J-A09013-15



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                   IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                        Appellant

                   v.

MALIK NOEL,

                        Appellee                     No. 1087 EDA 2014


              Appeal from the Order Entered March 13, 2014
           In the Court of Common Pleas of Philadelphia County
           Criminal Division at No(s): CP-51-CR-0006259-2013


BEFORE: BOWES, DONOHUE, AND STABILE, JJ.

MEMORANDUM BY BOWES, J.:                              FILED JUNE 17, 2015

     The Commonwealth appeals from the order entered March 13, 2014,

granting Malik Noel’s motion to suppress. After careful review, we reverse.

     The suppression court relayed the following facts.

           On February 14, 2013, at 2:59 pm, in the 3000 block of
     North 22nd Street, Police Sergeant William Schmid received three
     separate radio calls regarding anonymous tips of a black male in
     the area with a gun. The first radio call described a black male,
     medium complexion, white thermal shirt, black coat, bushy hair,
     and 30 years old, who arrived in a red and black Charger and
     went into a barbershop. The second radio call described a black
     male wearing a white jacket and blue jeans, who was armed,
     and went into a barbershop. The third radio call described a
     black male wearing a black jacket, white thermal top, blue jeans,
     and black shoes, with a gun on his hip. All of the radio calls
     were from anonymous sources.

           Sergeant Schmid and his partner arrived on the 3000 block
     of North 22nd Street one to two minutes after receiving the radio
     call. They initially entered a women’s hair salon on the first floor
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     of 3033 North 22nd Street. Sergeant Schmid inquired if anyone
     in the hair salon had called regarding a person with a gun. A
     female inside the salon said they had not called. The officers
     were ready to walk back outside when the female asked if the
     officers were aware that there is a barbershop upstairs. The
     officers went back outside and opened the door next to the door
     that opened the salon. The other door led to the second floor of
     the same building where the salon was located.

           The officers walked up the stairs to the second floor and
     entered a barbershop on the second floor of 3033 North 22 nd
     Street. The barbershop was a single, open room with two barber
     chairs. Each chair was occupied by a customer whose hair was
     being cut by a barber. As he stepped inside the barbershop,
     Sergeant Schmid looked to see if anyone in the shop matched
     the anonymous flash information. He also inquired if anyone had
     called the police regarding a person with a gun. Nobody in the
     barbershop responded.

            Sergeant Schmid then observed Defendant, who was
     seated facing away from the sergeant in a barber’s chair, with
     his back to the sergeant, and wearing a barber’s cape.
     Defendant was getting his haircut by one of the barbers.
     Defendant’s arms were outside the barber’s cape, and Sergeant
     Schmid observed that Defendant was wearing a white thermal
     shirt.

           When Sergeant Schmid made these observations, both of
     Defendant’s arms were resting on the arm rest of the barber
     chair. Sergeant Schmid also observed Defendant “take his left
     hand and start to slide it down between himself and the arm of
     the barber chair, starting to go under the black cape, that was
     draped over.” As he closed the less than 10 feet to the chair,
     Sergeant Schmid said to Defendant, “Let me see your hand.” He
     then pinched the cape and tossed it off of Defendant. When he
     pinched the cape, Defendant’s left hand was under the cape.

          Sergeant Schmid explained that he removed the cape
     because:

          The male fit the description for the person with the gun,
       there were multiple calls. He was the only one in the
       location that fit the description and he was concealing his

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          hand under the barber cape. I didn’t know what he was
          going for or what he was doing with his hand. I didn’t
          know if he was reaching for a weapon or trying to conceal
          something, drugs or gun. I don’t know what he was doing.

            Sergeant Schmid also testified that—when Defendant
       moved his hand—he was not reaching or grabbing at any specific
       pocket or area. Rather, Defendant simply moved his hand from
       on top of the cape to underneath the cape and rested his hand
       under the cape on the arm of the barber chair.

             After the apron was thrown off, Defendant leaned forward
       in the chair. As he leaned forward, Sergeant Schmid saw the
       outline of a very large handgun protruding from Defendant’s
       waistband. Sergeant Schmid recovered the gun and arrested
       Defendant.

Suppression Court Opinion, 8/13/14, at 1-3 (emphasis in original) (internal

citations omitted).

