that

licensed individuals who engage in the conduct for which they have obtained licenses

are, at bottom, in compliance with the requirements of the law.                Accordingly,

notwithstanding how such a test may apply to Pennsylvania’s statutes, we find the

element-or-defense approach “ultimately untenable, because it would allow a manifestly

unacceptable range of ordinary activity to, by itself, justify Terry stops.” Barondes, supra

n.7, at 346.

        We find much greater appeal in decisions of our sister states such as

Commonwealth v. Couture, 

 (Mass. 1990), and Pinner v. State, 

 (Ind. 2017), which apply a more straightforward analysis of Fourth Amendment

principles. Even though Massachusetts was a “defense” state and not an “element” state,

the Supreme Judicial Court of Massachusetts in Couture held that the “mere possession

of a handgun was not sufficient to give rise to a reasonable suspicion that the defendant

was illegally carrying that gun, and the stop was therefore improper under Fourth

Amendment principles.” Couture, 

. Recently, in Pinner, the Supreme

Court of Indiana reached an identical conclusion with nary a mention of the element-or-

defense approach. See Pinner, 

.

       Our analysis of the question at bar is guided by fundamental Fourth Amendment

principles. We find no justification for the notion that a police officer may infer criminal

activity merely from an individual’s possession of a concealed firearm in public. As set

forth, above, it is not a criminal offense for a license holder, such as Hicks, to carry a




                                     [J-86-2018] - 27
concealed firearm in public.14 Although the carrying of a concealed firearm is unlawful for

a person statutorily prohibited from firearm ownership or for a person not licensed to do

so, see 18 Pa.C.S. §§ 6105-06, there is no way to ascertain an individual’s licensing

status, or status as a prohibited person, merely by his outward appearance. As a matter

of law and common sense, a police officer observing an unknown individual can no more

identify whether that individual has a license in his wallet than discern whether he is a

criminal. Unless a police officer has prior knowledge that a specific individual is not

permitted to carry a concealed firearm, and absent articulable facts supporting reasonable

suspicion that a firearm is being used or intended to be used in a criminal manner, there




14     Regarding the legality of concealed carry within a given jurisdiction, as it relates to
the distinction between stops and frisks under the Terry doctrine, Broughton observes:
       Gun rights law . . . can still receive meaningful protection under Terry
       doctrine, but most of its work is performed at the initial stage of the
       encounter. The liberalization of gun rights can function as a limit on the
       scope of the initial stop, as in cases like Northrup or Black. But once a
       legally sufficient justification has been established for the stop—reasonable
       suspicion that the suspect has committed a crime or that criminal activity is
       afoot—the fact that the jurisdiction liberally permits gun possession and
       public carry has less force. The liberalization of gun law, whether via the
       Second Amendment, state legislation, or state constitutional law, relates to
       Terry’s criminality predicate because the law enforcement justification for
       the stop is drawn from an objective indicator—whether something is legal
       or illegal, which is (or ought to be) knowable to the investigating officer. Of
       course, the officer need only be reasonably suspicious of criminality, not
       certain. But still, his judgment about whether to conduct the stop will be
       made based on his understanding of what the law objectively requires or
       permits.      The decision whether to frisk—and the dangerousness
       determination that accompanies it—is different. It requires reasoned
       judgments based on factors that may arise during the stop or that are based
       on the officer’s experience, judgments that often must be made “even
       quicker” and “on less information” than is available with respect to the stop.
Broughton, supra n.12, at 404-05 (emphasis and footnotes omitted).



                                      [J-86-2018] - 28
simply is no justification for the conclusion that the mere possession of a firearm, where

it lawfully may be carried, is alone suggestive of criminal activity.

       Responding to the Commonwealth’s principal arguments to the contrary requires

us to examine additional deficiencies in the Robinson rule, which further highlight the

dangers inherent in applying per se rules—generally disfavored under the Fourth

Amendment, see United States v. Drayton, 

 (2002)—to validate

seizures. The Robinson rule improperly dispenses with the requirement of individualized

suspicion and, in so doing, misapplies the overarching totality of the circumstances test.

              iv.    Operation as a Per Se Rule

       The Fourth Amendment protects a fundamentally individual right—the “right of

each individual to be let alone.” Tehan v. U.S. ex rel. Shott, 

 (1966).15

Ordinarily, a governmental intrusion upon that individual right requires an individualized

justification; otherwise, a search or seizure is constitutionally unreasonable. See City of

Indianapolis v. Edmond, 

 (2000) (“A search or seizure is ordinarily

unreasonable in the absence of individualized suspicion of wrongdoing.”).

       Notably, the type of seizure contemplated here does not implicate a scenario

involving “special needs, beyond the normal need for law enforcement,” Edmond, 

, such as would dispense with the requirement of individualized suspicion.

Although a general requirement in the Fourth Amendment context, the Supreme Court of

the United States has held that individualized suspicion is not “an ‘irreducible’ component

of reasonableness” in all situations. 

 (quoting Martinez-Fuerte, 

).


15      See Olmstead v. United States, 

 (1928) (Brandeis, J., dissenting)
(noting that the framers of the Constitution “conferred, as against the government, the
right to be let alone—the most comprehensive of rights and the right most valued by
civilized men”); see generally Samuel D. Warren and Louis D. Brandeis, The Right to
Privacy, 4 HARV. L. REV. 193 (1890) (discussing the “right to be let alone” as a foundational
principle of American jurisprudence).


                                      [J-86-2018] - 29
However, the Court has recognized “only limited circumstances in which the usual rule

does not apply.” 

 This is not one of those circumstances. Pursuant to Edmond, the

Fourth Amendment will not tolerate the abandonment of individualized suspicion for

searches primarily designed to “uncover evidence of ordinary criminal wrongdoing.” Id.

at 42.      There has been no suggestion that the investigation of individuals carrying

concealed firearms constitutes a special need beyond the “general interest in crime

control.”    Id. at 41 (quoting Delaware v. Prouse, 

, 659 n.18 (1979)).

