DEFENDANT WHO PUT GUN IN FLOWER POT WAS NOT SEIZED WHEN ASKED BY POLICE TO “COME HERE”
The PA Superior Court has decided the case of Commonwealth v. Newsome, No. 1225 EDA 2016 (September 7, 2017), holding that the trial court erred in granting Newsome’s motion to suppress a firearm that he discarded after being asked to “come here” by a police officer investigating an anonymous tip of persons passing around a firearm.
Police received an anonymous radio call that a group of five to seven males was gathered outside on a public street in Philadelphia, passing around a gun. Upon arriving at the location, an officer saw a group of men huddled together and two of the individuals leave the group and walk to the other side of the street. One of the men, Newsome, began to walk away and was asked by the officer “to come here” so he could talk to him. Newsome refused and continued walking during which time the officer observed him reach into his waistband, remove an object that looked like a handgun, and place it in a nearby flowerpot.
Another officer retrieved the firearm from the flower pot and Newsome was subsequently arrested and charged with unlawful possession of a firearm, firearms not to be carried without a license, and carrying a firearm on public streets or public property in Philadelphia.
Newsome filed a pre-trial Motion to suppress the firearm, arguing that police lacked reasonable suspicion to stop or question him and that this stop constituted an unlawful seizure. The trial court agreed and suppressed the firearm. The Commonwealth appealed.
On appeal, the Superior Court noted certain factors involved in the interaction before concluding that that the officer’s initial interaction with Newsome was a mere encounter that developed into a lawful investigative detention only after he observed Newsome discard the firearm at issue.
Specifcally, the Court noted that when the officer exited his police vehicle, he “asked” Newsome “to come here” so he could talk to him. However, Newsome refused and continued walking down the street. Further, the officer explained that he approached Newsome to both investigate the radio call and because he believed Newsome was in violation of Philadelphia’s curfew. The Court noted that Newsome felt no compulsion to stop and told the officer as much as he continued to walk away. Lastly, the Court noted that the officer made the arrest only after observing Newsome voluntarily discard the firearm into a flower pot as he continued walking down the street.
The Superior Court concluded that, “although it is well settled in this Commonwealth that an anonymous call by itself does not provide reasonable suspicion or probable cause sufficient to support a seizure, it would amount to a dereliction of a police officer’s duties if he failed to investigate a report of individuals passing around a firearm in an area known for shootings.”
Accordingly, the officer’s request of Newsome that he “come here” so he could talk to him was not a substantial impairment on Newsome’s liberty of movement, particularly considering the officer’s legitimate concerns for the safety of the community and his sound belief that Newsome may have been in violation of Philadelphia’s curfew.
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