       The Commonwealth charged Appellee with person not to possess a

firearm, carrying an unlicensed firearm, carrying a firearm in public in

Philadelphia, and receiving stolen property. The non-firearms violation was

dismissed at a preliminary hearing. Thereafter, on March 13, 2014, Appellee

litigated a suppression motion “under Article One, Section Eight of the

Pennsylvania Constitution.”         N.T., 3/13/14, at 5.1   Specifically, Appellee

argued that “police lacked reasonable suspicion to stop and frisk the

____________________________________________


1
  Appellee did not file a written motion. However, the Commonwealth did
not object below, and since it raises the issue for the first time on appeal,
such a position is waived.        See Pa.R.A.P. 302(a).        Moreover, the
Commonwealth did not forward this contention in its Rule 1925(b) concise
statement of errors complained of on appeal.



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defendant[.]”   Id.   According to Appellee, the anonymous information

received by the police did not warrant the seizure and search.             The

suppression court agreed, concluding:

             The anonymous source has, in my view, no indicia of
      [re]liability and although the defendant marginally fits part of
      the flash, that was he was a black male, wearing a tan to beige
      shirt with blue jeans, there’s insufficient information to
      corroborate the anonymous tip.             I’ll also regard—give
      appropriate regards to the area of arrest, which was inside of the
      barber shop, that this sergeant was not aware of—known for any
      criminal activity. Although, certainly the area itself is a high-
      crime area. This is like—unlike most of the cases, where there is
      due regard for the area of arrest, which would be on the street
      or corner or somewhere out in the public. This was actually
      inside private property, in a second floor, in a private business.

             I’ll also make a finding that there’s no movement by the
      defendant to suggest that he had a weapon or was armed and
      dangerous. The sergeant did not observe any bulge, any shape
      of a weapon prior to the defendant being seized and there was
      no failure to comply with any instruction or orders given by the
      officer and no nervousness displayed by the defendant.

N.T., 3/13/14, at 63-64.

      This appeal ensued. The Commonwealth’s sole contention on appeal

is:

      Did the suppression court err by suppressing the gun that
      experienced police officers recovered from defendant’s person in
      a frisk where he invited reasonable suspicion by concealing his
      hand under a barber’s cape as the officers approached him in a
      violent, high-crime area in response to flash information
      describing a gunman with his appearance?

Commonwealth’s brief at 1.




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      This Court evaluates the grant of a suppression motion under well-

established principles.   We consider the evidence of the defendant, as the

prevailing party below, and any evidence of the prosecution that is

uncontradicted when examined in the context of the suppression record.

Commonwealth v. Peterson, 17 A.3d 935, 937 (Pa.Super. 2012).            This

Court is bound by the factual findings of the suppression court where the

record supports those findings and may only reverse when the legal

conclusions drawn from those facts are in error. Id. Importantly, we are

not bound by the legal conclusions of the suppression court. In re T.B., 11

A.3d 500, 505 (Pa.Super. 2010).

      We begin by noting that in considering interaction between law

enforcement and other citizens, Pennsylvania courts look to whether the

subject interaction is a mere encounter, an investigatory detention, or a

custodial detention, i.e., an arrest.   A mere encounter does not require

police to have any level of suspicion that the person is engaged in

wrongdoing.   Commonwealth v. Downey, 39 A.3d 401, 405 (Pa.Super.

2012).   At the same time, such an encounter does not carry any official

compulsion for the party to stop or respond. Id. An investigative detention,

however, subjects an individual to a stop and short period of detention. Id.

This seizure does not involve actions that are so coercive as to comprise the

equivalent of an arrest. Id. To conduct an investigative detention, police

must have reasonable suspicion of criminal activity. Id.

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       “[T]his standard is met ‘if the police officer's reasonable and articulable

belief that criminal activity was afoot is linked with his observation of

suspicious or irregular behavior on behalf of the particular defendant

stopped.’”    Commonwealth v. Kearney, 601 A.2d 346, 348 (Pa.Super.

1992) (citing Commonwealth v. Espada, 528 A.2d 968 (Pa.Super. 1987)).

It is well-settled that “[m]ere presence near a high crime area or in the

vicinity of a recently reported crime, is not enough to warrant a Terry[2]

stop.” Id.      Nonetheless, it is also established that “even a combination of

innocent facts, when taken together, may warrant further investigation[.]”

Commonwealth v. Kemp, 961 A.2d 1247, 1255 (Pa.Super. 2008) (en

banc)); see also Commonwealth v. Cook, 735 A.2d 673, 676 (Pa. 1999).