Accordingly, the “usual rule,” as Edmond called it, remains in full force herein, and

individualized suspicion of wrongdoing remains essential under the Fourth Amendment.

         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. Indeed, the Terry

Court stressed that the “demand for specificity in the information upon which police action

is predicated is the central teaching of this Court’s Fourth Amendment jurisprudence.”

Terry, 

 n.18; see Martinez-Fuerte, 

-61 (citing the quoted

passage of Terry for the proposition that “some quantum of individualized suspicion is

usually a prerequisite to a constitutional search or seizure”).

         Naturally, judicial assessment of the justification for a seizure must be conducted

under the “totality of the circumstances,” which includes consideration of all of the facts

and circumstances, including rational inferences derived from those facts, that bear upon

a reasonable officer’s belief as to whether criminal activity may be afoot. See, e.g., United

States v. Arvizu, 

 (2002).            Nonetheless, in general, some

particularized basis for believing that an individual is engaged in criminal conduct remains

a necessary antecedent to an investigative detention. In Cortez, the Court addressed the




                                       [J-86-2018] - 30
standards pursuant to which an individual’s conduct may be found sufficiently suspicious

to justify a stop under the totality of the circumstances:

       Courts have used a variety of terms to capture the elusive concept of what
       cause is sufficient to authorize police to stop a person. Terms like
       “articulable reasons” and “founded suspicion” are not self-defining; they fall
       short of providing clear guidance dispositive of the myriad factual situations
       that arise. But the essence of all that has been written is that the totality of
       the circumstances—the whole picture—must be taken into account. Based
       upon that whole picture the detaining officers must have a particularized
       and objective basis for suspecting the particular person stopped of criminal
       activity.


Cortez, 

 (emphasis added).

       The Robinson rule neglects this principle. The error lies not in any assertion that

the possession of a firearm can never be suspicious—it certainly can be. A police officer

is entitled to view individuals’ conduct in light of the “probabilities” that criminal activity

may be afoot, and indisputably may draw “certain common sense conclusions about

human behavior.” 

. Relevant contextual considerations may include factors

such as a suspect’s presence in a high crime area. See, e.g., Adams v. Williams, 

 (1972), but see Wardlow, 

 (“An individual’s presence in

an area of expected criminal activity, standing alone, is not enough to support a

reasonable, particularized suspicion that the person is committing a crime.”).

       The deficiency in the Robinson rule is that, rather than requiring a “particularized

and objective basis” for suspecting an individual, Cortez, 

, the Superior

Court has deemed the conduct of the individual to be functionally irrelevant to the

analysis.   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. This is distinctly problematic where, as discussed above, the single fact

isolated from the remainder of the circumstances is an activity that is indistinguishable



                                      [J-86-2018] - 31
from lawful conduct. Under the Robinson rule, consideration of the individual has been

substituted for categorical treatment of a rather large class—all persons carrying

concealed firearms, whether they are licensed to do so or not. Robinson would subject

every member of this class to seizure by law enforcement agents, with no further

consideration of “the whole picture” of the circumstances with respect to a particular

individual’s conduct. In failing to demand “specificity in the information upon which police

action is predicated,” the Robinson rule thus confounds “the central teaching of . . . Fourth

Amendment jurisprudence.” Terry, 

 n.18.

        The Commonwealth’s arguments fare no better. The Commonwealth places great

emphasis upon the notions that “there could . . . be circumstances in which wholly lawful

conduct might justify the suspicion that criminal activity was afoot,” Reid, 

(per curiam), and that reasonable suspicion “does not deal with hard certainties, but with

probabilities.” Cortez, 

. See Brief for Commonwealth at 5-6, 11-12.

Although these propositions surely are correct, they are inadequate to justify the seizures

contemplated by the Robinson rule, and fail to account for the gravity of the authority that

the Commonwealth claims for itself.

        The probabilistic nature of the inquiry, as discussed in Cortez, merely guides the

totality of the circumstances test, which, as noted above, nonetheless requires some

“particularized and objective basis for suspecting the particular person stopped of criminal

activity.”   Cortez, 

.      An officer certainly is entitled to consider

“probabilities” and to employ “common sense,” but, quite fundamentally, “the whole

picture” of the circumstances “must raise a suspicion that the particular individual being

stopped is engaged in wrongdoing.” 

. As for the Commonwealth’s contention

regarding the potentially suspicious nature of lawful conduct, a brief review of Reid—

which the Commonwealth cites for the proposition—reveals the flaws in Commonwealth’s




                                      [J-86-2018] - 32
position, while simultaneously illustrating the correct manner in which to weigh

probabilities, innocent conduct, and common sense, under the “whole picture” of the

totality of the circumstances.

       In Reid, an agent of the federal Drug Enforcement Agency detained Reid and his

companion at an airport, based upon his belief that Reid fit a “drug courier profile.” Reid,

 (per curiam). The lower court focused upon the fact that Reid and his

companion arrived from Fort Lauderdale during early morning hours, had no luggage

other than shoulder bags, and that Reid occasionally glanced at his companion while, in

the opinion of the agent, attempting to conceal the fact that they were traveling together.

