J-S29029-21
2021 PA Super 253
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
v. :
:
KEVIN JACKSON : No. 560 EDA 2021
Appeal from the Order Entered February 11, 2021,
in the Court of Common Pleas of Philadelphia County,
Criminal Division at No(s): CP-51-CR-0000888-2020.
BEFORE: PANELLA, P.J., KUNSELMAN, J., and STEVENS, P.J.E.*
OPINION BY KUNSELMAN, J.: FILED DECEMBER 21, 2021
The Commonwealth appeals from the order granting Kevin Jackson’s
motion to suppress evidence that he abandoned while fleeing from an officer
in Philadelphia.1 Because the officer reasonably suspected Mr. Jackson was
involved in a recent shooting, his command for Mr. Jackson to halt was a legal
request so he could further investigate. As such, we vacate and remand.
Facing various firearm and related offenses,2 Mr. Jackson moved to
suppress the Commonwealth’s evidence. After a hearing on that motion, the
suppression court announced its factual findings and legal conclusions from
the bench, as follows:
____________________________________________
* Former Justice specially assigned to the Superior Court.
1 The Commonwealth took this interlocutory appeal pursuant to its certification
under Pa.R.A.P. 311(d) that the suppression court’s ruling substantially
handicaps it prosecution.
2 See 18 Pa.C.S.A. §§ 907(a), 2705, 6106(a)(1), and 6108.
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On December 10, 2019, at approximately 7:16 p.m.,
on or about the 4900 block of Penn Street, Officer Swinarski
was on routine patrol in a marked vehicle at which time he
heard two to four gunshots in a northern direction from his
position. In his officer vehicle, he made his way to the
location where he believed the shots had been fired by
traveling northbound on Penn Street and then turning
westbound onto Harrison. At that point, he encountered the
Defendant, Mr. Jackson.
He saw Mr. Jackson running eastbound down Harrison
on the sidewalk. [Exiting his cruiser,] the officer then asked
[Mr. Jackson] why he was running, and [he] responded,
“Because I heard gunshots.”[3] And [Mr. Jackson] continued
running. At which point, the officer commanded [him] to
stop.
Mr. Jackson did not stop as commanded by the officer.
He kept running, [and] the officer chased Mr. Jackson.
During the course of the chase, Mr. Jackson disposed of
some items, which were later recovered and deemed to be
a cell phone and a gun as pictured in C-1. [After Mr.
Jackson] disposed of the items, the officer [caught] up and
detained him with the use of handcuffs and then conducted
a search.
[T]he point at which the officer detained [Mr. Jackson]
was after [Mr. Jackson] explained his reasons for running
and he proceeded to run. At that point, the officer issued a
command for Mr. Jackson to stop. And that would trigger
the investigatory-detention standard, which requires that
[the officer] needed to have a reasonable basis to issue that
command to order Mr. Jackson to stop.
I find that on these facts, [the officer] did not have
reasonable suspicion to detain Mr. Jackson. I do not find
that this was a high-crime area. I don’t believe evidence
was on the record to support that determination. All we
have here is an individual on the street, engaging in running
. . . with good reason, because there had been shots fired.
____________________________________________
3 This is incorrect.The officer actually testified that Mr. Jackson said he “was
running from the gunshots.” N.T., 2/11/21, at 17 (emphasis added). Mr.
Jackson did not call any witnesses to refute the officer’s version of events.
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The officer made every indication that, at that point,
he had not seen [Mr. Jackson] engaging in any criminal
activity or have any reason to suggest that [Mr. Jackson]
had engaged in criminal activity, nor did the officer, at that
point, witness [him] holding any objects or trying to hide
any objects. He had no reasonable suspicion to detain Mr.
Jackson.
N.T., 2/11/21, at 50-53.
Therefore, the suppression court held that all of the seized evidence was
fruit of an unconstitutional Terry stop and granted Mr. Jackson full relief. The
Commonwealth timely appealed.
It asks whether the suppression court erred “in suppressing a gun and
cellphone [Mr. Jackson] discarded as he ran from the area where gunshots
had just been fired?” Commonwealth’s Brief at 4. The Commonwealth argues
the officer had a reasonable (and, thus, constitutional) basis to detain Mr.
Jackson when he ordered him to stop.
When reviewing an order granting suppression, our scope of review only
includes “the evidence of the defendant’s witnesses and so much of the
evidence for the prosecution as read in the context of the record as a whole
remains uncontradicted.” Commonwealth v. Lindblom, 854 A.2d 604, 606
(Pa. Super. 2004). Where, as here, police invaded the privacy of an individual
without a warrant, we review whether they possessed reasonable suspicion or
probable cause de novo. See Ornelas v. United States,
517 U.S. 690
(1996).
The suppression court found that, when the officer ordered Mr. Jackson
to stop, the officer commenced an investigative detention, commonly known
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as a Terry stop. Consistent with the Fourth Amendment to the Constitution
of the United States, police may initiate a Terry stop based upon reasonable
suspicion that the seized individual is involved in criminal activity. See Terry
v. Ohio, 392 U.S. 1, 30 (1968). “Pennsylvania courts have consistently
followed Terry in stop and frisk cases, including those in which the appellants
allege protections pursuant to Article I, § 8 of the Pennsylvania Constitution.”
