J-S81029-16
                              2017 PA Super 403


COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT
                                                            OF
                                                       PENNSYLVANIA


                     v.

STEPHEN MACKEY

                          Appellant                  No. 1460 EDA 2015


             Appeal from the Judgment of Sentence April 13, 2015
             In the Court of Common Pleas of Philadelphia County
             Criminal Division at No(s): CP-51-CR-0010023-2014


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

CONCURRING OPINION BY BOWES, J.:                 FILED DECEMBER 20, 2017

        The Honorable Geoffrey Moulton’s Opinion cogently sets forth why the

Commonwealth failed to establish reasonable suspicion of an ongoing crime

pursuant to Florida v. J.L., 529 U.S. 266 (2000). The trial court determined

that exigent circumstances justified removing Appellant from the bus, with a

subsequent determination that the officers possessed reasonable suspicion to

pat down Appellant for a firearm due to actions learned after Appellant was

seized. The Opinion aptly explains why the invalid initial seizure requires this

Court to ignore information learned after the seizure.       However, the trial

court’s application of exigent circumstances alongside reasonable suspicion

analysis highlights the difficult Fourth Amendment question presented by this

case.



* Former Justice specially assigned to the Superior Court.
J-S81029-16



       “The Fourth Amendment proscribes all unreasonable searches and

seizures, and it is a cardinal principle that searches conducted outside the

judicial process, without prior approval by judge or magistrate, are per se

unreasonable under the Fourth Amendment—subject only to a few specifically

established and well-delineated exceptions.” Mincey v. Arizona, 437 U.S.

385, 390 (1978) (quotation marks and citation omitted).         A specifically-

established exception to the warrant requirement was announced in the

seminal case of Terry v. Ohio, 392 U.S. 1 (1968), which, as the lead Opinion

articulates, does not serve to justify the instant seizure.

       The Commonwealth relies upon exigent circumstances as grounds for

justifying the seizure.         In so doing, the Commonwealth’s argument

incorporates exigency considerations into the reasonable suspicion of criminal

activity inquiry: “Here, the totality of the circumstances established

reasonable suspicion to believe that criminal activity might be afoot, and

Officer O’Shaughnessy acted reasonably in addressing a serious threat.”

Commonwealth’s brief at 8 (emphasis added).

       In my view, such an approach misapplies Terry, as the exigencies

associated with any particular crime play no role when assessing the validity

of a seizure under Terry.1 Thus, stating that the totality of the circumstances


____________________________________________


1Exigencies can arise after a valid stop has occurred. See Commonwealth
v. Revere, 888 A.2d 694 (Pa. 2005) (some exigencies, particularly, need for
safety and security, justify transporting a suspect during a Terry detention).

                                           -2-
J-S81029-16



demonstrated    that   criminal   activity   “might”   be   afoot   is    doctrinally

incompatible with Terry. To support a stop under Terry, the officer must

articulate specific observations which “led him to reasonably conclude, in light

of his experience, that criminal activity was afoot and that the person he

stopped was involved in that activity.” Commonwealth v. Caban, 60 A.3d

120, 128 (Pa.Super. 2012) (citation omitted).               The Commonwealth’s

statement that the officers had reason to believe that Appellant might be

involved in criminal activity implicitly concedes that reasonable suspicion of

an ongoing crime did not exist.

      On the other hand, the Commonwealth’s argument that the instant tip

justified a seizure for investigative purposes, even if the tip did not amount to

reasonable suspicion of an ongoing crime, is not without some force. “‘[T]he

ultimate touchstone of the Fourth Amendment,’ we have often said, ‘is

reasonableness.’”   Michigan v. Fisher, 558 U.S. 45, 47 (2009) (quoting

Brigham City, Utah v. Stuart, 547 U.S. 398, 403 (2006)).                 Warrantless

seizures and searches may be deemed reasonable if “the exigencies of the

situation make the needs of law enforcement so compelling that the

warrantless search is objectively reasonable under the Fourth Amendment.”

Mincey, supra at 394 (quotation marks and citation omitted).

      The exigent circumstances doctrine is typically applied in the context of

warrantless entries and searches of homes, with the exigency supported by

probable cause of a crime plus some circumstance beyond the mere need to

                                      -3-
J-S81029-16



investigate the crime.        See Commonwealth v. Fickes, 969 A.2d 1251

(Pa.Super. 2009) (warrantless entry into garage permitted where officer in

fresh pursuit had probable cause to believe appellant had been driving under

the influence; BAC evidence would likely be lost by time warrant was secured);

Commonwealth v. Davido, 106 A.3d 611 (Pa. 2014) (warrantless entry into

residence was reasonable under totality of the circumstances as application of

emergency aid doctrine due to inherent exigencies in domestic abuse cases);

Compare Commonwealth v. Bowmaster, 101 A.3d 789 (Pa.Super. 2014)

(assuming that probable cause to search shed and home existed, there was

no reason to believe entry was needed to prevent violence, destruction of

evidence, or escape, and therefore normal warrant requirement applied).

