Com. v. Leon, J.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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