As this Court cogently stated in Commonwealth v. Riley, 715 A.2d 1131,

1135 (Pa.Super. 1998), “Merely because a suspect's activity may be

consistent with innocent behavior does not alone make detention and limited

investigation illegal. . . .     Rather, we view the circumstances through the

eyes of a trained officer, not an ordinary citizen.”

       We consider what level of interaction occurred under a totality of the

circumstances test.      Commonwealth v. Williams, 73 A.3d 609, 615-616

(Pa.Super. 2013).        This standard is an objective one and looks to the

reasonable belief of the citizen and not the subjective view of law
____________________________________________


2
    Terry v. Ohio, 392 U.S. 1 (1968).



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enforcement. Commonwealth v. Lyles, 54 A.3d 76, 83 (Pa.Super. 2012).

“In evaluating the circumstances, the focus is directed toward whether, by

means of physical force or show of authority, the citizen-subject's movement

has in some way been restrained.” Id. at 79-80. Accordingly, we look to

whether “in view of all surrounding circumstances, a reasonable person

would have believed that he was free to leave.” Id. at 79.

      The Commonwealth maintains that the suppression court “disregarded

the totality of the circumstances.”   Commonwealth’s brief at 7.   It asserts

that “an eleven-year veteran police sergeant responsible for hundreds of gun

arrests in the violent, high crime neighborhood in this case testified that

[Appellant] fit the physical description and wore the clothing described in a

police radio call of a ‘man with a gun.’” Id. In addition, the Commonwealth

notes that Appellant moved his hand under the barber’s cape after police

entered the room and asked if anyone had called about a person with a gun.

      The Commonwealth continues that the suppression court did not

properly consider that this case involved three separate anonymous phone

calls describing a black male with a gun entering a barbershop.        Two of

those calls identified the person as wearing a light colored thermal shirt.

The   Commonwealth,    in   a   post-submission   communication    filed   with

permission from this Court, relies on three separate cases to argue that the

anonymous calls, in conjunction with the remaining circumstances, support

the warrantless seizure and search.

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       Specifically,   the    Commonwealth        points    to   Commonwealth        v.

Ranson, 103 A.3d 73 (Pa.Super. 2014),3 Navarette v. California, 134

S.Ct. 1683 (2014), and In the Interest of D.M., 781 A.2d 1161 (Pa.

2001).    In Ranson, a Pittsburgh police detective with eighteen years of

experience was working as part of an approved off-duty detail at an after

hours club. The club was located in a high crime area and the officer had

worked security at the business for four years. As the club was closing, at

approximately 3:30 a.m., a patron approached the detective and pointed out

an individual whom the informant claimed had a gun. The detective did not

know the informant’s name, but maintained that he saw the person every

weekend at the club.

       The    detective    and    two    other   police    officers   working   security

approached the identified person, Ranson.            As the officers, who were in

uniform, came near, Ranson put his hands in his hooded sweatshirt and

began to walk away. The police ordered him to stop, but he continued to

walk away. The original detective pulled out his firearm and held it at his

side and continued to instruct the defendant to stop.                    After walking

approximately fifty feet, the defendant turned around. The police told the

____________________________________________


3
  The Commonwealth incorrectly refers to the case as Commonwealth v.
Ransom and failed to provide the citation to the case. However, it is
evident from the Commonwealth’s recitation of the facts of that case, that it
is discussing the case we reference.



                                           -8-
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defendant to remove his hands from his sweatshirt.           The defendant

complied, at which point police could see the outline of a gun.        Police

discovered a handgun in the front pocket of Ranson’s sweatshirt.

      This Court upheld the stop and search.      First, the panel noted the

distinction between the typical anonymous tip where police have no

information as to whom the tipster is and the situation presented therein.

Since the tip was given in person, we concluded it had more indicia of

reliability than the traditional anonymous tip.    We added that the stop

occurred in a high crime area and that Ranson had walked away after seeing

police approach him.

      Naverette, in contrast, involved a motor vehicle stop. There, police

received an anonymous 911 call identifying a silver Ford pickup truck with a

specific license plate as having run the caller off the road five minutes

earlier. Approximately thirteen minutes later, police observed the truck in

question.   Police followed the vehicle for five minutes. Although the police

did not observe any driving infractions, they elected to stop the car.

Ultimately, the police discovered thirty pounds of marijuana in the vehicle.

The United States Supreme Court, in a five-to-four decision, upheld the stop.

The majority ruled that the 911 call was sufficiently reliable and provided

reasonable suspicion for the traffic stop.

