Com. v. Mackey, S. ( 2017 )

J-S81029-16
2017 Pa. Super. 403
COMMONWEALTH OF : IN THE SUPERIOR COURT OF
PENNSYLVANIA : PENNSYLVANIA
:
:
v. :
:
:
STEPHEN MACKEY :
: No. 1460 EDA 2015
Appellant
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.
DISSENTING OPINION BY STEVENS, P.J.E.: FILED DECEMBER 20, 2017
In a 1999 Pennsylvania Supreme Court case, Commonwealth v.
Hawkins, 692 A.2d 1068 (Pa. 1997), the Opinion Announcing the Judgment
of the Court dismissed as “fanciful and histrionic” the Commonwealth’s
references to schoolyard shootings and assassination of public figures as
possible consequences if Terry1 jurisprudence always required independent
corroboration of “man with gun” anonymous tips.
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1 Terry v. Ohio, 392 U.S. 1, 88 S.Ct 1868, 20 L.Ed 2d. 889 (1968) (holding
an officer may, consistent with the Fourth Amendment, conduct a brief,
investigatory stop when the officer has reasonable, articulable suspicion that
criminal activity is afoot).
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* Former Justice specially assigned to the Superior Court.
J-S81029-16
Sadly, the Commonwealth’s references in 1997 were neither fanciful nor
histrionic; they were, instead, prescient.2 If anything, our law enforcement
officers, our children, and our law-abiding citizens are at risk of serious danger
more than ever before from indiscriminate gun use by violent criminals. Such
violence, especially the vicious targeting of our law enforcement officers,
cannot be tolerated.
The touchstone of Terry is reasonableness, a standard derived from
balancing the government’s interest in intruding, the degree of the intrusion,
and the citizen’s counterveiling privacy interest. On balance, the totality of
circumstances pertinent to the reasonableness inquiry in the instant case
weighed in favor of the government’s interest in promoting public safety by
securing Appellant for a Terry frisk. The “man with gun” tip not only described
the suspect’s appearance and location specifically, it also placed him on a
crowded bus in a high crime neighborhood.
To invalidate a weapons pat-down under these facts, occurring as they
did against a backdrop of escalating acts of random gun violence in our
society, would place an undue restraint on law enforcement’s ability to
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2 Columbine High School, Colorado, April 1999: 15 fatally shot victims;
Tucson, Arizona, January 2011: assassination attempt of U.S. Representative
Gabby Giffords leaves six dead and 13 wounded; Sandy Hook Elementary
School, Connecticut, December 2012: 28 fatally shot victims; Blooming
Grove, Pennsylvania, September 2014: State Trooper Bryon Dickson II fatally
shot, State Trooper Alex Douglass critically injured; Washington, D.C., June
2017: armed attack of congressional staff baseball team and capitol police;
October 2017, Las Vegas, Nevada: 58 people fatally shot, 546 injured.
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respond effectively to a report of imminent danger and, consequently, would
jeopardize both the public’s and police safety.
As former Justices Sandra Newman and Ron Castille so cogently noted:
I can think of no more compelling reason for the police to conduct
a Terry stop and frisk than in a situation where they receive a tip
that a man with a gun is lingering around a schoolyard. I shudder
to think what might happen if the police were forced, as the
Majority suggests, to wait for the man to use the gun before they
could act.
Accordingly, I would hold that under the totality of the
circumstances here, where police immediately found Hawkins,
who matched the informant’s description of a “man with a gun” at
an exact location in the middle of the night and, given the
likelihood that the gun was illegal, police had sufficient reasonable
suspicion that there was a reasonable suspicion of criminal activity
to stop Hawkins and conduct a protective frisk.
….
…[W]e must consider the nominal intrusion that occurs when
police conduct a protective frisk. During a pat-down, police simply
feel the outer surface of a suspect’s garments. They do not enter
pockets of interior clothing unless they feel an object that could
be a concealed weapon. Further, as noted [in United States v.
Clipper, 973 F.2d 944 (D.C.Cir. 1992)], mere surveillance or
attempts to approach and question “man with gun” suspects could
have grave consequences. Clearly the safety interests of the
police in a “man with gun” case outweigh the limited invasion of
privacy that occurs during a patdown search.
…[T]he balancing test in Terry should be resolved in favor of the
police in “man with gun” cases. The Majority’s interpretation of
Terry in “man with gun” cases ties the hand of the police and
leaves them susceptible to ambush and assault.
….
I agree with the Majority that Article I, Section 8 of the
Pennsylvania Constitution vigorously protects each citizen’s
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personal privacy, but I believe the Majority has failed to properly
weigh the countervailing safety interests of the public and the
police when responding to a “man with a gun” tip in its analysis
pursuant to Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d
889 (1968). The reality of law enforcement in today’s society is
that bank robbers, fanatics and other gunmen are fully armed and
ready to indiscriminately kill citizens and police. [] The Majority
loses sight of the fact that Terry was written to help protect police
from the dangers of armed suspects. Therefore, I respectfully
dissent and call out for the protection of people in law enforcement
and in our entire society through a proper evaluation of their
safety interests pursuant to the Fourth Amendment to the U.S.
Constitution and Article I, Section 8 of the Pennsylvania
Constitution.[]
Hawkins, 692 A.2d at 1071-76 (Newman, J., dissenting) (citations and
footnotes omitted).
Twenty years after Hawkins, society’s interest in protecting its law
enforcement officers and citizens from arbitrary acts of gun violence has
clearly become more compelling, more urgent, and more serious than ever
before. Waiting for the man to use the gun would only lead to another tragic
loss of innocent lives.
Accordingly, because I find the totality of circumstances made the “man
with gun” tip sufficiently reliable to justify the police response in the present
case, I would affirm judgment of sentence.
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