The Supreme Court of the United States analyzed this evidence purportedly giving rise

to reasonable suspicion as follows:

       We conclude that the agent could not as a matter of law, have reasonably
       suspected the petitioner of criminal activity on the basis of these observed
       circumstances. Of the evidence relied on, only the fact that the petitioner
       preceded another person and occasionally looked backward at him as they
       proceeded through the concourse relates to their particular conduct. The
       other circumstances describe a very large category of presumably innocent
       travelers, who would be subject to virtually random seizures were the Court
       to conclude that as little foundation as there was in this case could justify a
       seizure. Nor can we agree, on this record, that the manner in which the
       petitioner and his companion walked through the airport reasonably could
       have led the agent to suspect them of wrongdoing. Although there could,
       of course, be circumstances in which wholly lawful conduct might justify the
       suspicion that criminal activity was afoot, see Terry, 

, this
       is not such a case. The agent’s belief that the petitioner and his companion
       were attempting to conceal the fact that they were traveling together, a
       belief that was more an “inchoate and unparticularized suspicion or ‘hunch,’”
       

, than a fair inference in the light of his experience, is simply too
       slender a reed to support the seizure in this case.


Id. at 441 (per curiam) (citations modified; emphasis added).

       Nothing about this analysis provides even a slender reed to support the Robinson

rule. Although wholly lawful conduct certainly may give rise to reasonable suspicion of




                                      [J-86-2018] - 33
criminal conduct under some circumstances, and although reasonable suspicion “need

not rule out the possibility of innocent conduct,” Arvizu, 

, the Terry doctrine

unequivocally requires something suggestive of criminal activity before an investigative

detention may occur. The Commonwealth cannot simply point to conduct in which

hundreds of thousands of citizens lawfully may engage, then deem that conduct to be

presumptively criminal. This would, as Reid stated, “describe a very large category of

presumably innocent travelers,” many of whom surely would be surprised to learn that the

very conduct for which they have obtained a license nonetheless served as the sole

predicate for the deprivation of their liberty. Reid, 

. The instant case

demonstrates precisely the dangers inherent in such an approach: Hicks was, like many

other Pennsylvania citizens, licensed to engage in the activity for which he was seized.

We must reject the Commonwealth’s assertion that a police officer is authorized, let alone

“duty bound,” Brief for Commonwealth at 11, to seize and question any and every one of

those people.

              v.      Delaware v. Prouse

       Finally, the Robinson rule cannot be salvaged by any attempt to minimize the

authority contemplated by characterizing the seizure as merely a “simple request” to

check a license. Brief for Commonwealth at 9. A seizure is a seizure. That the purported

basis for the seizure is simply to “check” whether the suspect is committing a crime does

not diminish the constitutional significance of the encounter. It does not render it any less

of a seizure; it simply renders it a seizure in the absence a particularized basis for a finding

of reasonable, articulable suspicion of criminal activity.

       In this regard, we find significant relevance in the United States Supreme Court’s

decision in Delaware v. Prouse, 

 (1979). Like the carrying of a firearm

without a license, it also is unlawful to drive an automobile without a license. In Prouse,




                                       [J-86-2018] - 34
the Supreme Court of the United States held that, absent reasonable, articulable

suspicion that a particular motorist is unlicensed or that a particular vehicle is

unregistered, and without any other independent basis to seize a vehicle or its occupants,

“stopping an automobile and detaining the driver in order to check his driver’s license and

the registration of the automobile are unreasonable under the Fourth Amendment.” 

.

       Unlike a border checkpoint such as those approved by the Court’s decision in

 the Prouse Court determined that the “spot check” of a particular

driver must be justified by individualized suspicion. This was so despite the States’ “vital

interest in ensuring that only those qualified to do so are permitted to operate motor

vehicles, that these vehicles are fit for safe operation, and hence that licensing,

registration, and vehicle inspection requirements are being observed.” Prouse, 

. Notwithstanding the extensive governmental regulation of automobiles, and

despite the important governmental interest in such regulation, the Court found those

“important ends” insufficient to “justify the intrusion upon Fourth Amendment interests

which such stops entail.” 

. The Court explained:

       The marginal contribution to roadway safety possibly resulting from a
       system of spot checks cannot justify subjecting every occupant of every
       vehicle on the roads to a seizure—limited in magnitude compared to other
       intrusions but nonetheless constitutionally cognizable—at the unbridled
       discretion of law enforcement officials. To insist neither upon an appropriate
       factual basis for suspicion directed at a particular automobile nor upon some
       other substantial and objective standard or rule to govern the exercise of
       discretion “would invite intrusions upon constitutionally guaranteed rights
       based on nothing more substantial than inarticulate hunches . . . .” Terry,
       

.


Id. at 661 (citation modified). The Court characterized the authority contemplated as the

“kind of standardless and unconstrained discretion” that represents precisely “the evil the

Court has discerned when in previous cases it has insisted that the discretion of the official


                                      [J-86-2018] - 35
in the field be circumscribed, at least to some extent.” Id. The “grave danger” of the

abuse of that discretion, the Court emphasized, “does not disappear simply because the

automobile is subject to state regulation,” nor does “an individual operating or traveling in

an automobile . . . lose all reasonable expectation of privacy simply because the

automobile and its use are subject to government regulation.” Id. at 662.

       Invoking Terry, the Prouse Court concluded:

       Were the individual subject to unfettered governmental intrusion every time
       he entered an automobile, the security guaranteed by the Fourth
       Amendment would be seriously circumscribed. As Terry v. 

       recognized, people are not shorn of all Fourth Amendment protection when
       they step from their homes onto the public sidewalks. Nor are they shorn
       of those interests when they step from the sidewalks into their automobiles.


Id. at 662-63.

       Nor are people shorn of all Fourth Amendment protection when they carry firearms

in compliance with the laws of this Commonwealth.           Firearms, too, are subject to

extensive governmental regulation, at both the state and federal level. Nonetheless, the

possession or carrying of firearms, although unlawful for some, cannot strip away

protections of the Fourth Amendment for all of the rest.

       Prouse does more than illustrate the retention of Fourth Amendment rights despite

participation in a licensed and government-regulated activity. Prouse highlights a first

principle that lies at the heart of the Fourth Amendment—that the government may not

target and seize specific individuals without any particular suspicion of wrongdoing, then

force them to prove that they are not committing crimes. To hold otherwise would be

anathema to individual liberty, and contrary to “the central teaching of . . . Fourth

Amendment jurisprudence.” Terry, 

 n.18.