      In D.M., the Pennsylvania Supreme Court in a four-to-three decision

upheld a search after police received an anonymous tip describing a man

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with a gun at a precise location.    Police responded to the location, where

they saw and identified D.M, who matched the description provided to police.

Upon seeing police, D.M. fled. Originally, the Pennsylvania Supreme Court

ruled the stop illegal under the Fourth Amendment and the Pennsylvania

Constitution. The United States Supreme Court vacated that decision. The

D.M. Court, upon remand, ruled that the anonymous tip, coupled with flight,

warranted the stop.

      Appellee counters that police lacked specific and articulable facts

necessary to reasonably conclude he was armed. He contends that he was

lawfully sitting in a barber chair during the day time, getting a haircut, and

that he only marginally matched the descriptions given by the anonymous

callers.   Appellee adds that the suppression court did not find his hand

movement to be furtive as he merely placed his hand underneath the barber

cape and there was no indication that he was reaching for anything.

      Appellee continues that the officer here only had a hunch that

Appellant was the individual identified by the anonymous calls. He asserts

that “the mere fact that a person fits a vague description given by an

anonymous source does not constitute sufficient basis for a Terry search

because tips are unreliable and therefore are treated with suspicion.”

Appellee’s   brief   at   12.   In support,   Appellant   relies   principally   on

Commonwealth v. Wiley, 858 A.2d 1191 (Pa.Super. 2004).




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      In Wiley, at noon, a person saw Wiley inside a restaurant with a gun

in his waistband. The concerned citizen followed the defendant and saw him

enter a barbershop. The tipster called 911 and described the defendant as a

five-foot-seven-inch black male, approximately twenty-five years of age. He

indicated that he saw the defendant in the restaurant with a gun and

observed him walk into a barbershop.         He provided the address of the

barbershop. The tipster remained at the scene until police arrived and, after

Wiley was arrested, told police that he had called. The police responded to

the barbershop within one and one-half minutes of the call. An officer who

was familiar with the barbershop entered the business with his gun drawn

and directed Wiley to raise his hands. Police recovered a loaded .22 caliber

revolver.

      A panel of this Court ruled that the police action therein was unlawful.

Since police did not learn of the caller’s identity until after Wiley was

arrested, we viewed the tip as anonymous. The Wiley Court reasoned that

the single anonymous tip alone was insufficient to justify the seizure. The

Court held that the mere corroboration of Wiley’s features with the

information from the call did not create reasonable suspicion.

      Preliminarily, we find that none of the cases relied on by the

Commonwealth are particularly apt, nor are they controlling.         Ranson

involved an in-person identification. Naverrette relates to a motor vehicle

stop and in D.M., the suspect attempted to flee. Nonetheless, we disagree

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with Appellee that Wiley compels affirmance.            Unlike Wiley, this case

involves multiple tips and the officer did not enter the barbershop with his

weapon drawn. Further, Appellee moved his hand to where police could not

see it when they asked if anyone had called to report a person with a gun.

Thus, we are faced with a novel factual scenario.

      As    Appellee   litigated   his     motion   solely   under   Pennsylvania

constitutional principles, we focus on Article I, § 8. That provision 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 by the affiant.

Pa.Const., Article I, § 8. “[I]n several contexts, the Pennsylvania Supreme

Court has interpreted Article I, § 8 to afford broader protections than

interpretations of the Fourth Amendment by the United States Supreme

Court.”    Commonwealth v. Haynes, 2015 PA Super 94, *5 (collecting

cases).    “However, in other situations, our High Court has declined to

interpret Article I, § 8 as providing greater protections than the United

States Supreme Court’s Fourth Amendment jurisprudence.” Id. at *6. The

law governing Terry stops, i.e., stops and searches based on reasonable

suspicion, is the same under both the federal and Pennsylvania charters.

See Wiley, supra; see also Lyles, supra at 302.




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      Both the U.S. Supreme Court and Pennsylvania Supreme Court have

opined that the hallmark of any search or seizure is reasonableness.

Brigham City v. Stuart, 547 U. S. 398, 403 (2006); Commonwealth v.

Lagenella, 83 A.3d 94, 102 (Pa. 2013) (“The Fourth Amendment to the

United States Constitution and Article 1, Section 8 of the Pennsylvania

Constitution, protect individuals from unreasonable searches and seizures.”).

Accordingly, warrantless intrusions are generally considered unreasonable.

Haynes, supra at *3; Commonwealth v. Davido, 106 A.3d 611, 622 (Pa.

