The PA Superior Court has decided the case of Commonwealth v. Mackey, No. 1460 EDA 2015 (December 20, 2017), holding that the police did not have reasonable suspicion to detain Mackey, based on an uncorroborated, anonymous tip that a person fitting his description, on the bus he was riding, at the time he was riding it, was carrying a firearm.

Mackey was convicted of persons not to possess a firearm, carrying a firearm without a license, and carrying a firearm on the public streets of Philadelphia.

Officers had received an anonymous call of a black male, wearing a white T-shirt and a flowered hat, carrying a firearm on a public bus. The anonymous caller did not report that the subject had brandished the weapon, threatened its use, or even told another person that he was carrying a concealed firearm.

A police officer, along with another officer, found, stopped and boarded the bus. As he boarded, the officer drew his firearm and, when he observed Mackey (who fit the given description), he pointed his firearm at Mackey and commanded that he show his hands. Mackey complied. (Ed. Note – That is always a smart decision.)

The officer explained that, when he drew his service weapon, Mackey sat up straight, while all the other passengers were leaning away and trying to duck for cover. Mackey was handcuffed and led off the bus for passenger as well as officer safety. Mackey denied having any weapons. But, the officer noted that while he was being led off the bus, Mackey was not walking normally, he was “waddling.” The officer testified that in his experience as an officer, he believed that Mackey was trying to keep a gun from falling out of his loose-fitting pants. (Ed.Note – few things stay secure in loose-fitting pants.)

Mackey was arrested. He filed a motion to suppress the evidence, based on the officer’s unlawful detention and search. The trial court concluded that the officer had properly removed Mackey from the bus out of a concern for public safety and that, based on a combination of (1) the detailed tip; (2) Mackey’s response to the officer drawing and pointing his service weapon; and, (3) Mackey’s “waddling” off the bus, the officer had reasonable suspicion to frisk Mackey for weapons. Mackey was ultimately convicted and appealed the trial court’s suppression denial to the Superior Court.

The Superior Court first acknowledged that that the United States Supreme Court has made clear that an anonymous tip that a particular person in a particular location is carrying a firearm does not, by itself, establish reasonable suspicion for an investigative detention. Additionally, the Superior Court noted that Pennsylvania appellate precedent also instructs us that when the underlying source of the police department’s information is an anonymous telephone call, the tip should be “treated with particular suspicion.”

As noted by the Superior Court, “the relevant inquiry is whether an officer possesses reasonable suspicion of criminal activity before initiating the detention.” And, “at the moment an encounter moves from a consensual ‘mere encounter’ to an investigative detention, police must already have the requisite reasonable suspicion to support that detention – reasonable suspicion cannot be based on information discovered after the detention has begun.”

Worthy of repeating for the practitioner, the Superior Court concluded that, in order to frame its analysis of the constitutionality of police conduct, a trial court must identify “the moment” when an encounter moves from a “mere encounter” to an “investigative detention.” It is at that “moment” that the officer must possess the requisite reasonable suspicion. In other words, the defendant’s subsequent conduct or information obtained after the detention has already begun cannot be used to justify the initial detention. For example, in Mackey’s case, the officer’s observations after the detention began, such as Mackey’s behavior in response to having a weapon pointed at him or Mackey’s “waddling” off the bus could not be used to justify the initial detention.

The Superior Court found the circumstances of Mackey’s case to be consistent with prior cases where an arresting officer seizes his suspect on arrival, without developing any support for the anonymous tipster’s assertion that the suspect was armed. Additionally, the Court noted that here, as in a previously-decided case, “both anonymous tips reported only that the person in question was armed — there was no suggestion that either suspect was carrying a firearm without a license or was otherwise involved in or about to commit a crime.” Essentially, “all the police had to go on was the bare report of an unknown, unaccountable informant who neither explained how he knew about the gun nor supplied any basis for believing he had inside information about the suspect.”

It was also heartening to note that the Superior Court addressed the human inclination (after all, judges deciding suppression motions are human) to view these suppression issues with 20:20 hindsight, i.e. – the officer was correct, the guy had a gun so … what’s the problem? Again, the practitioner may wish to utilize the comments footnoted in the decision to assuage future trial courts when addressing similar issues:

Courts reviewing motions to suppress must guard against the hindsight bias occasioned by the fact that in each such case, the police turned out to be right – the suspect did indeed possess the item (or other evidence of crime) for which the police were searching. The set of circumstances for which our constitutional protections may be more easily understood as valuable – when the police turn out to be wrong in their suspicion that a particular person is engaged in wrongdoing – most often do not result in litigation.

Ultimately, in Mackey’s case, the Superior Court concluded that, under controlling precedent, the police lacked reasonable suspicion to detain Mackey; overturned the trial court’s denial of his motion to suppress; and, vacated the judgment of sentence.



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