J-A28003-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                          Appellee

                     v.

JESUS G. LEON

                          Appellant                    No. 2391 EDA 2013


            Appeal from the Judgment Entered on August 8, 2013
            In the Court of Common Pleas of Philadelphia County
             Criminal Division at No.: CP-51-CR-0006059-2013


BEFORE: GANTMAN, P.J., WECHT, J., and JENKINS, J.

DISSENTING MEMORANDUM BY WECHT, J.:               FILED DECEMBER 30, 2014

      The learned Majority holds that the instant investigative detention was

supported by reasonable suspicion. In reaching that conclusion, the Majority

relies upon an anonymous report stating that an armed individual was near

the intersection of Fairhill Street and Allegheny Avenue in the City of

Philadelphia.   Although the Majority classifies this report as highly specific

and corroborated, Maj. Mem. at 8, the record reveals that the report was

anonymous, offered no predictive information of future events, and was not

sufficiently corroborated by the officers. Accordingly, the Majority’s decision,

in my view, is inconsistent with binding precedent, which clearly and

deliberately requires that an anonymous tip be sufficiently corroborated such

that it exhibits sufficient indicia of reliability. Florida v. J.L., 529 U.S. 266,

270 (2000); Alabama v. White, 496 U.S. 325, 328 (1990). Because the
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officers here relied upon a report that was unaccompanied by any indicia of

reliability, and because I do not share the Majority’s willingness to depart

from our well-established case law, I respectfully, but adamantly, dissent.

       As a preliminary matter, I agree with the Majority that Leon was

seized for constitutional purposes at the moment that the police officers

exited their vehicle and attempted to curtail his movements by gunpoint.

This is so because the relevant inquiry is “whether a reasonable [person]

innocent of any crime, would have thought he was being restrained had he

been in the defendant’s shoes.” Commonwealth v. Jones, 378 A.2d 835,

840 (Pa. 1977).       A reasonable person standing in Leon’s shoes would not

have felt that he or she was free to depart from the show of potentially

lethal force that the officers exhibited.1



____________________________________________


1
       The Commonwealth contends that no seizure occurred because Leon
never submitted to the officer’s show of authority. Brief for Commonwealth
at 15 (“It is precisely because [Leon] fled from the police that he cannot
successfully claim that they seized him.”). In support of its position, the
Commonwealth cites California v. Hodari D., 499 U.S. 621 (1991), in
which the United States Supreme Court held that a person is not seized
unless he or she yields to an official showing of police authority. Hodari D.
would be controlling here if our review were limited to the question of
whether the police conduct violated the Fourth Amendment to the United
States Constitution. However, our own Supreme Court has explained that
Hodari D. is inconsistent with the concomitant protections afforded by
Article I, Section 8 of the Pennsylvania Constitution. Commonwealth v.
Matos, 672 A.2d 769, 776 (Pa. 1996).              Stated differently, our own
jurisprudence differs in this analysis from its federal counterpart only with
respect to the critical inquiry of whether a seizure has occurred.



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      It is well-settled that a police officer may, short of an arrest, conduct

an investigative detention if the officer has a reasonable suspicion, based

upon specific and articulable facts, that criminal activity is afoot. Terry v.

Ohio, 392 U.S. 1, 21 (1968). The inquiry is an objective one: we analyze

whether the facts available to the officer at the moment of the intrusion

“warrant a man of reasonable caution in the belief that the action taken was

appropriate.”   Id. at 21–22.   This assessment, like that applicable to the

determination of probable cause, requires an evaluation of the totality of the

circumstances, United States v. Cortez, 449 U.S. 411, 417 (1981), with a

lesser showing needed to demonstrate reasonable suspicion in terms of both

quantity or content and reliability. See White, 496 U.S. at 330–31.

      Here, the officers’ suspicion that Leon was carrying a firearm arose not

from any observations of their own, but from information supplied by an

unknown informant. “Unlike a tip from a known informant whose reputation

can be assessed and who can be held responsible if her allegations turn out

to be fabricated, an anonymous tip alone seldom demonstrates the

informant’s basis of knowledge or veracity.” J.L., 529 U.S. at 270 (citations

and quotation marks omitted).      For this reason, an anonymous tip may

provide the requisite reasonable suspicion for an investigative detention only

in very specific and narrowly circumscribed situations. The report must be

corroborated sufficiently by investigating officers such that it exhibits

sufficient indicia of reliability. White, 496 U.S. at 328. The United States




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Supreme Court has described the necessary level of corroboration as

follows:

      An accurate description of a subject’s readily observable location
      and appearance is of course reliable in this limited sense: It will
      help the police correctly identify the person whom the tipster
      means to accuse. Such a tip, however, does not show that the
      tipster has knowledge of concealed criminal activity.         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., 529 U.S. at 272 (emphasis added).