2014) (“Warrantless entries or searches are per se unreasonable under our

federal   and    state   Constitutions,    albeit   subject   to   certain   delineated

exceptions.”).

      Indeed, “[f]raming-era law enforcement could only justify felony

warrantless arrests if a felony in fact had been committed, and such an

arrest was ordinarily required to be based on exceptional circumstances.”

Haynes, supra at *9. Hence, where a person was seen to have committed

a felony by the officer or citizen, he could be stopped and arrested.              Id.

(citing Wakely v. Hart, 6 Binn. 316 (Pa. 1814)). In addition, “although not

seen, yet if known to have committed a felony, and pursued with or without

warrant, he may be arrested by any person.” Wakely, supra at 318

(emphasis in original); see also Haynes, supra at *9 (citing William Waller

Hening, The New Virginia Justice, 51 (Richmond, 2nd ed. 1810), stating, “a

constable hath no power to arrest a man for an affray done out of his own

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view, without a warrant from a justice, unless a felony were done, or likely

to be done”).

        “Since the constitutional prohibitions against general warrants was

because such warrants provided discretionary authority to constables,

customs officers, and other peace officers, ‘it is wholly implausible that the

Framers would have approved of broad use of warrantless intrusions,

because such intrusions would necessarily have rested solely on the officers’

own judgment.’” Haynes, supra at *10. Pointedly, law enforcement could

not enter a private home or business to conduct a search of a person or the

place without a warrant unless the official believed that violence was

occurring inside or he was in fresh pursuit of a person he observed commit a

felony or affray. Id at *11. As this Court stated in Haynes, “at the time of

Pennsylvania’s early constitutions, it was generally recognized by the people

that an unreasonable search and seizure occurred unless a specific warrant

authorized the search or seizure.”       Id.     Thus, Terry seizures based on

reasonable suspicion of criminal activity find little to no support in the text or

early    history   of   the   Pennsylvania   Constitution’s   prohibition   against

unreasonable searches and seizures.             See generally Haynes, supra

(discussing historical underpinnings of warrantless search and seizure law).

        However, the cases from both the Pennsylvania Supreme Court and

this Court upholding Terry searches are too legion to cite.           As outlined

previously, police must have reasonable suspicion that criminal activity is

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afoot, which is evaluated by the courts based on the totality of the

circumstances. Our state Supreme Court and the U.S. Supreme Court have

addressed reasonable suspicion in the context of a single anonymous tip.

Commonwealth           v.    Hawkins,      692      A.2d   1068    (Pa.   1997)    (OAJC),

Commonwealth           v.   Kue,    692    A.2d     1076    (Pa.    1997)   (OAJC),      and

Commonwealth v. Jackson, 698 A.2d 571 (Pa. 1997), Florida v. J.L.,

529 U.S. 266 (2000).          The plurality decisions in Hawkins and Kue were

decided on the same date with the votes of the justices involved being

identical.

       In    Hawkins,       Philadelphia   police     received     information    from    an

anonymous source that a black male wearing a blue hat, black jeans, and a

gold or brownish coat was at Sydenham and York Streets with a gun.4 Police

arrived within three minutes to that precise location and observed Hawkins.

Hawkins matched the description given. Accordingly, the officer stopped and

frisked Hawkins, “finding a .22 caliber revolver in his waistband.” Hawkins,

supra at 1069. The Hawkins plurality5 ruled the stop illegal. The plurality

opined that when police “respond to an anonymous call that a particular
____________________________________________


4
  The Pennsylvania Supreme Court decision does not reference the time of
day that the stop occurred.         However, this Court’s unpublished
memorandum set forth that the stop occurred at approximately 8:40 p.m.
5
  Chief Justice Flaherty authored the lead opinion and was joined by Justices
Cappy and Zappala. Justice Nigro concurred in result and Justice Newman
authored a dissenting opinion joined by Justice Castille.



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person at a specified location is engaged in criminal activity, and upon

arriving at the location see a person matching the description but nothing

more, they have no certain knowledge except that the caller accurately

described someone at a particular location.”       Id. at 1070.    The Hawkins

Court also found that the officer “had no independent reason to believe that

the suspect may have been involved in criminal activity.” Id. at 1071.

      Similarly, in Kue, police received an anonymous tip at 2:30 a.m. that

“an Asian male was ‘armed with a gun’ at the intersection of Second and

Olney Streets in Philadelphia.” Kue, supra at 1077. The tip described the

individual as wearing a striped shirt. The responding officer arrived at the

scene within three minutes and saw four Asian men, one of whom was

wearing a striped shirt.   Kue, the defendant, was not the individual in the

striped shirt. The officer witnessed the men speak quickly to each other and

look in different directions.   He then stopped and frisked each man.          The

search of Kue revealed a .25 caliber firearm in his waistband.

