Commonwealth v. Jackson

302 A.3d 737 (Mem)

COMMONWEALTH of Pennsylvania, Appellee v. Kevin JACKSON, Appellant

No. 24 EAP 2022

Supreme Court of Pennsylvania.

Argued: March 8, 2023

Decided: September 28, 2023

ORDER

PER CURIAM

AND NOW, this 28th day of September, 2023, the Court being evenly divided, the order of the Superior Court is AFFIRMED.

JUSTICE BROBSON, in support of affirmance

In this discretionary matter, Appellant Kevin Jackson (Jackson) appeals from the judgment of the Superior Court, which vacated a pretrial order of the Court of Common Pleas of Philadelphia County (suppression court) and remanded the matter for further proceedings. The suppression court granted Jackson's motion to suppress evidence recovered after a police officer detained Jackson via what is commonly known as a Terry stop. ¹ While the suppression court concluded that the officer lacked the requisite reasonable suspicion to detain Jackson, the Superior Court reached the opposite conclusion. Upon review, we agree with the Superior Court insofar as it concluded that the police officer had reasonable suspicion to detain Jackson under the particular facts of this case. In so doing, we reiterate that an investigatory stop is lawful pursuant to Terry if it is supported by reasonable suspicion that the detained individual was, or was about to be, engaged in criminal activity. In making that determination, we review the totality of the circumstances available to the detaining officer at the time of the stop to discern whether there was a particularized and objective basis for suspecting the detained individual of criminal activity. Accordingly, we affirm.

I. BACKGROUND

On December 10, 2019, at approximately 7:50 p.m., Philadelphia Police Officer Christopher Swinarski (Officer Swinarski) was on routine patrol in a marked vehicle at or near the 4900 block of Penn Street when he heard the sound of two to four gunshots. Officer Swinarski drove his vehicle northbound on Penn Street and then turned westbound onto Harrison Street, making his way to the location from where he believed the gunshots emanated. At that time, Officer Swinarski encountered Jackson running eastbound down Harrison Street on the sidewalk. Officer Swinarski exited his vehicle and asked Jackson why he was running, and Jackson responded that he was running "from the gunshots." ² (N.T., 2/11/2021, at 17, 21.) At that point, Officer Swinarski commanded Jackson to stop. Jackson did not stop as commanded, however, leading Officer Swinarski to chase him on foot. During the chase, Officer Swinarski observed Jackson discard several items. Officer Swinarski eventually caught up with Jackson and handcuffed him. Thereafter, Officer Swinarski recovered the items Jackson discarded, which included a cell phone and a handgun. ³

Based on the foregoing, the Commonwealth of Pennsylvania (Commonwealth) charged Jackson by criminal information with firearms not to be carried without a license and carrying a firearm in public in Philadelphia without a license. ⁴ Jackson filed a pretrial motion in the suppression court, seeking to suppress the Commonwealth's evidence by alleging that Officer Swinarski lacked the reasonable suspicion necessary to conduct a lawful Terry stop in violation of Jackson's right to be free from unreasonable searches and seizures pursuant to the Fourth Amendment to the United States Constitution and Article 1, Section 8 of the Pennsylvania Constitution. ⁵

The suppression court held an evidentiary hearing at which only Officer Swinarski testified. Officer Swinarski generally explained the foregoing events leading to Jackson's apprehension. Of further relevance here, as to his reasoning behind ordering Jackson to stop, Officer Swinarski explained:

[Officer Swinarski:] At that point, I told Mr. Jackson to stop. I gave him multiple verbal commands to stop because I didn't know if he's injured. He could have been shot, in shock. He could have [been] a good witness or possibly an offender at that time. As I approached Mr. Jackson on foot, he fled ....

(N.T., 02/11/2021, at 17.) On cross-examination, Jackson's counsel questioned Officer Swinarski further regarding Jackson running from the gunshots:

[Jackson's counsel:] He told you he's running from the [gun]shots that you just heard?

[Officer Swinarski:] Yes.

[Jackson's counsel:] And you've been a police officer eight years?

[Officer Swinarski:] That's correct.

[Jackson's counsel:] And so people begin to shoot and some people run. That's standard? That's normal, right?

[Officer Swinarski:] Absolutely.

[Jackson's counsel:] Normal behavior of people, right?

[Officer Swinarski:] Yes.

[Jackson's counsel:] Especially—even—even people who are not involved. When people start shooting, people run, right?

[Officer Swinarski:] That's correct.

