Commonwealth v. Mackey

177 A.3d 221

COMMONWEALTH of Pennsylvania, Appellee

v.Stephen MACKEY, Appellant

No. 1460 EDA 2015

Superior Court of Pennsylvania.

Submitted October 17, 2016

Filed December 20, 2017

Jason C. Kadish, Philadelphia, for appellant.

Jessica D. Khan, Assistant District Attorney, and Hugh J. Burns, Jr., Assistant District Attorney, Philadelphia, for Commonwealth, appellee.

BEFORE: BOWES, J., MOULTON, J., and STEVENS, P.J.E.^*

OPINION BY MOULTON, J.:

Stephen Mackey appeals from the April 13, 2015 judgment of sentence entered in the Court of Common Pleas of Philadelphia County following his convictions for persons not to possess a firearm, carrying a firearm without a license, and carrying a firearm on the public streets of Philadelphia.¹ While we acknowledge the significant challenges presented by the facts in this case, we conclude that under controlling precedent the police lacked reasonable suspicion to detain Mackey. Accordingly, we overturn the trial court's denial of Mackey's motion to suppress and vacate the judgment of sentence.

This case involves a recurring scenario—the police receive an anonymous tip that a person matching a particular description in a particular location is carrying a firearm. When such a tip appears to raise a legitimate concern for public safety, the police have a manifest obligation to treat it seriously. As Judge Bowes aptly notes in her concurring opinion, " ‘[i]t would have been poor police work indeed’ for the officers to simply ignore the tip just because possession of a firearm is not per se illegal. Conc. Op. at 237 (quoting Terry v. Ohio , 392 U.S. 1, 23, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). At the same time, in light of the tipster's cloak of anonymity, the police must also account for the possibility that the tip is either in error or, worse, a sham designed to cause trouble for a person who is not carrying a weapon. In responding to such a tip, therefore, as in countless other recurring situations, the police must balance their obligation to protect the public from danger with their constitutional duty to respect the rights of all citizens. Striking that balance is particularly challenging when the safety concern, while significant, is based not on police observations but solely on the unverified allegations of a person who cannot be held to account if those allegations prove false.

The essential facts in this case, developed at a hearing on Mackey's motion to suppress, are largely undisputed. Philadelphia Police Officer Marcus O'Shaughnessy testified that on July 23, 2014, while on routine patrol, he received a radio call for a "person with a gun" aboard the Route 3 SEPTA bus, number 8323, traveling eastbound on Cecil B. Moore Avenue. According to the call, the suspect was described as "a black male wearing a white T-shirt and a flowered hat." N.T., 2/9/15, at 10. Officer O'Shaughnessy, along with another officer, found, stopped, and boarded the bus within two minutes of receiving the radio call. The trial court described what happened on the bus as follows:

Officer O'Shaughnessy entered the bus, which was filled with 50 to 60 passengers, and he immediately observed [Mackey] wearing a pink-and-green-flowered hat and a shirt that was white on the back and black on the front.²(See N.T. 02/09/15, pp. 5–12, 16–17).

² Officer O'Shaughnessy described the flowered hat as extremely distinctive in that it was a "bucket" hat patterned with pink and green flowers. (See N.T. 02/09/15, p. 17).

Officer O'Shaughnessy testified that he drew his firearm and commanded that [Mackey] show his hands; [Mackey] complied. He described [Mackey] as sitting up straight, while all the other passengers were leaning away and trying to duck for cover. [Mackey] was then handcuffed and led off the bus for passenger as well as officer safety. [Mackey] denied having any weapons; however, as he was being led off the bus, [Mackey] was not walking normally, he was "waddling". Officer O'Shaughnessy observed [Mackey] waddling for 20 to 25 feet. He testified that in his experience as an officer, he believed that [Mackey] was trying to keep a gun from falling out of his loose-fitting pants. Officer O'Shaughnessy then frisked [Mackey] and felt the gun, which he recovered from [Mackey's] waistband. The gun, which was loaded, was secured under property receipt. The entire incident took less than five (5) minutes. (See N.T. 02/09/15, pp. 12–17).

Trial Court Opinion, 12/24/15, at 2–3 ("1925(a) Op.") (some internal citations omitted).

