PA Superior Court: No Mere Encounter Where Officer Pointed Gun At Suspect (Obviously)

Criminal Defense Lawyer Zak T. Goldstein, Esquire

The Pennsylvania Superior Court has decided Commonwealth v. Thomas, 2026 PA Super 202 (Pa. Super. Sept. 16, 2026), holding that a Philadelphia police officer seized the defendant when he approached him with his gun drawn. The officer claimed that he only asked for identification, but he did not turn on his body camera until after the chase ended, and the suppression court did not believe him. Because a reasonable person would not feel free to walk away from an officer holding a gun, the Superior Court affirmed the order suppressing the firearm that the defendant discarded before he ran.

What happened in Commonwealth v. Thomas?

On May 16, 2024, an officer setting up narcotics surveillance saw the defendant walk by with a rectangular bulge near his hip that, according to the officer, moved like an unholstered gun. He put out a radio call that the man might have a gun. A second officer, who was alone, out of uniform, and driving an unmarked car, responded to the 3900 block of North Smedley Street. He testified that the defendant picked up the pace, so he got out to try to engage him in a mere encounter and ask for identification. According to the officer, the defendant bladed his body away, dipped down behind a parked car, and ran. Police caught him after a chase, and the officer recovered a gun from the wheel well of the parked car.

As is typical, the officer’s body camera video did not have any sound for the first minute. When the defendant began to stand back up from behind the parked car, the officer had his gun in his right hand, pointed chest-high across the car towards him. The officer testified that the gun was initially pointed up and that he lowered it when the defendant ran.

The suppression court first denied the motion, finding a mere encounter that turned into a stop supported by reasonable suspicion when the defendant dipped behind the car. The defense moved for reconsideration, and the court amended its findings. It found that the officer approached with his gun out and that, without audio, it could not know what he actually said. The court cited a Philadelphia police directive that requires officers to activate their cameras before conducting any pedestrian investigation, found that the officer deliberately failed to do so, and did not credit his testimony about what he said. It granted the motion, and the Commonwealth appealed to the Superior Court.

The Superior Court’s Ruling

The Superior Court first considered sua sponte whether the suppression court had jurisdiction to reverse itself more than 30 days after its original order. It did because a pre-trial suppression order is interlocutory and the 30-day limit in 42 Pa.C.S. § 5505 does not apply. Commonwealth v. James, 69 A.3d 180 (Pa. 2013). The Court did not endorse the procedure because Rule 581(J) makes the denial of a suppression motion final absent previously unavailable evidence, but the Commonwealth did not preserve that challenge.

On the merits, police may generally use abandoned property as evidence, but not where unlawful police action coerced the abandonment. Commonwealth v. Lewis, 343 A.3d 1016 (Pa. 2025). On appeal, the Commonwealth argued only that the interaction was a mere encounter and did not claim that the officer had reasonable suspicion. The question therefore became whether a reasonable person in the defendant’s position would have felt free to leave.

The Court held that he would not. An officer may approach someone in public and ask for identification without any suspicion, but the display of a weapon is one of the recognized factors that turns an encounter into a seizure. The video supported the finding that the officer activated his camera only after he had approached, chased, and apprehended the defendant, and the suppression court did not commit a clear and manifest error by discrediting him on that basis. The officer’s testimony that his gun was initially pointed up supported the conclusion that he pointed it towards the defendant before the defendant dipped down.

The Commonwealth argued that the defendant never saw the gun because he had turned away and was wearing a hood. The Court disagreed. The video does not show the defendant during the first six seconds after the officer got out of the car, and the Court found it reasonable to infer that he bladed away because he saw the gun. The Commonwealth also argued that the officer reasonably held his gun at his side for his safety. The Court responded that the question is whether a reasonable person would feel free to ignore the officer, not whether the officer acted reasonably for his safety. The Court affirmed. Judge Sullivan noted a dissent.

The Takeaway

Thomas is a helpful case for anyone charged with possessing a gun or drugs that the police recovered after a chase. Under Pennsylvania’s forced abandonment doctrine, if the police unlawfully seize someone and he throws something away in response, the Commonwealth cannot use it. Where an officer does not follow the body camera directive, defense counsel should ask the court to consider that failure in deciding whether to believe him.

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