Anonymous Tip Cannot Provide Reasonable Suspicion for Police Stop

Can the the police stop someone based on an anonymous 911 call? 

Criminal Defense Attorney Zak T. Goldstein, Esq.

The Pennsylvania Superior Court has just decided the case of Commonwealth v. Mackey, once again holding that an anonymous tip of criminal activity, no matter how serious, does not provide police officers with the reasonable suspicion necessary to stop, arrest, or search a suspect. This is true even when the tip is for a person with a gun on a SEPTA bus. Although this has long been settled law, trial courts routinely attempt to disregard this rule in cases involving guns and drugs.

Commonwealth v. Mackey

In Mackey, Philadelphia Police Officers received an anonymous radio call for a person with a gun on a specific SEPTA bus. The radio call further described the person as “a black male wearing a white T-shirt and a flowered hat.” The officer who received the tip responded immediately, stopped the bus, and boarded the bus. Upon boarding the bus, which contained 50 to 60 passengers, the officer saw the defendant on the bus wearing a pink and green flowered hat and a shirt that was white on the back and black on the front. The officer testified that the hat was extremely distinctive in that it was a bucket hat patterned with pink and green flowers.

As soon as the officer saw the defendant and realized that the defendant matched the description from the anonymous radio call, the officer pulled his gun, pointed it at the defendant, and ordered him to raise his hands. The defendant sat up straight while the other passengers ducked for cover. The officer then handcuffed the defendant and removed him from the bus. He testified that as the defendant was being escorted from the bus, he waddled in a strange way, suggesting that he might have been walking that way to keep a gun from falling out of his loose-fitting pants. Once they were off the bus, the officer frisked the defendant and found a gun. He arrested the defendant and charged him with various gun charges.

Motion to Suppress the Firearm

The defendant filed a motion to suppress, arguing that under well-established case law, the police did not have the right to stop him and frisk him based on a totally anonymous radio call. At the evidentiary hearing for the motion to suppress, the officer was unable to provide any additional information about the radio call relating to who called it in. The officer also could not provide any specific reason for why he believed the call to be trustworthy prior to stopping and searching the defendant.

The trial court denied the motion to suppress. The Commonwealth and the court relied on the fact that the tip contained a great deal of detail and that the defendant waddled in a strange way while exiting the bus. The Commonwealth also stressed that the defendant sat up very straight while everyone else on the bus ducked for cover. The court denied the motion, found the defendant guilty following a bench trial, and sentenced him to 2 to 5 years in state prison followed by three years of probation.   

Mackey's Appeal to the Pennsylvania Superior Court

The defendant immediately appealed, and on appeal, the Superior Court reversed the conviction and the denial of the motion to suppress. The Superior Court heavily emphasized the difficulty in these cases. On one hand, police are fully expected to respond to a 911 call for a person with a gun, and the failure to do so could have disastrous consequences. At the same time, an anonymous radio call simply provides the police with no way to determine whether the call is genuine and reliable. If such a call provides the police with the basis for stopping and searching a suspect, then there are few protections for anyone as the police would be able to stop a person based on a prank phone call or even where another police officer has anonymously called 911 in order to provide the basis for the stop.

The Superior Court recognized that a long line of cases, including Commonwealth v. Jackson and Commonwealth v. Hawkins, have repeatedly held that the police may not conduct a stop based on anonymous information. The Commonwealth has repeatedly asked the courts to find a public safety or firearms exception to the warrant requirement in these cases because of the risk created by firearms, and the courts have unanimously rejected such an exception as unconstitutional. This case was no different. Accordingly, the Superior Court found that the officer did not have reasonable suspicion to stop the defendant. Finally, the Court found that the defendant was immediately seized when the officer entered the bus and pointed a gun at him. Because the officer only found the gun and noticed the waddling after stopping the bus, boarding it, and pointing a gun at the defendant, the waddling and strange behavior could not be used to provide reasonable suspicion because it happened after the illegal seizure. Accordingly, the Court reversed the denial of the motion to suppress, vacated the firearms convictions, and remanded the case for a new trial without the suppressed guns.    

Cases like Mackey are extremely important because they protect citizens from unconstitutional police searches even in cases involving charges as serious as illegal gun possession charges. They also prevent Pennsylvania citizens from being harassed and searched based on unreliable or even knowingly false information by requiring the police to show some evidence of reliability in the information before acting on it. At the same time, the officer’s hands were not totally tied. The officer likely would have been justified in getting on the bus and asking Mackey if he could ask him a few questions. If Mackey then acted nervously, walked strangely, or the officer observed a gun shaped bulge, the officer then may have been able to conduct the frisk lawfully. Instead, the officer immediately pointed a gun at the defendant without any basis for believing the tip, and this is particularly problematic given the fact that it is legal to carry a gun with a permit in Pennsylvania.

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