The trial court denied the motion to suppress, concluding that Officer O'Shaughnessy had properly removed Mackey from the bus out of a concern for public safety and that, based on a combination of the detailed tip, Mackey's response to the officer drawing and pointing his service weapon, and Mackey's "waddling" off the bus, the officer had reasonable suspicion to frisk Mackey for weapons. 1925(a) Op. at 6. Mackey proceeded to a non-jury trial on stipulated facts, after which the trial court convicted him of the offenses listed above. On April 13, 2015, following a pre-sentence investigation, the trial court sentenced Mackey to 2 to 5 years' incarceration, followed by 3 years' probation on the conviction for persons not to possess a firearm. The court imposed no further penalty on the remaining convictions. Mackey filed a timely notice of appeal on May 11, 2015.

Mackey raises the following issues on appeal:

A. Did law enforcement detain ... Mackey without the required reasonable suspicion?

B. Did law enforcement subject ... Mackey to a constitutionally infirm frisk?

Mackey's Br. at 2 (full capitalization and suggested answers omitted).

In reviewing the denial of a suppression motion, our role is to determine:

whether the suppression court's factual findings are supported by the record and whether the legal conclusions drawn from those facts are correct. Because the Commonwealth prevailed before the suppression court, we may consider only the evidence of the Commonwealth and so much of the evidence for the defense as remains uncontradicted when read in the context of the record as a whole. Where the suppression court's factual findings are supported by the record, we are bound by these findings and may reverse only if the court's legal conclusions are erroneous. Where, as here, the appeal of the determination of the suppression court turns on allegations of legal error, the suppression court's legal conclusions are not binding on an appellate court, whose duty it is to determine if the suppression court properly applied the law to the facts. Thus, the conclusions of law of the courts below are subject to our plenary review.

Commonwealth v. Jones , 605 Pa. 188, 988 A.2d 649, 654 (2010) (internal quotations and citations omitted). Our scope of review is limited to the evidence presented at the suppression hearing. In re L.J. , 622 Pa. 126, 79 A.3d 1073, 1080 (2013).

Mackey first alleges that he was illegally detained because Officer O'Shaughnessy lacked reasonable suspicion to believe Mackey was carrying a weapon. According to Mackey, at the moment of detention, Officer O'Shaughnessy lacked reasonable suspicion to seize him because the officer possessed only anonymous radio information that a person partially matching Mackey's appearance was armed, and the officer "did not observe any criminal activity to corroborate the radio call." Mackey's Br. at 5, 10.

The Commonwealth responds that "the totality of the circumstances established reasonable suspicion to believe that criminal activity might be afoot." Cmwlth.'s Br. at 8. The Commonwealth notes that Officer O'Shaughnessy received a detailed tip that described Mackey's appearance, as well as information that he was on a specific bus headed eastbound on Cecil B. Moore Avenue. Id. In addition to the tip, the Commonwealth relies on Mackey's "unusual" behavior when Officer O'Shaughnessy drew his service weapon and Mackey's "waddling" off the bus in support of its claim that the officer reasonably believed Mackey was carrying a weapon. Id. at 9.

The investigation of possible criminal activity invariably brings police officers in contact with members of the public. Depending on the circumstances, a police-citizen encounter may implicate the liberty and privacy interests of the citizen as embodied in both the federal constitution, seeU.S. Const. art. IV,² and our state constitution, see Pa. Const. art. I, § 8.³ The law recognizes three distinct levels of interaction between police officers and citizens: (1) a mere encounter; (2) an investigative detention, often described as a Terrystop , see Terry v. Ohio , 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) ; and (3) a custodial detention. See Commonwealth v. Jones , 874 A.2d 108, 116 (Pa.Super. 2005).

"A mere encounter can be any formal or informal interaction between an officer and a citizen, but will normally be an inquiry by the officer of a citizen. The hallmark of this interaction is that it carries no official compulsion to stop or respond," Commonwealth v. DeHart , 745 A.2d 633, 636 (Pa.Super. 2000) (internal citations and quotations omitted), and therefore need not be justified by any level of police suspicion. Commonwealth v. Polo , 563 Pa. 218, 759 A.2d 372, 375 (2000).

"In contrast, an ‘investigative detention’ ... carries an official compulsion to stop and respond .... Since this interaction has elements of official compulsion it requires reasonable suspicion of unlawful activity." DeHart , 745 A.2d at 636. In addition, while reasonable suspicion of unlawful activity is sufficient to justify a forcible stop , it does not necessarily justify a frisk for weapons. See Commonwealth v. Davis , 102 A.3d 996, 999 (Pa.Super. 2014) ("A Terry frisk is a type of investigative detention requiring reasonable suspicion that criminal activity is afoot and that the individual whose suspicious behavior he is investigating at close range is armed and presently dangerous to the officer or to others.") (internal quotation marks...