In re D.M.,
781 A.2d 1161, 1163 (Pa. 2001); see also Commonwealth v.
Jefferson,
853 A.2d 404 (Pa. Super. 2004) (accord). Thus, Article I, § 8
provides citizens no greater protections from Terry stops than the Fourth
Amendment.
“In order to determine whether the police had a reasonable suspicion
[when they executed a Terry stop], the totality of the circumstances — the
whole picture — must be considered.” D.M., supra, citing United States v.
Cortez,
449 U.S. 411, 417 (1981). “Based upon that whole picture, the
detaining officers must have a particularized and objective basis for suspecting
the particular person stopped of criminal activity.”
Id. at 417–18. “[I]n
determining whether the officer acted reasonably . . . due weight must be
given, not to his inchoate and unparticularized suspicion or ‘hunch,’ but to the
specific reasonable inferences which he is entitled to draw from the facts in
light of his experience.” Terry,
392 U.S. at 27.
Here, a uniformed officer heard gunshots and drove his marked car
towards the location where he thought the shooting had occurred. Shortly
thereafter, Mr. Jackson sprinted in the officer’s direction, i.e., away from the
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suspected location of the shooting. Mr. Jackson was the only person on the
street during that December night. This piqued the officer’s curiosity that Mr.
Jackson might have some tie to the gunshots. Thus, he exited his cruiser and
followed up on his hunch by asking Mr. Jackson “what he was running from.”
N.T., 2/11/21, at 17. This is precisely the type of continued investigation that
the Fourth Amendment demands police undertake before detaining someone.
This Court has held that an officer may direct a fleeing individual to stop
for questioning if the officer reasonably deduces that the individual is
potentially “a perpetrator, victim, or eyewitness of a possible shooting.”
Commonwealth v. Bryant, 866 A.2d 1143, 1147 (Pa. Super. 2005), appeal
denied,
876 A.2d 392 (Pa. 2005). As in the case at bar, the Bryant Court
addressed a scenario where an officer did not personally observe a suspected,
recent shooting. This Court held that the totality of the circumstances (being
in a high-crime area, the police officer hearing gunshots and seeing three men
running from the area where he believed the gunshots originated) justified
a Terry stop.
Mr. Jackson contends that any comparison to Bryant is inapt, because,
unlike Bryant, the suppression court found that the Commonwealth did not
prove Mr. Jackson was in a high-crime area. He additionally emphasizes that,
in Bryant, the defendants were the only people fleeing on a crowded street,
whereas he was the lone person seen on the night in question.
Here, the officer explained that, prior to directing Mr. Jackson to halt,
he inferred from the totality of the circumstances that Mr. Jackson “could be
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the victim, the witness, or possibly an offender at that time.” N.T., 2/11/21,
at 27. This real-time assessment of a highly dangerous, rapidly developing
situation was well reasoned, and it comports with Bryant.
Where an individual who admits to law enforcement that he is fleeing
from gunshots and is the lone person who may have more information or
connection to the shooting, this creates reasonable suspicion for the police to
stop him and further investigate. In this instance, the officer’s inference that
Mr. Jackson was probably connected to the active-shooter event was quite
reasonable, regardless of the neighborhood where these events unfolded.
Thus, the Commonwealth’s failure to establish the high-crime-area factor is
irrelevant.4
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4 For criticism that the high-crime-area factor is an illogical restriction on the
powers of police in low-crime areas see Commonwealth v. Ruckinger, 362
A.2d 317, 324 (Pa. Super. 1976) (en banc) (Price, J. dissenting). But see
also, Commonwealth v. Barr,
240 A.3d 1263, 1291 (Pa. Super. 2020)
(Strassburger, J. concurring), appeal granted,
252 A.3d 1086 (Pa. 2021)
(criticizing high-crime-area factor for depriving citizens of equal protections of
the constitution; “People who live in poor areas that are riddled with crime do
not have fewer constitutional rights than people who have the means to live
in ‘nice’ neighborhoods.”); and see Grunwald & Fagan, The End of IntuitionBased High-Crime Areas, CALIFORNIA LAW REVIEW, VOL. 107 at 345, 351 (2019)
(compiling data from New York City police officers’ search-and-seizure reports,
between 2007 and 2012; finding that Illinois v. Wardlow,
528 U.S. 119
(2000), rests upon false assumptions about policing — i.e., Wardlow
assumed that (1) police would only apply the high-crime-area factor to specific
blocks or areas of their jurisdictions (NYPD uses the factor throughout the
entire City); (2) police would accurately describe areas as high-crime (NYPD
invokes the high-crime factor with no statistical relation to a location’s actual
crime rates); and (3) police would neutrally apply the factor to all searches
and seizures (NYPD most often invokes the high-crime-area factor against
“young, Black, male suspects,” no matter where a Terry stop occurs).
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In sum, the suppression court erroneously held that the officer initiated
an unconstitutional Terry stop when he directed Mr. Jackson to stop running
so that he could further investigate. Therefore, we vacate the order of
suppression and remand for the suppression court to determine, in the first
instance, whether the officer’s actions following the lawful Terry stop were
also constitutional.
Order vacated. Case remanded for further proceedings consistent with
this Opinion.
Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/21/2021
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