( Id. at 26.) Officer Swinarski also admitted that he did not witness Jackson clutching or holding anything, or reaching toward his waistband or his pockets, nor did he witness Jackson doing anything criminal during the pursuit. ( See id. at 26-27, 31-32, 34.)

Officer Swinarski additionally explained that Jackson was not under criminal investigation:

[Jackson's counsel:] So, anyway, you did tell us that you expected him to acquiesce to your command to stop, which he does not. He continues to run, right?

[Officer Swinarski:] He continues to run.

[Jackson's counsel:] And at that moment, he was—he was free to go. He wasn't under your investigation for anything. He was free to go away, wasn't he?

[Officer Swinarski:] When?

[Jackson's counsel:] When that gentleman—when this citizen was running down the street, he was not under police investigation for any criminal activity, was he?

[Officer Swinarski:] For no—for criminal activity, no.

[Jackson's counsel:] Okay. And then you began to pursue him, correct?

[Officer Swinarski:] After he disregarded the stop and continued to run.

[Jackson's counsel:] And you said stop a few times, right?

[Officer Swinarski:] Yes. Multiple times.

( Id . at 30-31.)

Officer Swinarski reiterated, however, that he commanded Jackson to stop because he believed that Jackson could have been a victim, witness, or perpetrator:

[Jackson's counsel:] If he'd appeared injured, meaning limping or ... seemed like he was infirmed while he was running, you would have documented that, right?

[Officer Swinarski:] Absolutely. ... [A]t that time, I did not know if he was shot or not. Like I said, somebody could be in shock. If they were—if they were—I've seen many people in shock who didn't think they were shot.

[Jackson's counsel:] I understand that.

[Officer Swinarski:] But, like I said, he could be—he could be the victim or the witness or possibly an offender at that time.

[Jackson's counsel:] Or—or, four, he could be nothing and just running from the [gun]shots? [Officer Swinarski:] Absolutely.

( Id . at 27.) Officer Swinarski also explained that Jackson was the lone individual on the street at the time. ( Id. at 25.)

Based on the foregoing testimony, the suppression court granted Jackson's pretrial motion to suppress the Commonwealth's evidence. The suppression court announced its factual findings and legal conclusions from the bench:

[T]he point at which the officer detained the defendant was after they first had their mere encounter. And the defendant explained his reasons for running and he proceeded to run. At that point, the officer issued a command for Mr. Jackson to stop. And that would trigger the investigatory detention standard, which requires that he needed to have a reasonable basis to issue that command to order Mr. Jackson to stop.

I find that on these facts, he did not have reasonable suspicion to detain Mr. Jackson. I do not find that this was a high-crime area. I don't believe evidence was on the record to support that determination. All we have here is an individual on the street, engaging in running, and he—and with good reason because there had been [gun]shots fired.

The officer made every indication that, at [that] point, he had not seen the defendant engaging in any criminal activity, or have any reason to suggest that the defendant had engaged in criminal activity, nor did the officer, at that point, witness the defendant holding any objects or trying to hide any objects. He had no reasonable suspicion to detain Mr. Jackson.

( Id . at 51-52.) Accordingly, the suppression court concluded that Officer Swinarski conducted an unlawful Terry stop, and it suppressed the firearm and other evidence recovered by Officer Swinarski following the detention.

In a published decision, the Superior Court vacated the suppression court's order and remanded for further proceedings. ⁶ Commonwealth v. Jackson , 271 A.3d 461 (Pa. Super. 2021). Like the suppression court, the Superior Court first recognized that, when Officer Swinarski ordered Jackson to stop running, he commenced an investigative detention under Terry , and Officer Swinarski, therefore, required reasonable suspicion that Jackson was involved in criminal activity to detain him. See id. at 463-64 (citing Terry , 392 U.S. at 30, 88 S.Ct. 1868 ). The Superior Court also noted that "Pennsylvania courts have consistently followed Terry in stop and frisk cases, including those in which the appellants allege protections pursuant to Article I, [Section] 8 of the Pennsylvania Constitution." Id. at 464 (quoting In re D.M. , 566 Pa. 445, 781 A.2d 1161, 1163 (2001) ). Accordingly, the Superior Court opined that Article I, Section 8 provides no greater protections concerning investigative detentions than the Fourth Amendment. ⁷

As to its review of the investigative detention at issue, the Superior Court explained:

In order to determine whether the police had a reasonable suspicion [when they executed a Terry stop], the totality of the circumstances—the whole picture—must be considered. Based upon that whole picture, the detaining officer[ ] must have a particularized and objective basis for suspecting the

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