                                      [J-86-2018] - 36
             vi.    The Perspective of the Concurrence16

      The Concurrence rejects this analysis, and would adopt the element-or-defense

test referenced above, under which the seizure of an individual for engaging in licensed

conduct is deemed permissible if licensure serves as an affirmative defense to a crime,

as opposed to nonlicensure serving as an element of the offense. See supra at 26-27.

The Concurrence opines that our treatment of this test is unduly dismissive given its

prevalence in other jurisdictions, that our rejection thereof fails to afford sufficient

deference to the manner in which the legislature chooses to define crimes, and that our

reasoning may have consequences for future investigations of other licensed conduct.

These are fair observations. However, the element-or-defense test comes with its own

untenable consequences. Chief among these is the fact that such a test transfers to the

legislature the power to erase the protections of the Fourth Amendment for any individual

who seeks to comply with the legislature’s own licensing requirements.

      To apprehend the constitutional infirmity of the element-or-defense test, one need

look no further than Prouse. In addressing whether the Fourth Amendment tolerates “spot

checks” of motorists’ driver’s licenses, the Prouse Court made no inquiry into whether

possession of a driver’s license is an affirmative defense in the subject jurisdiction, or

whether nonlicensure is an element of the crime of driving without a license. The Court’s

concern in Prouse was with “unfettered governmental intrusion” upon the rights of the

individual solely at the “unconstrained discretion” of a single law enforcement officer in

the field. Prouse, 

. This concern remains starkly unaddressed by

the element-or-defense test, which purports to bestow upon the legislature the power to




16   In this section, usages of the “Concurrence” refer to Justice Dougherty’s
Concurring Opinion, and not to Justice Baer’s separate writing.


                                    [J-86-2018] - 37
authorize precisely this manner of intrusion upon the very individuals who have sought to

bring themselves into compliance with the law by obtaining licenses.

       Recognizing that Prouse casts considerable doubt upon the element-or-defense

test, the Concurrence offers a distinction suggested by the Tenth Circuit in United States

v. Rodriguez, 

 (10th Cir. 2013). See Concurring Opinion (Dougherty, J.) at

8-9. However, Rodriguez itself plainly recognized the tension between Prouse and the

element-or-defense test, opining that, “[t]o be sure, any construction of a motor vehicle

statute permitting such random stops, however the statute is worded, would be

unconstitutional” under Prouse. Rodriguez, 

. The Rodriguez court

forthrightly acknowledged that, under Prouse, it is immaterial whether nonlicensure is an

element of the crime or licensure is an affirmative defense—it remains a violation of the

Fourth Amendment to detain a motorist solely to ascertain the motorist’s licensing status.

       In order to deem constitutional the seizure at issue, the Rodriguez court sought to

distinguish the underlying activities subject to licensing, opining that, unlike driving a car,

“concealing a handgun is a clandestine act.” 

 Further contrasting the Prouse Court’s

conclusion that random stops of motorists would have an impact upon public safety that

is “marginal at best,” the Rodriguez court opined that, due to the danger posed by

concealed weapons, it could “safely assume the contribution to public safety made by the

stop of an individual known to be carrying a concealed handgun will hardly be

insignificant.” 

       With due respect to the Tenth Circuit, Rodriguez’ distinction is unpersuasive. The

“clandestine” nature of carrying a concealed firearm is immaterial. Carrying in such a

“clandestine” manner is precisely the conduct that the license authorizes. An individual

licensed to carry a concealed firearm is permitted to do so every bit as much as a holder

of a driver’s license is permitted to operate a motor vehicle.




                                      [J-86-2018] - 38
       As for the contribution to public safety ostensibly gained by limitless seizures of

armed citizens, it bears mention that the Prouse Court was quite aware of the dangers

posed by the operation of motor vehicles, see Prouse, 

, yet found no

justification for the suspension of Fourth Amendment rights for all motorists. The High

Court could not “conceive of any legitimate basis upon which a patrolman could decide

that stopping a particular driver for a spot check would be more productive than stopping

any other driver,” reasoning that such seizures embodied the “kind of standardless and

unconstrained discretion” that is precisely “the evil the Court has discerned when in

previous cases it has insisted that the discretion of the official in the field be circumscribed,

at least to some extent.” 

. The Rodriguez panel’s conclusion that it could “safely

assume” the contrary in this context is speculation without any proferred empirical

support, amounting to little more than an assertion that detaining armed individuals to

check their licenses is desirable, whereas detaining motorists to check their licenses is

undesirable—indeed, unconstitutional.

       As the Concurrence emphasizes, it is certainly the legislature’s prerogative to

define the elements of crimes and to set forth affirmative defenses.             However, the

constitutionality of enforcement tactics is a matter of judicial concern. The legislature is

further entitled to prescribe the requirements and procedures necessary to obtain a

license for otherwise-prohibited conduct. However, the issuance of a license cannot

entail the deprivation of constitutional rights. Under the element-or-defense test, the

legislature is imbued with the power to limit the scope of Fourth Amendment protection.17

17      The Concurrence characterizes this concern as “an unfounded belief the
legislature may seek to circumvent the Fourth Amendment in the future.” Concurring
Opinion (Dougherty, J.) at 14 n.5. This is incorrect. The problem is not the unknown
motivations of future legislators. Rather, the constitutional issue lies in the nature of the
Concurrence’s proposed legal standard, which, with respect to the licensing scheme at
issue, would have the present effect of delegating to the legislature the judicial prerogative
to assess the constitutionality of searches and seizures in particular cases.