      Utilizing the same rationale as the Hawkins plurality, the Kue

plurality ruled that the stop and frisk was illegal. Specifically, it held that “in

order for police to act on an anonymous tip, the Terry requirement of

reasonable suspicion of criminal activity must still be satisfied and must be

independent of the telephone tip itself.” Id. at 1078. Since “there was no

independent reason to believe that criminal conduct was afoot,” the officer

“had no reason to search anyone[.]” Id.

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      While the Hawkins and Kue decisions were pluralities, the High Court

reached   a   majority   consensus   in   Jackson,   supra.    Therein,   “[a]t

approximately 10:23 p.m., a Philadelphia police officer received a police

radio report of a man in a green jacket carrying a gun. Other than the

location, no additional details were provided.”      Jackson, supra at 572.

Within two minutes of receiving the call, police arrived at the corner of

Snyder and Seventh Street where the person was alleged to be located. The

defendant was the only individual in a green jacket. There was no evidence

that he acted suspiciously. However, the officer stopped the defendant and

searched him. While the defendant was being searched, a small key box fell

next to him, which contained fourteen packets of cocaine.

      The majority ruled that the case was factually indistinguishable from

Hawkins. It reasoned that the fact that the police were able to corroborate

the location of the suspect and his wearing of a green jacket was insufficient

to warrant a Terry stop. The Jackson Court rejected the Commonwealth’s

argument “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.” Id. at 575. Instead, it ruled,

“[t]he danger to the police and public from firearms was already factored

into the balance when the requirement of reasonable suspicion was

articulated in Terry.” Id.

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      Consistent with our High Court’s expression in Jackson, the United

States Supreme Court in J.L. ruled that an anonymous tip that a person is

carrying a gun is, without additional evidence, insufficient to uphold a police

officer’s stop and frisk.    In J.L., police received an anonymous tip that “a

young black male standing at a particular bus stop and wearing a plaid shirt

was carrying a gun.”        J.L., supra at 1377.   Two officers responded and

observed three black males in the area. J.L, a juvenile, was wearing a plaid

shirt. “Apart from the tip, the officers had no reason to suspect any of the

three of illegal conduct. The officers did not see a firearm, and J.L. made no

threatening or otherwise unusual movements.”        Id. Despite not observing

any suspicious behavior, one officer directed J.L. to place his hands up,

frisked him, and found a gun.         The Supreme Court rejected creating a

firearm exception to Terry, and ruled that the stop and search violated the

Fourth Amendment.

      In the present case, police received three separate anonymous tips, all

of which identified a black male with a gun entering a barbershop.      Two of

the tipsters identified the individual as wearing a white thermal shirt. Officer

Schmid, with eleven years experience, including six in the district in

question, observed Appellee in the barbershop and described him as

matching the description given. It is undisputed that Appellee was wearing

a white thermal shirt.         The barbershop is located in a high crime

neighborhood.    After Officer Schmid asked if anyone had called about a

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person with a gun, Appellee moved his hand under the barber’s cape

concealing it from the Officer Schmid’s view. The officer asked Appellee to

show his hands, and lifted the barber’s cape.       Appellee leaned forward to

stand up, revealing the weapon. Although Appellee’s hand movement was

not illegal, even activity consistent with innocent behavior may be

considered as giving rise to reasonable suspicion.          Thus, this case is

distinguishable from those cases that suppressed evidence seized as a result

of receiving one anonymous tip without additional indicia of criminal activity.

      We add that we do not find that the number of anonymous tips

received provides a greater indicia of reliability than a single tip. The tips

remained anonymous, and one person may in fact provide multiple tips. The

number of tips is simply not dispositive nor is it enough that police

corroborate that a person matches the description of an anonymous tipster

or tipsters. Rather, police must be able to articulate specific facts giving rise

to a reasonable belief that the person matching the description by the

tipsters is engaged in criminal activity. We hold that under the totality of

these circumstances, police did have reasonable suspicion to detain

Appellee. Accordingly, we find that the suppression court erred.

      Order reversed. Case remanded. Jurisdiction relinquished.

      Judge Stabile joined the memorandum.

      Judge Donohue filed a dissenting memorandum.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/17/2015




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