The Pennsylvania Supreme Court has decided the case of Commonwealth v. Hicks, holding that the police cannot stop someone just because they believe the person has a gun. This decision could affect hundreds of cases, especially in Philadelphia, where the police routinely stop people for carrying guns without any actual knowledge of whether that person may be carrying lawfully.
Commonwealth v. Hicks
On June 28, 2014, at approximately 2:30 A.M., a remote camera operator conducting live surveillance of a gas station and convenience store in Allentown, Pennsylvania notified police officers that a patron of the establishment was in possession of a firearm. The camera operator advised officers that the individual showed the firearm to another patron, put the firearm in his waistband, covered it with his shirt, and walked inside the convenience store. This individual eventually became the defendant. Notably, the defendant possessed a valid license to carry a concealed firearm, and he was not statutorily prohibited from possessing a firearm. Accordingly, on the morning in question and at the observed location, there was nothing unlawful about the defendant’s possession of the handgun nor the manner in which he carried it. It is also not illegal to show a gun to someone else (so long as you do not point it at them).
While responding officers were en route, the defendant entered and exited the convenience store and then reentered his vehicle. Before the defendant could exit the parking lot, numerous police officers in marked vehicles intercepted and stopped his vehicle. Believing that the defendant had moved his hands around inside the vehicle, one of the officers drew his service weapon as he approached the defendant’s vehicle and ordered him to keep his hands up. Other officers came and restrained the defendant and removed the firearm. The officers stated that there was an odor of alcohol emanating from the defendant. They then searched him and recovered a small amount of marijuana.
Because the defendant had a license to carry a firearm, he was not charged with any crimes relating to the firearm. However, he was charged with DUI, possession of a small amount of marijuana, and disorderly conduct. The defendant filed an omnibus pre-trial motion seeking suppression of the evidence. He also filed a writ of habeas corpus alleging that there was not sufficient evidence to hold him for trial on the charge of disorderly conduct. The trial court agreed and dismissed the disorderly conduct charge. However, the court denied his motion to suppress.
In denying his motion, the trial court stated that possession of a concealed weapon in public creates the reasonable suspicion justifying an investigatory stop in order to investigate whether the person is properly licensed. This was based on the Pennsylvania Superior Court decision in Commonwealth v. Robinson (this is also referred to as “The Robinson Rule”). After the motion, the defendant proceeded to a non-jury trial where the court found him guilty of one count of DUI and acquitted him of the remaining charges. He was sentenced to a term of incarceration of thirty days to six months and was assessed a monetary fine. The defendant subsequently filed an appeal. The Superior Court affirmed his decision. Like the trial court, the Superior Court focused mainly on The Robinson Rule and held that the officers had reasonable suspicion to stop the defendant. The defendant then filed an allowance of appeal to the Pennsylvania Supreme Court which was granted.
What is the Robinson Rule?
The Robinson Rule was a rule that provided that carrying a concealed firearm constituted per se reasonable suspicion authorizing the use of official force to seize an individual in order to investigate whether the person is properly licensed. In other words, if the police received information that you were in possession of a firearm you could be stopped, by force if necessary and without a warrant, and subjected to an investigation to determine whether or not you were lawfully allowed to possess the firearm.
For those of you familiar with the Terry doctrine, this seems out of place with it because possessing a firearm is often not illegal. The Second Amendment of the United States Constitution allows for individuals to possess firearms. Because a Terry stop is only warranted when the officer has a reasonable suspicion that criminal activity is afoot (or in other words an objectively reasonable belief based on all of the facts known to the officer that the person stopped is, or is about to be, engaged in criminal activity). With Terry in mind, it seems peculiar that The Robinson Rule would be constitutional. This is what the defendant argued in his appeal to the Pennsylvania Supreme Court.
Carrying A Gun Does Not Give Police Reasonable Suspicion
In its decision, the Pennsylvania Supreme Court first analyzed several of its prior decisions and decisions from other jurisdictions that addressed the issue of whether the police can stop someone for possession of a firearm. For instance, the Court analyzed the decisions in Commonwealth v. Hawkins and Commonwealth v. Jackson, two cases that are routinely cited when litigating a motion to suppress a gun. In these decisions, the Pennsylvania Supreme Court highlighted how its predecessors routinely dismissed the Commonwealth’s argument that the police can stop someone simply because they have information that they have a gun.
The Court also applied the Terry and its progeny of cases to the facts in the defendant’s case. Based on its analysis, the Pennsylvania Supreme Court found that The Robinson Rule subverts the fundamental principles of Terry. The Court stated “[w]e find no justification for the notion that a police officer may infer criminal activity merely from an individual’s possession of a concealed firearm in public…it is not a criminal offense for a license holder…to carry a concealed firearm in public.” The Court further stated “[u]nless a police officer has prior knowledge that a specific individual is not permitted to carry a concealed firearm, and absent articulable facts supporting reasonable suspicion that a firearm is being used or intended to be used in a criminal manner, there is simply no justification for the conclusion that the mere possession of a firearm, where it lawfully may be carried, is alone suggestive of criminal activity.”
Finally, the Court analogized this to driving a car. It is obviously a requirement for someone to have a driver’s license to operate a motor vehicle, however the police cannot stop every single person to ascertain this information. Because possessing a gun is legal, police are not allowed to stop every person to see if they have a license. Consequently, the Supreme Court found that the lower courts erred when denying the defendant’s motion to suppress. Therefore, the Court remanded the case for the trial court to rule on whether police had any basis for stopping the defendant beyond his mere possession of a concealed weapon.
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