                                       [J-86-2018] - 39
The legislature cannot lay such a trap for the unwitting licensee, who obtains a license

precisely for the purpose of achieving good-faith compliance with the law, yet who may

be subject to unlimited seizures by law enforcement agents for the very conduct that the

license permits. This is not a matter of deference to the legislature; this is a matter of

freedom from unreasonable seizure under the Fourth Amendment.

       The Concurrence also raises the specter of future difficulties with the enforcement

of criminal laws, such as the prohibition upon the possession of marijuana in light of the

recent passage of the Medical Marijuana Act, 35 P.S. §§ 10231.101-10231.2110. See

Concurring Opinion (Dougherty, J.) at 12 n.4. However, even if our reasoning herein may

reach to such a distinct matter—which we do not today decide—this is not a compelling

reason to dilute the protections of the Fourth Amendment. Indeed, the element-or-

defense test also has consequences beyond the case at bar, and these entail

unacceptable limitations of Fourth Amendment rights.

       For instance, the Concurrence relates this Court’s conclusion in Commonwealth v.

Bigelow, 

 (Pa. 1979), that licensure is an affirmative defense under 18

Pa.C.S. § 6108, which requires a license for either open or concealed carry of a firearm

within Philadelphia. See 18 Pa.C.S. § 6108(1) (“No person shall carry a firearm, rifle or

shotgun at any time upon the public streets or upon any public property in a city of the

first class unless . . . such person is licensed to carry a firearm.) (emphasis added).

However, this same statutory formulation applies to the possession of prescription

medication.    See 35 P.S. § 780-113(a)(16) (defining as unlawful “[k]nowingly or

intentionally possessing a controlled or counterfeit substance by a person not registered

under this act . . . unless the substance was obtained directly from, or pursuant to, a valid

prescription order or order of a practitioner”) (emphasis added). The consequence of the

element-or-defense approach, then, is that an individual with a medical condition requiring




                                      [J-86-2018] - 40
prescription medication is subject to unlimited seizures by law enforcement agents upon

the mere observation of that person’s medication, or her orange prescription pill bottle.

This unjustly places the onus upon the citizen to demonstrate that her possession of the

medication is not criminal, reversing the constitutional mandate that the police officer must

establish a valid basis for the intrusion upon her privacy in the first instance.

       The element-or-defense test amounts to a “seize now and sort it out later”

approach. This is antithetical to the foundational protections of the Fourth Amendment.

It casts too wide a net, with no regard for the number of law-abiding citizens ensnared

within. “The Terry case created an exception to the requirement of probable cause, an

exception whose narrow scope” the Supreme Court “has been careful to maintain.”

Ybarra v. Illinois, 

 (1979) (citation and internal quotation marks omitted).

We maintain the narrow scope of that exception today. If the consequence of our decision

is that future courts afford meaningful Fourth Amendment protection to individuals

engaged in other commonly licensed activities, that result is preferable to our allowance

of governmental overreach that undermines the individual freedom that is essential to our

way of life in this constitutional republic.

       Our holding is confined to the lawfulness of seizures based solely upon the

possession of a concealed firearm—conduct that is widely licensed and lawfully practiced

by a broad range of people. We do not render “all element-or-defense distinctions

irrelevant for Fourth Amendment purposes.” Concurring Opinion (Dougherty, J.) at 14

n.5. We in no way hold that the Fourth Amendment prohibits the arrest or prosecution of

an individual suspected of a crime for which he may have a valid affirmative defense of,

for instance, duress or the use of force in self-protection. See generally 18 Pa.C.S.

§§ 309, 505. Rather, we merely hold that, with respect to the conduct at issue—in which

hundreds of thousands of Pennsylvanians are licensed to engage lawfully, see supra




                                        [J-86-2018] - 41
n.8—that conduct alone is an insufficient basis for reasonable suspicion that criminal

activity is afoot. We insist only upon articulable grounds to conclude that the conduct that

serves as the basis for a seizure is actually suspicious in any meaningful sense of the

word.

        In this case, as discussed in detail below, a man stopped at a gas station to fuel

his vehicle, greeted an acquaintance, paid for his gasoline, and then was seized at

gunpoint by numerous police officers, forcibly restrained, removed from his vehicle, and

handcuffed. The sole basis for this seizure was his possession of a concealed firearm in

public—a firearm that he was entitled to possess and licensed to carry. The injustice of

this scenario would not be washed away by a mere rearrangement of statutory elements

and defenses.     The seizure at issue was not unconstitutional due to the statutory

classification of Hicks’ license; it was unconstitutional because the police officers had no

way of determining from Hicks’ conduct or appearance that he was likely to be unlicensed

and therefore engaged in criminal wrongdoing.

        The Fourth Amendment does not tolerate such indiscriminate use of law

enforcement power “at the unbridled discretion of police officers.” Prouse, 

. “The purpose of the Fourth Amendment is . . . ‘to prevent arbitrary and oppressive

interference by enforcement officials with the privacy and personal security of

individuals.’” Mendenhall, 

-54 (quoting Martinez-Fuerte, 

).

Our holding serves that purpose. The element-or-defense test does not. Accordingly,

notwithstanding the approach of some other jurisdictions, we decline to adopt the

element-or-defense test as the law of this Commonwealth. Rather, the test is Terry, as it

has been for decades, and the contours of that test are addressed thoroughly in this

Opinion.




                                     [J-86-2018] - 42
       D.     Conclusion

       Although our discussion of the arguments and legal principles has been extensive,

the question presented ultimately involves a straightforward application of Terry. A police

officer in the field naturally relies upon his or her common sense when assessing criminal

activity. When many people are licensed to do something, and violate no law by doing

that thing, common sense dictates that the police officer cannot assume that any given

person doing it is breaking the law. Absent some other circumstances giving rise to a

suspicion of criminality, a seizure upon that basis alone is unreasonable.