       This case poses a vexing problem in that an armed individual in a

crowded public bus may pose an exigency, i.e., a risk to public safety even in

the absence of criminal activity, as demonstrated by the fact that someone

felt compelled to report the activity to the authorities.2 In the words of Terry,

“[i]t would have been poor police work indeed” for the officers to simply ignore


____________________________________________


2 There are also Second Amendment considerations lurking in these types of
cases. The Commonwealth notes that this tip occurred in a high crime area,
which arguably creates a compelling law enforcement need to immediately
investigate. This same point can be cast in favor of the individual: A higher
incidence of crime is a reason why an individual may feel compelled to carry
a firearm for self-defense. To this end, I note that the Commonwealth does
not suggest or argue that carrying a firearm on a public bus violates the transit
agency’s rules or regulations.


                                           -4-
J-S81029-16



the tip just because possession of a firearm is not per se illegal. Terry, supra

at 23. Terry itself involved “a series of acts, each of them perhaps innocent in

itself, but which taken together warranted further investigation.” Id. at 22.

Herein, the anonymous report offered no insight into whether the tipster was

merely concerned with the presence of a firearm in general, or whether there

was some other concerning behavior.            Hence, I conclude that there was a

strong governmental interest in investigating this tip, even setting aside the

fact that carrying a firearm is not itself illegal.3 18 Pa.C.S. § 6106; 18 Pa.C.S.

§ 6108.

       However, Appellant’s presence on a public bus placed the officers herein

in something of a constitutional Catch-22. The purported exigency justifying

the police interaction, i.e. an armed man posing a potential threat to public

safety, existed only if the tip itself was sufficiently reliable in its allegation that

a firearm was present.         The question is whether the Fourth Amendment



____________________________________________


3 On October 2, 2017, our Supreme Court granted a petition for allowance of
appeal to address the constitutionality of a “bright line rule holding that
possession of a concealed firearm in public is sufficient to create reasonable
suspicion” is warranted. Commonwealth v. Hicks, 2017 WL 4351309 (Pa.
2017). Thus, Hicks may offer insight into whether the mere fact someone is
carrying a concealed weapon, or is reasonably suspected to be, itself justifies
a presumption of danger permitting a frisk. See also United States v.
Robinson, 846 F.3d 694, 698 (4th Cir. 2017) (en banc) (“This appeal presents
the question of whether a law enforcement officer is justified in frisking a
person whom the officer has lawfully stopped and whom the officer reasonably
believes to be armed, regardless of whether the person may legally be entitled
to carry the firearm.”).

                                           -5-
J-S81029-16



demands corroboration given the nature of the anonymous tip. Consider that

J.L. noted that the officers “would have had reasonable suspicion that J.L. was

engaged in criminal activity only if they could be confident that he was

carrying a gun in the first place.” Id. at 273, n.1 (emphasis added). It is

unclear how the uniformed officers herein could realistically fulfill that

corroboration requirement in a timely fashion without boarding the bus.

Therefore, the Commonwealth’s attempt to apply exigent circumstances

rationales is understandable.

      In this regard, the fact that the exigent circumstances doctrine permits

a warrantless search of a home implicitly supports the notion that the lesser

intrusion of a warrantless seizure is likewise reasonable. Nevertheless, I view

exigent circumstances and Terry as two separate branches of law, which

independently operate as exceptions to the normal Fourth Amendment

warrant requirement.     To my knowledge, neither the Supreme Court of

Pennsylvania nor the United States has held that the requisite quantum of

reasonable suspicion of criminal activity waxes and wanes depending on the

potential crime at issue. Therefore, I believe that the threat to public safety

must be analyzed on its own, and not with reference to any particular crime.

Language contained within J.L. supports that notion:

      The facts of this case do not require us to speculate about the
      circumstances under which the danger alleged in an anonymous
      tip might be so great as to justify a search even without a showing
      of reliability. We do not say, for example, that a report of a person
      carrying a bomb need bear the indicia of reliability we demand for

                                      -6-
J-S81029-16



      a report of a person carrying a firearm before the police can
      constitutionally conduct a frisk. Nor do we hold that public safety
      officials in quarters where the reasonable expectation of Fourth
      Amendment privacy is diminished, such as airports, see Florida
      v. Rodriguez, 469 U.S. 1, 105 S.Ct. 308, 83 L.Ed.2d 165 (1984)
      (per curiam), and schools, see New Jersey v. T.L.O., 469 U.S.
      325, 105 S.Ct. 733, 83 L.Ed.2d 720 (1985), cannot conduct
      protective searches on the basis of information insufficient to
      justify                    searches                     elsewhere.