      In Alabama v. White, 496 U.S. 325 (1990), the police received an

anonymous report stating that White was transporting cocaine.               The

unknown informant predicted that White would leave an apartment building

at a specified time, get into a brown Plymouth station wagon with a broken

right taillight lens, and drive to a named motel. Id. at 327. The officers’

subsequent investigation revealed that the informant had accurately

predicted the future movements that White would make. Id.

      The Supreme Court made clear that, standing alone, the informant’s

tip would not have justified a Terry stop. Id. at 329. However, the Court

held that the officers’ suspicion became reasonable after their surveillance

demonstrated    that   the   informant   had   knowledge   of   White’s   future

movements.     Id. at 332 (“We think it also important that . . . the

anonymous [tip] contained a range of details relating not just to easily

obtained facts and conditions existing at the time of the tip, but to future

actions of third parties ordinarily not easily predicted.”). The Court further

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reasoned that an informant’s knowledge of a person’s future behavior

indicates   some   level   of   familiarity     with   that   person’s   affairs,   but

acknowledged that such familiarity does not necessarily imply that the

informant has accurate knowledge of criminal conduct. For this reason, the

majority in White candidly classified the decision as “a close case.” Id.

      Here, the report relied upon by the police stated only that a Hispanic

male who was wearing a “black jacket, orange shirt, blue jeans, and orange

and blue sneakers” was armed with a weapon.                    Notes of Testimony,

7/19/2013, at 5-6. The mere fact that officers subsequently observed that

Leon’s clothing matched the informant’s description is insufficient to

corroborate the report.    Indeed, the Supreme Court of the United States

unequivocally has rejected the notion that corroboration of an anonymous

tip can be based upon such readily observable characteristics.              J.L., 529

U.S. at 272.

      Moreover, unlike in White, the anonymous report included no

prediction of Leon’s future behavior.         The Majority overlooks the complete

lack of corroboration by focusing upon: (1) the fact that Leon’s clothing

matched the description provided by the unknown informant, and (2) that

officers observed Leon in the reported location. Maj. Mem. at 8. Of course,

neither of these facts increases the probability that the informant’s tip was

reliable “in its assertion of illegality, not just in its tendency to

identify a determinate person.” J.L., 529 U.S. at 272 (emphasis added).

If the level of corroboration in White rendered reasonable suspicion “a close

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question,” then the lack of reasonable suspicion in the instant matter is

unmistakable.

      Nevertheless, a second avenue exists by which the police may obtain

the necessary corroboration of a report from an unknown source.                    In this

regard, corroboration may be supplied by circumstances that are wholly

independent of the tip, for example, observation of suspicious conduct by

the suspect. Commonwealth v. Zhahir, 751 A.2d 1153, 1157 (Pa. 2000)

(citing United States v. Roberson, 90 F.3d 75, 80 (3d Cir. 1996) (noting

that in the context of an anonymous tip, the absence of predictive

information would not necessarily invalidate it as a consideration in the

totality of the circumstances, if, after corroborating readily observable facts,

police had observed the suspect engaging in unusual or suspicious

conduct)).

      Here,       the   totality   of   the   circumstances     does   not demonstrate

suspicious        and   furtive    behavior     that,   when      combined     with    the

unsubstantiated tip, would provide “independent corroboration of the

[report’s] essential allegation.”        Zhahir, 751 A.2d at 1157.         In concluding

otherwise, the Majority relies upon the fact that officers observed Leon with

his hands in his pockets. Maj. Mem. at 8. But, the mere act of shielding

one’s hands from public view, particularly when a person is outdoors in

December, falls short of furtive behavior. Compare Zhahir, 751 A.2d 1153

(finding     an    anonymous        report     of   narcotics    trafficking   sufficiently

corroborated where appellant, upon observing the police, discarded an

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unknown item, which he then retrieved after the officers had passed by).

The fact that the report, if true, described a male in possession of a firearm,

does not transform the innocent act of placing one’s hands into one’s

pockets into evidence demonstrating that criminal activity is afoot.

      The Supreme Court of the United States has expressed concern that

allowing an anonymous tip, by itself, to justify an investigative detention

would permit vindictive persons to expose their enemies to an intrusive and

embarrassing police search by falsely reporting that criminal activity is afoot.

J.L., 529 U.S. at 272; Illinois v. Gates, 462 U.S. 213, 246 (1983). The

approach adopted by the Majority similarly would allow uncorroborated tips

to serve as a skeleton key to an investigative detention. In the Majority’s

view, the police may rely upon an uncorroborated report so long as they can

also articulate any additional innocent factor—for example that the suspect’s

hands were concealed in his or her pockets—to form the necessary quantum

of reasonable suspicion. Such a result is constitutionally untenable.

      For the foregoing reasons, I would find that the totality of the

circumstances do not give rise to specific and articulable facts supporting

reasonable suspicion that Leon was engaged in or about to engage in

criminal activity, and that the investigative detention, therefore, was

unconstitutional. Accordingly, I would reverse the trial court’s order denying

Leon’s motion to suppress.      The Majority having concluded otherwise, I

respectfully dissent.




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