       In the United States of America, it is not a trivial matter to be detained under the

color of state authority. Although the “stop and frisk” is a commonplace and essential law

enforcement practice, it nonetheless is a significant intrusion upon citizen liberty, and it

carries with it as well a risk of danger to both the police officer and the suspect. As this

Court previously has noted: “Unnecessary police intervention, by definition, produces the

possibility of conflict where none need exist.” Hawkins, 

 (plurality).

       A police officer is trained to assess people and situations for danger. An officer

responding to a dispatch such as the one in this case is capable of responding in a

manner not amounting to a seizure by observing the suspect and the circumstances, by

determining whether anyone appears to be in danger or whether a crime appears to be

occurring, and by interviewing witnesses about any crimes that may have occurred before

the officer’s arrival. See Jackson, 

 (reasoning that, where the available

information does not give rise to reasonable suspicion, “the police must investigate further

by means not constituting a search and seizure.”). Such activities preserve peace, law,

and order, and do so without depriving anyone of his freedom unless there is cause to do

so.




                                     [J-86-2018] - 43
       This is not a “special needs” situation, or a seizure “carried out pursuant to a plan

embodying explicit, neutral limitations on the conduct of individual officers” so as to

“assure that an individual’s reasonable expectation of privacy is not subject to arbitrary

invasions solely at the unfettered discretion of officers in the field.” Brown, 

. This is the targeting of an individual, forcibly seizing and disarming him at gunpoint,

removing him from a car and handcuffing him, solely to ascertain whether he might be

committing a crime.

       Undoubtedly aware of the vast number of citizens licensed to carry firearms, police

officers surely will not find anything otherwise suspicious about many of the particular

individuals who fall within the Robinson rule’s sweep. But with no other criterion beyond

the fact of an individual’s possession of a concealed firearm necessary to justify a seizure,

the Robinson rule allows a police officer to base the decision to detain a particular

individual upon an “inchoate and unparticularized suspicion or ‘hunch’” that the individual

is unlicensed and therefore engaged in wrongdoing. Terry, 

. This reflects

precisely the “kind of standardless and unconstrained discretion,” Prouse, 

, that lends itself to “arbitrary invasions solely at the unfettered discretion of officers in

the field.”   Brown, 

.       The result is an unjustifiable risk of disparate

enforcement on the basis of an individual’s appearance alone, while the rights of others

go unquestioned.

       Crime and violence are ever-present threats in society, and it can be tempting to

look to the government to provide protection from “dangerous” people with constant

vigilance.    However, the protections of the Fourth Amendment remain an essential

bulwark against the overreaches and abuses of governmental authority over all

individuals. Notwithstanding the dangers posed by the few, we must remain wary of the

diminution of the core liberties that define our republic, even when the curtailment of




                                       [J-86-2018] - 44
individual liberty appears to serve an interest as paramount as public safety. “Experience

should teach us to be most on our guard to protect liberty when the government’s

purposes are beneficent. Men born to freedom are naturally alert to repel invasion of their

liberty by evil-minded rulers.      The greatest dangers to liberty lurk in insidious

encroachment by men of zeal, well-meaning but without understanding.” Olmstead v.

United States, 

 (1928) (Brandeis, J., dissenting).

       In light of all of the foregoing, it has become clear that the Superior Court patently

has erred in concluding that the “possession of a concealed firearm by an individual in

public is sufficient to create a reasonable suspicion that the individual may be dangerous,

such that an officer can approach the individual and briefly detain him in order to

investigate whether the person is properly licensed.” Robinson, 

. This

holding facially contravenes established law as set forth in Terry and its progeny,

demands no suspicion of criminal activity—let alone individualized suspicion—and

countenances a sweeping and unjustified expansion of the authority of law enforcement

to seize persons upon the basis of conduct that, standing alone, an officer cannot

reasonably suspect to be criminal. Indeed, the Robinson rule does not contemplate a

Terry stop at all, but rather a wholly distinct species of police intrusion, untethered from

the law upon which it ostensibly is premised, and ultimately lacking any justification in the

basic principles of the Fourth Amendment.

       We accordingly overrule Robinson and those decisions of our Superior Court that

have reaffirmed and applied its holding.

III.   Disposition of the Instant Case

       Notwithstanding the lower courts’ application of an erroneous conclusion of law,

there remains a question of whether Hicks’ seizure nonetheless was supported by




                                      [J-86-2018] - 45
reasonable, articulable suspicion of criminal activity, such as would render the

investigative detention lawful.

       We reiterate that our standard and scope of review require us to assess whether

the suppression court’s findings of fact find support in the record, and, because it was

Hicks who appealed the suppression court’s order, we consider all of the

Commonwealth’s evidence, but only so much of Hicks’ evidence as, when read fairly in

context of the whole suppression record, remains uncontradicted. In re L.J., 

 (Pa. 2013). “We also note that in the suppression context, appellate courts

do not simply comb through the record to find evidence favorable to a particular ruling.

Rather, appellate courts look to the specific findings of fact made by the suppression

court.” 

.

       At oral argument before this Court, the Commonwealth abandoned the argument

advanced in its principal brief, contending instead that Hicks’ judgment of sentence should

be affirmed because Hicks’ seizure was supported by reasonable, articulable suspicion

of criminal activity. The facts giving rise to reasonable suspicion, the Commonwealth

contended, were the “showing” of a firearm to another individual, near 3:00 a.m., in a high

crime area, where the officer previously had responded to calls regarding criminal activity.

The Commonwealth further made reference to Officer Pammer’s testimony regarding

“brandishing” of the firearm, but nonetheless contended that the trial court’s finding of

fact, referring to “showing” of the firearm, established sufficient grounds for an

investigative detention. See Order, 9/18/2015, at 1 n.1. As phrased at oral argument,

the Commonwealth described the information available to the officers at the time of the

seizure as follows: “[Hicks] lifted up his shirt, he pulled out a weapon, showed it, put it

back in his waistband, pulled his shirt over top of it, and went into the store.” Oral

Argument, 12/4/2018, Harrisburg.