J.L., supra at 273–74 (2000). As illustrated by the petition for allowance of

appeal in Hicks, the dangers posed by the mere presence of a firearm with

respect to Fourth Amendment analysis is a matter of dispute. Moreover, the

Commonwealth did not allege that Appellant’s expectation of privacy was

diminished by virtue of his presence on a public carrier.

      That said, I note that the United States Supreme Court arguably

distanced itself from J.L. in Navarette v. California, 134 S.Ct. 1683, 1688

(2014). Therein, the High Court considered the reliability of an anonymous

911 call, which stated that a silver Ford F-150 pickup bearing license plate

8D94925 ran the caller’s vehicle off the road. The tipster reported that the

vehicle was heading southbound near a certain mile marker. The Court held

that the tip was sufficiently reliable to provide reasonable suspicion of an

ongoing DUI.    This conclusion relied, in part, on the fact that the caller

reported she had been run off the road. “By reporting that she had been run

off the road by a specific vehicle—a silver Ford F–150 pickup, license plate

8D94925—the caller necessarily claimed eyewitness knowledge of the alleged




                                     -7-
J-S81029-16



dangerous driving. That basis of knowledge lends significant support to the

tip's reliability.” Id. at 1689.

       Navarette then distinguished the reliability of that tip from the one in

J.L.: “This is in contrast to J.L., where the tip provided no basis for concluding

that the tipster had actually seen the gun.” Id. The reasoning employed in

Navarette is difficult to square with J.L.’s statement that the “reasonable

suspicion here at issue requires that a tip be reliable in its assertion of

illegality, not just in its tendency to identify a determinate person.”      J.L.,

supra at 272. It is unclear why the tip in Navarette was deemed reliable in

its description of illegal behavior, i.e. an ongoing DUI, as opposed to merely

supplying a reliable description of the vehicle engaged in that behavior.4

Hence, one could easily rephrase Navarette to state in this case that the

specific level of information supplied by the caller provided a basis to conclude

that the tipster necessarily claimed direct knowledge of observing a firearm.

       In this respect, I observe that in 2009, Chief Justice Roberts, joined by

Justice Scalia, filed a dissent from denial of certiorari in a case that squarely

presented the issue of whether drunk driving warrants special treatment under


____________________________________________


4  The four dissenting Justices in Navarette criticized the majority’s attempts
to distinguish J.L. and other anonymous tipster cases. “Today's opinion does
not explicitly adopt such a departure from our normal Fourth Amendment
requirement that anonymous tips must be corroborated; it purports to adhere
to our prior cases, such as [J.L.] . . . Be not deceived.” Id. at 1692 (Scalia,
J., dissenting).


                                           -8-
J-S81029-16



the Fourth Amendment. Chief Justice Roberts noted the dilemma faced by

police officers when a tip warrants police investigation but is nonetheless

insufficient on its face to justify a seizure.

      [T]he Virginia Supreme Court . . . decision below commands that
      police officers following a driver reported to be drunk do nothing
      until they see the driver actually do something unsafe on the
      road—by which time it may be too late.

      ....

      I am not sure that the Fourth Amendment requires such
      independent corroboration before the police can act, at least in
      the special context of anonymous tips reporting drunk driving.
      This is an important question that is not answered by our past
      decisions, and that has deeply divided federal and state courts.
      The Court should grant the petition for certiorari to answer the
      question and resolve the conflict.

Virginia v. Harris, 558 U.S. 978 (2009) (Roberts, C.J., dissenting from denial

of certiorari).

      The same consideration extends to this scenario. Had the officers dallied

in an attempt to corroborate the tip and violence erupted inside the bus, any

police action would come too late. Thus, while Judge Moulton correctly notes

that an automatic firearms exception was rejected by J.L., that observation

was made in the context of a Terry analysis, not exigent circumstances. I

am thus not firmly convinced that the Fourth Amendment required

independent corroboration by the police officers under these facts.

      Despite my reservations, this case is so factually similar to J.L. that I

cannot conclude that the key distinction, Appellant’s presence on a public bus,



                                        -9-
J-S81029-16



warrants a contrary outcome. Hicks may ultimately offer guidance on the

question of whether the instant detention was reasonable, even in the absence

of reasonable suspicion of a crime. Until such time, I agree that the similarities

between this case and J.L. require reversal.




                                     - 10 -