                                     [J-86-2018] - 46
       We begin with Officer Pammer’s testimony regarding Hicks’ “brandishing” of the

firearm. Although not a defined offense under Pennsylvania law, “brandishing” suggests

the use of a weapon in a threatening manner, or perhaps its display in a reckless or

ostentatious fashion. For present purposes, we will assume without deciding that, if

established, an individual’s “brandishing” of a firearm may establish reasonable suspicion

that the individual engaged in some type of violent or assaultive conduct that would

constitute a criminal offense under the statutes of this Commonwealth. We turn to the

evidence presented at Hicks’ suppression hearing on July 14, 2015, bearing in mind the

suppression court’s findings of fact, which stated that Hicks “showed the firearm to

another patron, put the firearm in his waistband, covered it with his shirt, and walked

inside” the convenience store. Order, 9/18/2015, at 1 n.1 (emphasis added).

       Officer Pammer was the sole witness at the suppression hearing. Officer Pammer

testified about the information that he received before responding to the scene, which

began with a “tone” over the police dispatch, which is “an indicator to all city police

units . . . that a serious call is unfolding and to wait for the dispatch to give it to you.”

Notes of Testimony (“N.T.”), 7/14/2015, at 6. The tone, Officer Pammer testified, was “for

an individual at the Pace Market Gulf station at Seventh and Tilghman Streets that was

brandishing a firearm.” 

 Officer Pammer further clarified that the “dispatchers advised

over our police dispatch to all units that a male in a white shirt was brandishing a firearm

towards another male at the Pace Mart and that he was driving, I believe it was a silver

[Chevrolet] Impala.” Id. at 7-8.

       On cross-examination, defense counsel challenged Officer Pammer’s use of the

word “brandishing.” Officer Pammer testified as follows:

       [Defense Counsel]: Do you recall specifically what the dispatch would have
       said? I know you said brandishing a firearm, do you recall that the dispatch
       actually said firearm—just showed it to another individual at the gas station?



                                      [J-86-2018] - 47
       [Officer Pammer]: I don’t remember that, I just remember that it was
       brandishing—it doesn’t—they didn’t state that it was pointed or—

       [Defense Counsel]: Okay.

       [Officer Pammer]: —or you know, threatening somebody with it, just
       somebody was holding a gun, along that nature.

       [Defense Counsel]: And you received that information over a police radio
       broadcast?

       [Officer Pammer]: Yes.

       [Defense Counsel]: Okay. And to the best of your knowledge are those
       recorded?

       [Officer Pammer]: They should be. Yes.

       [Defense Counsel]: Okay. So, if there are recordings of those police
       broadcasts, they would be the true and accurate information that you
       received on that evening. Correct?

       [Officer Pammer]: Correct.


Id. at 14-15.

       There were, indeed, audio recordings of the police dispatch that morning, including

a recording of the report that the camera operator provided to the police. The audio

recordings were submitted into evidence as Defense Exhibit 2, along with a recording of

the video feed that the camera operator was watching, submitted into evidence as

Defense Exhibit 1.

       This Court has carefully reviewed the audio and video evidence. Defense Exhibit

2 includes recordings of the police dispatch, the camera operator’s report, and the

subsequent communications between the police officers as they investigated Hicks’

possession of his firearm.18 Most notably, the word “brandishing” is not used at any point


18      The audio recordings also chronicled the officers’ examination of the handgun’s
serial number, which revealed that Hicks was the individual who lawfully purchased the



                                    [J-86-2018] - 48
by either the camera operator or the police dispatcher. The “tone” that Officer Pammer

described clearly is audible in the dispatch recording.      The tone is followed by a

dispatcher’s advisement that the “camera operator observed a black male, white shirt, put

a gun in his waistband. He’ll be next to a two-tone black Impala. Pump number six.”

Police Dispatch, 6/28/2014, Defense Exhibit 2 (emphasis added).

       Although Officer Pammer accurately recalled other details contained within the

dispatch, such as the description of Hicks’ apparel and the model of automobile that he

drove, Officer Pammer’s testimony substituted the word “brandishing” for the much more

innocuous conduct described by the dispatcher, which was merely that Hicks “put a gun

in his waistband.” That description provided by the dispatch was the basis for Hicks’

seizure.

       In light of Officer Pammer’s express and unequivocal recognition that an audio

recording of the dispatch would reflect “the true and accurate information” upon which the

officers relied, N.T., 7/14/2015, at 15, it cannot reasonably be contended that the audio

recording of the dispatch was “contradicted” by the Commonwealth’s evidence, such that

we must discount it from our review of the suppression court’s findings of fact. Further,

on cross-examination, Officer Pammer clarified that the information provided to the

officers did not suggest that Hicks had “pointed” the handgun at anyone, or that he was

“threatening somebody with it,” but, instead, that “just somebody was holding a gun, along

that nature.” Id.

       An audio recording of the camera operator’s description of Hicks’ behavior is

included within Defense Exhibit 2. The camera operator provided this report after the

police officers had arrived on the scene, and after Hicks already had been seized. Thus,



handgun, on February 26, 2013. The officers further checked Hicks’ license to carry a
concealed firearm, which was valid and not scheduled to expire until March 2018.


                                    [J-86-2018] - 49
its contents have little to no bearing upon the police officers’ assessment of reasonable

suspicion. See, e.g., J.L., 

 (“The reasonableness of official suspicion must

be measured by what the officers knew before they conducted their search.”).

Nonetheless, because we must view all of the evidence of record in the light most

favorable to the Commonwealth, and for the avoidance of any doubt with regard to

whether the camera operator’s knowledge may be imputed to the officers, c.f.

Commonwealth v. Yong, 

 (Pa. 2018), we assess whether the camera

operator’s description offers any support for the Commonwealth’s position. The report

proceeded as follows:

       Police Officer: All right. What exactly did you see? Did you, uh, see him
       take the gun out, or just his shirt lifted up?

       Camera Operator: No, when he gets out of the car, he was where your car
       [inaudible], where that black one is now, at pump six. There was another
       vehicle there. He gets out of his car next to it, on the opposite side of pump
       six, that black car there. Gets out of the car, does a handshake with a guy,
       I see him putting it in his waistband and then pulls his shirt over it. I can see
       it clear as day that it’s a firearm.

       Police Officer: Copy.

       Camera Operator: The gentleman he was with made sure he knew he had
       a firearm on him. And then walked into the store with it after he pulled his
       shirt over it. I didn’t think he had a holster, I thought he just put it in the
       waistband.


Camera Operator Report, 6/28/2018, Defense Exhibit 2. Like the dispatcher, the camera

operator does not use the word “brandishing” or otherwise describe any kind of violent or

threatening conduct.

       This Court also has carefully reviewed the video footage recorded by the camera

operator that morning, submitted into evidence as Defense Exhibit 1, the contents of

which the Commonwealth’s evidence did not contradict. Because both Hicks and the




                                      [J-86-2018] - 50
Commonwealth repeatedly refer to the video’s contents, we will describe what we see

therein.

       Hicks arrives at the Pace Mart at 2:31 a.m. and parks his vehicle at a gas pump.

A second, unidentified individual already was parked at an adjacent gas pump. The

individual clearly recognizes Hicks as an acquaintance, and approaches Hicks’ vehicle to

greet him. Hicks exits his vehicle, and his firearm becomes visible, albeit barely. Hicks

either is holstering the firearm or adjusting his garments around it when the second

individual reaches Hicks’ driver’s side door, which is still open. The individual greets

Hicks, and the two men shake hands with a brief, one-armed embrace. Hicks does not

appear to gesture or point to the firearm, and he does not remove it from his waistband

at any point. Hicks begins to walk toward the convenience store, continuing to adjust the

position of the handgun, which becomes more clearly visible for a moment. Thereafter,

the handgun is holstered outside Hicks’ waistband and covered by his shirt, but its outline

remains visible. Hicks enters the store, exits a short time later, then returns to the gas

pump, where he begins to fuel his vehicle. Hicks speaks briefly to a third, unidentified

individual while he pumps gas. Hicks then reenters his vehicle and begins to pull away

from the gas pump. Moments later, numerous marked police vehicles intercept Hicks’

vehicle with their lights flashing.

       Even viewing all of the evidence in the light most favorable to the Commonwealth,

there exists no basis for a finding that Hicks was engaged in any manner of criminal

conduct. There was no indication or apparent threat of violence, and no information

suggesting that Hicks engaged in any type of confrontation with another individual,

physical, verbal, or otherwise. Neither the camera operator’s report nor the police radio

dispatch suggest anything of the sort. Indeed, “[t]he video from the camera clearly shows

the firearm concealed in [Hicks’] waistband and that, despite the hour, there are a number




                                      [J-86-2018] - 51
of individuals at this location.” Brief for Commonwealth at 16. However, significantly, no

individual expresses any visible indication of alarm at Hicks’ presence, his possession of

his firearm, or the manner in which he carried it. Rather, the video depicts patrons of a

gas station going about their business, at least two of whom engage in seemingly friendly

interactions with Hicks.

       In light of defense counsel’s use of the word “showed” when cross-examining

Officer Pammer, N.T., 7/14/2015, at 15, we conclude that the record contains minimal

support for the suppression court’s finding that Hicks “showed” his firearm to another

individual. Order, 9/18/2015, at 1 n.1. We find no evidentiary support for an alternative

contention that Hicks “brandished” the firearm in any way, or at anyone. Further, the

characterization that the Commonwealth provided at oral argument—that Hicks removed

the handgun from his waistband, showed it to another individual, then placed it back in

his waistband—is likewise unsupported by the evidence of record.

       All that remains is the Commonwealth’s repeated emphasis upon the time of day

at which the seizure occurred and the fact that Hicks was seized in what Officer Pammer

described, based upon his experience, as a high crime neighborhood. These can serve

as relevant contextual considerations in a totality of the circumstances inquiry. See, e.g.,

Adams, 

; but see Wardlow, 

 (“An individual’s presence

in an area of expected criminal activity, standing alone, is not enough to support a

reasonable, particularized suspicion that the person is committing a crime.”). Even taking

into account the early morning hour and Officer Pammer’s characterization of the

neighborhood, there remains no particularized basis upon which to suspect that Hicks’

mere possession of a concealed firearm was unlawful.

       In consideration of the totality of the circumstances, even in the light most favorable

to the Commonwealth, the facts do not support a finding of reasonable, articulable




                                      [J-86-2018] - 52
suspicion that Hicks was engaged in any manner of criminal activity on the morning that

he was seized. As the suppression court found, and as confirmed by the evidence of

record, Hicks was seized solely due to the observation of a firearm concealed on his

person. Although such a seizure then may have been viewed as constitutional under

prevailing Superior Court precedent, we reject that precedent today.

      Michael Hicks was deprived of the protections of the Fourth Amendment and

Article I, Section 8 of the Pennsylvania Constitution, and the evidence derivative of his

seizure should have been suppressed.

      The judgment of sentence is vacated, and the matter is remanded for further

proceedings consistent with this Opinion.


      Chief Justice Saylor and Justices Todd and Donohue join the opinion.

      Justice Baer joins Parts I, II.A, B., and C.(i.-v.) and files a concurring opinion.

      Justice Dougherty files a concurring opinion in which Justice Mundy joins.




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